Original Proceeding Pursuant to C.A.R. 21 Mesa County
District Court Case No. 18CR772 Honorable Gretchen Larson,
Attorneys for Plaintiff: Daniel P. Rubenstein, District
Attorney, Twenty-First Judicial District Bradley E. Smith,
Deputy District Attorney Grand Junction, Colorado
Attorneys for Defendant: Megan A. Ring, Public Defender Kevin
Vermillion, Deputy Public Defender Grand Junction, Colorado
In this original proceeding pursuant to C.A.R. 21, we review
the district court's ruling denying Elizabeth Tafoya a
preliminary hearing when she was accused of a class four
felony and is being held in custody on that charge. Tafoya
was charged with, among other things, Driving Under the
Influence ("DUI")-fourth or subsequent offense, a
class four felony under section 42-4-1301(1)(a), C.R.S.
(2018). Tafoya requested a preliminary hearing on that
charge, but the district court denied her request, finding
that the DUI count was substantively a misdemeanor that could
only be elevated to a felony by way of a sentence enhancer.
Accordingly, in the court's view, Tafoya was not entitled
to a preliminary hearing on that count.
We issued a rule to show cause and now make the rule
absolute. Section 16-5-301(1)(b)(II), C.R.S. (2018), provides
that a defendant who is accused of a class four, five, or six
felony and is in custody for that offense "may demand
and shall receive a preliminary hearing." Here, the
legislature amended the DUI statute to provide that DUI is a
class four felony if the violation occurred after three or
more prior convictions arising out of separate and distinct
criminal episodes, the complaint and information accused
Tafoya of committing that class four felony, and she is being
held in custody on that charge. Accordingly, under the plain
language of the statute, Tafoya was entitled to a preliminary
hearing, and the district court erred in denying her request
for such a hearing.
Facts and Procedural History
Just after midnight, Deputy Bailey noticed a green sedan run
a stop sign, and he activated his lights to initiate a
traffic stop. The car sped away, however, and Deputy Bailey
gave chase, ultimately getting close enough to read the
car's license plate number, which he then reported to
dispatch. The license plate number matched that of a car
belonging to Tafoya. Eventually, the officer abandoned his
pursuit of the car.
Shortly thereafter, other deputies in the area reported
seeing the car, and two of the deputies were able to describe
the driver as a Hispanic female with curly black hair.
Several state patrol troopers, together with Deputy Bailey,
set up a perimeter around the area where the car was last
seen, but the driver successfully eluded them.
Later that afternoon, the car was found abandoned in a
residential area. Deputies searched the car, and inside they
found numerous items, including Tafoya's social security
card, a couple of family photos, and an empty wine glass.
One week later, the Mesa County Sheriff's Office
completed and submitted to the court a warrantless arrest
affidavit for Tafoya. This affidavit alleged a number of
counts but notably did not include a DUI charge. The court
ruled that probable cause existed for the listed charges, and
Tafoya was subsequently arrested. Due to her inability to
post bond, she has remained in custody since that time.
Several days after the court's probable cause
determination, the prosecution filed a complaint and
information. As pertinent here, the prosecution now charged
Tafoya with one count of DUI-fourth or subsequent offense, a
class four felony under section 42-4-1301(1)(a); two counts
of vehicular eluding, a class five felony under section
18-9-116.5, C.R.S. (2018); one count of criminal mischief, a
class six felony pursuant to sections 18-4-501(1) and (4)(d),
C.R.S. (2018); several misdemeanor and traffic charges; and
three habitual criminal counts.
In accordance with section 16-5-301(1)(b)(II) and Crim. P.
7(h), Tafoya requested a preliminary hearing on all of the
felony counts, including the DUI count. As to the DUI count,
she argued that she was entitled to a preliminary hearing
because section 16-5-301(1)(b)(II) provides that a defendant
who is accused of a class four felony and is in custody for
that charge is entitled to a preliminary hearing.
The prosecution agreed in part, asserting that Tafoya was
entitled to a preliminary hearing on all of the felony counts
except for the DUI count. Relying on People v.
Garcia, 176 P.3d 872 (Colo.App. 2007), among other
cases, the prosecution argued that Tafoya was not entitled to
a preliminary hearing on the DUI count because that offense
is substantively a ...