Arapahoe County District Court No. 15CR3137 Honorable Phillip
L. Douglass, Judge
J. Weiser, Attorney General, Elizabeth Ford Milani, Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee
A. Ring, Colorado State Public Defender, Brian Cox, Deputy
State Public Defender, Denver, Colorado, for
1 Defendant, Dolores Quezada-Caro, appeals his judgment of
conviction for felony driving under the influence (DUI).
Among other things, he contends he was entitled to have a
jury determine beyond a reasonable doubt whether he had prior
convictions for impaired-driving offenses. If section
42-4-1301(1)(a), C.R.S. 2019, is interpreted otherwise, he
argues, it violates his right to equal protection because it
proscribes the same conduct as section 42-4-1307(6), C.R.S.
2019, but carries harsher penalties.
2 Consistent with other divisions of this court, we conclude
that the felony DUI statute does not require prior
convictions to be proved to the jury beyond a reasonable
doubt. And we reject Quezada-Caro's contention that
section 42-4-1301(1)(a) violates his right to equal
protection. Because Quezada-Caro's remaining contentions
also fail, we affirm.
3 An officer with the Glendale Police Department was on
patrol at around 2:35 a.m. when he noticed a pickup truck
parked in a lane of traffic with its engine running and the
lights on. When the officer approached the truck, he found
Quezada-Caro asleep in the driver's seat with vomit on
his shirt and drool leaking from his mouth. After several
attempts, the officer was able to wake and speak with
4 The officer testified that, during the encounter,
Quezada-Caro's eyes were bloodshot and watery, he had
difficulty standing and walking, and he smelled strongly of
alcohol. Quezada-Caro told the officer that he had been at a
bar about 1.6 miles away and had consumed three or four
beers. Later, during the same conversation, he admitted he
actually had eight or more drinks that evening. The officer
5 At the police station, Quezada-Caro consented to a blood
draw, which showed his blood alcohol level was 0.207.
Quezada-Caro told the officer approximately fifty times that
he did not care if he had been driving drunk and that it was
"no big deal." The prosecution charged Quezada-Caro
with, as pertinent here, felony DUI and DUI per se.
6 Prior to trial, Quezada-Caro moved for a ruling that prior
impaired-driving convictions are an element of a felony DUI
charge that must be proved to a jury beyond a reasonable
doubt. The district court disagreed, concluding that prior
convictions are a sentence enhancer, which it would determine
7 A jury convicted Quezada-Caro of both counts. At a separate
hearing, the district court found, beyond a reasonable doubt,
that Quezada-Caro had three prior Colorado DUI convictions
and at least two prior California DUI convictions. The
district court sentenced Quezada-Caro to six years in the
custody of the Department of Corrections, suspended upon the
successful completion of fifteen years of probation.
Quezada-Caro now appeals his felony DUI conviction.
8 Quezada-Caro contends that (1) he was entitled to have a
jury determine beyond a reasonable doubt whether he had prior
convictions for impaired-driving offenses and (2) the
district court erred by failing to modify his tendered
definitional instruction into a theory of the case
instruction. We disagree.
Prior DUI Convictions
9 Quezada-Caro contends the district court erred by treating
his prior impaired-driving convictions as a sentence enhancer
rather than as an element of the offense that had to be
proved to the jury beyond a reasonable doubt. Specifically,
Quezada-Caro argues that (1) the legislature intended proof
of prior impaired-driving convictions to be a substantive
element of a felony DUI offense; (2) we should not apply the
prior conviction exception to the general rule that any fact
increasing a penalty beyond the statutory maximum must be
submitted to a jury and proved beyond a reasonable doubt; and
(3) treating prior convictions as a sentence enhancer rather
than an element of the offense violates his right to equal
protection. We reject each contention.
Prior Convictions Are a Sentence Enhancer for a DUI Offense
10 Whether a statutory provision is a sentence enhancer or a
substantive element of an offense is a question of law that
we review de novo. Lopez v. People, 113 P.3d 713,
720 (Colo. 2005); People v. Gwinn, 2018 COA 130,
¶ 20. We interpret the plain language of a statute to
give full effect to the intent of the General Assembly.
People v. Griego, 2018 CO 5, ¶ 25. When the
statutory language is clear, we apply the plain and ordinary
meaning of the provision. Id. In doing so, we give
consistent, harmonious, and sensible effect to each part of
the statute, and we render no words or phrases superfluous.
11 "A statutory provision is a sentence enhancer when
the defendant may be convicted of the underlying offense
without any proof of the prior conviction."
Gwinn, ¶ 44; see People v. Schreiber,
226 P.3d 1221, 1223 (Colo.App. 2009); People v.
Whitley, 998 P.2d 31, 33 (Colo.App. 1999). In contrast,
elements of a crime are the "the legal components that
are necessary to establish criminal liability."
People v. Hopkins, 2013 COA 74, ¶ 8. Thus, a
fact is a sentence enhancer rather than a substantive element
of an offense if (1) a defendant may be convicted of the
underlying offense without any proof of the fact and (2) the
fact merely increases the defendant's potential
punishment. People v. Becker, 2014 COA 36, ¶
12 The felony DUI statute, section 42-4-1301(1)(a), provides
that "[a] person who drives a motor vehicle . . . under
the influence of alcohol . . . commits driving under the
influence." These are the only elements that must be
proved to convict a defendant of DUI. See Gwinn,
13 The statute continues:
Driving under the influence is a misdemeanor, but it is a
class 4 felony if the violation occurred after three or more
prior convictions, arising out of separate and distinct
criminal episodes, for DUI, DUI per se, or [driving while
ability impaired (DWAI)]; vehicular homicide . . .; vehicular
assault . . .; or any combination thereof.
§ 42-4-1301(1)(a). Thus, as the division in
Gwinn explained, a defendant may be convicted of DUI
without any proof of prior convictions, and proof of prior
convictions only increases the potential punishment. See
Gwinn, ¶¶ 44-49. Accordingly, the statute
unambiguously demonstrates that "the General Assembly
intended prior DUI convictions to constitute a sentence
enhancer rather than an ...