Jefferson County District Court No. 16CR1633 Honorable Philip
J. McNulty, Judge.
J. Weiser, Attorney General, Brock J. Swanson, Senior
Assistant Attorney General, Denver, Colorado, for
A. Ring, Colorado State Public Defender, Meredith E. Osborne,
Deputy State Public Defender, Denver, Colorado, for
1 We disagree with People v. Gwinn, 2018 COA 130,
and People v. Quezado-Caro, 2019 COA 155, and hold
that the prior convictions required to convict a person of
felony driving under the influence (DUI) are elements of the
offense and must be proved to a jury beyond a reasonable
doubt. Accordingly, we reverse Kevin Wayne
Viburg's conviction for felony DUI because his prior
convictions were not proved to a jury.
Relevant Facts and Procedural History
2 Police arrested Viburg for suspected DUI. He was charged
with felony DUI - fourth or subsequent offense based on the
allegation that he had three or more previous convictions for
driving while ability impaired (DWAI) or DUI.
3 Before trial, Viburg moved for a ruling that his alleged
prior convictions were elements of the offense that the
prosecutor must prove to a jury beyond a reasonable doubt.
The trial court denied the motion, concluding that the
prosecutor needed only to prove the prior convictions to the
judge by a preponderance of the evidence.
4 At trial, a jury convicted Viburg of DUI and careless
driving. At a post-trial hearing, the judge found by a
preponderance of the evidence that Viburg had three prior
convictions for DWAI or DUI. Based on that finding, the court
elevated Viburg's misdemeanor DUI conviction to a class 4
felony and sentenced him accordingly.
Prior Convictions Are Elements of Felony DUI
5 Viburg contends that the trial court violated his
constitutional rights by convicting him of a class 4 felony
based on its own finding that he had three prior convictions
for DUI or DWAI. He asserts that prior convictions are
substantive elements of the offense of felony DUI and
therefore the prosecutor should have been required to prove
the prior convictions to a jury beyond a reasonable doubt. We
6 We review questions of statutory interpretation de novo.
People v. Griego, 2018 CO 5, ¶ 25. "Our
primary task when construing a statute is to ascertain and
give effect to the legislature's intent." Young
v. Brighton Sch. Dist. 27J, 2014 CO 32, ¶ 11.
"We begin with the plain language of the statute,
reading the words and phrases in context and construing them
according to their common usage." People v.
Ramirez, 2018 COA 129, ¶ 9. "[I]f the plain
language of the statute demonstrates a clear legislative
intent, we look no further." Young, ¶ 11.
7 Section 42-4-1301(1)(a), C.R.S. 2019, provides that
"[d]riving 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 DWAI . . . or any
8 A "person is deemed to have a prior conviction for
DUI, DUI per se, or DWAI . . . if the person has been
convicted [of such crime] under the laws of this state . . .
. The prosecution shall set forth such prior convictions
in the indictment or information." §
42-4-1301(1)(j) (emphasis added).
9 "Much turns on the determination that a fact is an
element of an offense rather than a sentencing consideration,
given that elements must be charged in the indictment,
submitted to a jury, and proven by the Government beyond a
reasonable doubt." Jones v. United States, 526
U.S. 227, 232 (1999). Further, under the Fifth and Sixth
Amendments, "any fact that increases the penalty for a
crime beyond the prescribed statutory maximum," other
than a prior conviction, "must be submitted to a jury,
and proved beyond a reasonable doubt." Apprendi v.
New Jersey, 530 U.S. 466, 490 (2000).
10 For the reasons discussed below, we conclude that prior
convictions are elements of felony DUI that do more than
"increase the penalty for the crime."
Id. Therefore, to obtain a conviction for felony
DUI, a prosecutor must ...