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People v. Viburg

Court of Appeals of Colorado, Sixth Division

January 16, 2020

The People of the State of Colorado, Plaintiff-Appellee,
v.
Kevin Wayne Viburg, Defendant-Appellant.

          Jefferson County District Court No. 16CR1633 Honorable Philip J. McNulty, Judge.

          Philip J. Weiser, Attorney General, Brock J. Swanson, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

          Megan A. Ring, Colorado State Public Defender, Meredith E. Osborne, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

          OPINION

          BERGER JUDGE.

         ¶ 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.[1] Accordingly, we reverse Kevin Wayne Viburg's conviction for felony DUI because his prior convictions were not proved to a jury.

         I. 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.

         II. 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 agree.

         ¶ 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 combination thereof."

         ¶ 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."[2] 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 ...


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