United States District Court, D. Colorado
A. BRIMMER, UNITED STATES DISTRICT JUDGE.
matter is before the Court on the Notice of Appeal [Docket
No. 63] filed by defendant David Jimenez. Defendant appeals
his conviction of driving under restraint after a jury trial
presided over by Magistrate Judge Michael E. Hegarty in
Criminal No. 16-mj-07009-MEH. The Court exercises
jurisdiction over this appeal pursuant to 18 U.S.C. §
3402 and Fed. R. Crim P. 58(g)(2)(D). Neither party requested
works as a subcontractor for a flooring company. Docket No.
72 at 90:15-91:1. On November 3, 2015, defendant and two
co-workers drove to Colorado Springs, Colorado for a job.
Id. at 92:16-96:20. The defendant's driver's
license was under restraint so one of his co-workers drove.
Id. at 94:18-25. At some point during the trip,
defendant fell asleep in the back of the van. Id. at
95:25-96:10. When he woke up, the van was approaching the
Gate 3 entrance to Fort Carson, a federal military
reservation in Colorado Springs. Id. at 21:13-24,
96:11-97:20. Defendant testified that he got into the
driver's seat so he could be the one to speak to the gate
guard. Id. at 97:7-98:9.
defendant indicated that he moved into the driver's seat
only after the van was stopped at the gate, id. at
99:14-21, Specialist Brian Mathis, who was on duty at Gate 3,
testified that he observed defendant drive several car
lengths to the gate kiosk. Id. at 29:4-30:12.
Specialist Mathis asked defendant for identification, proof
of insurance, and the vehicle's registration.
Id. at 31:6-10. He then ran a check on
defendant's state identification card, which showed that
defendant had a revoked driver's license. Id. at
31:21-25. A military police officer, Bruce Punday, arrived
and issued defendant a violation notice for driving while
under restraint. Id. at 67:1-68:17; see
also Docket No. 1 (violation notice). On May 31, 2016,
defendant was charged by information with driving under
restraint in violation of Colo. Rev. Stat. §
42-2-138(1)(d), as assimilated by 18 U.S.C. § 13, the
Assimilative Crimes Act (“ACA”). Docket No. 9.
Rev. Stat. § 42-2-138(1)(d) provides:
A person who drives a motor vehicle or off-highway vehicle
upon any highway of this state with knowledge that the
person's license or privilege to drive, either as a
resident or nonresident, is restrained under section
42-2-126(3), is restrained solely or partially because of a
conviction of DUI, DUI per se, DWAI, or UDD, or is restrained
in another state solely or partially because of an
alcohol-related driving offense is guilty of a misdemeanor
and, upon conviction thereof, shall be punished by
imprisonment in the county jail for not less than thirty days
nor more than one year and, in the discretion of the court,
by a fine of not less than five hundred dollars nor more than
one thousand dollars.
to the statute, one of the elements of driving while under
restraint is that the defendant drove “upon any highway
of this state.” Colo. Rev. Stat. § 42-2-138(1)(d);
see also Colo. Jury Instructions, Criminal §
August 19, 2016, during a hearing on an unrelated matter, the
magistrate judge raised the issue of whether the government
would have to prove that “defendant drove some distance
other than on Fort Carson” in order to establish that
he drove on a “highway of this state.” Docket No.
70 at 88:13-15. The magistrate judge reserved ruling on
the issue in order to give the parties an opportunity to
submit further briefing on whether the portion of the road
leading to Gate 3 but falling within Fort Carson's
jurisdictional boundary qualified as a public
highway for purposes of Colo. Rev. Stat. §
42-2-138(1)(d). Id. at 98:10-14. On August 25, 2016,
defendant submitted a supplemental brief in support of his
motion to dismiss. Docket No. 26. In the brief, defendant
argued that, “because Fort Carson is a restricted
Federal installation, the roadway in front of the gates is
not a ‘Public Highway' as defined in the
statute.” Id. at 1. The government filed a
response on August 30, 2016. Docket No. 31. On August 31,
2016, the magistrate judge held a second motions hearing
during which he heard argument on the issue of whether the
road leading to Gate 3 qualified as a public highway under
Colorado law. Docket No. 32. At the hearing, the magistrate
judge expressed his belief that, under Colorado's
definition of “highway, ” see Colo. Rev.
Stat. § 42-1-102(43), a road did not have to be entirely
unrestricted to qualify as a public highway. Docket No. 71 at
7:22-8:14. The magistrate judge further noted that the road
leading to Gate 3 was “certainly a public road in the
sense that public services built it and maintains it”
and anyone can access Fort Carson with identification.
Id. at 8:15-24. Based on this reasoning, the
magistrate judge denied defendant's request for an order
dismissing the information. Id. at 8:25-9:3; Docket
No. 32 at 1. Later in the hearing, defendant requested that
he be permitted to “present evidence to a jury on the
issue of a public highway because it is an element, ”
Docket No. 71 at 19:23-20:1, to which the magistrate judge
responded that he was “prepared to hold as a matter of
law” that the roadway leading to Gate 3 qualified as a
public highway and thus “any evidence relating”
to that issue would be impermissible. Id. at
20:11-15. Defendant suggested that the court would be
“preempting an element of the charge” and
explained that he did not raise the issue of whether the road
constituted a public highway in his motion to dismiss because
he “thought it was a jury question.” Id.
at 20:16-17, 22:5-7. The magistrate judge indicated he would
provide further guidance at a later date. Id. at
September 2, 2016, the government filed a motion requesting
that the Court take judicial notice that “Chiles Avenue
and Westmeadow Drive are ‘highways' that qualify,
meet and conform to, (a) the definition of
‘highway' set forth in Colorado Revised Statutes
Section 42-1-102(43); and (b) the definition of
‘highway' required for a conviction of Driving
Under Restraint under Colorado Revised Statutes Section
42-2-138.” Docket No. 37 at 2. On September 6, 2016,
the magistrate judge issued an order holding, as a matter of
law, that the road leading to Gate 3 at Fort Carson is a
“highway of this state” under § 42-2-138 and
barring defendant from presenting any evidence regarding the
meaning of “highway of this state” at trial.
Docket No. 42 at 1-2.
jury trial in this case began on September 8, 2016.
See Docket Nos. 46, 48. At the close of the
evidence, the magistrate judge instructed the jury:
elements of the crime of driving under restraint are:
First: that the defendant,
Second: in the State of Colorado, at or about the date and
Third: drove a motor vehicle or off-highway vehicle,
Fourth: upon any highway of this state,
Fifth: when his or her license or driving privilege was under
Sixth: with knowledge that his driving privilege was under
Docket No. 50 at 10 (Jury Instruction No. 11). The magistrate