The Colorado Court of Appeals issued People v. Zubiate on Thursday, May 9, 2013.
Driving After Revocation Prohibited—Driving While Ability Impaired—Driving Under Restraint—Hearsay—Merger—Lesser Included Offense.
Defendant appealed her convictions entered following a jury trial for aggravated driving after revocation prohibited (aggravated DARP) and driving while ability impaired (DWAI). She also appealed her driving under restraint (DUR) conviction entered following her guilty plea to that offense, and the sentence imposed. The convictions were affirmed.
Defendant contended that the trial court erred in excluding an out-of-court statement concerning her fear of needles and, consequently, deprived her of her constitutional right to present evidence in her own defense. Specifically, defendant argued that the court erred in excluding her statement to Officer Rayside concerning her fear of needles because it was (1) offered for a non-hearsay purpose, (2) a statement against interest, and (3) a statement concerning her state of mind. Here, the statement was relevant only if it was offered for the truth of the matter asserted—namely, that defendant feared needles. Accordingly, it was hearsay. Because defendant’s statement was self-serving and the prosecution did not introduce evidence that defendant refused the test, none of the hearsay exceptions applied.
Defendant also contended that her DARP and DUR convictions should merge because DUR is a lesser included offense of DARP. The offenses do not merge, however, because proving the DARP elements does not necessarily establish DUR. DUR applies to offenses committed only on public ways. DARP, in contrast, does not require that the driver operate the vehicle on a highway. Accordingly, DARP is not limited to the highway and applies to private ways, as well. Because DUR requires proof of an additional fact that DARP does not—namely that a motor vehicle was driven on a highway—DUR is not a lesser included offense of DARP. Furthermore, because one could operate a vehicle without necessarily driving it, the offenses do not merge under the strict elements test. Therefore, DUR is not a lesser included offense of DARP. Accordingly, defendant’s convictions and sentences for both offenses do not merge.
Summary and full case available here.