April 23, 2019

Colorado Court of Appeals: Vehicle Need Not Move to Be “Operated” or “Driven” for DUI Purposes

The Colorado Court of Appeals issued its opinion in People v. Valdez on Thursday, September 25, 2014.

Aggravated Driving After Revocation Prohibited—Driving Under the Influence—Merger.

A witness driving in Pueblo observed a vehicle parked along the curb at an intersection. Concerned, he stopped and discovered Valdez passed out and unresponsive in the driver’s seat. He contacted law enforcement officials, who observed Valdez in a stupor with a twenty-four-ounce can of beer between his legs, and his feet near the gas and brake pedals. They also found his keys in the ignition. When they arrested Valdez, he slurred his speech and drifted in and out of consciousness. At one point, he attempted to start the vehicle, but the officers restrained him. They eventually removed him from the vehicle. At the time of the arrest, Valdez’s driver’s license had been revoked because he was a habitual traffic offender. He was convicted of aggravated driving after revocation prohibited (ADARP) and driving under the influence (DUI).

On appeal, Valdez contended that the trial court erred in denying his motions for judgment of acquittal on both charges because the prosecution failed to prove beyond a reasonable doubt that he “operated” or “drove” an “operable” motor vehicle. The term “drive” means to exercise “actual physical control” over a motor vehicle. Further, the prosecution was not required to prove the operability of the vehicle beyond a reasonable doubt. Here, although the vehicle may have been inoperable at the time the police arrived, there was sufficient evidence that Valdez drove the vehicle to the intersection before he passed out, and his action of attempting to start the vehicle when the police arrived further proved that he had physical control of the vehicle. Accordingly, the trial court did not err in denying Valdez’s motions for a judgment of acquittal, nor was it required to provide an instruction to the jury to determine, beyond a reasonable doubt, the operability of the vehicle at issue.

Valdez also argued that the trial court erred by not merging his ADARP and DUI convictions because DUI is a lesser included offense of ADARP. The law is presently unsettled on this issue. Therefore, the trial court did not commit plain error in upholding the jury’s separate convictions for Valdez’s DUI and ADARP offenses, and for imposing separate sentences for those crimes. The judgment was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer

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