February 22, 2019

Colorado Supreme Court: DUI, Fourth Offense, is Class 4 Felony Therefore Defendant Entitled to Preliminary Hearing

The Colorado Supreme Court issued its opinion in In re People v. Tafoya on Tuesday, February 19, 2019.

Sentencing and Punishment—Criminal Law—Preliminary Hearings

In this original proceeding pursuant to C.A.R. 21, the supreme court reviewed the district court’s ruling denying petitioner a preliminary hearing when she was charged with Driving Under the Influence (DUI)—fourth or subsequent offense, a class 4 felony under C.R.S. § 42-4-1301(1)(a), and was being held in custody on that charge.

The court issued a rule to show cause and now makes the rule absolute. C.R.S. § 16-5-301(1)(b)(II) provides that a defendant who is accused of a class 4, 5, or 6 felony and is in custody for that offense “may demand and shall receive a preliminary hearing.” The legislature amended the DUI statute to provide that DUI is a class 4 felony if the violation occurred after three or more prior convictions arising out of separate and distinct criminal episodes. Here, the complaint and information accused petitioner of committing a class 4 felony and she was being held in custody on that charge. Accordingly, under the plain language of the statute, petitioner was entitled to a preliminary hearing, and the district court erred in denying her request for such a hearing.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Water Court Properly Dismissed Objection that Water Right Holder Would Not Be Able to Deliver Augmentation Water

The Colorado Supreme Court issued its opinion in Well Augmentation Subdistrict of the Central Colorado Water Conservancy District and South Platte Well Users Association v. Centennial Water and Sanitation District on Tuesday, February 19, 2019.

Water Law—Burden of Proof

Centennial Water and Sanitation District (Centennial) appealed from a water court order dismissing its objection to the Well Augmentation Subdistrict’s (WAS) proposal to use additional sources of replacement water for its previously decreed augmentation plan. Centennial had asserted that WAS failed to comply with the notice requirements of the decree itself and that this failure amounted to a per se injury, for which it was entitled to relief without any further showing of operational effect. The water court heard Centennial’s motion objecting to WAS’s proposed addition of new sources of replacement water and, without requiring WAS to present evidence, found that Centennial failed to establish prima facie facts of WAS’s inability to deliver augmentation water in quantity or time to prevent injury to other water users. Referencing C.R.C.P. 41 as the appropriate procedural vehicle, the water court dismissed Centennial’s objection.

The supreme court affirmed. Exercise of the water court’s retained jurisdiction was statutorily limited to preventing or curing injury to other water users, and the evidence presented by Centennial failed to establish that WAS would be unable, under the conditions imposed by the engineer for approval of the additional sources of replacement water, to deliver augmentation water sufficient to prevent injury to other water users. Accordingly, the water court’s dismissal of Centennial’s objection was proper.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Announcement Sheet, 2/19/2019

On Tuesday, February 19, 2019, the Colorado Supreme Court issued two published opinions.

Well Augmentation Subdistrict of the Central Colorado Water Conservancy District and South Platte Well Users Association v. Centennial Water and Sanitation District

In re People v. Tafoya

Summaries of these cases are forthcoming.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.

Colorado Supreme Court: Condominium Unit Owners Not Indispensable Parties Because Condominium Association Can Adequately Represent Owners’ Interests

The Colorado Supreme Court issued its opinion in In re Accetta v. Brooks Towers Residences Condominium Association on Monday, February 11, 2019.

Civil Procedure—Joinder—Declaratory Judgments—Colorado Common Interest Ownership Act

In this original proceeding pursuant to C.A.R. 21, the supreme court reviewed the district court’s order requiring plaintiff to join as indispensable parties the approximately 500 individual unit owners in the Brooks Tower Residences (Brooks Tower) rather than proceeding solely against his condominium association and its board members. Plaintiff sought, among other things, a declaratory judgment invalidating a provision of his condominium association’s declaration that provides for ownership interests to be allocated in the sole discretion of the declarant. The district court concluded that all of the Brooks Tower unit owners are indispensable parties and must be joined. The supreme court issued a rule to show cause why the district court’s ruling should not be vacated. The court concluded that the condominium association can adequately represent the interests of the absent unit owners for purposes of plaintiff’s declaratory judgment action. Therefore, plaintiff need not join those absent owners. The court made the rule to show cause absolute.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Announcement Sheet, 2/11/2019

On Monday, February 11, 2019, the Colorado Supreme Court issued one published opinion.

In re Accetta v. Brooks Towers Residences Condominium Association, Inc.

The summary of this case is forthcoming.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.

Colorado Supreme Court: Burden to Prove Collectability of Judgment in Underlying Case Lies with Claimant

The Colorado Supreme Court issued its opinion in LeHouiller v. Gallegos on Monday, January 28, 2019.

Attorney Malpractice—Burden of Proof—Tort.

In this attorney malpractice case founded on professional negligence, the supreme court was asked to decide who—the client or the attorney—bears the burden to prove that any judgment that could have been obtained against the underlying defendant would or would not have been collectible. The court held that because the collectibility of the underlying judgment is essential to the causation and damages elements of a client’s negligence claim against an attorney, the client-plaintiff bears the burden of proving that the lost judgment in the underlying case was collectible.

Here, the record shows that client-plaintiff failed to prove that the underlying judgment would have been collectible. However, given the absence of a clear statement from this court regarding client-plaintiff’s burden to prove collectibility at the time of trial, and given that the issue was not raised in this case until after client-plaintiff had presented her case-in-chief, the court reversed the court of appeals’ judgment and remanded the case for a new trial.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Detective’s Testimony About Odor of Metabolized Alcohol Improperly Admitted as Lay Testimony

The Colorado Supreme Court issued its opinion in People v. Kubuugu on Monday, January 28, 2019.

Witness Qualification—Expert Testimony— Harmless Error.

This case, which involves charges of driving under the influence and child abuse, required the court to determine whether the trial court erred by admitting expert testimony under the guise of lay testimony and whether such error was harmless. Here, the trial court allowed a police officer to testify at trial, without being qualified as an expert, about the ability to detect the smell of metabolized alcohol and that he could, based on that odor, opine about the volume of alcohol ingested and the timing of when it was consumed. The officer testified that this ability was learned through specialized training and years of experience as a police officer.

The court held that the police officer’s testimony about the odor of metabolized alcohol was expert testimony under the guise of lay testimony because an ordinary person would be unable to offer the same opinion. Admitting this evidence was not harmless because it was the only evidence that specifically refuted defendant’s testimony that he only began drinking alcohol after he had parked his car.

Accordingly, the court of appeals’ judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Juvenile’s Miranda Waiver Sufficiently Reliable Under Totality of Circumstances

The Colorado Supreme Court issued its opinion in People v. Barrios on Monday, January 28, 2019.

Juvenile—Miranda—Advisement Waiver.

In this case, the supreme court considered whether a juvenile’s Miranda advisement waiver was reliable under the totality of the circumstances. The court held that the police detective complied with the provisions of the juvenile Miranda waiver statute, C.R.S. § 19-2-511, and that the concerns identified by the trial court do not undermine the reliability of the waiver. Because both the juvenile and his legal guardian were fully advised of all the juvenile’s rights and the juvenile issued a reliable waiver, his statements to police should not be suppressed. Accordingly, the trial court’s order suppressing the juvenile’s statements was reversed.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Announcement Sheet, 1/28/2019

On Monday, January 28, 2019, the Colorado Supreme Court issued three published opinions.

LeHouiller v. Gallegos

People v. Kubuugu

People v. Barrios

Summaries of these cases are forthcoming.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.


Colorado Supreme Court: In Double Jeopardy Realm, Merge of Multiplicitous Convictions Has Same Effect as Vacating All but One

The Colorado Supreme Court issued its opinion in People v. Wood on Tuesday, January 22, 2019.

Double Jeopardy—Multiplicitous Convictions—Sentencing and Punishment—Amendment and Correction.

The supreme court clarified that when a mittimus provides that multiplicitous convictions merge, a defendant is afforded the protection to which he or she is entitled under the double jeopardy clause just the same as when a mittimus indicates that all but one of the multiplicitous convictions are vacated. In the double jeopardy realm, the merger of multiplicitous convictions has the same effect as vacating all but one of them.

Here, defendant’s mittimus accurately documented the state district court’s decision to merge his two murder convictions and impose a single life sentence on the resulting merged conviction. But, in resolving defendant’s habeas corpus petition, the U.S. Court of Appeals for the Tenth Circuit misread the mittimus as containing two murder convictions for the same killing and found a double jeopardy defect. Merely because defendant’s mittimus merged the multiplicitous murder convictions, rather than expressly stating that one of them was vacated, does not mean that his double jeopardy rights were violated.

Even if the Tenth Circuit correctly understood the mittimus, any error was clerical in nature. Therefore, the proper remedy was to simply correct the mittimus pursuant to Rule 36 of the Colorado Rules of Criminal Procedure.

Because a division of the court of appeals assumed that the Tenth Circuit’s reading of the mittimus was accurate and then failed to recognize that any error in the mittimus was subject to correction under Rule 36, the court reversed the division’s judgment and vacated its opinion. However, given that the district court recently amended the mittimus to expressly state that one of the multiplicitous murder convictions was vacated, the court did not remand this matter.

Summary provided courtesy ofColorado Lawyer.

Colorado Supreme Court: Inverse Condemnation Claim Grounded in Ownership, Not Use, and Therefore Outside Jurisdiction of Water Court

The Colorado Supreme Court issued its opinion in Allen v. State of Colorado on Tuesday, January 22, 2019.

Water Court Jurisdiction—“Water Matters”—Water Ownership versus Water Use.

This case concerns whether a water court has jurisdiction to consider a claim for inverse condemnation alleging a judicial taking of shares in a mutual ditch company. The water court dismissed plaintiff-appellant’s inverse condemnation claim, concluding that his claim was “grounded in ownership and the conveyance of that ownership, not use,” and therefore the claim was not a water matter within the exclusive jurisdiction of the water court. The supreme court agreed and thus affirmed the water court’s dismissal order.

Summary provided courtesy ofColorado Lawyer.

Colorado Supreme Court: Announcement Sheet, 1/22/2019

On Tuesday, January 22, 2019, the Colorado Supreme Court issued two published opinions.

Allen v. State of Colorado

People v. Wood

Summaries of these cases are forthcoming.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.