Jolly v. People, 85SC265
| Decision Date | 08 September 1987 |
| Docket Number | No. 85SC265,85SC265 |
| Citation | 742 P.2d 891 |
| Parties | Jerry W. JOLLY, Petitioner, v. The PEOPLE of the State of Colorado, Respondent. |
| Court | Colorado Supreme Court |
P. Arthur Tague, Tague & Beem, P.C., Denver, for petitioner.
Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., and David R. Little, Asst. Atty. Gen., Denver, for respondent.
Jerry W. Jolly (defendant) was convicted by a county court jury of driving while license revoked in violation of section 42-2-130, 17 C.R.S. (1984), and his conviction was affirmed by the District Court of Jefferson County. In affirming the conviction, the district court held that the county court properly instructed the jury that, with respect to the prosecution's burden to prove the defendant had notice or knowledge of his license revocation, "[i]t shall be sufficient to prove that notice was mailed with sufficient postage by registered mail addressed to the last known address of the defendant as shown by the records" of the Department of Revenue (department). Although the court's instruction was substantially based on the language of section 42-2-130(2), 17 C.R.S. (1984), we construe the statute as authorizing only a permissive inference that the defendant had knowledge of the fact of revocation. In light of this construction, we conclude that the county court's instruction on proof of notice had the effect of creating an impermissible presumption of this element of the offense in violation of due process of law. U.S. Const. amend. XIV; Colo. Const. art. II, § 25. We accordingly reverse the judgment and remand the case to the district court with directions to return the case to the county court for a new trial.
The defendant was arrested on September 30, 1983, and charged in the County Court of Jefferson County with driving under the influence of intoxicating liquor in violation of section 42-4-1202, 17 C.R.S. (1984), and driving while license revoked in violation of section 42-2-130, 17 C.R.S. (1984). He entered a not guilty plea to the charges, and the case was tried to a jury commencing on April 11, 1984. The jury found the defendant not guilty of driving under the influence and not guilty of the lesser offense of driving while impaired, but returned a guilty verdict to the misdemeanor of driving while license revoked.
The evidence in regard to the offense of driving while license revoked was as follows. In May 1982 the department, in accordance with the statutory scheme then in effect, sent a notice to the defendant's last known address, by certified mail, return receipt requested, informing the defendant of his right to a revocation hearing scheduled for June 11, 1982. The revocation hearing was based on the fact that the defendant had previously refused a police officer's request for chemical testing to determine the alcohol content of his blood. § 42-4-1202(3)(d), 17 C.R.S. (1984). 1 The notice of the revocation hearing was returned to the department marked "unclaimed." The defendant failed to appear for the scheduled hearing, and on June 11, 1982, the department entered an order revoking the defendant's license for a one-year period. Notice of the revocation was sent to the defendant's last known address, by certified mail, return receipt requested, but this notice was also returned to the department marked "unclaimed." The order of revocation was still in effect on September 30, 1983, the date of the offense in question, because the defendant had failed to pay the statutory fee for restoration of his driving privilege in accordance with section 42-2-124(3), 17 C.R.S. (1984), and had failed to submit proof of financial responsibility as required by section 42-7-406(1), 17 C.R.S. (1984). See People v. Lessar, 629 P.2d 577 (Colo.1981).
The defendant testified at trial that the address to which the notices had been sent was the correct address, but that he had been out of the state from May through August during 1982. Through a neighbor who forwarded his mail to him, the defendant received notices that certified letters had arrived at the post office. Upon the defendant's return to his home in August, he attempted to collect the certified mail but was informed that it had been returned to the sender.
At the conclusion of the prosecution's case and at the close of the evidence, the defendant moved for a judgment of acquittal on the ground that the prosecution had failed to prove an essential element of the offense of driving while license revoked--that is, that the defendant had knowledge or notice of the order of revocation. The court denied the motion. In submitting the case to the jury, the court instructed the jury that an essential element of the offense of driving while license revoked was that the defendant drove a motor vehicle upon a highway "with notice that his driver's license is revoked." Over the defendant's objection, the court also gave the following instruction (Instruction 10) on proof of notice, which was substantially based on section 42-2-130(2), 17 C.R.S. (1984), and read as follows:
In any prosecution for a violation of driving while license is revoked the fact of revocation may be established by a return receipt of a registered notice thereof mailed to the last known address of the defendant and a copy of the notice so mailed by registered mail to the last known address of the defendant, or by delivery of such notice to the last known address of the defendant, or by personal service of such notice upon the defendant. It shall be sufficient to prove that notice was mailed with sufficient postage by registered mail addressed to the last known address of the defendant as shown by the records of the department.
(emphasis added).
After the jury returned a guilty verdict to the charge of driving while license revoked, the defendant appealed his conviction to the District Court of Jefferson County, claiming that Instruction 10 constituted an impermissible presumption in violation of due process of law. The district court affirmed the judgment of conviction, and we thereafter granted the defendant's petition for certiorari.
Although the dispositive issue in this case is whether Instruction 10 constituted a conclusive or impermissible mandatory presumption on the knowledge element of the offense in violation of due process of law, there are preliminary matters that we must first address. We must initially determine whether knowledge of the fact of revocation is indeed an essential element of the offense of driving while license revoked. If it is, we must then consider whether section 42-2-130(2), 17 C.R.S. (1984), authorizes only a permissive inference as to this element of driving while license revoked or instead creates either a conclusive or a mandatory burden-shifting presumption of notice in violation of due process of law. After evaluating the evidentiary effect of section 42-2-130(2), we will then be in a position to address the constitutional validity of Instruction 10.
We initially consider whether knowledge of the fact of revocation is an essential element of the crime of driving while license revoked. Section 42-2-130, 17 C.R.S. (1984), provides, in pertinent part, as follows:
(1)(a) Any person who drives a motor vehicle upon any highway of this state at a time when his driver's ... license ... is revoked for any reason other than conviction of an alcohol-related driving offense pursuant to section 42-4-1202(1) or (1.5) is guilty of a misdemeanor and, upon conviction thereof, shall be punished by imprisonment in the county jail for not less than five days nor more than six months, and, in the discretion of the court, a fine of not less than fifty dollars nor more than five hundred dollars may be imposed....
(2) In any prosecution for a violation of this section, the fact of ... revocation of a license may be established by a return receipt of a registered notice thereof mailed to the last known address of the defendant and a copy of the notice so mailed by registered mail to the last known address of the defendant, or by the delivery of such notice to the last known address of the defendant, or by personal service of such notice upon the defendant. It is sufficient to prove that notice was mailed with sufficient postage by registered mail addressed to the last known address of the defendant as shown by the records of the department.
A cursory reading of this statute might suggest that the offense of driving while license revoked requires only proof of the act of driving a motor vehicle after the entry of an order of revocation, with the result that proof of the driver's knowledge of the fact of revocation is irrelevant. We reject such a construction as contrary to legislative intent as expressed in the overall statutory scheme.
There would be little purpose in the legislature's requiring the various forms of notice of revocation in subsection 42-2-130(2) if it did not intend that knowledge of the fact of revocation was to be an essential element of the crime. Various sections of the Uniform Motor Vehicle Act require the department to mail a notice, return receipt requested, to the last known address of a licensee, informing the licensee of a pending hearing that might adversely affect his driving privilege and also informing him of any completed administrative action affecting his license. E.g., § 42-2-117(2), 17 C.R.S. (1984) (); § 42-2-122(2), 17 C.R.S. (1984) (); § 42-2-122.1(3), 17 C.R.S. (1984) (...
To continue reading
Request your trial
-
People v. Davis
...U.S. 307, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985); Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979); Jolly v. People, 742 P.2d 891 (Colo.1987). I cannot reconcile such a presumption with the constitutional prohibition against cruel and unusual punishment under federal a......
-
State v. McCraine
...the element of knowledge of revocation must be read into the statute. Jeffcoat v. State, 639 P.2d 308 (Alaska Ct.App.1982); Jolly v. People, 742 P.2d 891 (Colo.1987); State v. Keihn, 542 N.E.2d 963 (Ind.1989); State v. McCallum, 321 Md. 451, 583 A.2d 250 (1991); Zamarripa v. First Judicial ......
-
People v. Dunaway
...934 P.2d 821, 828-29 (Colo.1997) (discussing the nature of the prosecution's burden to disprove defendant's insanity); Jolly v. People, 742 P.2d 891, 896 (Colo.1987) (rejecting under both the federal and state constitutions the use of presumptive—as opposed to permissive—inferences against ......
-
People v. Tenneson, s. 88SA144
...consequences of voluntary acts was either a conclusive or burden-shifting presumption in violation of due process); Jolly v. People, 742 P.2d 891 (Colo.1987) (in prosecution for driving while license revoked, jury instruction stating that defendant's knowledge of revocation is established b......