Linnebur v. People, Supreme Court Case No. 18SC884

Docket NºSupreme Court Case No. 18SC884
Citation476 P.3d 734
Case DateNovember 09, 2020
CourtSupreme Court of Colorado

476 P.3d 734

Charles James LINNEBUR, Petitioner,
v.
The PEOPLE of the State of Colorado, Respondent.

Supreme Court Case No. 18SC884

Supreme Court of Colorado.

November 9, 2020
As Modified on Denial of Rehearing December 14, 2020


Attorneys for Petitioner: Megan A. Ring, Public Defender, Meredith K. Rose, Deputy Public Defender, Denver, Colorado

Attorneys for Respondent: Philip J. Weiser, Attorney General, Kevin E. McReynolds, Assistant Attorney General, Denver, Colorado

En Banc

JUSTICE HART delivered the Opinion of the Court.

¶1 Last year, in the course of deciding whether an in-custody felony DUI defendant is entitled to a preliminary hearing, we noted in dicta that it was unclear "whether a repeat DUI offender's prior convictions are elements of a felony DUI that must be proved at trial" because section 42-4-1301, C.R.S. (2020), and its related penalty provisions "alternately accord the prior convictions qualities of both elements of an offense and sentence enhancers." People v. Tafoya , 2019 CO 13, ¶ 28 n.2, 434 P.3d 1193, 1197 n.2. Because that case did not require us to answer the question whether a defendant's prior DUI convictions constitute an element of felony DUI or merely a sentence enhancer, we left it for another day.

¶2 That day has now arrived. Confronted squarely with the question left open in Tafoya , we conclude that the statutory provisions that define and provide penalties for felony DUI treat the fact of prior convictions as an element of the crime, which must be proved to the jury beyond a reasonable doubt, not as a sentence enhancer, which a judge may find by a preponderance of the evidence. Because the court of appeals erred in arriving at the opposite conclusion, we reverse and remand for further proceedings consistent with this opinion.

I. Facts and Procedural History

¶3 In March 2016, law enforcement contacted Charles James Linnebur after receiving a call that he had crashed his vehicle into a fence and might be driving under the influence of alcohol. Although he initially denied that he had been drinking, Linnebur eventually admitted that he had consumed whiskey that day. He was arrested, and a blood test revealed that his blood alcohol level was 0.343—well above the legal limit.

¶4 The People charged Linnebur with DUI and DUI per se and sought felony convictions under sections 42-4-1301(1)(a) and (2)(a), which provide that DUI and DUI per se are felonies if they "occurred after three or more prior convictions" for, among other things, DUI, DUI per se, or DWAI. Prior to trial, Linnebur filed a motion in limine arguing that the fact of his prior convictions was a substantive element of felony DUI that had to be found by a jury beyond a reasonable doubt. The trial court denied the motion, concluding instead that Linnebur's prior convictions were "merely sentence enhancers or aggravating factors" and could be proved to the court by a preponderance of the evidence.

¶5 At trial, the jury found Linnebur guilty of DWAI (a lesser included offense of DUI) and DUI per se.1 After the trial court dismissed the jury, it held a hearing to determine

476 P.3d 736

whether Linnebur in fact had at least three prior convictions that would substantiate these new felony convictions. In order to support their claim that Linnebur had the requisite prior convictions, the People submitted certified copies of Linnebur's three prior impaired driving convictions as well as his state driving record. Rather than applying a preponderance of the evidence standard (as it had earlier indicated it would), the trial court instead concluded that these exhibits proved beyond a reasonable doubt that Linnebur had three prior convictions. It thus entered judgment for felony DWAI, merged the DUI per se conviction, and sentenced Linnebur to four years in community corrections.

¶6 A division of the court of appeals affirmed. See People v. Linnebur , No. 16CA2133, 2018 WL 5876867 (Nov. 8, 2018). In so doing, the division cited to our decision in People v. Leske , 957 P.2d 1030, 1039 (Colo. 1998), for the proposition that a statutory provision is a sentence enhancer, rather than an element, if its proof is not required to secure a conviction for the charged offense. The court of appeals concluded that because a defendant may be found guilty of the underlying offense of DUI independent of any proof of prior convictions, the fact of such prior convictions is not an element of felony DUI. The prior convictions, the court concluded, could properly be determined by the court rather than the jury. Linnebur , ¶¶ 8, 12. The division reasoned further that because the felony DUI statute does not specify the applicable burden of proof, the fact of prior convictions need only be proved by a preponderance of the evidence. Id. at ¶ 13. Finally, the division concluded that the exhibits presented in Linnebur's case were sufficient evidence to prove his prior convictions. Id. at ¶ 19.

¶7 Linnebur then filed a petition for certiorari review, which we granted.2

II. Analysis

¶8 After setting forth the applicable standard of review and relevant principles of statutory interpretation, we consider whether the felony DUI statute expresses a clear legislative intent for the treatment of prior convictions as either elements of the felony offense or sentence enhancers. Finding the statute to be ambiguous, we next endeavor to determine the legislature's intent by looking at the language and structure of the statutory scheme, traditional treatment of the fact of prior convictions, and the risk of unfairness attendant to either approach. Based on these factors, we conclude that the General Assembly intended the fact of prior convictions to be treated as a substantive element of the offense to be proved to the jury beyond a reasonable doubt, rather than a sentence enhancer to be proved to a judge by a preponderance of the evidence.

A. Standard of Review and Principles of Statutory Interpretation

¶9 Whether a statutory provision constitutes a sentence enhancer or a substantive element of an offense presents a question of law that we review de novo. People v. Schreiber , 226 P.3d 1221, 1223 (Colo. App. 2009). The General Assembly has plenary authority to define criminal conduct and to establish the elements of criminal liability. People v. M.B. , 90 P.3d 880, 882 (Colo. 2004). With this in mind, our primary purpose in construing the felony DUI statute "is to ascertain

476 P.3d 737

and give effect to the legislature's intent." People v. Cali , 2020 CO 20, ¶ 15, 459 P.3d 516, 519. To accomplish this task, "we look first to the language of the statute, giving its words and phrases their plain and ordinary meanings." McCoy v. People , 2019 CO 44, ¶ 37, 442 P.3d 379, 389. "If the plain language of the statute demonstrates a clear legislative intent, we look no further in conducting our analysis." Springer v. City & Cnty. of Denver , 13 P.3d 794, 799 (Colo. 2000). If, however, the language is ambiguous—that is, if it is reasonably susceptible of multiple interpretations—then we may consider other aids to statutory construction. McCoy , ¶ 38, 442 P.3d at 389.

¶10 When a statute "is not explicit" as to whether a particular fact is an element of a crime or a sentencing factor, we agree with the U.S. Supreme Court that we must look to "the provisions and the framework of the statute" to make that determination. United States v. O'Brien , 560 U.S. 218, 225, 130 S.Ct. 2169, 176 L.Ed.2d 979 (2010). In particular, "(1) language and structure, (2) tradition, (3) risk of unfairness, (4) severity of the sentence, and (5) legislative history" are helpful guides for determining legislative intent. Id.

B. The DUI Statute is Ambiguous

¶11 In 2015, the General Assembly amended several statutory provisions through the passage of House Bill 15-1043. See Ch. 262, sec. 1, § 42-4-1301, 2015 Colo. Sess. Laws 990. As directly relevant here, section 42-4-1301(1)(a), which defines the crime of "driving under the influence," now provides in pertinent part:

A person who drives a motor vehicle or vehicle under the influence of alcohol ... commits driving under the influence. Driving under the influence is a misdemeanor, but it is a class four felony if the violation occurred after three or more prior convictions, arising out of separate and distinct criminal episodes, for DUI, DUI per se, or DWAI; vehicular homicide ...; vehicular assault ...; or any combination thereof.

¶12 This provision does not expressly indicate whether the fact of prior convictions constitutes a sentence enhancer or a substantive element of the offense. Despite the absence of any express language on this point, both the People and Linnebur assert that the statute plainly supports their preferred reading.

¶13 The People maintain that the plain language of section 42-4-1301 treats prior DUI convictions as sentence enhancers because it defines what it means to "drive under the influence" in one sentence and sets out the felony penalty in a separate sentence. Further, like the division below, they rely on our decision in Leske , in which we explained that a sentence enhancer was not an element of an offense for purposes of double...

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14 practice notes
  • People v. Carter, Court of Appeals No. 17CA2331
    • United States
    • Colorado Court of Appeals of Colorado
    • March 11, 2021
    ...proof of insurance charge by instructing the jury on operating a motor vehicle without insurance.¶ 2 Linnebur v. People , 2020 CO 79M, 476 P.3d 734, recently decided by the supreme court, requires that we reverse Carter's conviction for felony DUI. On remand, the court may enter a convictio......
  • People v. Marston, Court of Appeals No. 18CA1879
    • United States
    • Colorado Court of Appeals of Colorado
    • February 11, 2021
    ...supreme court vacated our opinion and remanded the case for reconsideration in light of its decision in Linnebur v. People , 2020 CO 79M, 476 P.3d 734. Marston v. People , (Colo. No. 20SC695, Jan. 11, 2021) 2021 WL 96675 (unpublished order). In Linnebur , the supreme court held that the req......
  • People v. Ambrose, Court of Appeals No. 18CA1557
    • United States
    • Colorado Court of Appeals of Colorado
    • May 6, 2021
    ...supreme court vacated our opinion and remanded the case for reconsideration in light of its decision in Linnebur v. People , 2020 CO 79M, 476 P.3d 734. Ambrose v. People , (Colo. No. 20SC698, 2021) WL 1392194 (unpublished order). In Linnebur , the supreme court held that the requirement of ......
  • People v. Viburg, 21SA153
    • United States
    • Colorado Supreme Court of Colorado
    • January 10, 2022
    ...Meredith O'Harris, Deputy Public Defender Denver, Colorado OPINION BOATRIGHT CHIEF JUSTICE 2 ¶1 In Linnebur v. People, 2020 CO 79M, ¶ 2, 476 P.3d 734, 735, we held that prior convictions are an element of the crime of felony driving under the influence ("DUI"), meaning they "must be proved ......
  • Request a trial to view additional results
13 cases
  • People v. Carter, Court of Appeals No. 17CA2331
    • United States
    • Colorado Court of Appeals of Colorado
    • March 11, 2021
    ...proof of insurance charge by instructing the jury on operating a motor vehicle without insurance.¶ 2 Linnebur v. People , 2020 CO 79M, 476 P.3d 734, recently decided by the supreme court, requires that we reverse Carter's conviction for felony DUI. On remand, the court may enter a convictio......
  • People v. Marston, Court of Appeals No. 18CA1879
    • United States
    • Colorado Court of Appeals of Colorado
    • February 11, 2021
    ...supreme court vacated our opinion and remanded the case for reconsideration in light of its decision in Linnebur v. People , 2020 CO 79M, 476 P.3d 734. Marston v. People , (Colo. No. 20SC695, Jan. 11, 2021) 2021 WL 96675 (unpublished order). In Linnebur , the supreme court held that the req......
  • People v. Ambrose, Court of Appeals No. 18CA1557
    • United States
    • Colorado Court of Appeals of Colorado
    • May 6, 2021
    ...supreme court vacated our opinion and remanded the case for reconsideration in light of its decision in Linnebur v. People , 2020 CO 79M, 476 P.3d 734. Ambrose v. People , (Colo. No. 20SC698, 2021) WL 1392194 (unpublished order). In Linnebur , the supreme court held that the requirement of ......
  • People v. Viburg, 21SA153
    • United States
    • Colorado Supreme Court of Colorado
    • January 10, 2022
    ...Meredith O'Harris, Deputy Public Defender Denver, Colorado OPINION BOATRIGHT CHIEF JUSTICE 2 ¶1 In Linnebur v. People, 2020 CO 79M, ¶ 2, 476 P.3d 734, 735, we held that prior convictions are an element of the crime of felony driving under the influence ("DUI"), meaning they "must be proved ......
  • Request a trial to view additional results
1 books & journal articles
  • Summaries of Published Opinions, 0222 COBJ, Vol. 51, No. 2 Pg. 88
    • United States
    • Colorado Bar Journal Nbr. 51-2, February 2022
    • February 1, 2022
    ...Offenders—Double Jeopardy. In this case, the Supreme Court answered a question left open in Linnebur v. People, 2020 CO 79M, ¶2, 476 P.3d 734, 735 (Colo. 2020). In Linnebur, the Court held that prior convictions are an element of the crime of felony driving under the influence (DUI), meanin......

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