People v. Davis, 25811
| Decision Date | 18 November 1974 |
| Docket Number | No. 25811,25811 |
| Citation | 528 P.2d 251,187 Colo. 16 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Donald Ray DAVIS, Defendant-Appellant. |
| Court | Colorado Supreme Court |
John P. Moore, Atty. Gen., John E. Bush, Deputy Atty. Gen., Tennyson W. Grebenar, Asst. Atty. Gen., Denver, for plaintiff-appellee.
Rollie R. Rogers, Colo. State Public Defender, James F. Dumas, Jr., Chief Deputy State Public Defender, Dorian E. Welch, Deputy State Public Defender, Denver, for defendant-appellant.
Defendant Davis was found guilty of violating C.R.S.1963, 40--2--11. This statute makes it a felony for any person, while under the influence of intoxicating liquor, to inflict bodily injury upon another by operating a motor vehicle in a reckless, careless or negligent manner. The main ground for reversal presented by the defendant is that the jury was improperly instructed that a blood alcohol level of more than 0.10 percent creates a presumption that the defendant is under the influence of alcohol. This is a statutory presumption applicable only to certain misdemeanors and is not applicable to the felony charge involved here. Reversal is therefore required and this cause is remanded to the trial court for a new trial.
Charles McFarland's automobile stalled at a traffic light because of electrical system failure. A police vehicle pulled up behind McFarland's automobile to investigate. A tow truck was ordered and while awaiting the removal of the stalled vehicle, McFarland entered the police vehicle, which had its emergency lights flashing. The police vehicle was hit from behind by a pickup being driven by the defendant. McFarland and the police officer were injured. A blood sample drawn from the defendant shortly after the accident indicated a blood alcohol level considerably higher than 0.10 percent.
Over the defendant's objection, the trial court instructed the jury that if it finds that the 'defendant's blood contained 0.10 percent or more by weight f alcohol, the law presumes he was under the influence of intoxicating liquor.' The only authority for such an instruction is found in 1969 Perm.Supp., C.R.S.1963, 13--5--30(2)(d). This statute, however, is very specific in limiting the use of such a presumption to the misdemeanors of (a) driving any vehicle while under the influence of intoxicating liquor and (b) driving while ability is impaired by the consumption of alcohol. There is no authorization in the law for giving such an instruction to a jury in connection with the felony charge made against the defendant here.
In People v. Tilley, Colo., 520 P.2d 1046 (1974), this court held that giving an instruction on this statutory presumption was clearly erroneous in a case where the defendant was charged with causing a death while driving an automobile under the influence of alcohol, which is a felony. See also State v. Risk, Utah, 520 P.2d 215 (1974).
However, the judgment against the defendant in Tilley, supra, was affirmed because the defendant had failed to object to the giving of the instruction, and plain error (Crim.P. 52(b)) did not exist because the evidence of the defendant's intoxication before the jury was overwhelming. It is to be noted that in Tilley, supra, this court specifically stated that, if this presumption instruction had...
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People v. Hampton
...be disturbed without a clear showing of abuse of discretion. E.g., People v. District Court, 647 P.2d 1206 (Colo.1982); People v. Davis, 187 Colo. 16, 528 P.2d 251 (1974). We find no such abuse of discretion in this To the extent that the prosecutor, in his closing argument, used Wyka's tes......
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People v. Williams
...952-53; People v. Gomez, 632 P.2d 586 (Colo.1981), cert. denied, 455 U.S. 943, 102 S.Ct. 1439, 71 L.Ed.2d 655 (1982); People v. Davis, 187 Colo. 16, 528 P.2d 251 (1974); see People v. District Court, 647 P.2d 1206, 1209 (Colo.1982). 1 In this case the trial court adopted an erroneous test i......
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Stoczynski v. Livermore
...decisions on the scope of scientific expert testimony will not be disturbed on review absent a clear showing of abuse. People v. Davis, 187 Colo. 16, 528 P.2d 251 (1974). Here, the expert in question, whose experience in the field is not contested, testified concerning the mechanics of ther......
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People v. Price, 92CA1744
...of the trial court over the scope of expert testimony will not be disturbed on review absent a clear showing of abuse. People v. Davis, 187 Colo. 16, 528 P.2d 251 (1974). An expert may express an opinion based upon assumptions which have a reasonable basis in the evidence so long as the inf......
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Rule 702 TESTIMONY BY EXPERTS
...of the trial judge over the scope of expert testimony will not be disturbed on review absent a clear showing of abuse. People v. Davis, 187 Colo. 16, 528 P.2d 251 (1974); People v. Jensen, 747 P.2d 1247 (Colo. 1987). The determination of whether a witness is qualified to render an expert op......
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ARTICLE 4 REGULATION OF VEHICLE AND TRAFFIC
...while under the influence of intoxicating liquor and driving while ability is impaired by the consumption of alcohol. People v. Davis, 187 Colo. 16, 528 P.2d 251 (1974). Statutory presumption of subsection (2)(c) is not applicable to a felony charge under § 18-3-106. People v. Davis, 187 Co......
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Chapter 7 - § 7.2 FOUNDATION FOR ADMISSIBILITY
...as an expert auto mechanic is not qualified to testify as an expert as to the causation of an automobile part failure. People v. Davis, 528 P.2d 251, 253 (Colo. 1974). ➢ Psychological Profiles. Expert testimony on psychological profiles is allowed in a criminal case, so long as the witness ......
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Chapter 7 - § 7.2 • FOUNDATION FOR ADMISSIBILITY
...as an expert auto mechanic is not qualified to testify as an expert as to the causation of an automobile part failure. People v. Davis, 528 P.2d 251, 253 (Colo. 1974). ➢ Psychological Profiles. Expert testimony on psychological profiles is allowed in a criminal case, so long as the witness ......