People v. Lesh, 82SA316

• Decision Date: 29 August 1983
• Docket Number: No. 82SA316,82SA316
• Citation: 668 P.2d 1362
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Bill Robert LESH, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 1362

668 P.2d 1362

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Bill Robert LESH, Defendant-Appellant.

No. 82SA316.

Supreme Court of Colorado,

En Banc.

Aug. 29, 1983.

Rehearing Denied Sept. 26, 1983.

J.D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Joel W. Cantrick, Sol. Gen., Jeffrey Weinman, Nathan B. Coats, Asst. Attys. Gen., Denver, for plaintiff-appellee.

David F. Vela, State Public Defender, Deborah S. Waldbaum, Thomas M. Van Cleave, III, Deputy State Public Defenders, Denver, for defendant-appellant.

NEIGHBORS, Justice.

The defendant appeals the judgment of conviction entered by the district court upon the jury's verdict finding him guilty of driving after judgment prohibited, section 42-2-206, C.R.S.1973. The defendant urges two grounds for reversal: (1) the elemental instruction failed to include the requirement that the defendant had knowledge his driver's license was revoked, and (2) the defendant's plea of guilty to a charge of driving while ability impaired, a predicate for the order of revocation, was accepted by the trial court in violation of Crim.P. 11.

We reverse the defendant's conviction based on issue (1) and affirm the trial court's ruling on issue (2).

I.

The defendant was stopped for a traffic violation in Ft. Collins, Colorado on July 1, 1979. The officer requested that the defendant produce his vehicle registration and driver's license. The officer checked the status of the driver's license and learned that it had been revoked. The officer reported this information to the defendant who expressed surprise. The defendant was then arrested.

At trial, an employee of the Department of Revenue (Department) testified that the defendant's file maintained by the Department contained an order of suspension based on a finding that the defendant was an habitual traffic offender. The order was dated January 4, 1979, and became effective on January 24, 1979. The Department's file also contained a postal return receipt signed by the defendant acknowledging he had received the "order of revocation/habitual offender." The Department's file also included three notices of hearings mailed to the defendant informing him that the Department intended to revoke his driving privileges. The employee of the Department also testified as to the basis for the Department's determination that the defendant was an habitual traffic offender.

The defendant testified that he had no recollection of receiving the order revoking his driver's license. He also stated that he was "quite surprised" to learn that his license had been revoked.

The jury returned its verdict finding the defendant guilty of the charge. The defendant was sentenced to the Department of Corrections for one year plus one year of parole.

II.

The defendant's first argument is that the trial court erred in refusing to give his tendered instructions on the elements of the crime and his theory of the case. The thread common to both instructions is that the prosecution must prove that the defendant had knowledge of the revocation order as an element of the crime. We agree with the defendant's position.

The statutory scheme governing habitual traffic offenders is found in sections 42-2-201 to -208, C.R.S.1973. An habitual traffic offender is a driver who has accumulated the designated number of convictions for specific traffic offenses within the prescribed time periods. Section 42-2-202, C.R.S.1973 (1982 Supp.). A driver who operates a motor vehicle while his license is under revocation by reason of his status as an habitual traffic offender is guilty of driving after judgment prohibited, a class 5 felony. Section 42-2-206(1), C.R.S.1973. The trial court may not grant probation or suspend any part of the sentence unless the defendant establishes to the satisfaction of the trial judge at the sentencing hearing that he or she had to drive because of an emergency. People v. McKnight, 200 Colo. 486, 617 P.2d 1178 (1980).

The Department is granted the authority to revoke the license of an habitual traffic offender in section 42-2-203, C.R.S.1973. That section requires that the Department comply with the hearing procedures enumerated in sections 42-2-123(7) to -123(12), C.R.S.1973, before issuing a revocation order. Section 42-2-123(12), C.R.S.1973 (1982 Supp.), provides that if a defendant fails to appear for the revocation hearing after receiving proper notice, the order of revocation shall be entered immediately by the Department. This statute also contains the following provision which is at issue in this case:

"[S]uch suspension or revocation shall not be effective until twenty days after notification of such action has been mailed to such licensee by registered or certified mail, return receipt requested, at his last known address as shown by the records of the department. Proof of such mailing is sufficient notice under this section." (Emphasis added.)

The People claim that the emphasized language establishes the requirement that proof of mailing is expressly made sufficient notice under the statute and, therefore, the issue of whether the defendant had knowledge, either actual or constructive, is not relevant. The defendant counters this argument by citing section 42-2-117(2), C.R.S.1973, the general statute governing the requirements for notices issued by the Department to drivers. That enactment establishes that proof of notice given in any one of four prescribed ways constitutes "prima facie proof of said denial, cancellation, suspension, or revocation." (Emphasis added.) The statute states in pertinent part:

"Evidence of a registered return receipt of a notice mailed to the last known address of the licensee, or evidence of a copy of the notice mailed to the last known address of the licensee, or evidence of delivery of notice in person to the last known address of the licensee, or evidence of personal service upon the licensee of the order of denial, cancellation, suspension, or revocation of the license by the executive director of the department, or by his duly authorized representative, is prima facie proof of said denial, cancellation, suspension, or revocation."

The statute establishes that a prima facie case on the element of notice is established by evidence that: (1) the Department received a registered return receipt for a notice that was mailed; (2) a copy of the notice was mailed; (3) the notice was personally delivered to the last home address of the driver; or (4) the notice was personally served upon the driver.

In construing these two statutes, we are required to give effect to both enactments. Hyrup v. Kleppe, 406 F.Supp. 214 (D.Colo.1976); Buck v. District Court, 199 Colo. 344, 608 P.2d 350 (1980); People v. Cornelison, 192 Colo. 337, 559 P.2d 1102 (1977); Lininger v. City of Sheridan, 648 P.2d 1097 (Colo.App.1982). We hold that under section 42-2-123(12), C.R.S.1973 (1982 Supp.), the legislature has adopted proof of mailing by registered or certified mail, return receipt requested, as the appropriate method to be used by the Department for giving notice of the order of revocation. However, section 42-2-117(2), C.R.S.1973, establishes that such notice is only prima facie proof and does not create a conclusive presumption. Accordingly, the People are required to prove the element of knowledge of the revocation order in a driving after judgment prohibited case.

The People claim that the defendant was not prejudiced when the trial court refused his tendered instructions because he was permitted to testify to his lack of knowledge during the trial. This argument is not persuasive. Juries are presumed to follow the court's instructions. People v. Smith, 620 P.2d 232 (Colo.1980); People v. Gonzales, 198 Colo. 450, 601 P.2d 1366 (1979); People v. Sexton, 192 Colo. 81, 555 P.2d 1151 (1976). Even if the jury believed the defendant's testimony that he had no knowledge of his status as an habitual traffic offender because his license had been revoked, the jury was logically required to return a verdict of guilty. Under the instructions given by the court, the defendant was guilty of the charge if three elements were established: (1) the defendant was an habitual offender; (2) he was driving a motor vehicle; and (3) the revocation order was in effect.

Our decision is consistent with the result reached by other appellate courts that have faced a similar issue. In State v. Atwood, 290 N.C. 266, 271, 225 S.E.2d 543, 545-46 (1976), the North Carolina Supreme Court stated:

"[W]e believe that the legislature also intended that there be actual or constructive knowledge of the suspension or revocation in order for there to be a conviction under this statute. We reach this conclusion for the reason that G.S. 20-16(d) requires the Department to provide notice and an opportunity for a hearing in order for there to be a lawful suspension. For the purposes of a conviction for driving while license is suspended or revoked, mailing of the notice under G.S. 20-48 raises only a prima facie presumption that defendant received the notice and thereby acquired knowledge of the suspension or revocation. Thus, defendant is not by this statute denied the right to rebut this presumption." (Emphasis in original.) (Citations omitted.)

See also State v. Chester, 30 N.C.App. 224, 226 S.E.2d 524 (1976); Jeffcoat v. State, 639 P.2d 308 (Alaska App.1982); State v. Orr, 246 Ga. 644, 272 S.E.2d 346 (1980); State v. Kemp, 106 Wis.2d 697, 318 N.W.2d 13 (1982); State v. Collova, 79 Wis.2d 473, 255 N.W.2d 581 (1977).

Because we have determined, as a matter of statutory construction, that knowledge of the order of revocation is an essential element in a driving after judgment prohibited prosecution, we need not address the defendant's constitutional argument that the absence of a mens rea element in the statute creates a strict liability crime which violates due process.

III.

The defendant's second argument for...