People v. Lucero, 97CA0680.

• Decision Date: 13 May 1999
• Docket Number: No. 97CA0680.,97CA0680.
• Citation: 985 P.2d 87
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. William J. LUCERO, Defendant-Appellant.
• Court: Colorado Court of Appeals

985 P.2d 87

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. William J. LUCERO, Defendant-Appellant.

No. 97CA0680.

Colorado Court of Appeals, Div. IV.

May 13, 1999.

Certiorari Denied October 4, 1999.

Gale A. Norton, Attorney General, Martha Phillips Allbright, Chief Deputy Attorney General, Richard A. Westfall, Solicitor General, Paul Koehler, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

David F. Vela, Colorado State Public Defender, Martin Gerra, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge RULAND.

Defendant, William J. Lucero, appeals from the judgments of conviction entered upon jury verdicts finding him guilty of numerous offenses. These offenses include three counts of vehicular homicide (DUI), three counts of vehicular homicide (reckless), three counts of careless driving resulting in death, thirty counts of vehicular assault (DUI), and thirty counts of vehicular assault (reckless). Defendant was also convicted of failure to drive on the right side of the road and careless driving, plus two counts of third degree assault (at-risk adults) and eight counts of third degree assault based upon the use of an automobile as a deadly weapon. With reference to non-driving offenses, defendant was convicted of possession of a schedule II controlled substance (cocaine), possession of marijuana, and possession of drug paraphernalia. We affirm in part, vacate in part, and remand with directions.

While defendant was driving on a two-lane mountain highway, he fell asleep at the wheel. His van crossed over the center line and collided with an oncoming tour bus. Three bus passengers were killed, thirty were seriously injured, and ten suffered bodily injury.

Medical testing conducted after the accident failed to reveal alcohol in defendant's blood. However, a trace amount of marijuana was found, along with trace amounts of "parent" cocaine and cocaethylene.

I.

Defendant contends that he was entitled to a judgment of acquittal on the vehicular homicide (DUI) and vehicular assault (DUI) charges. He argues that his motion to that effect should have been granted because the evidence was insufficient to prove that he was "under the influence."

In a related contention, defendant maintains that the trial court erred in refusing his jury instruction which stated that a person is not under the influence of drugs unless such substances are having a contemporaneous psychoactive effect. We are not persuaded by either contention.

A.

In assessing defendant's contention relative to the sufficiency of the evidence, we must first determine the applicable legal standard. Both the vehicular homicide and vehicular assault statutes define "driving under the influence" as:

Driving a vehicle when a person has consumed [alcohol and/or drugs], which ... affect such person to a degree that such person is substantially incapable, either mentally or physically, or [both], of exercising clear judgment, sufficient physical control, or due care in the safe operation of a vehicle.

Sections 18-3-106(1)(b)(IV) and 18-3-205(1)(b)(IV), C.R.S.1998 (emphasis supplied).

However, defendant's tendered jury instruction stated that:

An individual is not `under the influence' or `impaired' by the ingestion of any drug, combination of drugs, or combination of drugs and alcohol unless such influence or impairment is caused by the psychoactive properties of the substance or substances at the time of the operation of the motor vehicle. (emphasis supplied)

In essence then, defendant argues that a state of intoxication occurs under the statute only while the drugs or alcohol are having the direct euphoric effect for which they are taken by the user. We disagree.

In Bieber v. People, 856 P.2d 811 (Colo. 1993), defendant had not used drugs for at least two days prior to the commission of a homicide. He claimed, however, that the effects of prior drug use caused him to commit the crime and he requested jury instructions on a "settled insanity" defense.

Our supreme court determined that the impact of his long-term use of drugs continued to effect a disturbance of his mental or physical capacities and that this continued effect was to be regarded as intoxication. See § 18-1-804(4), C.R.S.1998. The court stated:

We do not see any qualitative difference between a person who drinks or takes drugs knowing that he or she will be momentarily `mentally defective' as an immediate result, and one who drinks or takes drugs knowing that he or she may be `mentally defective' as an eventual, long-term result.

Bieber v. People, supra, 856 P.2d at 816.

In our view, given the broad language of the statute, similar reasoning applies to defendant's argument here. In sum, if, as here, drug or alcohol use affects a person to the extent that he or she is incapable of mentally or physically exercising the judgment, physical control, and care required by the statute, then that person is intoxicated. And, this is so notwithstanding what alcohol or drug residue may be detected in defendant's body. Hence, we conclude that the trial court properly refused defendant's proposed instruction.

B.

Because there was expert testimony that defendant's exhausted condition just prior to the accident was the result of his earlier ingestion primarily of cocaine, we conclude that the motion for directed verdict was also properly denied.

Specifically, with reference to actual drug use, there was testimony that, the day before the accident, defendant was in possession of drugs and drug paraphernalia and appeared to be under the influence. Drugs and drug paraphernalia were also found in his van after the accident. The jury was informed of defendant's admission that he had consumed drugs and that, although defendant knew he was "dozing off," he continued to drive because he "thought he could make it."

Further, a toxicologist called by the prosecution testified that cocaine causes the user's body to go through a tripartite cycle. First, the user experiences a "rush," when the initial euphoric effect is registered on the central and peripheral nervous systems. The second phase is called the "run," during which the user ingests additional drugs to escape dysphoria and regain euphoria. The final phase occurs when the body can no longer withstand the "run" and the user, as here, will "crash" experiencing extreme fatigue and exhaustion.

Based upon data obtained from tests conducted after the accident on defendant's urine, the toxicologist opined that defendant's prior consumption of cocaine was either "a binge or [indicative of] a heavy chronic user over a long period of time." The expert also stated that defendant's actions just prior to the accident "were influenced by the effects of the cocaine."

This evidence must be viewed in the light most favorable to the prosecution and the jury's verdict. See People v. Thompson, 950 P.2d 608 (Colo.App.1997)

. Viewed in this context, we conclude that the evidence was sufficient to permit a jury to infer that defendant was legally intoxicated under the statute at the time his van collided with the bus.

II.

Defendant next contends that the trial court erred in failing to suppress the drugs and drug paraphernalia seized during a search of his van. The parties agree that the warrant itself was deficient. And, defendant argues that, because the record contains no evidence that the supporting affidavit physically accompanied the warrant during its execution, his convictions must be vacated. We do not address this contention.

To preserve this claim for appeal, defendant must have raised the issue initially as grounds for his motion in the trial court. See People v. Staton, 924 P.2d 127 (Colo.1996)

. At the suppression hearing, however, defendant argued only that it was the facial insufficiency of the warrant itself which violated the Fourth Amendment particularity requirement.

The trial court found the affidavit very specific in detailing the items to be seized. Further, because the affidavit formed the basis for the warrant, the court concluded that it therefore validated and made the warrant effective to authorize the search.

Neither party addressed whether the affidavit was attached to the warrant. Therefore, as defendant raises this issue for the first time on appeal, we decline to address it. See People v. Staton, supra.

III.

We also reject defendant's contention that the trial court erred in failing to instruct the jury on driving under the influence (DUI) and driving while ability impaired (DWAI) under §§ 42-4-1301(1)(a) & (b), C.R.S.1998, of the Motor Vehicle Code. Defendant argues that under §§ 18-3-106(1)(a) & (b), C.R.S. 1998, these instructions were properly requested as lesser-included offenses of vehicular homicide (DUI) and vehicular assault (DUI). However, we conclude that the failure to instruct on these offenses, if error, was harmless. See C.A.R. 35(e).

In People v. Garner, 781 P.2d 87, 89 (Colo. 1989), our supreme court confirmed that vehicular homicide or assault while intoxicated were strict liability crimes, and stated:

[T]he conduct at issue for purposes of proximate cause is the voluntary act of driving while intoxicated. The statute does not require evidence that the intoxication affected the driver's operation in a manner that results in a collision.

Here, it was undisputed that a collision occurred and that three deaths resulted as well as serious bodily injury to 30 passengers. Hence, the only issues for resolution by the jury in this context were whether defendant was intoxicated or impaired. Under such circumstances, we view the failure to provide a separate instruction on the other offenses to be harmless.

IV.

Defendant next contends that the trial court erred in refusing to instruct the jury on the presumption arising from the analysis of defendant's blood pursuant to §§ 18-3-106(2) and 18-3-205(2), C.R.S.1998. We disagree.

The...