Thompson v. People

• Decision Date: 09 April 1973
• Docket Number: No. C--255,C--255
• Citation: 510 P.2d 311,181 Colo. 194
• Parties: Lester R. THOMPSON, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
• Court: Colorado Supreme Court

Page 311

510 P.2d 311

181 Colo. 194

Lester R. THOMPSON, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.

No. C--255.

Supreme Court of Colorado, En Banc.

April 9, 1973.

As Modified on Denial of Rehearing June 11, 1973.

Valjean H. McCurdy, Arvada, for petitioner.

Jarvis W. Seccombe, Dale Tooley, Dist. Attys., Frederic B. Rodgers, Deputy Dist. Atty., Brooke Wunnicke, Chief Appellate Deputy Dist. Atty., Denver, for respondent.

DAY, Justice.

This case is one of three consolidated on appeal here because of common questions of law relating to 1969 Perm.Supp., C.R.S.1963, 13--5--30. See Giron v. People, Colo., 510 P.2d 316; People v. Smith, Colo., 510 P.2d 315; and People v. Valdez, Colo., 510 P.2d 317, announced this date. For purposes of reference and application, the crime of driving under the influence of intoxicating liquor, proscribed by 1969 Perm.Supp., C.R.S.1963, 13--5--30(1) (a), will be referred to as DUI or section (1)(a). It reads:

'It is a misdemeanor for any person who is under the influence of intoxicating liquor to drive any vehicle in this state.'

The crime of driving while ability is impaired, proscribed by 1969 Perm.Supp., C.R.S.1963, 13--5--30(1)(b), will be referred to as DWAI or section (1)(b). It reads:

'It is a misdemeanor for any person to drive any vehicle in this state while such person's ability to operate a vehicle is impaired by the consumption of alcohol.'

Pertinent to proof of the charges are sections (2)(a), (b), (c), and (d) of 1969 Perm.Supp., C.R.S.1963, 13--5--30, relating to tests and presumptions which arise on a showing of the amount of alcohol in a defendant's blood. 1969 Perm.Supp., C.R.S.1963, 13--5--30(2)(e) provides:

'The limitations of this subsection (2) shall not be construed as limiting the introduction, reception, or consideration of any other competent evidence bearing upon the question of whether or not the defendant was under the influence of intoxicating liquor or whether or not his ability to operate a vehicle was impaired by the consumption of alcohol.'

Thompson was the defendant in a trial in which he was charged and convicted of DUI. Defendant was also charged in a second count of DUI, second conviction. No evidence was presented by the People with reference to a chemical analysis of the defendant's blood, breath, or urine inasmuch as the defendant refused this test and the arresting officer abided by this refusal. Movies of the defendant and description of defendant's conduct and demeanor constituted the evidence of defendant's guilt.

The case was tried in the Denver county court. From the conviction therein, appeal was taken to the Superior court, where the judgment was affirmed.

The defendant raises three issues. (1) With respect to section (1)(a), it is contended the statute is unconstitutional because of vagueness and lack of standards; and (II) that the trial court erred in instructing the jury that DUI is established by intoxication to the 'slightest degree,' as set forth in Snyder v. City and County of Denver, 123 Colo. 222, 227 P.2d 341. The third issue as to whether DWAI is a lesser included offense in the charge of DUI has been resolved by agreement of the parties. The position of the District Attorney on behalf of the People is that DWAI is to be considered a lesser included offense of DUI if the evidence warrants. By our own analysis, we agree. See Daniels v. People, 159 Colo. 190, 411 P.2d 316.

I.

Defendant's first argument is that the statute is so vague, indefinite, and uncertain that, in the absence of chemical tests to establish intoxication, there are no reasonable ascertainable standards by which the guilt of an accused can be determined.

We disagree and hold that the statute, when read as a whole, provides standards sufficiently precise to inform the defendant of the crime charged. Given the rebuttable presumptions if chemical analysis of a defendant's blood is taken or other evidence is offered, juries of common experience can determine whether one is substantially under the influence so as to be incapable of operating a vehicle safely, as distinguished from merely driving while ability is impaired.

From the application of general rules of statutory construction and the inferable intent of the legislature, it can be seen that by amending the original DUI statute the legislative policy of this state has been to create a graduated scale of penalties arising from driving an automobile after the use of intoxicants. The penalty and presumptions of 1969 Perm.Supp., C.R.S.1963, 13--5--30, clearly show a legislative intent that subsection (1)(b) is a less serious offense than subsection (1)(a), and demonstrates that the legislature intended to establish two levels of prohibited conduct. See 2 J. Sutherland, Statutes and Statutory Construction, § 5608 (3rd ed. 1943) p. 62.

Prior to the numerous amendments occurring in the 1960's, DUI had been interpreted as an impairment to the 'slightest degree' by the consumption of alcoholic liquor. Specifically, in Snyder v. City and County of Denver, Supra, we held:

'* * * A person 'is under the influence of intoxicating liquor,' as that phrase is used in the ordinance in question, when he has taken a drink of alcoholic liquor which affects him so that in the slightest degree he is less able, either mentally or physically or both, to exercise a clear judgment and with steady hands and nerves operate an automobile with safety to himself and to the public, and when this mental and physical condition exists after imbibing intoxicating liquor, even though the person has had only one drink thereof, he 'is under the influence of intoxicating liquor' as those words are used in the ordinance in question. * * *'

Certainly, in light of the 1969 amendments, there can be no level less than the 'slightest degree' defined in Snyder. Anything less would constitute impairment by 'no visible means' and be subject to numerous constitutional objections.

One of the familiar rules of statutory construction was enunciated by this court in Colorado v. Cooke, 150 Colo. 52, 370 P.2d 896, wherein we stated:

'* * * (I)t is to be presumed that a legislature is cognizant of and adopts the construction which prior judicial decisions have placed on particular language when such language is employed in subsequent legislation. * * *'

This rule was reaffirmed in Smith v. Miller, 153 Colo. 35, 384 P.2d 738:

'* * * (I)t must be assumed that the legislature acted with full knowledge of relevant constitutional provisions, inherent judicial powers existing, and of previous legislation and decisional law on the subject; * * *' The concept that prior case law may be looked to for determination of the meaning of the statute is not limited to the civil area. This court has clearly stated that 'where the statute does not define a crime, but merely gives to it its commonlaw name or designation, resort must be had to the common law to ascertain what acts constitute the crime in question.' Koontz v. People, 82 Colo. 589, 263 P. 19. See also Allen v. People, 175 Colo. 113, 485 P.2d 886; Gallegos v. People, 159 Colo. 379, 411 P.2d 956.

The legislature has recognized the above rules of construction and expressed its approval thereof in C.R.S.1963, 135--1--2(1), wherein it states:

'All words and phrases shall be understood and construed according to the approved and common usage of the language; but technical words and phrases, and such as may have acquired a peculiar and appropriate meaning, shall be construed and understood according to such peculiar and appropriate meaning.'

Also of relevance in the construction of this statute is C.R.S.1963, 135--1--4, wherein its states:

'Re-enactments, how construed.--The provisions of any law or statute which is re-enacted, amended or revised, so far as they are the same as those of prior laws, shall be construed as a...