Summaries of Published Opinions, 0520 COBJ, Vol. 49, No. 5 Pg. 74

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49 Colo.Law. 74

Summaries of Published Opinions

Vol. 49, No. 5 [Page 74]

Colorado Lawyer

May, 2020

FROM THE COURTS COLORADO COURT OF APPEALS

March 5, 2020

2020 COA 36. No. 17CA0820. People v. Jiron.

Criminal Law—Driving Under the Influence—Prior DUI Convictions—Sentence Enhancer—Sufficiency of Evidence—Collateral Challenge—Reasonable Suspicion—Motion to Suppress—Expert Testimony.

An officer responded to a reported assault at a house. As the officer approached the house, defendant was pulling out of the driveway, and the officer pulled over her vehicle. The officer concluded defendant was very intoxicated and arrested her for driving under the influence (DUI). Results of a blood test performed after defendant was taken into custody showed that her blood alcohol content was .334. A jury found defendant guilty of felony DUI and DUI per se. At the sentencing hearing, the trial court found, by a preponderance of the evidence, that defendant had committed three prior DUI offenses and it imposed felony convictions for the DUI and DUI per se counts.

On appeal, defendant first contended that her prior DUI convictions were an element of the offense rather than a sentence enhancer and thus had to be proved to the jury beyond a reasonable doubt. Under the plain language of CRS§ 42-4-1301(1)(a) and (2)(a), defendants can be convicted of DUI and DUI per se without proof of their prior convictions, so prior convictions are a sentence enhancer that need not be submitted to a jury. Here, the trial court properly applied the preponderance of the evidence standard in determining the existence and validity of the prior convictions. And contrary to defendant's claim, if the sentence enhancer is a prior conviction, a defendant does not have a constitutional right to have a jury decide whether she had such a prior conviction. Further, the felony DUI statutes proscribe different conduct for which the legislature may impose different penalties and thus do not violate defendant's equal protection rights.

Defendant next contended that the prosecution did not present sufficient evidence to prove that she had been convicted of three prior DUI offenses because (1) the trial court erroneously applied the statutory time bar to her collateral attack on one of the convictions, and (2) the prosecution did not establish that she was the person convicted in the prior cases. As to the first claim, defendant's collateral challenge to her 1998 DUI conviction was time barred and her explanation for the substantial delay in collaterally attacking the previous conviction did not establish justifiable excuse or excusable neglect. As to the second claim, the evidence presented to the court, including defendant's motor vehicle record and court records, was sufficient to support the court's finding that defendant had committed at least three prior DUI offenses.

Defendant also argued that the trial court erroneously denied her motion to suppress evidence collected from the traffic stop that led to her arrest. Because the officer arrived at the scene in time to see defendant's car pull out of the driveway, there was a substantial enough connection between the report of a crime and the vehicle leaving the scene to arouse reasonable suspicion on the part of an investigating officer. Accordingly, the trial court did not err in denying defendant's motion to suppress.

Defendant next contended that the trial court erred in admitting testimony concerning her BAC from the certifying scientist because the testimony violated her constitutional right to confrontation and statutory right to in-person testimony. Although the scientist was not a supervisor, he participated in the testing process as the certifying scientist, reviewed the data and came to an independent conclusion, ensured that the standard operating procedures of the laboratory were followed, and approved the results. Further, the testimony was not inadmissible implied hearsay because the scientist performed his own independent review and reached an independent conclusion in the case. Accordingly, the trial court did not err.

Defendant also contended that the trial court erred by allowing testimony from the officer regarding roadside sobriety examinations and blood draws when he was not qualified as an expert witness. The officer's testimony that defendant was "very intoxicated" was a proper lay opinion based on his perceptions and observations, not any specialized skill or experience. Further, though the officer's description of the horizontal gaze nystagmus test exceeded the scope of lay testimony, and even assuming that the testimony about the blood draw procedure was also improper, any error in admitting this evidence was harmless when measured against all of the evidence.

The judgment was affirmed.

2020 COA 37. No. 18CA1308. People v. Lavadie.

Constitutional Law—Sixth Amendment—Advisement.

Defendant was charged with multiple felonies. At his first court appearance after his arrest, he rejected the trial court's offer to appoint an attorney to represent him. When defendant first requested to represent himself, the trial court attempted to give the advisement required by People v. Arguello, 772 P.2d 87 (Colo. 1989), but his answers to the court's questions during that advisement were unresponsive, and the trial court had difficulty determining whether defendant's waiver of his right to counsel was knowing and intelligent. The court terminated the advisement, appointed counsel, and refused to consider defendant's subsequent requests to represent himself. Defendant was represented through out his trial by alternate defense counsel over his numerous objections. A jury found defendant guilty of aggravated robbery, felony menacing counts, and misdemeanor theft.

On appeal, defendant contended that the trial court violated his Sixth Amendment right to self-representation when it forced him to be represented by counsel despite his repeated and unequivocal requests to represent himself. The trial court properly attempted to determine whether defendant's waiver of his right to counsel was knowing and intelligent by trying to conduct an advisement of rights. However, the trial court did not expressly tell defendant that (1) his failure to provide responsive answers to its questions would result in an attorney being appointed to represent him, and (2) the court would not consider subsequent requests he made to represent himself. Further, the trial court did not allow defendant an opportunity to indicate that he would engage in an appropriate dialogue with the court when he reasserted at subsequent hearings that he wanted to represent himself. Thus, the trial court violated defendant's right to self-representation.

The judgment was reversed and the case was remanded, with instructions, for a new trial.

2020 COA 38. No. 18CA1646. Garcia v. Centura Health Corp.

Hospital Lien Statute—Primary Health Insurance Provider—Medicare—Summary Judgment.

Garcia was treated at Centura-St. Anthony North (the hospital) for injuries sustained in an automobile accident. She told the hospital at the time of her treatment that Medicare, Medicaid, and Progressive (her property and casualty insurance carrier) were her insurers. Centura Health Corporation (Centura) billed Progressive, which stated her policy did not cover medical care. Centura then filed a lien against Garcia without first billing Medicare and notified Garcia that it would not bill Medicare. Garcia filed a complaint under CRS § 38-27-101(7), individually and on behalf of a class of others similarly situated, seeking an award of twice the amount of the hospital liens asserted. Centura released the lien and moved to dismiss. Garcia cross-moved for summary judgment The district court ruled in favor of Centura on both motions.

On appeal, Garcia contended that the district court erred by denying her cross-motion for summary judgment, arguing that Centura violated the hospital lien statute when it filed a hospital lien against her before billing her primary health insurance. Based on the plain language in CRS § 38-27-101, hospitals must bill a patient's primary private health insurance provider before filing a lien. The statute's intent is to protect wrongfully injured insured people from the further injury of hospital liens, not to maintain the maximum possible payments for hospitals. When a patient is insured by only Medicare and Medicaid, Medicare is the patient's primary health insurance. It is undisputed that Medicare was Garcia's primary health insurance. Thus, Garcia was subject to a lien in violation of CRS § 38-27-101(7) and the district court erred in granting Centura's motion to dismiss and denying Garcia's motion for summary judgment.

The judgment granting Centura's motion to dismiss (properly considered a motion for summary judgment) and denying Garcia's motion for summary judgment was reversed. The case was remanded to enter judgment in favor of Garcia and award her recovery. The Court expressed no opinion on "others similarly situated."

March 12, 2020

2020 COA 39. No. 16C A22O3. People v. Martinez-Chavez.

Criminal Law—Sentencing— Restitution Hearing.

Defendant pleaded guilty to one count of first-degree assault and one count of attempted sexual assault on a child-victim less than 15 years of age. The People reserved restitution at sentencing but later filed a motion for restitution. Defendant timely objected to the People's restitution motion and requested a hearing. The trial court determined that all of defendant's objections were legal arguments that the court could resolve without a hearing, and it entered a restitution order.

On appeal, defendant contended that the trial court erred by resolving the motion for...

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