Four consolidated cases before the Colorado Supreme Court raised the issue of whether DUI is a lesser included offense of either vehicular assault-DUI or vehicular homicide-DUI. In ruling on them in a single opinion, the state high court also addressed: (1) whether a double jeopardy claim can be raised for the first time on direct appeal; and (2) which tests courts should apply in evaluating whether one offense is a lesser included offense in another offense.
Regarding (1), the supreme court concluded that unpreserved double jeopardy claims could be raised for the first time on appeal and that appellate courts should ordinarily review these claims for plain error. In so holding, the court rejected the government’s argument that defendants waive their double jeopardy claims unless they raise them at trial through a Criminal Procedure Rule 12(b)(2) challenge to defective charging documents.
Regarding (2), the court concluded that the appropriate test for determining whether one offense is a lesser included offense of another offense is that outlined by the U.S. Supreme Court in Schmuck v. United States. Under this test, an offense is a lesser included offense of another offense if the elements of the lesser offense are a subset of the elements of the greater offense. For example, one offense is not a lesser included offense of another offense if the lesser offense requires an element not required for the greater offense. The court believed this standard best comported with the principles to which the Double Jeopardy Clause and the related Colorado statute are directed.
Applying this test to the case before it, the court concluded that DUI is a lesser included offense of both vehicular homicide-DUI and vehicular assault-DUI. Therefore, defendants’ convictions must merge into the greater offenses. And in not merging such offenses below, the lower courts committed a plain error; the reversal of the duplicative convictions was required.
In the first case, the state charged a driver with six counts arising from a car accident. Among those counts were DUI and vehicular assault-DUI. The driver did not object to these counts pursuant to 12(b)(2), which provides that objections based on defects in the charging document may be raised only by motion and that a failure to present such an objection constitutes a waiver thereof.
A jury ultimately found the driver guilty of both DUI and vehicular assault-DUI. On appeal, he argued for the first time that DUI is a lesser included offense of vehicular assault-DUI, thereby requiring that his DUI conviction merge into his vehicular assault-DUI conviction.
In a unanimous, unpublished decision, the court of appeals division reviewed the driver’s claim for plain error and concluded that it is possible to commit vehicular assault-DUI without also committing DUI, and therefore the latter is not a lesser included offense of the former.
In the second case, the state charged another driver with numerous counts arising from a car accident, including vehicular assault-DUI and DUI. The driver did not file any objections to these charges under Rule 12(b)(2). A jury ultimately found him guilty of both the vehicular assault-DUI and DUI charges.
In a unanimous, unpublished decision, the division rejected the state’s contention that the driver had waived his merger claim by not filing an objection at trial under Rule 12(b)(2). The division instead determined that errors resulting in double jeopardy violations implicate fundamental rights, are obvious, and affect the fairness and integrity of the proceedings, thus warranting plain error review.
In the third case, another driver, like the first two, did not challenge his vehicular assault-DUI and DUI charges under Rule 12(b)(2). He appealed and argued for the first time that DUI is a lesser included offense of vehicular assault-DUI, and thus his convictions for both of these offenses violated double jeopardy principles. In a published decision, the division unanimously rejected the state’s contention that the driver had waived his double jeopardy claim by not raising it under Rule 12(b)(2). The division instead reviewed the unpreserved double jeopardy challenge for plain error. The division split, however, on the merits of the driver’s double jeopardy claim. The majority concluded that his conviction for vehicular assault-DUI necessarily included his conviction for DUI, and therefore, the division vacated his DUI conviction.
In the fourth case, another driver appealed and argued for the first time that his DUI conviction constituted a lesser included offense of both his vehicular assault-DUI and vehicular homicide-DUI convictions. In a published decision, a split division of the court of appeals rejected this contention. The majority concluded that the trial court did not err in entering his separate convictions for vehicular assault-DUI, vehicular homicide-DUI, and DUI.
Applying the newly established legal rules, the Colorado Supreme Court affirmed the rulings in the first two cases in which the appellate courts reviewed unpreserved double jeopardy claims for plain error, but it reversed the portions of the judgments concluding that DUI is not a lesser included offense of vehicular assault-DUI, and it remanded for further proceedings. The court likewise reversed a portion of the third judgment that concluded that DUI is not a lesser included offense of vehicular assault-DUI and vehicular homicide-DUI, and it remanded for further proceedings. The court affirmed the full judgment in the last case.
If you have been charged with a DUI offense in Illinois, it is crucial to speak to an experienced Illinois DUI lawyer as soon as possible. Harvatin Law Offices, PC provides knowledgeable representation to people in Springfield and throughout Illinois. We have considerable experience defending individuals charged with DUI offenses and representing drivers with revoked licenses before the Illinois Secretary of State. To learn more, and to set up a free initial consultation, contact us online or call us toll-free at 1-800-829-8513.
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New Jersey Appellate Court Reverses Woman’s Vehicular Homicide Conviction, Illinois DUI Lawyer Blog, February 3, 2017.
California Smartphone Breathalyzer Company Settles Lawsuit with FCC, Illinois DUI Lawyer Blog, February 2, 2017.