Reyna-Abarca v. Colorado
Annotate this CaseFour cases raised the ultimate question of whether driving under the influence (“DUI”) was a lesser included offense of either vehicular assault-DUI or vehicular homicide-DUI, and presented the Supreme Court with an opportunity to address: (1) whether a double jeopardy claim could be raised for the first time on direct appeal; and (2) what test courts should apply in evaluating whether one offense is a lesser included offense of another. The Supreme Court concluded that unpreserved double jeopardy claims could be raised for the first time on appeal, and appellate courts should ordinarily review such claims for plain error. With respect to the applicable test for determining whether one offense is a lesser included offense of another, the Supreme Court reiterated that the “strict elements test” was the proper test, but the Court acknowledged that prior iterations of that test had arguably been inconsistent. 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, such that the lesser offense contains only elements that are also included in the elements of the greater offense. Applying this test to the cases here, the Court concluded that DUI was a lesser included offense of both vehicular assault-DUI and vehicular homicide-DUI, and thus, defendants’ DUI convictions had to merge into the greater offenses. The Court further concluded that in not merging such offenses, the trial courts here plainly erred and that reversal of the multiplicitous convictions was therefore required.
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