In re Viburg v. Colorado
Annotate this CaseThe State charged Kevin Viburg with driving under the influence with three or more prior alcohol-related traffic offenses (i.e., felony DUI). Prior to trial, Viburg moved to treat his prior convictions as an element of the crime, which would require the jury to find them beyond a reasonable doubt. The court denied the motion, ruling that Viburg’s prior convictions were a sentence enhancer that need only be proved by a preponderance of the evidence at a hearing after a trial on the merits. As a result, evidence of his prior convictions was not introduced to the jury; instead, at trial, the court instructed the jury only on the elements of misdemeanor DUI. The jury then found Viburg guilty of misdemeanor DUI. Subsequently, at a post-conviction hearing, the trial court found by a preponderance of the evidence that Viburg had three prior alcohol-related traffic offenses, and it entered a conviction for felony DUI. On direct appeal, a division of the court of appeals reversed, holding that prior convictions were an element of felony DUI (meaning they must be presented to the jury and proved beyond a reasonable doubt). The appeals court further stated that if the prosecution sought retrial and Viburg raised a double jeopardy defense, the trial court had to rule on the defense; it declined to express an opinion on the merits of the defense. The Colorado Supreme Court held double jeopardy did not bar retrial because the defendant was not previously acquitted of felony DUI.
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