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 needed only to 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. The court of appeald reversed, holding that prior convictions were an element of felony DUI, meaning they had to be presented to the jury and proved beyond a reasonable doubt. The division 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 issue before the Colorado Supreme Court in this case was whether the prior convictions here were a sentence enhancer or an element of the offense. While the State's petition was pending, the Supreme Court issued Linnebur v. Colorado, 476 P.3d 734 (2020), which mirrored the Viburg appellate court's analysis deeming prior convictions to be an element of felony DUI. However, Linnbebur left open the question of whether double jeopardy barred retrial of the felony DUI charge. Here, the Supreme Court held double jeopardy did not bar retrial because the defendant was not previously acquitted of felony DUI.
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