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Colorado Court of Appeals Opinions
October 25, 2012

The Court of Appeals summaries are written for the Colorado Bar Association by licensed attorneys Teresa Wilkins (Denver) and Paul Sachs (Steamboat Springs). Please note that the summaries of Opinions of the Colorado Court of Appeals are provided as a service by the Colorado Bar Association and are not the official language of the Court. The Colorado Bar Association cannot guarantee the accuracy or completeness of the summaries.

2012 COA 176. No. 08CA2013. People v. Phillips.
First-Degree Murder—Child Abuse Resulting in Death—Hearsay—Federal Confrontation Clause—State Confrontation Clause—Batson Challenge—Jury Selection—Consecutive Sentences—Evidence.

Defendant appealed his convictions for first-degree murder, child abuse resulting in death, and tampering with physical evidence. The convictions were affirmed, the sentences were reversed in part, and the case was remanded.

Defendant’s convictions stemmed from evidence that defendant starved his stepson, C.G., to death in a linen closet in his apartment. Defendant argued that the trial court violated his federal and state Confrontation Clause rights by permitting his 5-year-old son, D.P., to testify via closed circuit television (CCTV). D.P.’s therapist testified that D.P. would be traumatized psychologically if he were made to testify in front of defendant. Further, the court allowed defense counsel to cross-examine D.P. fully, and defendant had two-way communication with counsel during direct and cross-examination. Therefore, the court did not violate defendant’s federal and state Confrontation Clause rights by allowing D.P. to testify via CCTV.

Defendant also argued that the trial court violated his federal and state Confrontation Clause rights, and state hearsay rules, by admitting various out-of-court statements made by Sarah Berry (dendant’s girlfriend), C.G, and D.P. Statements that Berry made in a voicemail left on defendant’s cell phone, which relayed what C.G. and D.P. said, did not violate state hearsay rules, because C.G.’s statement to D.P. was a command, offered as circumstantial evidence that C.G. was extremely thirsty and, therefore, not covered by the hearsay rule. D.P.’s statement, relaying C.G.’s statement to Berry, was admissible for the non-hearsay purpose of showing its effect on Berry as the listener. Finally, Berry’s statement to defendant, in which she relayed D.P.’s (and thus C.G.’s) statement, was admissible as a non-hearsay statement by a co-conspirator under CRE 801(d)(2)(E). Therefore, the court did not abuse its discretion in admitting the voicemail into evidence.

Before his death, C.G. made various statements to the public school employees, to the police officer during the welfare check, and to the caseworker. The questioning of C.G., however, was for the purpose of determining his health and welfare, and his statements related to his then existing physical condition, which fell within a hearsay exception and were admissible. Additionally, some of C.G.’s statements to the caseworker were for a non-hearsay purpose of showing that C.G. had been coached to change his story.

Defendant’s rights were not violated in admitting the statements that D.P. made to a mental health therapist during therapy sessions after C.G.’s death. D.P. testified via CCTV and defense counsel had the opportunity to cross-examine him on any statements he had made to the therapist.

Any statements erroneously admitted were harmless beyond a reasonable doubt. There was no reasonable possibility that the admission of these statements affected the guilty verdict, because the other properly admissible evidence was overwhelming that defendant knowingly starved C.G. to death in the closet.

Defendant also contended that the trial court erred in denying his Batson challenge to the prosecutor’s allegedly discriminatory use of peremptory challenges [Batson v. Kentucky, 476 U.S. 79, 89 (1986)]. Although defendant made out a prima facie case because no African American jurors remained on the panel after the prosecutor used his peremptory challenges to dismiss them, the prosecution provided permissible race-neutral explanations for his challenges, and defendant was given an opportunity to reply. Therefore, the trial court did not abuse its discretion in denying defendant’s Batson challenge.

Defendant further argued that the trial court erred in imposing consecutive sentences for first-degree murder and child abuse resulting in death. Because the evidence presented at trial supports no reasonable inference other than that defendant’s convictions of first-degree murder and of child abuse resulting in death were based on identical evidence, the trial court erred in imposing consecutive sentences for these convictions. Hence, the sentences were reversed in part and the case was remanded to correct the mittimus to reflect concurrent sentences on defendant’s convictions of first-degree murder and of child abuse resulting in death.

2012 COA 177 No. 10CA1218. People v. Howe.
Probation Revocation—Presentence Confinement Credit—Substantial Nexus.

In this Jefferson County probation revocation case, defendant appealed the district court’s order denying his motion for 278 days of presentence confinement credit (PSCC). The order was reversed and the case was remanded.

While on probation in Jefferson County, defendant committed a new drug offense in El Paso County that triggered his arrest and confinement by El Paso authorities, as well as the issuance of a Jefferson County arrest warrant and commencement of revocation proceedings. Defendant argued that he is entitled to PSCC in both cases on revocation of the probation. Although the probation revocation complaint and the drug offenses were filed in separate judicial districts, the revocation complaint was based, in part, on the drug offenses in the El Paso County case. Therefore, there was a substantial nexus between the conduct underlying the Jefferson County probation revocation complaint and warrant and his confinement in El Paso County. Further, defendant’s sentence in the El Paso County case was concurrent with his sentence in the Jefferson County revocation case. Therefore, the trial court erred when it denied defendant’s request for additional PSCC in the revocation case.

2012 COA 178. No. 10CA2638. Colorado Pool Systems, Inc. v. Scottsdale Insurance Co.
“Accident”—Defective Work Product—Negligent Misrepresentation.

Plaintiffs Colorado Pool Systems, Inc. (Colorado Pool) and its owner, Patrick Kitowski, appealed from summary judgments in favor of defendants Scottsdale Insurance Company (Scottsdale), GAB Robbins North America, Inc. (GAB), and GAB employee Don Hansen. The judgments were reversed and the case was remanded for further proceedings.

Colorado Pool was hired to install a swimming pool at Founders Village Pool and Community Center. The subcontractors Colorado Pool hired installed a defective concrete shell for the pool. Colorado Pool notified its insurance carrier, Scottsdale. Scottsdale assigned the matter to a claims adjuster, Hansen, who inspected the pool and indicated that Scottsdale would cover losses associated with demolishing and replacing the pool. After the pool’s concrete shell was demolished for the purpose of starting over, Scottsdale denied coverage.

Plaintiffs contended that the court erred in ruling that the alleged damage did not arise from an “accident,” as that term is used in the policy. The Builders Insurance Act does not apply retroactively. However, a builder is covered under a commercial general liability (CGL) policy for damages that arose from the builder’s own improper or faulty workmanship if (1) it is not specifically excluded in the policy; (2) the resulting damage was to non-defective property; and (3) the damage was caused without expectation or foresight. Here, the policy did not define “accident.” Plaintiffs’ policy does not cover damage incurred in demolishing and replacing the pool itself. This damage resulted solely from plaintiffs’ obligation—necessarily expected—to replace defective work product. However, the consequential damage to non-defective third-party work (including damage to a deck, sidewalk, retaining wall, and electrical conduits) is covered because this damage was the result of an “accident.” Accordingly, the trial court’s summary judgment in favor of Scottsdale was reversed, and the case was remanded for further proceedings on plaintiffs’ claims.

Plaintiffs also argued that the trial court erred in granting summary judgment to defendants on plaintiffs’ negligent misrepresentation claim against GAB and Hansen. Plaintiffs relied on Hansen’s statements that Scottsdale would cover losses associated with demolishing and replacing the pool. Although plaintiffs may be charged with full knowledge of the policy’s terms in an effort to defeat their justifiable reliance argument, that knowledge does not mean that plaintiffs were unjustified in relying on Hansen’s alleged misrepresentations where the terms of the policy were ambiguous. Therefore, the trial court erred in granting summary judgment on this issue.

2012 COA 179. No. 11CA0423. People v. Berdahl.
Possession—Pat-Down Search—Suppression of Evidence—Voluntary Consent.

Defendant appealed the judgment of conviction entered on jury verdicts finding him guilty of possession of a schedule II controlled substance, a class 6 felony, and possession of drug paraphernalia, a class 2 petty offense. The order was reversed and the case was remanded.

When assisting defendant and his girlfriend, whose vehicle had broken down at the side of the road, a deputy recovered drug paraphernalia and methamphetamine from defendant while doing a safety pat-down before letting the couple ride in the back seat of his patrol car. The deputy secured the evidence, handcuffed defendant, transported him to the jail, and booked him.

Defendant’s sole contention on appeal was that the trial court erred in denying his motion to suppress evidence. Specifically, he asserted that the pat-down search of his person was unconstitutional because the police had no reasonable and articulable suspicion that he was involved in criminal activity or that he was armed and dangerous. The deputy and the trooper testified that defendant was not intoxicated and that they did not have any suspicion that he was or had been involved in a crime, or that he might be armed and dangerous. Instead, the trooper patted down defendant as an “officer-safety practice.” Therefore, the trooper’s pat-down search of defendant was not a constitutionally reasonable search. The case was remanded to determine whether defendant voluntarily consented to the search according to the proper legal standards, which would affirm the conviction.

2012 COA 180. No. 11CA0785. Parker Excavating, Inc. v. City and County of Denver.
Contract Dispute—Equitable Relief.

In this government contracts case, plaintiff Parker Excavating, Inc. (Parker) appealed the trial court’s judgment awarding it $1.65 million under an equitable adjustment provision of Parker’s contract with the City and County of Denver’s Board of Water Commissioners (Denver Water). The judgment was affirmed.

This case arose out of a contract dispute between Parker and Denver Water over responsibility for increased costs associated with constructing a dam and reservoir at a sand and gravel pit. The trial court found that Parker’s costs increased by $2,373,679, but “as an equitable matter . . . both parties share some responsibility for the unanticipated muck.” The court concluded that Denver Water was more responsible than Parker. It then awarded Parker $1.65 million.

On appeal, Parker argued that the trial court erred in awarding Parker equitable relief rather than legal damages. The contract contained an equitable adjustment provision, entitling either party to seek an equitable adjustment for increased or decreased costs caused by unanticipated site conditions. Further, the contract excluded compensation for excavation costs. Therefore, from the plain language of the contract, the parties would have reasonably expected an equitable adjustment to be a remedy in equity. Further, the trial court did not clearly err in reducing the measure of equitable adjustment to account for Parker’s relative responsibility in not determining the extent of the muck. The trial court’s findings are, therefore, supported by evidence in the record that certain costs were attributable to Parker, and those findings were not disturbed on appeal.

2012 COA 181. No. 11CA1116. People v. Aguilar.
Crim.P. 11 and 35(c)—Second-Degree Murder—Felony Murder—Burglary—Ineffective Assistance of Counsel—Expert Witness—Jury Instruction—Double Jeopardy Rights—Providency Hearing—Sentencing.

Defendant, appearing pro se, appealed the district court’s order denying his Crim.P. 35(c) motion for post-conviction relief alleging ineffective assistance of counsel. The order was affirmed.

Defendant and his companions broke into the victim’s home, bound and gagged the victim, and covered him with a mattress. They then ransacked the victim’s home and carried items away. The victim was unable to free himself and consequently died. A jury found defendant guilty of first-degree burglary, second-degree burglary, theft, robbery, and conspiracy to commit robbery. The jury could not reach a verdict on a charge of felony murder and a mistrial was granted with respect to that charge. Before the scheduled retrial, defendant pleaded guilty to second-degree murder in exchange for dismissal of the felony murder charge.

Defendant contended that he received ineffective assistance of trial counsel because counsel failed to hire an expert to observe and rebut the prosecution’s use of consumptive DNA testing. Defense counsel’s decision to call or not call his own DNA expert was a matter of trial strategy. Defendant failed to allege facts establishing that counsel’s choice was outside the wide range of professionally competent assistance. Consequently, defendant was not entitled to a hearing on this claim.

Defendant also contended that counsel was ineffective for failing to tender a reckless manslaughter instruction at trial. Defendant’s theory of defense was that he did not cause the victim’s death. Therefore, reckless manslaughter was inconsistent with defendant’s theory of defense and defendant cannot prove that counsel’s performance was deficient in this regard.

Defendant also argued that his trial counsel was ineffective for not advising him of his double jeopardy rights. Specifically, defendant argued that because the jury had convicted him of first-degree burglary, a lesser-included offense of felony murder, he could not be retried for felony murder and, therefore, his counsel was ineffective in neglecting to advise him that he should not plead to another lesser included offense of felony murder. The jury convicted defendant of burglary and expressly hung on the charge of felony murder. The implied acquittal rule does not bar retrial of a greater offense when a jury deadlocks on that charge but convicts on a lesser-included offense. Therefore, a retrial for felony murder would not have violated defendant’s double jeopardy rights. Consequently, his claim that counsel was ineffective for allowing his guilty plea to avoid a second trial failed.

Defendant further contended that he received ineffective assistance of counsel during the Crim.P. 11 providency hearing. However, the plea agreement signed by defendant and the record of the plea hearing do not support defendant’s argument. Because defendant was advised orally or in writing of each of the asserted errors, he failed to establish that his plea was not voluntary, knowing, or intelligent, or that his defense counsel provided deficient performance.

Finally, because defendant’s convictions were not supported by identical evidence, his counsel was not ineffective in failing to secure concurrent sentences. The order was affirmed.

2012 COA 182. No. 11CA1403. Legro v. Robinson.
Summary Judgment—Civil Dog Bite Statute—Premises Liability Act—“Landowner.”

Plaintiffs Renee and Stephen Legro appealed the district court’s entry of summary judgment in favor of defendants Samuel and Cheri Robinson. The Legros also appealed the court’s denial of their motions to amend their complaint and to enforce an alleged settlement agreement. The Court of Appeals affirmed the summary judgment in part and reversed it in part; declined to address the motion to amend; affirmed the order denying enforcement of a settlement agreement; and remanded the case with directions.

On July 9, 2008, Renee Legro was in a bicycle race sponsored by the Vail Recreation District (District) when she was attacked by two of the Robinsons’ predator control dogs and sustained significant injuries. The attack was on a public road in the White River National Forest. The Robinsons had a permit, issued by the U.S. Forest Service, to graze sheep in the area of the attack. The District had a permit for the race on the road where the attack occurred.

The Legros sued, alleging negligence, negligence per se, loss of consortium, and strict liability pursuant to the civil dog bite statute, CRS § 13-21-124. The Robinsons moved for summary judgment, arguing that the common law claims were barred by the premises liability act (PLA) and that they could not be held liable under the predator control dog exclusion of the dog bite statute. The district court granted the Robinsons’ motion, agreeing with both arguments.

On May 25, 2011, the day of the district court’s order, the Legros filed a motion to reconsider, requesting the case proceed to trial as a PLA case and a separate motion to file an amended complaint alleging a PLA claim. The court never ruled on the motions; therefore, they were denied as a matter of law.

Twelve days after the summary judgment order, the Legros filed a motion to enforce a settlement agreement allegedly accepted by them fewer than two hours after the court’s summary judgment order. The district court did not rule on this either, but after remand from the Court of Appeals for that express purpose, the district court denied it on January 30, 2012.

On appeal, the Legros argued it was error to conclude that the Robinsons were PLA landowners. The Court disagreed. The term “landowner” is broadly defined in the PLA. Under their sheep grazing permit, the Robinsons had a legal entitlement to be on the property. They were responsible for creating a condition, or conducting an activity, on the property that injured Legro;therefore, they qualified as landowners under the PLA.

The district court failed to determine whether the dog bite statute may prevail over the PLA, assuming the PLA abrogated the statutory dog bite claim. The Court held that the PLA does not abrogate the Legros’ statutory claim, nor does the dog bite statute prevail over the PLA; rather, both statutes may be given effect in this case.

Under the dog bite statute, a dog owner may be held strictly liable for economic damages if the dog bites a person who is lawfully on public or private property absent one of the statutory exclusions. If the incident occurs on a property where the defendant also qualifies as a PLA landowner, the plaintiff may seek damages beyond economic damages under the PLA and the landowner may avoid liability by demonstrating he or she met the duties imposed under the PLA.

The Legros further argued that the district court erred in finding that the undisputed facts supported application of the predator control dog exclusion to grant summary judgment under the dog bite statute. The Court agreed. The question was whether the predator control dogs were on “property of or under the control of” the Robinsons. The property was owned by the Forest Service, so the Court had to determine whether it was “under the control of” the Robinsons. The Court held that “control” of property as used in the statute means, at a minimum, sufficient control over the property such that a dog owner has the right to exclude persons from the property. Here, the Robinsons had a Taylor Grazing Act permit (43 USC § 315b), which is nonexclusive. The Court held they did not have control of the property within the meaning of the exclusion because they could not exclude others from the property. Therefore, it was error to enter summary judgment based on the exclusion.

The Court affirmed summary judgment barring the Legros’ common law claims under the PLA because the Robinsons are landowners. Because the dog bite statute also applies and the predator dog exclusion is not supported by the undisputed facts, the summary judgment was reversed as to that claim and the case was remanded, with specific instructions allowing the Legros to amend their complaint to state a PLA claim. The Court affirmed the order denying the Legros’ motion to enforce the alleged settlement agreement, because it was clearly withdrawn before its acceptance.

2012 COA 184. No. 11CA2099. People v. Seader.
Writ to Transport as Functional Equivalent of a Subpoena to Testify—CRS § 16-5-204(4).

The People’s appeal presented a single issue of first impression: whether a writ to transport an inmate from one county jail to another, before the inmate’s testimony before a grand jury, is the functional equivalent of a subpoena to testify before the grand jury. The Court of Appeals concluded it was not and therefore reversed the judgment dismissing an indictment against defendant for theft by receiving and conspiracy to commit theft by receiving.

Defendant was being held at the City and County of Denver Jail on an unrelated matter. Jefferson County authorities executed a transport writ so he could be taken to Jefferson County Jail to testify before a grand jury. He was never served with a grand jury subpoena.

After defendant arrived at Jefferson County Jail, a district attorney investigator met with him. Defendant was informed he had been transferred to answer questions before a grand jury, if he chose to do so, and that he should consider “helping himself.” Defendant asked to speak with an attorney, but the investigator told him he would need to make his own arrangements to do so.

Defendant was released into the custody of two district attorney investigators and they transported him in shackles and handcuffs to the grand jury waiting area. A deputy district attorney told him he was likely to be charged by the grand jury and he might be able to help himself if he testified. The deputy district attorney told defendant that (1) he was not under subpoena to testify; (2) he could choose not to testify; (3) anything he said could be used against him; and (4) if he chose to proceed without an attorney, he would do so voluntarily. Defendant did not speak to an attorney and no plea agreement was reached.

In the grand jury room, defendant was advised again of his rights. Defendant testified regarding his involvement in the theft and sale of brass cemetery vases and sprinkler parts. He subsequently was indicted.

Defendant moved to dismiss the indictment, arguing, in part, that he was “brought before the grand jury in custody, against his wishes, without a full and effective advisal of [his] right to counsel and his right to remain silent.” The district court granted the motion under CRS § 16-5-204(4).

On appeal, the Court agreed with the People that it was error to find that the writ to transport to the Jefferson County Jail was the functional equivalent of a subpoena. The writ did not compel defendant to appear and give testimony before the grand jury. Therefore, the written advisement requirement of CRS § 16-5-204(4)(a) and (b) was inapplicable. The judgment was reversed and the case was remanded with instructions to reinstate the indictment.

2012 COA 185. No. 11CA2193. Young v. Jefferson County Sheriff.
Governmental Immunity—Automobile Accident in Sheriff’s Transport Van.

Defendants, the Jefferson County Sheriff and Deputy Sheriff, appealed the district court’s order denying their partial motion to dismiss the complaint filed by plaintiffs Michael Young (as father and next friend to D.B.) and Amy Larson (as mother and next friend to D.L.) on governmental immunity grounds. The order was affirmed.

Plaintiffs brought this case to recover damages for injuries sustained by D.B and D.L. (juveniles) during an automobile accident while they were handcuffed passengers in a sheriff transport van. The Deputy Sheriff was driving, and plaintiffs alleged he negligently operated the van by failing to secure the handcuffed juveniles with seatbelts. They also sought damages under the doctrine of respondeat superior.

Defendants moved for partial dismissal of the complaint under CRCP 12(b)(1) for lack of subject matter jurisdiction, asserting immunity under the Colorado Governmental Immunity Act (CGIA). They argued that securing passengers in a van was not an activity that fell within the CGIA’s waiver of immunity for the “operation of a motor vehicle.” Plaintiffs noted the juveniles were in the Sheriff’s custody when being transported; they were in handcuffs but not secured by seatbelts; because of the handcuffs, they did not have reasonable access to seatbelts; and they were thrown about the van in the accident.

The district court found that physically securing the juveniles was a function controlled by the driver because they were handcuffed. Therefore, the failure to secure them fell within the waiver of immunity. Defendants brought an interlocutory appeal.

CRS § 24-10-106(1)(a) provides waiver of governmental immunity in an action for injuries resulting from “[t]he operation of a motor vehicle, owned or leased by such public entity, by a public employee in the course of employment.” The court previously concluded that “operation” is a “broad term which includes both the physical defects of a motor vehicle and its movement, as well as other actions fairly incidental to those defects or movements.”

Here, the juveniles alleged they were dependent on the van driver to secure them because they were handcuffed. The Court agreed with the district court that securing the handcuffed juveniles with seatbelts was a function controlled by the van driver. The failure therefore fell within the waiver of immunity. The order was affirmed.

2012 COA 186. No. 11CA2461. Western Logistics, Inc. v. Industrial Claim Appeals Office.
Unemployment Tax Liability—Covered Employment Under CRS § 8-70-115.

In this unemployment tax liability case, petitioner Western Logistics, Inc., doing business as Diligent Delivery Systems, (Diligent) sought review of an order of the Industrial Claim Appeals Office (Panel). The Panel affirmed a hearing officer’s decision that services performed for Diligent by certain individuals constituted covered employment under CRS § 8-70-115. The Court of Appeals affirmed the Panel’s order.

Based on an audit covering the 2008 and 2009 calendar years, respondent, the Division of Employment and Training (Division), issued a liability determination concluding that approximately 220 delivery drivers (drivers) were in covered employment with Diligent. Diligent was directed to report payments made to the drivers and to pay corresponding unemployment premiums.

Diligent appealed. The hearing officer made extensive factual findings, concluding that notwithstanding written contracts designating the drivers as independent contractors, the evidence demonstrated that was “not true in fact.” The officer found none of the drivers was “customarily engaged in a delivery business” and they “received direction and control” from Diligent. On review, the Panel affirmed, primarily based on the finding that the drivers were not customarily engaged in independent delivery businesses. On appeal, Diligent argued the Panel’s decision was not supported by substantial evidence. The Court disagreed.

The Court noted that to satisfy the “independent business” requirement, a worker generally must be shown actually, customarily, and contemporaneously to have provided similar services to others. Substantial evidence in the record supports the hearing officer’s ultimate finding that Diligent failed to meet its burden of demonstrating that the drivers truly were engaged in independent delivery businesses; therefore, it will not be disturbed on appeal.

Diligent also argued that the parties submitted specific evidence concerning roughly 10% of the drivers, and for the remaining drivers, the only evidence presented was the written contract stating they were engaged in a delivery business. Therefore, Diligent claimed that the “only permissible conclusion” as to these drivers is that they were customarily engaged in independent businesses. The Court disagreed.

The hearing officer’s express finding was that the written contracts did not accurately describe the relationship between Diligent and the drivers. Diligent was making an argument of evidentiary weight that is within the hearing officer’s discretion.

The Court also found that the decision was sustainable independently and separately based on the officers’ conclusion that Diligent failed to show the drivers were free from its control and direction. Substantial evidence supported this finding and the Court therefore will not disturb it. The Panel’s order was affirmed.

2012. COA 183. No. 11CA1815. In the Matter of the Petition of Harte, and Concerning Routt County District Court, Fourteenth Judicial District.
Sealing Records for Alcohol-Related Driving Offense.

Petitioner appealed from the trial court’s order denying her petition to seal her arrest and criminal records. The Court of Appeals addressed whether, under CRS § 24-72-308 (sealing statute), a successfully completed deferred judgment constitutes a conviction. The Court held that it does and, therefore, affirmed the order.

Petitioner was charged with driving under the influence of alcohol. Pursuant to a plea agreement, she pleaded nolo contendere and received a twelve-month deferred judgment and sentence, which she successfully completed. The case was dismissed.

Petitioner petitioned the court to have her arrest and criminal records sealed pursuant to the sealing statute. The court denied the petition without a hearing, concluding that “entry of a guilty plea . . . even pursuant to a stipulation for a deferred judgment, constitutes a conviction and precludes sealing.”

On appeal, petitioner argued that because she successfully completed her deferred judgment and sentence, resulting in the dismissal of her case, she does not have a “conviction” under CRS § 42-4-1301. Therefore, the alcohol-related driving offense exception does not apply to her.

The sealing statute does not define “conviction.” The Colorado Supreme Court recently interpreted “conviction,” as used in the sexual offense exception to the sealing statute, to include a successfully completed and dismissed deferred judgment. In the penalty section of the DUI statute, “conviction” is defined, in part, as including “having received a deferred judgment and sentence or deferred adjudication; except that a person shall not be deemed to have been convicted if the person has successfully completed a deferred sentence or deferred adjudication.” The Court disagreed with petitioner’s argument that this definition should be imported into the alcohol-related offenses exception to the sealing statute.

The meaning of the word “conviction” depends on the statutory section in which it is used and can vary. The two statutes have different purposes. Neither statute cross-references the other. The relevant legislative history of the amendments to the DUI penalty statute indicates no intent that the definition apply to another statute. The statutes do not conflict and therefore do not need to be reconciled. Accordingly, the order was affirmed.

Colorado Court of Appeals Opinions

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