People v. Montoya

546 P.3d 605

2024 CO 20

The PEOPLE of the State of Colorado, Petitioner,

v.Glen Gary MONTOYA, Respondent.

Supreme Court Case No. 22SC580

Supreme Court of Colorado.

April 15, 2024

Certiorari to the Colorado Court of Appeals, Court of Appeals Case No, 18CA1409

Attorneys for Petitioner: Philip J, Weiser, Attorney General, Brenna A. Brackett, Assistant Attorney General, Denver, Colorado

Attorneys for Respondent: Megan A. Ring, Public Defender, Mackenzie R. Shields, Deputy Public Defender, Denver, Colorado

En Banc

JUSTICE HOOD delivered the Opinion of the Court, in which JUSTICE MARQUEZ, JUSTICE GABRIEL, JUSTICE HART, JUSTICE SAMOUR, and JUSTICE BERKENKOTTER joined.

JUSTICE HOOD delivered the Opinion of the Court.

¶1 Glen Gary Montoya was arrested on suspicion of driving under the influence ("DUI"). He agreed to submit to a blood test, but later refused to allow a nurse to draw his blood. After the nurse left, he claimed to have changed his mind and asked to take the test. No draw occurred. At trial, the prosecution wanted to use Montoya’s refusal to prove consciousness of guilt. But how should Colorado criminal courts address whether he refused under the circumstances here?

¶2 A division of the court of appeals concluded that if a criminal court makes a pretrial determination that a driver refused testing, that determination must be based on the law of refusal that has developed in the administrative, license-revocation context. People v. Montoya, 2022 COA 55M, ¶ 2, 516 P.3d 970, 973. The division also concluded that "if the prosecutor seeks to use as evidence a defendant’s written or recorded statement refusing a chemical test, but the defendant disputes refusal, the entire circumstances surrounding the defendant’s test-taking must be submitted for the jury’s consideration." Id.; see CRE 106.

[1] ¶3 We reverse in part and affirm in part. Contrary to the division, we hold that criminal DUI trials are governed by the same evidentiary rules as any other criminal trial. Accordingly, criminal courts are not bound by the law of refusal that governs administrative, license-revocation hearings, They should instead consider whether the proffered evidence of refusal or recantation is admissible under the Colorado Rules of Evidence.

¶4 However, we agree with the division that under CRE 106 the jurors determining Montoya’s guilt or innocence should have been permitted to consider both his initial refusal and his subsequent recantation of that refusal. Even so, our conclusion in this respect is predicated on the district court’s mistakes of law and should not be construed to limit a trial court’s broad discretion, when properly exercised, under CRE 106.

I. Facts and Procedural History

¶5 While driving one day, Montoya rear-ended another car. The other driver called 911 and reported that Montoya seemed drunk. Three officers responded to the scene of the accident.

¶6 The first officer to arrive didn’t see any signs that Montoya was intoxicated. The other two officers, however, noticed that Montoya smelled of alcohol; had watery, bloodshot eyes and slurred speech; and stumbled when he walked. They also noticed that Montoya’s pants were wet and believed that he had urinated on himself despite Montoya’s explanation that he had spilled Mountain Dew.

¶7 One of the officers asked Montoya to perform roadside maneuvers, but Montoya declined.

¶8 That officer then arrested Montoya on suspicion of DUI and advised him of Colorado’s expressed consent statute, which provides that any person who drives in this state consents "to submit to a test to determine the alcoholic content of the person’s blood or breath when requested to do so by a law enforcement officer who has probable cause to believe the person was driving under the influence of alcohol." People v. Hyde, 2017 CO 24, ¶ 12, 393 P.3d 962, 966; see also § 42-4-1301.1(2)(a)(I), C.R.S. (2023). Montoya agreed to take a blood test.

¶9 At a detox facility, Montoya again agreed to take a blood teat. But when a nurse arrived to draw his blood, Montoya refused, saying, "Yeah, but I don’t think I’m gonna do it," The nurse left. About ten to fifteen minutes later, Montoya told the officers that he would take the test. No test was conducted.

¶10 The prosecution charged Montoya with DUI, careless driving, and failing to provide proof of insurance. Montoya pled guilty to the insurance charge before trial, and the jury found him guilty of the remaining two charges, At the sentencing hearing, Montoya admitted that he had three prior DUI convictions. Because this conviction was, therefore, his fourth, the court entered it as a felony. See § 42-4-1301(1)(a), C.R.S. (2023).

¶11 Montoya appealed. The division concluded that the district court had abused its discretion by (1) determining that Montoya had refused testing as a matter of law and (2) providing redacted, and potentially misleading, bodycam footage from the detox facility to the jury. Montoya, ¶¶ 4, 22, 516 P.3d at 973, 976. The division further concluded that these errors weren’t harmless. Id. at ¶¶ 22, 34, 516 P.3d at 976, 978. It therefore reversed Montoya’s DUI conviction and remanded for a new trial. Id. at ¶ 4, 516 P.3d at 973.

¶12 We granted the prosecution’s petition for review.¹ After oral argument and while awaiting this opinion, Montoya passed away.

II. Analysis

¶13 We begin our analysis by discussing our jurisdiction to review this case despite Montoya’s recent death. We then discuss Colorado’s expressed consent statute and the legislature’s use of a dual approach (civil license revocation and criminal charges) to the problem of drunk driving. Recognizing that civil and criminal proceedings don’t always serve the same purposes, we address what it means for a driver to refuse testing in each setting. Finally, we discuss the district court’s exclusion, under CRE 106, of a portion of a video in which Montoya claims he changed his mind after initially refusing to submit to testing.

A. Jurisdiction to Proceed After Montoya’s Death

[2] ¶14 After Montoya died, his counsel moved to abate his conviction ab initio.

[3] ¶15 Abatement ab initio is a court-made doctrine that provides that "a defendant’s death that occurs while his criminal conviction is pending on direct appeal ‘abates not only the appeal but also all proceedings had in the prosecution from its inception.' " People v. Griffin, 2014 CO 48, ¶ 4, 328 P.3d 91, 92 (quoting Crooker v. United States, 325 F.2d 318, 320 (8th Cir. 1963)). However, in Griffin, we held that "the doctrine of abatement ab initio in Colorado does not extend to cases pending on certiorari review." Id. at ¶ 14, 328 P.3d at 95. So there, we vacated the order granting certiorari review and dismissed the case. Id. at ¶ 15, 328 P.3d at 95.

¶16 In reply to the prosecution’s opposition to Montoya’s abatement motion, Montoya shifted gears. His counsel withdrew the motion to abate and instead requested that this court, as in Griffin, simply vacate its order granting certiorari and dismiss the prosecution’s petition for certiorari review, thereby leaving the division’s judgment vacating Montoya’s conviction undisturbed. In making this request, Montoya's counsel emphasized that the two cases are identically postured: both involve an appeal by the prosecution. So, counsel reasoned, the same result should occur here.

[4, 5] ¶17 The decision to grant a petition for writ of certiorari is entirely within this court’s sound discretion. C.A.R. 49; Bovard v. People, 99 P.3d 585, 592-93 (Colo. 2004). Although Montoya initiated the direct appeal, the prosecution petitioned this court for certiorari review of the same subject matter. So here, our continued exercise of appellate jurisdiction is informed by statutory law stating that "[t]he prosecution may appeal any decision of a court in a criminal case upon any question of law." § 16-12-102(1), C.R.S. (2023). "There is no question that certiorari is now, and always has been, a recognized form of appellate review." Bill Dreiling Motor Co. v. Ct. of Appeals, 171 Colo. 448, 468 P.2d 37, 39 (1970); C.A.R. 2.

[6, 7] ¶18 That said, appeals under this statute are limited to "purely legal questions." Hunsaker v. People, 2015 CO 46, ¶ 29, 351 P.3d 388, 395. This presents no problem regarding the first issue, in which the prosecution seeks review of the division’s interpretation of the statutory term "refusal." "Statutory interpretation is categorically a question of law" and therefore reviewable under section 16-12-102(1). Hunsaker, ¶ 29, 351 P.3d at 395. And both parties agree the division erred as to this central point of law, a circumstance conspicuously absent in Griffin.

[8] ¶19 But the prosecution also seeks review of that portion of the division’s opinion invoking the rule of completeness to reverse the district court’s decision to exclude evidence as self-serving hearsay. See Montoya, ¶ 33, 516 P.3d at 978. Evidentiary decisions often involve both factfinding and legal analysis and therefore, are generally not reviewable under section 16-12-102(1). See People v. Gabriesheski, 262 P.3d 653, 658 (Colo. 2011) (observing that although "evidentiary rulings may involve the construction of statutes or rules, or some similar question of law, a trial court’s decision to admit or exclude evidence is not, in and of itself, an appealable question of law"); People v. George, 2017 COA 75, ¶ 26, 488 P.3d 1159, 1164. Yet, "[s]uch rulings may nevertheless be appealable under [section] 16-12-102(1) if the trial court made its ruling based on an assertedly erroneous interpretation of the law." People v. Welsh, 176 P.3d 781, 791 (Colo. App. 2007).

¶20 Because we agree with the division that the district court misapplied the law governing the intersection of the rule of completeness and self-serving hearsay and because a decision from this court will provide greater clarity on this broader legal issue, we exercise our discretion to continue review of both issues presented. See C.A.R. 49; cf. People...