by Christopher Zoukis

The Colorado Supreme Court struck down the convictions of a habitual drunk driver because the convictions — one for attempted reckless manslaughter and one for attempted second-degree assault — required that an actual, discernable person be placed at risk, and the evidence did not establish that fact. The January 22, 2018, opinion upheld an appellate court ruling that the convictions must be dismissed.

Isidore Griego had a long history of DUI arrests. On December 26, 2005, he was followed for several miles by Arapahoe County Officer Dan Hyde. While following Griego, Hyde observed him swerve across the center line, onto the shoulder, and into a ditch.

After Griego ran over a street sign, went through a red light, and hit a curb in an apartment complex, Hyde pulled him over. He smelled a strong odor of alcohol, and noted that Griego’s speech was slurred to the point of being incomprehensible. The only other vehicle on the road during the episode was a car traveling in the opposite direction, but Griego’s car never got closer than about 100 to 150 feet. Hyde determined that Griego’s vehicle “was never an imminent danger to [the other car]” and that “Griego’s weave into the center lane area did not jeopardize or threaten any oncoming traffic,” so he arrested him for DUI.

Griego was again arrested for DUI on October 7, 2006. He was discovered parked at an intersection, asleep at the wheel. Officer John Jones pounded on Griego’s window and yelled at him to wake up. After five minutes of banging on the window, Griego woke up and was arrested for DUI.

Soon thereafter, the district attorney’s office launched an investigation into Griego’s DUI history, with the intent of filing more serious charges. After a lengthy investigation, Senior Investigator Thomas Malone determined that he “personally did not believe it to be appropriate” to file any charges other than DUI.

Despite Malone’s conclusion, the district attorney’s office charged Griego with attempted reckless manslaughter and attempted second-degree assault — both Class 5 felonies — but not DUI. Griego moved to dismiss the charges, but his motion was denied. He was convicted, sentenced to four years in prison, and appealed.

Griego argued on appeal that both of crimes for which he was convicted required evidence that “another person” had actually been put at risk by his conduct. The People disagreed, arguing that they “needed to show only that Griego had the requisite intent to complete the crimes and that he took substantial steps toward harming or killing someone in the greater public.”

The appellate court found, and the Colorado Supreme Court agreed, that the statutes at issue require evidence that another, discernible person was put at risk – a threat to the general public at large was not sufficient. The Colorado Supreme Court reached this conclusion for several reasons.

First, the Court found that “the plain language of the reckless manslaughter and second degree assault statutes expressly contemplates death or injury to ‘another person.’” To hold that intent to harm a member of the general public was enough “would effectively read the phrase ‘another person’ out of the pertinent statutes, which we may not do.”

Second, the Court found no case in which a court upheld a conviction for either crime when the case involved “a risk to the public at large,” rather than to a discernible victim. The Court differentiated between crimes against the person, like what Griego was charged with, and traffic offenses. “Reckless manslaughter and second degree assaults are crimes against the person that require that a discernible victim be put at risk,” wrote the Court. “Crimes against the public peace and traffic offenses, in contrast, generally do not.”

Third, the Court reasoned that taking the People’s arguments to their logical end would result in an absurdity. Under the People’s theory, “every DUI and innumerable other driving offenses, which are ordinarily misdemeanors, could be charged as attempted reckless manslaughter or attempted second degree assault.” Such an outcome, warned the Court, “could also implicate equal protection concerns.”

Finally, the Court ruled that the People’s interpretation of the statutes provided no “discernible limiting principle.” Without the requirement that an actual person be placed in danger, “prosecutors would be permitted to charge attempted reckless manslaughter or attempted second degree assault for a broad array of arguably risky conduct, including … speeding, running a red light, or distracted driving.”

Ultimately, the Court determined that no evidence was presented from which a jury could conclude that an actual, discernible person was put at risk by Griego’s charged conduct. In the first incident, the People’s own witness testified, without contradiction, that Griego’s actions did not put any actual, discernable person at risk. In the second incident, the evidence clearly established that no cars or pedestrians were present. As such, the convictions could not stand since the evidence did not support them, though DUI convictions most certainly would have.

Accordingly, the Colorado Supreme Court affirmed the judgment of the court of appeals and remanded the case to that court with instructions to remand to the district court for entry of judgment of acquittal on all counts. See: People v. Griego, 409 P.3d 338 (Colo. 2018). 

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