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ADVANCE SHEET HEADNOTE

November 9, 2020

2020 CO 79

No. 18SC884, Linnebur v. People—Statutory Interpretation—Crimes—DUI —

Prior Convictions

The supreme court holds that prior DUI convictions are substantive 

elements of a felony DUI offense that must be proved to a jury beyond a reasonable 

doubt, rather than sentence enhancers to be proved to a judge by a preponderance 

of the evidence. Finding the language of section 42-4-1301(1)(a), C.R.S. (2020), to 

be ambiguous, the court examines the General Assembly’s intent by looking at the 

entirety of the statutory scheme, traditional treatment of the fact of prior 

convictions, and the risk of unfairness. Based on those factors, the supreme court 

concludes that the General Assembly intended the fact of prior convictions to be a 

substantive element of the felony offense. Accordingly, the supreme court 

reverses the judgment of the court of appeals and remands the case for 

resentencing.
The Supreme Court of the State of Colorado

2 East 14th Avenue • Denver, Colorado 80203

2020 CO 79

Supreme Court Case No. 18SC884

Certiorari to the Colorado Court of Appeals

Court of Appeals Case No. 16CA2133

Petitioner:

Charles James Linnebur,

v.

Respondent:

The People of the State of Colorado.

Judgment Reversed

en banc

November 9, 2020

Attorneys for Petitioner:

Megan A. Ring, Public Defender

Meredith K. Rose, Deputy Public Defender

Denver, Colorado

Attorneys for Respondent:

Philip J. Weiser, Attorney General

Kevin E. McReynolds, Assistant Attorney General

Denver, Colorado

JUSTICE HART delivered the Opinion of the Court.

JUSTICE MÁRQUEZ dissents, and JUSTICE SAMOUR joins in the dissent.

JUSTICE BOATRIGHT does not participate.
2

¶1 Last year, in the course of deciding whether an in-custody felony DUI 

defendant is entitled to a preliminary hearing, we noted in dicta that it was unclear 

“whether a repeat DUI offender’s prior convictions are elements of a felony DUI 

that must be proved at trial” because section 42-4-1301, C.R.S. (2020), and its 

related penalty provisions “alternately accord the prior convictions qualities of 

both elements of an offense and sentence enhancers.” People v. Tafoya, 2019 CO 13, 

¶ 28 n.2, 434 P.3d 1193, 1197 n.2. Because that case did not require us to answer 

the question whether a defendant’s prior DUI convictions constitute an element of 

felony DUI or merely a sentence enhancer, we left it for another day.

¶2 That day has now arrived. Confronted squarely with the question left open 

in Tafoya, we conclude that the statutory provisions that define and provide 

penalties for felony DUI treat the fact of prior convictions as an element of the 

crime, which must be proved to the jury beyond a reasonable doubt, not as a 

sentence enhancer, which a judge may find by a preponderance of the evidence. 

Because the court of appeals erred in arriving at the opposite conclusion, we 

reverse and remand for sentencing on the misdemeanor DUI charges that were 

properly proved to the jury in this case.

I. Facts and Procedural History

¶3 In March 2016, law enforcement contacted Charles James Linnebur after 

receiving a call that he had crashed his vehicle into a fence and might be driving 
3

under the influence of alcohol. Although he initially denied that he had been 

drinking, Linnebur eventually admitted that he had consumed whiskey that day. 

He was arrested, and a blood test revealed that his blood alcohol level was 0.343—

well above the legal limit.

¶4 The People charged Linnebur with DUI and DUI per se and sought felony 

convictions under sections 42-4-1301(1)(a) and (2)(a), which provide that DUI and 

DUI per se are felonies if they “occurred after three or more prior convictions” for, 

among other things, DUI, DUI per se, or DWAI. Prior to trial, Linnebur filed a 

motion in limine arguing that the fact of his prior convictions was a substantive 

element of felony DUI that had to be found by a jury beyond a reasonable doubt. 

The trial court denied the motion, concluding instead that Linnebur’s prior 

convictions were “merely sentence enhancers or aggravating factors” and could 

be proved to the court by a preponderance of the evidence.

¶5 At trial, the jury found Linnebur guilty of DWAI (a lesser included offense 

of DUI) and DUI per se.

1 After the trial court dismissed the jury, it held a hearing 

to determine whether Linnebur in fact had at least three prior convictions that 

would substantiate these new felony convictions. In order to support their claim 

1 The DWAI statute includes identical language to that included in the DUI statute 

escalating it to a felony offense after three prior convictions. 
4

that Linnebur had the requisite prior convictions, the People submitted certified 

copies of Linnebur’s three prior impaired driving convictions as well as his state 

driving record. Rather than applying a preponderance of the evidence standard 

(as it had earlier indicated it would), the trial court instead concluded that these 

exhibits proved beyond a reasonable doubt that Linnebur had three prior 

convictions. It thus entered judgment for felony DWAI, merged the DUI per se 

conviction, and sentenced Linnebur to four years in community corrections.

¶6 A division of the court of appeals affirmed. See People v. Linnebur, 

No. 16CA2133 (Nov. 8, 2018). In so doing, the division cited to our decision in 

People v. Leske, 957 P.2d 1030, 1039 (Colo. 1998), for the proposition that a statutory 

provision is a sentence enhancer, rather than an element, if its proof is not required 

to secure a conviction for the charged offense. The court of appeals concluded that

because a defendant may be found guilty of the underlying offense of DUI 

independent of any proof of prior convictions, the fact of such prior convictions is 

not an element of felony DUI. The prior convictions, the court concluded, could 

properly be determined by the court rather than the jury. Linnebur, ¶¶ 8, 12. The 

division reasoned further that because the felony DUI statute does not specify the 

applicable burden of proof, the fact of prior convictions need only be proved by a 

preponderance of the evidence. Id. at ¶ 13. Finally, the division concluded that 
5

the exhibits presented in Linnebur’s case were sufficient evidence to prove his 

prior convictions. Id. at ¶ 19.

¶7 Linnebur then filed a petition for certiorari review, which we granted.2

II. Analysis

¶8 After setting forth the applicable standard of review and relevant principles 

of statutory interpretation, we consider whether the felony DUI statute expresses 

a clear legislative intent for the treatment of prior convictions as either elements of 

the felony offense or sentence enhancers. Finding the statute to be ambiguous, we 

next endeavor to determine the legislature’s intent by looking at the language and 

structure of the statutory scheme, traditional treatment of the fact of prior 

2 We granted certiorari to review the following issues:

1. Whether the court of appeals erred in concluding that the portion of section 

42-4-1301, C.R.S. (2018), that elevates a misdemeanor to a class four felony 

for driving under the influence (“DUI”), driving while ability impaired 

(“DWAI”), or DUI per se after three or more prior convictions for certain 

enumerated offenses establishes a sentence enhancer and not an element of 

the offense for purposes of determining whether jury findings are required.

2. Whether the court of appeals erred in concluding that, because sections 

42-4-1301(1)(a), (1)(b), (2)(a), C.R.S. (2018), do not provide the applicable 

burden of proof, the prosecution must prove prior convictions in a felony 

DUI, DWAI, or DUI per se case under a preponderance of the evidence 

standard.

3. Whether, if a jury determination was required, the evidence in Linnebur’s 

case was sufficient to prove DWAI fourth or subsequent offense and DUI 

per se fourth or subsequent offense under sections 42-4-1301(1)(b) and (2)(a).
6

convictions, and the risk of unfairness attendant to either approach. Based on 

these factors, we conclude that the General Assembly intended the fact of prior 

convictions to be treated as a substantive element of the offense to be proved to 

the jury beyond a reasonable doubt, rather than a sentence enhancer to be proved

to a judge by a preponderance of the evidence. 

A. Standard of Review and Principles of Statutory 

Interpretation

¶9 Whether a statutory provision constitutes a sentence enhancer or a 

substantive element of an offense presents a question of law that we review de 

novo. People v. Schreiber, 226 P.3d 1221, 1223 (Colo. App. 2009). The General 

Assembly has plenary authority to define criminal conduct and to establish the 

elements of criminal liability. People v. M.B., 90 P.3d 880, 882 (Colo. 2004). With 

this in mind, our primary purpose in construing the felony DUI statute “is to 

ascertain and give effect to the legislature’s intent.” People v. Cali, 2020 CO 20, ¶ 15, 

459 P.3d 516, 519. To accomplish this task, “we look first to the language of the 

statute, giving its words and phrases their plain and ordinary meanings.” 

McCoy v. People, 2019 CO 44, ¶ 37, 442 P.3d 379, 389. “If the plain language of the 

statute demonstrates a clear legislative intent, we look no further in conducting 

our analysis.” Springer v. City & Cnty. of Denver, 13 P.3d 794, 799 (Colo. 2000). If, 

however, the language is ambiguous—that is, if it is reasonably susceptible of 
7

multiple interpretations—then we may consider other aids to statutory 

construction. McCoy, ¶ 38, 442 P.3d at 389.

¶10 When a statute “is not explicit” as to whether a particular fact is an element 

of a crime or a sentencing factor, we agree with the U.S. Supreme Court that we 

must look to “the provisions and the framework of the statute” to make that 

determination. United States v. O’Brien, 560 U.S. 218, 225 (2010). In particular, 

“(1) language and structure, (2) tradition, (3) risk of unfairness, (4) severity of the 

sentence, and (5) legislative history” are helpful guides for determining legislative 

intent. Id.

B. The DUI Statute is Ambiguous

¶11 In 2015, the General Assembly amended several statutory provisions 

through the passage of House Bill 15-1043. See Ch. 262, sec. 1, § 42-4-1301, 

2015 Colo. Sess. Laws 990. As directly relevant here, section 42-4-1301(1)(a), which 

defines the crime of “driving under the influence,” now provides in pertinent part:

A person who drives a motor vehicle or vehicle under the influence 

of alcohol . . . commits driving under the influence. Driving under 

the influence is a misdemeanor, but it is a class four felony if the 

violation occurred after three or more prior convictions, arising out of 

separate and distinct criminal episodes, for DUI, DUI per se, or 

DWAI; vehicular homicide . . . ; vehicular assault . . . ; or any 

combination thereof.

¶12 This provision does not expressly indicate whether the fact of prior 

convictions constitutes a sentence enhancer or a substantive element of the offense. 
8

Despite the absence of any express language on this point, both the People and 

Linnebur assert that the statute plainly supports their preferred reading. 

¶13 The People maintain that the plain language of section 42-4-1301 treats prior 

DUI convictions as sentence enhancers because it defines what it means to “drive 

under the influence” in one sentence and sets out the felony penalty in a separate 

sentence. Further, like the division below, they rely on our decision in Leske, in 

which we explained that a sentence enhancer was not an element of an offense for 

purposes of double jeopardy and merger if “its proof, while raising the felony level 

of an offense, is not necessarily required to secure a conviction.” 957 P.2d at 1039. 

Here, they argue, a defendant can be convicted of DUI without proof of the prior 

convictions, so the fact of the prior convictions must not be an element of the 

offense.

¶14 Linnebur, on the other hand, argues that the plain language of section 

42-4-1301 demonstrates a legislative intent to treat prior DUI convictions as an 

element of felony DUI. He points out that the statutory language escalating the 

penalty appears in the same statutory subsection as the other elements of the 

substantive offense rather than in section 42-4-1307, C.R.S. (2020), the statute that 

sets out detailed penalties for traffic offenses involving alcohol. Further, he notes 

that the 2015 amendments creating the crime of felony DUI added to the statute a 

requirement that the prior convictions must be charged in the indictment or 
9

information. See § 42-4-1301(1)(j). An indictment must “state the crime charged 

and essential facts which constitute the offense,” Crim. P. 7(a)(2), and an 

information is sufficient only if “the offense charged is set forth with such degree 

of certainty that the court may pronounce judgment upon a conviction,” Crim. P. 

7(b)(2)(IV). See also Almendarez-Torres v. United States, 523 U.S. 224, 228 (1998) (“An 

indictment must set forth each element of the crime that it charges. But it need not 

set forth factors relevant only to the sentencing of an offender found guilty of the 

charged crime.” (citation omitted)). Linnebur argues that the addition of the 

charging requirement thus further demonstrates the legislature’s understanding 

that it was creating a separate offense of felony DUI, not simply increasing 

penalties for repeat offenders. And finally, he argues that the People’s reliance on 

Leske is misplaced because that case considered the difference between an element 

and a sentence enhancer in the context of double jeopardy and merger analysis, 

which is distinct from the Sixth Amendment right to a jury trial.

¶15 As an initial matter, we agree that both the division and the People rely too 

heavily on the language in Leske to support their conclusions that the language of 

section 42-4-1301 is clear. We have previously indicated that what makes a fact a 

sentence enhancer rather than an element of an offense is not necessarily the same 

for double jeopardy and merger analysis as for the jury-trial right. Lewis v. People, 

261 P.3d 480, 485 (Colo. 2011) (“It is far from clear that the functional equivalence 
10

of elements and sentencing factors for purposes of a criminal defendant’s right to 

a jury trial should apply equally to the constitutional presumption against 

multiple simultaneous punishments for the same offense.”).

¶16 Ultimately, Linnebur and the People each advance a plausible interpretation 

of section 42-4-1301. As we noted in Tafoya, the statute includes signs that point in 

both directions on this question. Tafoya, ¶ 28 n.2, 434 P.3d at 1197 n.2. And

because that is the very definition of an ambiguous statutory provision, see McCoy, 

¶ 38, 442 P.3d at 389, we must turn to other interpretive aids.

C. Other Factors Demonstrate the Legislature’s Intent for 

Prior Convictions to Be an Element of Felony DUI

¶17 Because the felony DUI statute is not explicit as to whether the fact of prior 

convictions constitutes a sentence enhancer or a substantive element of the offense, 

we must look for other evidence of the General Assembly’s intent. Here, we will 

focus particularly on the language and structure of the relevant statutory 

provisions, whether the fact at issue is traditionally an element or a sentence 

enhancer, and the risk of unfairness in either approach. See O’Brien, 560 U.S. at 

225.3

3 The Supreme Court in O’Brien also suggested that the severity of the sentence 

and legislative history could be relevant to the analysis of whether the fact of prior 

convictions was intended to be an element or a sentence enhancer. See O’Brien, 
11

1. Statutory Language and Structure

¶18 In examining the relevant statutory language and structure, we look to both 

section 42-4-1301, which defines the offenses of DUI, DUI per se, and DWAI, and 

section 42-4-1307, which sets out detailed penalties for those offenses.

¶19 In 2015, the legislature added the offense of felony DUI to section 42-4-1301. 

See 2015 Colo. Sess. Laws at 990. As discussed previously, this amendment 

provided that a DUI following three or more prior convictions is a class four 

felony. § 42-4-1301(1)(a). It also added the requirement that the People “shall set 

forth such prior convictions in the indictment or information.” § 42-4-1301(1)(j). 

And the amendment directed the addition of a subsection (1)(k) that provided “[i]f 

a defendant is convicted of a class 4 felony pursuant to this section, the court shall 

sentence the person in accordance with the provisions of section 18-1.3-401, C.R.S.” 

2015 Colo. Sess. Laws. at 991. 

¶20 Two years later, the legislature made additional statutory changes to the 

statutory scheme that governs felony DUI. See Ch. 387, sec. 1, § 42-4-1307, 

2017 Colo. Sess. Laws 2003. Among other things, these amendments repealed the 

560 U.S. at 225. We consider the relative severity of the sentence as part of our 

evaluation of the risk of unfairness. The legislative history of section 42-4-1301 

does not offer any especially helpful clues to assist in answering the question we 

are faced with here.
12

sentencing provision that had been added to section 42-4-1301(1)(k) and instead 

created a new subsection (6.5) in section 42-4-1307. That subsection, titled “Felony 

offenses,” specifies that “[a] person who commits a felony DUI, DUI per se, or 

DWAI offense shall be sentenced in accordance with the provisions of section 

18-1.3-401 and this subsection (6.5).” § 42-4-1307(6.5)(a); see also People v. Huckabay, 

2020 CO 42, ¶ 16, 463 P.3d 283, 286. 

¶21 Although it made a number of other changes to section 42-4-1307, the 

General Assembly did not amend section 42-4-1307(9) to include the new 

subsection (6.5) within its ambit. Section 42-4-1307(9) addresses the definition and 

treatment of prior convictions “[f]or purposes of subsections (5) and (6) of this 

section.” Subsections (5) and (6) set out the penalties for second and subsequent 

misdemeanor DUI offenses. For these misdemeanor offenses, subsection (9) 

provides that the fact of prior convictions constitutes a sentence enhancer that the 

People “shall not be required to plead or prove . . . at trial.” § 42-4-1307(9)(b)(II).

¶22 Several aspects of the statutory language point to the conclusion that the 

legislature intended to treat felony DUI as a distinct offense that includes the prior 

convictions as elements. Perhaps most telling is that the 2015 amendments 

provided that when a defendant is “convicted of a class 4 felony,” the court must 

conduct the sentencing in accordance with the felony sentencing provisions 

contained in section 18-1.3-401. This language is a strong indication that the 
13

legislature viewed the fact of prior convictions as an element of felony DUI, given 

that a defendant could not be “convicted of a class 4 felony” without that fact. This 

conclusion is further supported by the requirement that the prior convictions must 

be charged in the indictment or information. And, finally, the legislature’s failure 

to amend 42-4-1307(9) suggests that the General Assembly intended prior 

convictions to be treated differently when the defendant is charged with a felony 

than when he is charged with a misdemeanor.

¶23 Aspects of the structure of the relevant statutory provisions further support 

this conclusion. In particular, prior conviction requirements that enhance the 

penalties for second and third DUI offenses are included in the separate statute 

outlining the various penalties for traffic offenses involving intoxication. See 

§ 42-4-1307(5), (6). But the legislature did not include the prior convictions 

required for felony DUI in that penalty-focused provision. Instead, the prior 

convictions required for conviction of the class four felony DUI are included in the 

statute defining the substance and setting forth the elements of offenses 

themselves. See § 42-4-1301(1)(a). 

¶24 Moreover, the numerous additional protections the legislature has provided 

for defendants charged with felony DUI further support this conclusion. A 

defendant charged with felony DUI is entitled to a preliminary hearing under 

section 16-5-301(1)(a), C.R.S. (2020). See Huckabay, ¶ 2, 463 P.3d at 284; Tafoya, ¶ 16, 
14

434 P.3d at 1196. He is entitled to be tried by a twelve-person jury and to receive 

a unanimous verdict. § 18-1-406(1), C.R.S. (2020). Considering the entirety of the 

applicable statutory scheme, as we must, it seems apparent that the legislature 

intended to include the fact of prior convictions as an element of the offense of 

felony DUI.

2. Tradition

¶25 We could perhaps stop the analysis at this point, but we will consider a 

number of the other O’Brien factors to examine whether they disturb our

conclusion. In particular, the People observe that the fact of prior convictions is 

traditionally considered to be a sentence enhancer, not a substantive element of 

the offense. See Almendarez-Torres, 523 U.S. at 230, 244 (“The lower courts have 

almost uniformly interpreted statutes (that authorize higher sentences for 

recidivists) as setting forth sentencing factors, not as creating new crimes (at least 

where the conduct, in the absence of the recidivism, is independently 

unlawful). . . . [T]o hold that the Constitution requires that recidivism be deemed 

an ‘element’ of petitioner’s offense would mark an abrupt departure from a 

longstanding tradition of treating recidivism as ‘go[ing] to the punishment only.’” 

(quoting Graham v. West Virginia, 224 U.S. 616, 629 (1912))).

¶26 In a vacuum, tradition would certainly weigh in favor of considering the 

fact of prior convictions to be a sentence enhancer. In our view, however, the 
15

evidence provided by the language and structure of the felony DUI statute is 

weightier than this tradition. And it is quite clear that, while a legislature could

make the fact of prior convictions a sentence enhancer, it is equally free to make 

that fact an element of the offense. O’Brien, 560 U.S. at 225 (“[W]hether a given 

fact is an element of the crime itself or a sentencing factor is a question for 

Congress.”). 

¶27 The People argue that we should hew to tradition and treat the fact of a prior 

conviction as a sentence enhancer for felony DUI purposes because that is what 

most other states have done. In fact, while it is true that about half of the states 

treat prior DUI convictions as sentence enhancers for the felony DUI offense,

4

4 Ex parte Parker, 740 So.2d 432, 435 (Ala. 1999); Robbins v. Darrow, 148 P.3d 1164, 

1167 (Ariz. Ct. App. 2006); State v. Laboy, 117 A.3d 562, 568 (Del. 2015); Lowenthal v. 

State, 593 S.E.2d 726, 729 (Ga. App. Ct. 2004); State v. Burnight, 978 P.2d 214, 218–19 

(Idaho 1999); People v. Braman, 765 N.E.2d 500, 503 (Ill. App. Ct. 2002); State v. 

Schultz, 604 N.W.2d 60, 62 (Iowa 1999); State v. Kendall, 58 P.3d 660, 667–68 (Kan. 

2002); Commonwealth v. Ramsey, 920 S.W.2d 526, 528 (Ky. 1996); Commonwealth v. 

Bowden, 855 N.E.2d 758, 764 n.11 (Mass. 2006) (noting that prior convictions still 

must be proved beyond a reasonable doubt but they are not formally elements of 

the crime); People v. Callon, 662 N.W.2d 501, 508 (Mich. Ct. App. 2003); Swaim v. 

State, 203 So.3d 697, 700 (Miss. Ct. App. 2016); State v. Rattles, 450 S.W.3d 470, 

473–74 (Mo. Ct. App. 2014); State v. Weldele, 69 P.3d 1162, 1172, (Mont. 2003); 

State v. Huff, 802 N.W.2d 77, 102 (Neb. 2011); Ronning v. State, 992 P.2d 260, 261 

(Nev. 2000); State v. Thompson, 58 A.3d 661, 663 (N.H. 2012); State v. Begay, 17 P.3d 

434, 435–36 (N.M. 2001); Commonwealth v. Reagan, 502 A.2d 702, 704 (Pa. Super. Ct. 

1985); State v. Payne, 504 S.E.2d 335, 336 (S.C. Ct. App. 1998); State v. Bacon, 

286 N.W.2d 331, 332 (S.D. 1979); State v. Nash, 294 S.W.3d 541, 551 (Tenn. 2009); 
16

more than a third treat the fact of prior convictions as an element.5 Ultimately, 

neither the traditional treatment of prior convictions nor the trends in other states 

can outweigh the import of the language and structure selected by our General 

Assembly. This is particularly the case in light of the serious risk of unfairness that 

would be associated with permitting the fact of prior convictions to be proved to 

a judge in this context.

3. The Risk of Unfairness

¶28 A person convicted of felony DUI (a class four felony) may be sentenced to 

a presumptive range of two to six years in the custody of the Colorado Department 

of Corrections. § 18-1.3-401(1)(a)(V)(A.1); see also Huckabay, ¶ 17, 463 P.3d at 

State v. Palmer, 189 P.3d 69, 72 (Utah Ct. App. 2008), aff’d, 220 P.3d 1198 (Utah 

2009); State v. Tatro, 635 A.2d 1204, 1207 (Vt. 1993); State v. Braunschweig, 

921 N.W.2d 199, 208 (Wis. 2018); Derrera v. State, 327 P.3d 107, 110–11 (Wyo. 2014).

5 Ross v. State, 950 P.2d 587, 589–90 (Alaska Ct. App. 1997); Peters v. State, 

692 S.W.2d 243, 245 (Ark. 1985); State v. Tenay, 114 A.3d 931, 939 (Conn. App. 

2015); State v. Finelli, 780 So.2d 31, 33 (Fla. 2001); State v. Wheeler, 219 P.3d 1170, 

1185 (Haw. 2009); Warner v. State, 406 N.E.2d 971, 973–76 (Ind. Ct. App. 1980); 

State v. Ellender, 274 So.3d 144, 151 (La. Ct. App. 2019); State v. Berkelman, 

355 N.W.2d 394, 396 (Minn. 1984); People v. Van Buren, 631 N.E.2d 112, 113 (N.Y. 

1993); State v. Hyden, 625 S.E.2d 125, 127 (N.C. App. 2006); State v. Mann,

876 N.W.2d 710, 713–14 (N.D.), vacated on other grounds, 137 S. Ct. 114 (2016) 

(mem.); State v. Brooke, 863 N.E.2d 1024, 1027 (Ohio 2007); Baker v. State, 966 P.2d 

797, 798 (Okla. Crim. App. 1998); State v. Probst, 124 P.3d 1237, 1244–45 (Or. 2005); 

Oliva v. State, 548 S.W.3d 518, 519–20 (Tex. Crim. App. 2018); McBride v. 

Commonwealth, 480 S.E.2d 126, 127 (Va. 1997); State v. Santos, 260 P.3d 982, 984 

(Wash. Ct. App. 2011); State v. Fox, 531 S.E.2d 64, 66 n.2 (W. Va. 1998).
17

286–87. By contrast, a sentence for misdemeanor DUI, even for a third offense, 

cannot lead to more than one year in county jail. See § 42-4-1307(3), (5), (6). Aside 

from the sheer length of possible confinement, a felony conviction carries with it a 

wide range of significant collateral consequences. See, e.g., § 1-2-103(4), C.R.S. 

(2020) (preventing convicted felons, while confined, from voting or registering to 

vote); § 18-12-108(1), C.R.S. (2020) (preventing convicted felons from owning 

firearms); § 18-1.3-801(2), C.R.S (2020) (subjecting a convicted felon to potential 

sentencing as a habitual criminal); § 13-90-101, C.R.S. (2020) (exposing a convicted 

felon to potential impeachment on the stand based on prior convictions); 

§§ 12-20-404(1)(d)(I), 12-100-120(1)(e), 44-20-121(3)(c), C.R.S. (2020) (potentially 

barring convicted felons from working in certain regulated professions). The fact 

that a felony DUI conviction, as compared to a misdemeanor DUI conviction, 

permits significantly more serious consequences counsels in favor of the 

conclusion that the legislature intended to treat the fact of prior convictions as an 

element, at least absent some clear indication to the contrary. 

¶29 Indeed, the unfairness that would be associated with permitting a defendant 

to be tried for a misdemeanor to the jury and then sentenced for a felony by the 

judge on the basis of a fact that had to be proved only by a preponderance of the 

evidence is so significant that it risks running afoul of the Sixth Amendment. 
18

¶30 True, the U.S. Supreme Court has previously explained that in the Sixth 

Amendment context, prior convictions need not be proved to a jury even when 

they increase the sentencing maximum. See Apprendi v. New Jersey, 530 U.S. 466,

490 (2000). But importantly, the Court has never applied Apprendi’s priorconviction exception to allow a judge, instead of a jury, to find a fact that 

transforms a misdemeanor offense into a felony. See United States v. RodriguezGonzales, 358 F.3d 1156, 1160–61 (9th Cir. 2004). Neither have we ever had occasion 

to consider whether a prior conviction that changed the nature of an offense from 

a misdemeanor to a felony might have to be proved to a jury beyond a reasonable 

doubt. And at least two states that have considered this question have concluded 

that “[w]hen existence of a prior conviction does not simply enhance the penalty 

but transforms the crime itself by increasing its degree, the prior conviction is an 

essential element of the crime and must be proved by the state.” State v. Brooke, 

863 N.E.2d 1024, 1027 (Ohio 2007); see also State v. Mann, 876 N.W.2d 710, 713 

(N.D.) (“Whether a prior offense constitutes an essential element of a crime 

depends upon the offense charged. A prior offense constitutes an essential 

element if it elevates the offense of a given crime.”), vacated on other grounds, 

137 S. Ct. 114 (2016) (mem.). One division of our court of appeals has reached the 

same conclusion. People v. Viburg, 2020 COA 8M, ¶ 15, __ P.3d __ (noting that 

“transforming a misdemeanor into a felony does far more than simply increase the 
19

potential punishment; it changes the very nature of the offense”); see also People v. 

Schreiber, 226 P.3d 1221, 1225 (Colo. App. 2009) (Bernard, J., dissenting) (arguing 

that when the fact of a prior conviction converts a misdemeanor to a felony, it must 

be considered an element of the offense in light of the significant differences in 

consequences of misdemeanor and felony convictions).

¶31 We think there are good reasons to question the legitimacy of proving prior 

convictions only to a judge when the prescribed penalties (and attendant collateral 

consequences) for felony DUI are so significant. Ultimately though, subject to 

constitutional limitations, whether the fact of prior convictions constitutes an 

element of the offense or a sentence enhancer depends on legislative intent. As 

such, if we can glean a clear legislative intent in either direction, then we may leave 

aside the Sixth Amendment issue and simply resolve this case as a matter of 

statutory interpretation. And here, as discussed above, we conclude that the 

General Assembly intended for the fact of prior convictions to be treated as a 

substantive element of felony DUI to be tried to a jury and found beyond a 

reasonable doubt, not a sentence enhancer to be found by the court. 

¶32 Because Linnebur was sentenced for a crime different from the one on which 

the jury’s verdict was based, his sentence must be reversed. See Medina v. People, 

163 P.3d 1136, 1141–42 (Colo. 2007). The error did not affect the jury’s guilty 

verdict as to Linnebur’s misdemeanor DWAI and DUI per se, however, and we 
20

therefore conclude that the case should be remanded for sentencing on those 

charges. 

III. Conclusion

¶33 Linnebur’s prior DUI convictions were an element of the offense of felony 

DUI that should have been charged in his indictment and presented to a jury. 

Because they were not, Linnebur’s sentence as a felony offender must be set aside. 

We therefore reverse the judgment of the court of appeals and remand for 

sentencing on the misdemeanor DUI offenses that were properly found by the 

jury.

JUSTICE MÁRQUEZ dissents, and JUSTICE SAMOUR joins in the dissent.
1

JUSTICE MÁRQUEZ, dissenting.

¶34 Relying on factors identified in United States v. O’Brien, 560 U.S. 218, 225 

(2010), and Castillo v. United States, 530 U.S. 120, 124–31 (2000), the majority

concludes that a repeat offender’s prior convictions are elements of separate felony 

offenses for driving under the influence (“DUI”), driving while ability impaired 

(“DWAI”), and DUI per se under section 42-4-1301, C.R.S. (2020), and therefore 

must be proved to the jury beyond a reasonable doubt. Maj. op. ¶¶ 2, 17–32. I 

disagree. If anything, the O’Brien/Castillo factors relied on by the majority point 

in the opposite direction. Specifically, the statutory language and structure of 

section 42-4-1301, the longstanding traditional treatment of recidivism as a 

sentencing factor, and the risk of unfairness to the defendant in presenting a repeat 

DUI offender’s prior convictions to a jury all indicate legislative intent to treat the 

defendant’s prior convictions as a sentence enhancer, not an element of separate 

felony offenses for DUI, DWAI, or DUI per se. 

¶35 By elevating the misdemeanor offenses of DUI, DWAI, and DUI per se to a 

class 4 felony where the defendant has three or more prior convictions for such 

offenses, see § 42-4-1301(1)(a) (DUI), (1)(b) (DWAI), (2)(a) (DUI per se), the General 

Assembly merely intended to enhance the penalty for recidivist behavior. It did

not create entirely new felony offenses with prior convictions serving as 

“elements” of such offenses. Regardless, to the extent that due process or the Sixth 
2

Amendment right to a jury trial requires that any fact that increases the penalty be 

submitted to a jury and proved beyond a reasonable doubt, the U.S. Supreme 

Court has specifically exempted the fact of a prior conviction from this 

requirement. See United States v. Booker, 543 U.S. 220, 224 (2005); Apprendi v. New 

Jersey, 530 U.S. 466, 490 (2000); see also Misenhelter v. People, 234 P.3d 657, 660 (Colo. 

2010). 

¶36 I conclude that the legislature intended a repeat DUI offender’s prior 

convictions to serve as a sentence enhancer under section 42-4-1301. Moreover, 

because section 42-4-1301 does not provide the applicable burden of proof, the 

existence of those prior convictions may be proved to a judge at sentencing by a 

preponderance of the evidence. Because I would affirm the judgment of the court 

of appeals upholding Linnebur’s convictions and sentence, I respectfully dissent.

I. Legal Principles

¶37 Much rides on whether a particular fact constitutes an element of an offense 

or a sentencing consideration. This element/sentence enhancer distinction often 

arises in the double jeopardy context and implicates the doctrine of merger. See, 

e.g., Lewis v. People, 261 P.3d 480, 482–83 (Colo. 2011); People v. Leske, 957 P.2d 1030, 

1039 (Colo. 1998). Here, we are concerned with due process and the right to a jury 

trial. Under these constitutional guarantees, all elements of a crime must be 

submitted to a jury and proved by the government beyond a reasonable doubt. 
3

U.S. Const., amend. VI, XIV; O’Brien, 560 U.S. at 224; Apprendi, 530 U.S. at 476–77; 

Vega v. People, 893 P.2d 107, 111 (Colo. 1995). Sentencing factors, by contrast, may 

be proved to a judge at sentencing by a preponderance of the evidence. O’Brien, 

560 U.S. at 224; see also People v. Schreiber, 226 P.3d 1221, 1224 (Colo. App. 2009) 

(holding that where a statute does not establish the burden of proof, the 

prosecution may prove the existence of a prior conviction by a preponderance of 

the evidence).

¶38 Regardless of the context in which the issue arises, whether a given fact is 

an element of a crime or a sentencing factor is a question of legislative choice. 

O’Brien, 560 U.S. at 225; Lewis, 261 P.3d at 482–83, 485. Thus, we must discern the 

legislature’s intent.

¶39 Here, the majority turns to the factors identified in O’Brien and Castillo to 

discern whether the General Assembly intended to treat a defendant’s prior 

convictions as an element or a sentence enhancer under section 42-4-1301. But 

examining section 42-4-1301 through the lens of the O’Brien/Castillo factors relied 

on by the majority does not reveal legislative intent to treat a defendant’s prior 

convictions as elements of a separate felony offense to be submitted to a jury and 

proved beyond a reasonable doubt. Instead, the plain language and structure of 

section 42-4-1301, the longstanding traditional treatment of recidivism as a 

sentencing factor, and the risk of unfairness to the defendant in presenting a repeat 
4

DUI offender’s prior convictions to a jury indicate legislative intent to treat these 

prior convictions as a sentence enhancer to be presented to a judge and established 

by a preponderance of the evidence.

1

II. Analysis

A. Statutory Language and Structure

¶40 First, the plain language and structure of section 42-4-1301 indicate that the 

General Assembly intended to treat a repeat offender’s prior convictions as a 

sentence enhancer, not an element of a separate felony offense. 

¶41 Section 42-4-1301(1)(a), which establishes the offense of “driving under the 

influence,” provides:

A person who drives a motor vehicle or vehicle under the influence 

of alcohol or one or more drugs, or a combination of both alcohol and 

one or more drugs, commits driving under the influence. Driving 

under the influence is a misdemeanor, but it is a class 4 felony if the 

violation occurred after three or more prior convictions, arising out of 

separate and distinct criminal episodes, for DUI, DUI per se, or 

DWAI; vehicular homicide . . . ; vehicular assault . . . ; or any 

combination thereof. 

¶42 The first sentence of section 42-4-1301(1)(a) defines the elements of the 

offense: “A person who drives a motor vehicle or vehicle under the influence of 

1 O’Brien and Castillo also identify the severity of the sentence and legislative 

history as relevant to discerning whether a fact is an element or a sentence 

enhancer. O’Brien, 560 U.S. at 225; Castillo, 530 U.S. at 129–31. Because the 

majority does not rely on these factors in its analysis, I do not address them here. 
5

alcohol or . . . drugs . . . commits driving under the influence.” No more is 

required. The second sentence classifies the offense of “driving under the 

influence,” so defined, as a misdemeanor. However, the provision goes on to say 

that the offense is a class 4 felony if “the violation” (that is, the act of driving under 

the influence) occurred after the defendant had three or more prior convictions for 

DUI, DUI per se, DWAI, or other vehicular offenses. Put simply, the penalty for 

the offense of “driving under the influence” is enhanced if the defendant is a 

recidivist.2 

¶43 Importantly, proof of the existence of prior convictions is not necessary to 

convict a defendant of the offense of “driving under the influence.” Thus, the 

language and structure of the statute indicate that the General Assembly intended 

a defendant’s prior convictions to serve as a penalty enhancement rather than a 

substantive element. It is also consistent with the legislature’s treatment of prior 

convictions in other statutes, such as cruelty to animals, § 18-9-202, C.R.S. (2020), 

and indecent exposure, § 18-7-302, C.R.S. (2020). In those examples, a defendant’s 

prior convictions are considered sentence enhancers rather than elements of the 

2 Section 42-4-1301(1)(b), which establishes the offense of “driving while ability 

impaired,” and section 42-4-1301(2)(a), which establishes the offense of “DUI per 

se,” are structured the same way and contain identical language elevating the 

misdemeanor offense to a class 4 felony based on a defendant’s prior convictions.
6

offenses. See People v. Harris, 2016 COA 159, ¶ 75, 405 P.3d 361, 375 (“Cruelty to 

animals is a class 1 misdemeanor; however, a second or subsequent conviction is 

a class 6 felony. Under this statutory scheme, the prior conviction is a sentence 

enhancer rather than a substantive element of the offense.” (citation omitted)); 

Schreiber, 226 P.3d at 1223 (concluding that under the indecent exposure statute, a 

defendant’s prior convictions are a “sentence enhancer, not a substantive offense, 

because: (1) a defendant may be convicted of the underlying offense without any 

proof regarding the sentence enhancer; and (2) the sentence enhancement 

provision only increases the potential punishment”). 

¶44 By contrast, when the General Assembly intends the fact of prior convictions 

to serve as an element of an offense, it expressly includes the prior convictions in 

the definition of the offense, such as with felony escape, § 18-8-208(1), C.R.S. (2020) 

(“A person commits a class 2 felony if, while being in custody or confinement following 

conviction of a class 1 or class 2 felony, he knowingly escapes from said custody or 

confinement.” (emphasis added)), and possession of a weapon by a previous 

offender (“POWPO”), § 18-12-108(1), C.R.S. (2020) (“A person commits the crime 

of possession of a weapon by a previous offender if the person knowingly 

possesses, uses, or carries upon his or her person a firearm . . . subsequent to the 

person’s conviction for a felony . . . .” (emphasis added)). In these examples, we have 

treated the prior conviction as an element of the substantive offense charged. See
7

People v. McKnight, 626 P.2d 678, 683 (Colo. 1981) (“Evidence of a prior conviction 

is an essential element of the offense of escape.”); People v. Fullerton, 525 P.2d 1166, 

1167 (Colo. 1974) (“Under the [POWPO statute], the prior conviction does not go 

merely to the punishment to be imposed, but rather is an element of the 

substantive offense charged.”).

¶45 By focusing on inferences drawn from later amendments to a separate 

provision, see maj. op. ¶¶ 19–24, the majority blurs the line between elements and 

sentence enhancers and overlooks that our ultimate task is to determine what the 

General Assembly meant by the words it chose when it defined the offenses at 

issue. Because we must “presume that the General Assembly understands the 

legal import of the words it uses and does not use language idly, but rather intends 

that meaning should be given to each word,” Dep’t of Transp. v. Stapleton, 97 P.3d 

938, 943 (Colo. 2004), I conclude that, consistent with how the General Assembly 

has treated prior convictions elsewhere in the Criminal Code, the statutory 

language and structure it employed to define the offenses here reflect its intent to 

treat a defendant’s prior convictions in section 42-4-1301 as a sentence enhancer, 

not as elements of separate felony offenses. 

B. Tradition

¶46 Second, of the O’Brien/Castillo factors relied on by the majority, perhaps the 

most powerful indicator of the legislature’s intent is that an offender’s recidivism 
8

“is a traditional, if not the most traditional, basis for a sentencing court’s increasing 

an offender’s sentence.” Almendarez-Torres v. United States, 523 U.S. 224, 243 

(1998). Indeed, recidivism is “as typical a sentencing factor as one might imagine.” 

Id. at 230. This is because (consistent with the discussion above) recidivism “does 

not relate to the commission of the offense,” but instead goes only to punishment. 

Id. at 244 (quoting Graham v. West Virginia, 224 U.S. 616, 629 (1912)). Indeed, in 

describing this factor, the Castillo court expressly noted that “[t]raditional 

sentencing factors often involve . . . characteristics of the offender, such as recidivism.” 

Castillo, 530 U.S. at 126 (emphasis added). 

¶47 The majority acknowledges that tradition weighs in favor of considering the 

fact of prior convictions as a sentence enhancer but concludes that the inferences 

it draws from the language and structure of sections 42-4-1301 and -1307 are 

weightier than this tradition. Maj. op. ¶ 26. While I agree that the legislature could

choose to make the fact of prior convictions an element of a separate felony offense, 

here it plainly has not done so. Thus, if anything, the language employed here by 

the legislature only reinforces the traditional understanding of a defendant’s 

recidivism as a sentencing factor, not an element of the offense itself.

C. The Risk of Unfairness

¶48 Third, the risk of unfairness to the defendant from presenting the jury with 

his prior convictions likewise indicates legislative intent to treat the defendant’s 
9

prior convictions as a sentence enhancer, not an element of a separate felony 

offense. 

¶49 The majority points to the collateral consequences associated with a felony 

conviction to conclude that failing to treat a defendant’s prior convictions as 

elements to be proved to a jury beyond a reasonable doubt risks violating the 

Sixth Amendment. Maj. op. ¶¶ 28–29. The majority also observes that the U.S. 

Supreme Court has never applied Apprendi’s prior-conviction exception to allow 

a judge, instead of a jury, to find a fact that transforms a misdemeanor offense 

into a felony. Maj. op. ¶ 30. But in my view, this O’Brien/Castillo factor points in 

precisely the opposite direction. 

¶50 At the outset, I note that a repeat DUI offender facing a felony conviction 

under section 42-4-1301 already enjoys certain procedural protections. As the 

majority observes, section 42-4-1301(1)(j) requires the People to set forth the 

defendant’s prior convictions in the indictment or information. Maj. op. ¶ 19. 

Moreover, as we held in People v. Tafoya, a defendant in custody who faces a 

potential felony conviction under the statute is entitled to a preliminary hearing 

under section 16-5-301(1), C.R.S. (2020). 2019 CO 13, ¶ 16, 434 P.2d 1193, 1196; 

maj. op. ¶ 24. And I agree, as do the People, that such a defendant is entitled to 

be tried to a unanimous verdict by a twelve-member jury. § 18-1-406(1), C.R.S. 

(2020); maj. op. ¶ 24. 
10

¶51 Relatedly, although I conclude that the fact of a prior conviction may be 

established for purposes of section 42-4-1301 by a preponderance of the evidence, 

it bears emphasis that the prior convictions themselves were subject to 

constitutional due process protections. See Jones v. United States, 526 U.S. 227, 249 

(1999) (“[U]nlike virtually any other consideration used to enlarge the possible 

penalty for an offense, . . . a prior conviction must itself have been established 

through procedures satisfying the fair notice, reasonable doubt, and jury trial 

guarantees.”); Apprendi, 530 U.S. at 496 (observing that “there is a vast difference 

between accepting the validity of a prior judgment of conviction entered in a 

proceeding in which the defendant had the right to a jury trial and the right to 

require the prosecutor to prove guilt beyond a reasonable doubt, and allowing 

the judge to find the required fact under a lesser standard of proof”).

¶52 This leads to my main point, which is that the Apprendi prior-conviction 

exception3 is itself grounded in the recognition that presenting a jury with 

evidence of a defendant’s prior crimes risks unfairness to that defendant. Yet by 

3 Apprendi, 530 U.S. at 490 (holding that “[o]ther than the fact of a prior conviction, any 

fact that increases the penalty for a crime beyond the prescribed statutory 

maximum must be submitted to a jury, and proved beyond a reasonable doubt” 

(emphasis added)). 
11

treating a defendant’s prior convictions as an element of a separate felony offense 

under section 42-4-1301, the majority invites that very risk. 

¶53 Apprendi’s prior-conviction exception can be traced back through Jones to 

Almendarez-Torres. See Apprendi, 530 U.S. at 476 (quoting Jones, 526 U.S. at 243 

n.6); Jones, 526 U.S. at 248–49 (citing Almendarez-Torres, 523 U.S. at 230, 243, 245). 

Importantly, Almendarez-Torres recognized that to treat a defendant’s prior 

conviction as an element of a substantive criminal offense “risks unfairness.”

523 U.S. at 234. There, recognizing that “the introduction of evidence of a 

defendant’s prior crimes risks significant prejudice,” the Court concluded that 

Congress intended to treat a defendant’s prior convictions as a sentencing factor 

and not a separate criminal offense, noting that it did not believe “Congress 

would have wanted to create this kind of unfairness in respect to facts that are 

almost never contested.” Id. at 235. It appears the Court had this same “risk [of] 

unfairness” in mind when it discussed this factor in Castillo. See 530 U.S. at 127 

(citing Almendarez-Torres for the potential unfairness of placing the fact of 

recidivism before a jury). 

¶54 Today’s decision strikes me as an example of “be careful what you wish for.” 

A defendant’s prior convictions for drinking and driving related offenses now will 

be presented to a jury as an element of the felony offense—for drinking and 

driving—despite the risk of prejudice to the defendant. To the extent defendants 
12

anticipate that these prior convictions can be somehow bifurcated from the 

remaining elements of the felony offense, that may be wishful thinking. In 

Fullerton, a defendant charged with POWPO moved for a bifurcated trial, 

“argu[ing] that to impart knowledge of the defendant’s prior record to the jury 

would unduly influence a verdict and finding on the issue of possession.” 

525 P.2d at 1167. We rejected that contention, holding that, “[b]ecause the 

defendant’s prior record was not merely relevant to punishment, but was an 

element of the crime charged,” the trial court’s decision to grant a bifurcated trial 

“was in excess of its jurisdiction.” Id. at 1168. In so holding, we noted that where 

“the issues sought to be tried separately are both elements of the same crime,” 

bifurcation “would unduly interfere with the administration of the criminal justice 

system.” Id.

¶55 Though we are not presented with this issue today, our reasoning in 

Fullerton would appear to preclude bifurcation in the DUI context too. Indeed, 

other jurisdictions addressing this issue have followed a similar approach despite 

defendants’ objections. See Baker v. State, 966 P.2d 797, 798 (Okla. Crim. App. 1998)

(concluding that the defendant’s stipulation to a prior DUI conviction did not bar 

the prosecution from introducing evidence of the conviction at trial because “the 

right of the state, or of the accused, to present material evidence in support of an 

issue, cannot be taken away or the force of the evidence weakened by an admission 
13

or stipulation of the facts sought to be proven” (quoting McFay v. State, 508 P.2d 

273, 276 (Okla. Crim. App. 1973)); State v. Fox, 531 S.E.2d 64, 65–66 (W. Va. 1998)

(“The State’s agreement to stipulate to the prior convictions does not take that 

evidence out of the purview of the jury. Regardless of whether evidence of prior 

convictions is presented by stipulation or during trial, the jury must be allowed to 

consider the evidence to determine whether the accused is guilty of third offense 

DUI.”). 

¶56 Given this risk of unfairness to the defendant, I would decline to conclude 

that the General Assembly intended to treat a defendant’s prior convictions as an 

element that must be proved to a jury beyond a reasonable doubt.

III. Conclusion

¶57 Examining section 42-4-1301 under the factors identified in O’Brien/Castillo, 

I conclude that the General Assembly intended to treat a defendant’s prior 

convictions as a sentence enhancer. Because the statute does not provide the 

applicable burden of proof, such prior convictions may be established by a 

preponderance of the evidence. I would affirm the judgment of the court of 

appeals upholding Linnebur’s convictions and sentence. Therefore, I respectfully 

dissent.

I am authorized to state that JUSTICE SAMOUR joins in this dissent.