SUMMARY 

September 6, 2018 

2018COA130

No. 2016CA1884, People v. Gwinn — Crimes — DUI — Prior 

Convictions 

In this DUI case, a division of the court of appeals concludes, 

as a matter of first impression, that a defendant is not entitled to 

have a jury determine the existence of the prior DUI convictions 

used to enhance his or her sentence from a misdemeanor to a 

felony. The division further concludes that the prosecution’s 

burden of proving prior convictions is by a preponderance of the 

evidence. 

The division also affirms the trial court’s orders granting a 

motion to quash witness subpoenas, allowing impeachment 

testimony, admitting a trial exhibit, and rejecting a tendered jury 

instruction. 

The summaries of the Colorado Court of Appeals published opinions 

constitute no part of the opinion of the division but have been prepared by 

the division for the convenience of the reader. The summaries may not be 

cited or relied upon as they are not the official language of the division. 

Any discrepancy between the language in the summary and in the opinion 

should be resolved in favor of the language in the opinion. 
COLORADO COURT OF APPEALS 2018COA130

Court of Appeals No. 16CA1884 

Jefferson County District Court No. 16CR341 

Honorable Tamara S. Russel, Judge 

Honorable Christopher C. Zenisek, Judge 

The People of the State of Colorado, 

Plaintiff-Appellee, 

v. 

Michael Can Gwinn, 

Defendant-Appellant. 

JUDGMENT AFFIRMED 

Division VI 

Opinion by JUDGE FREYRE 

Terry and Navarro, JJ., concur 

Announced September 6, 2018 

Cynthia H. Coffman, Attorney General, Majid Yazdi, Assistant Attorney 

General, Denver, Colorado, for Plaintiff-Appellee 

Nancy C. Johnson, Denver, Colorado, for Defendant-Appellant
1 

¶ 1 Defendant, Michael Can Gwinn, appeals his conviction for 

driving while under the influence of alcohol (DUI) as a felony. He 

contends that the trial court erred in (1) quashing eight subpoenas 

for witnesses who would have testified about problems with the 

Intoxilyzer 9000; (2) allowing the prosecution to impeach its own 

witness using leading questions; (3) admitting the express consent 

form; (4) refusing a jury instruction; and (5) denying his right to 

have a jury determine the existence of his prior DUI convictions 

beyond a reasonable doubt. We address and reject his first four 

contentions, and, as a matter of first impression, we conclude that 

he was not entitled to have a jury determine the existence of his 

prior DUI convictions. Accordingly, we affirm his conviction. 

I. Background 

¶ 2 One night after work, Gwinn rear-ended another car while 

driving home. Officer Trae Tripp responded to the accident and 

spoke with Gwinn. He smelled the odor of an alcoholic beverage on 

Gwinn’s breath, and observed that Gwinn had bloodshot eyes and 

slurred speech. Gwinn admitted drinking four beers before the 

accident occurred. Officer Tripp requested a DUI officer, and Officer 

Jude Perez arrived to provide assistance. 
2 

¶ 3 Officer Perez asked Gwinn if he would complete voluntary 

roadside maneuvers, and Gwinn refused. Gwinn then told Officer 

Perez that he drank three or four beers at a bar before the accident. 

Officer Perez explained to Gwinn that if he refused to take a 

chemical blood or breath test to determine his blood alcohol level, 

then he would lose his license for one year. Gwinn refused all tests, 

and Officer Perez arrested him. 

¶ 4 After a jury convicted Gwinn of DUI and careless driving, the 

trial court, in a separate proceeding, found that Gwinn had three 

prior DUI convictions, adjudicated him a felony DUI offender, and 

sentenced him to thirty months of probation, two years of work 

release, and ninety days in the county jail. 

II. No Error in Quashing Subpoenas 

¶ 5 Gwinn first contends that the trial court’s refusal to allow the 

testimony of eight current and former Colorado Department of 

Public Health and Environment (CDPHE) employees deprived him of 

his constitutional right to present a defense. We discern no error. 

A. Standard of Review and Applicable Law 

¶ 6 A trial court’s decision to exclude evidence, including witness 

testimony, will not be disturbed on review absent an abuse of 
3 

discretion. People v. Rodriguez, 209 P.3d 1151, 1160-61 (Colo. App. 

2008), aff’d, 238 P.3d 1283 (Colo. 2010). A court abuses its 

discretion if its decision is manifestly arbitrary, unreasonable, or 

unfair, or based on an erroneous understanding or application of 

the law. Id. at 1161. 

¶ 7 All relevant evidence is admissible unless otherwise provided 

by constitution, statute, or rule. CRE 402; People v. Rath, 44 P.3d 

1033, 1038 (Colo. 2002); People v. Cordova, 293 P.3d 114, 118 

(Colo. App. 2011). Evidence is relevant where it has “any tendency 

to make the existence of any fact that is of consequence to the 

determination of the action more probable or less probable than it 

would be without the evidence.” CRE 401; Cordova, 293 P.3d at 

118. 

¶ 8 The exclusion of evidence may, in some circumstances, 

implicate a defendant’s Sixth Amendment right to present a 

defense; however, every restriction on a defendant’s evidence is not 

constitutional error. Krutsinger v. People, 219 P.3d 1054, 1062 

(Colo. 2009). Instead, “the right to present a defense is not 

absolute; it requires only that the accused be permitted to introduce 

all relevant and admissible evidence.” Rodriguez, 209 P.3d at 1160. 
4 

Thus, a defendant must prove that the evidence is both relevant 

and admissible. See Taylor v. Illinois, 484 U.S. 400, 410 (1988) 

(“The accused does not have an unfettered right to offer [evidence] 

that is incompetent, privileged, or otherwise inadmissible under 

standard rules of evidence.”). 

¶ 9 The parties dispute whether this alleged error should be 

reviewed for constitutional harmless error or harmless error. We 

need not resolve this dispute because we conclude there was no 

error. 

B. Analysis 

¶ 10 Knowing that the jury would be instructed that it could 

consider his refusal to submit to a chemical test when it determined 

guilt, see § 42-4-1301(6)(d), Gwinn sought to introduce the 

testimony of eight current and former employees of the CDPHE to 

show that the Intoxilyzer 9000 breath test machine did not satisfy 

the requirements of section 42-4-1301.1(2)(a), C.R.S. 2017, and, 

thus, did not produce an accurate result. Gwinn’s counsel argued 

that the jury should be permitted to infer from this testimony that 

Gwinn’s refusal was supported by the absence of a competent 
5 

intoxilyzer machine. The CDPHE moved to quash the witnesses’ 

subpoenas. 

¶ 11 The trial court asked defense counsel whether Gwinn knew of 

the intoxilyzer’s alleged deficiencies or whether any other witness 

could establish that Gwinn knew of them. Counsel said she did not 

believe that was required since the prosecution could argue the 

negative inference based on no evidence. When pressed, counsel 

stated that she did not have any witnesses to establish Gwinn’s 

knowledge of the intoxilyzer’s purported deficiencies. The trial court 

granted the motion to quash finding that the testimony was 

irrelevant to Gwinn’s refusal because it failed to establish Gwinn’s 

knowledge of the Intoxilyzer 9000’s alleged deficiencies at the time 

he refused to submit to chemical testing. 

¶ 12 We discern no abuse of discretion in the trial court’s ruling. 

First, because Gwinn refused chemical testing and never actually 

blew into the Intoxilyzer 9000, the machine’s operability and 

accuracy were irrelevant. See Long v. Colo. Dep’t of Revenue, 2012 

COA 130, ¶ 31 (when a breath test is refused, the operability of the 

breathalyzer is not at issue). And while the DUI statute allows a 

defendant to challenge the accuracy of a particular test, it only 
6 

applies when the defendant actually submits to the test and 

questions its accuracy. § 42-4-1301(6)(c)(II), C.R.S. 2017; see also 

Long, ¶ 31 (“Once plaintiff refused to take the breath test after the 

deputy informed him that the breathalyzer was functioning 

properly, the operability of the breathalyzer was not at issue.”). 

¶ 13 Second, Gwinn failed to show that his reason for refusing to 

take a chemical test was related to his knowledge of problems with 

the Intoxilyzer 9000. Without this evidence, testimony about the 

intoxilyzer’s deficiencies did not make the negative inference from 

his refusal more or less probable. CRE 401. Indeed, such 

testimony could only be probative if Gwinn knew of the intoxilyzer’s 

alleged deficiencies and if this knowledge caused his refusal. 

Absent evidence of this knowledge, the jury could only speculate 

about the importance of the machine’s operability in relation to the 

evidence presented. Cf. People v. Salazar, 2012 CO 20, ¶ 17 (noting 

that evidence “which has only the most minimal probative value, 

and which requires a jury to engage in undue speculation as to the 

probative value of that evidence” can be excluded (quoting People v. 

Welsh, 80 P.3d 296, 307 (Colo. 2003))). 
7 

¶ 14 Gwinn also contends that the trial court’s ruling violated his 

Fifth Amendment right to remain silent. We disagree. The trial 

court stated: 

[U]nless Mr. Gwinn takes the stand and 

testifies that he knew about the problems that 

you’ve just mentioned, . . . if he takes the 

stand and says [that he] knew about all of 

those problems with the Intoxilyzer, and, 

therefore, [he] refused to take the breath test, 

it might be relevant. However, otherwise it’s 

absolutely not relevant. . . . 

I will not allow your client to testify about not 

taking the intoxilyzer unless he has a good 

faith basis to state on the record that he knew 

about all of these problems and that’s one of 

the reasons he didn’t take it. Or if you have 

some other witness who is going to testify that 

Mr. Gwinn knew about this. 

Contrary to Gwinn’s assertion, the court simply explained to 

counsel the various avenues through which Gwinn’s knowledge 

could be established that would then make the evidence relevant for 

admission: e.g., through Gwinn’s own testimony or from a friend or 

family member who could establish that Gwinn knew of the 

intoxilyzer’s alleged deficiencies. Thus, while Gwinn’s testimony 

was one method of establishing knowledge and thereby relevance, it 

was not his only option. 
8 

¶ 15 Because the accuracy of the Intoxilyzer 9000 was not relevant, 

the court did not deprive Gwinn of his right to present a defense. 

See id. (explaining that the right to present a defense is limited to 

relevant and admissible evidence). 

III. Prosecutor’s Impeachment Was Proper 

¶ 16 Gwinn next contends that the trial court erroneously 

permitted the prosecutor to lead a friendly witness, Officer Perez, 

“under the guise of impeachment” where no impeachment occurred. 

We disagree. 

A. Standard of Review and Preservation 

¶ 17 A trial court’s ruling on evidentiary issues is reviewed for an 

abuse of discretion and will be upheld unless it is manifestly 

arbitrary, unreasonable, or unfair, or contrary to law. See Kinney v. 

People, 187 P.3d 548, 558 (Colo. 2008). 

¶ 18 The Attorney General contends that Gwinn did not preserve 

his challenge based on improper leading questions and 

impeachment and that our review should be for plain error. We 

need not decide preservation because we conclude no error 

occurred. 
9 

B. Additional Facts 

¶ 19 While questioning Officer Perez, the prosecutor asked, “Did 

you observe anything specific about Mr. Gwinn’s speech?” Officer 

Perez responded, “Other than himself being polite and things like 

that, it seemed overall normal.” The prosecutor then questioned 

Officer Perez about a sobriety examination form that he completed 

during the booking process. Gwinn’s counsel objected, saying there 

was “no reason to review [the form] unless the officer says that he 

cannot remember and then only for that purpose.” The prosecutor 

said she was impeaching Officer Perez and the trial court overruled 

the objection. 

¶ 20 The following colloquy then occurred: 

Q: Officer Perez, do you recall that the 

defendant had mumbled spe[ech] when you 

spoke to him? 

A: Yes. 

Q: You took a look at the sobriety examination 

record. Why do you fill that out? 

A: For our recollection. There is a series of 

questions on here that are relevant to indicia 

of intoxication. 

. . . . 
10 

Q: Do you recall the defendant saying I am 

familiar with the law, I made my bed, I’ll sleep 

in it? 

A: Yes. 

Q: Did you write that in quotations in your 

record? 

A: I did. 

Q: What do quotations in the report mean? 

A: A specific statement by someone in my 

report. 

C. Analysis 

¶ 21 The conduct of the trial is within the trial court’s discretion. 

See Maloney v. Brassfield, 251 P.3d 1097, 1101 (Colo. App. 2010). 

CRE 607 provides that “[t]he credibility of a witness may be 

attacked by any party, including the party calling him. Leading 

questions may be used for the purpose of attacking such 

credibility.” Moreover, leading questions are proper during direct 

examination “as may be necessary to develop” witness testimony. 

CRE 611(c); see also People v. Raehal, 971 P.2d 256, 258 (Colo. 

App. 1998). 

¶ 22 Because Officer Perez’s direct testimony that Gwinn’s speech 

“sounded normal” was contradicted by his previous statement in 
11 

the sobriety examination report that Gwinn’s speech was 

“mumbled,” we conclude that no error occurred when the trial court 

allowed impeachment with leading questions about a prior 

statement. See Babcock v. People, 13 Colo. 515, 520, 22 P. 817, 

819 (1889) (“Where a party is really taken by surprise at the 

conduct of his own witness, it is in the discretion, and is often the 

duty, of the trial court to allow a party to put leading questions to 

his own witness . . . .”); see also People v. Gillis, 883 P.2d 554, 561 

(Colo. App. 1994) (“[A] trial court is vested with substantial 

discretion in determining whether leading questions are 

permissible.”). The two leading questions were direct references to 

the sobriety examination record and were asked in response to an 

inconsistent statement by Officer Perez — that Gwinn’s speech was 

normal. Cf. People v. Stewart, 2017 COA 99, ¶ 11 (concluding the 

trial court erred in allowing the prosecutor to lead a witness where 

there was no lack of recollection, no writing introduced, and no 

foundation for impeachment was laid). Therefore, no error occurred 

in the questioning. 
12 

IV. Exhibit 1 Properly Admitted 

¶ 23 Gwinn next contends that the trial court erroneously admitted 

People’s Exhibit 1, an express consent affidavit and notice of 

revocation form,1 under CRE 403, arguing that it misled the jury 

and was “distracting.” We discern no error. 

A. Standard of Review and Reversal 

¶ 24 A trial court’s ruling on evidentiary issues is reviewed for an 

abuse of discretion and will be upheld unless it is manifestly 

arbitrary, unreasonable, or unfair, or contrary to law. See Kinney, 

187 P.3d at 558. 

¶ 25 Evidence is relevant if it has any tendency to make the 

existence of a fact more or less probable. CRE 401. Relevant 

evidence is admissible, CRE 402, but may be excluded if its 

probative value is substantially outweighed by the danger of unfair 

prejudice or if its admission would mislead the jury. CRE 403; 

 

1 Exhibit 1 is not part of the appellate record. Although Gwinn’s 

opening brief argues that the improper impeachment and Exhibit 1 

issues are connected, the impeachment issue concerned the 

sobriety examination form, while Exhibit 1 is the express consent 

affidavit and notice of revocation form. 
13 

People v. Greenlee, 200 P.3d 363, 366 (Colo. 2009); People v. 

Nuanez, 973 P.2d 1260, 1262-63 (Colo. 1999). 

¶ 26 Because Gwinn argues for the first time on appeal that the 

court erroneously admitted Exhibit 1 under CRE 403, we review 

this contention for plain error. People v. Ujaama, 2012 COA 36, 

¶ 37 (noting that issues are unpreserved when the grounds raised 

on appeal are different from those raised below). Plain error is (1) 

an error, (2) that is obvious, and (3) that causes serious doubt 

about the reliability of the judgment of conviction. Hagos v. People, 

2012 CO 63, ¶ 14. 

B. Additional Facts 

¶ 27 During direct examination, the prosecutor showed Officer 

Perez Exhibit 1 and sought its admission in the following colloquy: 

Q: And is that a copy of the form that you went 

over with Mr. Gwinn during booking? 

A: Yes. 

Q: Is it a fair and accurate copy of that form? 

A: Yes. 

Q: Is that a form that you keep within the 

normal course of business at the police 

department? 

A: It is. 
14 

Q: Is it kept with the files or the records 

specific to a defendant or case number? 

A: Yes. 

¶ 28 Gwinn made a foundation objection and argued that Officer 

Perez was not a records custodian and that the document was not 

certified. The trial court admitted Exhibit 1 over Gwinn’s objection. 

C. Analysis 

¶ 29 We discern no abuse of discretion in the court’s admission of 

Exhibit 1 under CRE 403. First, as noted by the Attorney General, 

the trial court properly admitted Exhibit 1 under CRE 803(6) 

(records of regularly conducted activity) — not, as asserted by 

Gwinn, under CRE 803(5) (recorded recollection). And Gwinn does 

not challenge the court’s basis for admitting the exhibit on appeal. 

Rather, Gwinn now argues that Exhibit 1 “distract[ed] the jury from 

the potential explanation that the Defendant may have refused a 

[breathalyzer] test because, as explained[,] the officer did not claim 

to have probable cause.” However, Officer Perez testified that he 

reviewed the express consent affidavit with Gwinn, which made the 

affidavit relevant to Gwinn’s knowledge of the consequences of his 

refusal to take a chemical test. Because Gwinn does not further 
15 

explain how this “distracted” or “misled” the jury, we reject his 

contention. See People v. Simpson, 93 P.3d 551, 555 (Colo. App. 

2003) (“We decline to consider a bald legal proposition presented 

without argument or development . . . .”). For the same reason, we 

decline to address Gwinn’s conclusory assertion that Officer Perez 

violated Colorado law by refusing to issue a required temporary 

permit, which Gwinn contends constituted official misconduct 

under section 18-8-404, C.R.S. 2017, and section 18-8-405, C.R.S. 

2017. Accordingly, we discern no error, let alone plain error, in the 

trial court’s decision to admit Exhibit 1. 

V. The Court Properly Rejected the Tendered Jury Instruction 

¶ 30 Gwinn contends that the trial court erroneously rejected a 

tendered instruction informing the jury that law enforcement may 

obtain a search warrant to compel a defendant to submit to a blood 

test and instructing the jury that it was permitted to draw an 

inference from an officer’s failure to employ this procedure that the 

officer did not believe there was evidence to support a search 

warrant. We disagree. 
16 

A. Standard of Review and Law 

¶ 31 Trial courts have a duty to correctly instruct the jury on all 

pertinent matters of law. People v. Garcia, 28 P.3d 340, 343 (Colo. 

2001). We review de novo whether jury instructions accurately 

reflect the law. Riley v. People, 266 P.3d 1089, 1092 (Colo. 2011). 

Generally, instructions that accurately track the language of 

applicable statutes and pattern instructions are sufficient. People 

v. Gallegos, 260 P.3d 15, 26 (Colo. App. 2010). However, whether to 

give a particular instruction lies within the trial court’s discretion, 

and we will not disturb the court’s ruling absent a showing that the 

court abused its discretion in rejecting a particular instruction. 

Bedor v. Johnson, 2013 CO 4, ¶ 8. A court abuses its discretion if it 

bases its ruling on an erroneous view of the law or a clearly 

erroneous assessment of the evidence. Banning v. Prester, 2012 

COA 215, ¶ 9.

B. Analysis 

¶ 32 During Officer Perez’s cross-examination, defense counsel 

asked whether the officer could have obtained a search warrant to 

“seize” Gwinn’s blood for testing. Officer Perez said he could have, 

but explained that this was not usually done in DUI cases. Counsel 
17 

asked whether probable cause to believe a DUI had occurred would 

be required to obtain a warrant, and Officer Perez confirmed that it 

would. He also said he took no steps to obtain a search warrant 

when Gwinn refused testing. 

¶ 33 Gwinn tendered the following instruction and argued that it 

accurately stated the law set forth in section 13-14-103(c), C.R.S. 

2017, and Crim. P. 41(c)(3). 

The Court instructs you that Colorado law 

requires that in each judicial district, a judge 

be available, 24 hours a day seven days a 

week, to pass upon electronic or telephonic 

search or arrest warrant applications. This 

procedure permits judges to receive 

electronically the sworn affidavits of law 

enforcement officers, to determine the 

existence of probable cause, and issue the 

appropriate warrants. 

This procedure would be available to any law 

enforcement officer who believed they had 

probable cause to believe that an individual 

was operating a motor vehicle while impaired, 

or under the influence of of [sic] alcohol or 

drugs, and who could establish that evidence 

of that crime could be gathered by the 

issuance of a search warrant. Search 

warrants can authorize, without the consent of 

a defendant, the drawing of the defendant’s 

blood for testing. 

You are permitted, but not required, to draw 

an inference from a police officer’s failure or 
18 

refusal to collect evidence, that the officer 

believed that such evidence would not support 

the actions he was otherwise taking. 

¶ 34 Defense counsel admitted that this was not a stock Colorado 

jury instruction and that she was unaware of any case law to 

support it.2 

¶ 35 The trial court denied the tendered instruction, finding that it 

“risks the Court weighing into the evidence and commenting and 

providing inferences to the jury.” It found that this was an 

appropriate subject for argument by counsel. 

¶ 36 Gwinn now asserts that the absence of this instruction 

precluded him from arguing the inference stated in it. We are not 

persuaded for several reasons. First, as the trial court found, the 

tendered instruction unduly highlighted one piece of evidence: the 

officer’s ability to discretionarily seek a search warrant for a blood 

draw. The court, therefore, did not err in rejecting the instruction 

 

2 In the trial court, the prosecutor characterized the tendered 

instruction as a “theory of the case” instruction; however, Gwinn 

never made this argument, and the trial court made no findings 

under that body of law. On appeal, Gwinn cites to People v. Jones, 

675 P.2d 9 (Colo. 1984), as “instructive,” but, again, does not 

characterize the instruction as a theory of the case instruction or 

discuss the related case law. Therefore, neither do we. 
19 

on this basis alone. See Krueger v. Ary, 205 P.3d 1150, 1157 (Colo. 

2009) (explaining that “we disfavor instructions emphasizing 

specific evidence” because they “confuse the jury and result in 

incorrect directives regarding evidentiary weight”); People v. Nerud, 

2015 COA 27, ¶ 43 (jury instructions that emphasize specific 

evidence are disfavored); cf. People v. Omwanda, 2014 COA 128, 

¶ 42 (“The contested portion simply highlighted one piece of 

evidence: that other people had access to defendant’s phone.”). 

¶ 37 Second, the instruction contains argument — that the jury 

could infer that Officer Perez did not have probable cause to believe 

that Gwinn was driving while impaired. See People v. Merklin, 80 

P.3d 921, 927 (Colo. App. 2003) (“[A] trial court may refuse an 

instruction if it is argumentative, unduly emphasizes particular 

evidence, or contains statements not supported by the evidence.”). 

¶ 38 Finally, because Officer Perez testified that he could have 

sought a search warrant for a blood draw and did not usually do so 

in these types of cases, we necessarily reject Gwinn’s argument that 

he was precluded from arguing the instruction’s inference in closing 

argument. Moreover, he does not explain how he was precluded 

from doing so. See People v. Trujillo, 2018 COA 12, ¶ 9 (“[T]he trial 
20 

court permitted defense counsel to argue the issues raised in the 

instructions during closing argument.”). Accordingly, we find no 

abuse of discretion and affirm the court’s ruling. 

VI. Felony DUI Determination 

¶ 39 Gwinn last contends that his prior DUI convictions trial, 

conducted by the trial court (as authorized by section 42-4-

1301(1)(a) and (j)), violated his federal constitutional right to a jury 

trial.3 We disagree and conclude that, similar to habitual criminal 

findings, prior DUI convictions constitute sentence enhancers that 

do not require a jury finding, rather than elements of the crime that 

do. 

A. Additional Facts 

¶ 40 The prosecutor charged Gwinn with DUI as a class 4 felony, 

alleging that he had three prior convictions for DUI, DUI per se, or 

DWAI under section 42-4-1301(1)(a) and (j). Gwinn’s counsel 

argued that because his prior DUI’s were misdemeanors, and 

 

3 Gwinn asserted an equal protection challenge to the statute in the 

trial court, but he did not reassert that challenge on appeal. 

Accordingly, we deem it waived. See Moody v. People, 159 P.3d 611, 

614 (Colo. 2007) (“Our starting point is the basic principle of 

appellate jurisprudence that arguments not advanced on appeal are 

generally deemed waived.”). 
21 

because identity was an issue, the prosecution was required to 

prove them to a jury beyond a reasonable doubt. 

¶ 41 The trial court rejected this argument and instead applied 

People v. Schreiber, which held that prior convictions are sentence 

enhancers, not elements. 226 P.3d 1221, 1223 (Colo. App. 2009). 

The court admitted and considered copies of certified sentencing 

orders for each prior conviction and a Department of Motor Vehicles 

(DMV) record for each prior conviction that included a photograph 

of Gwinn, his full name, his birthdate, and the conviction 

recognized by the DMV. The court found that the prosecution met 

its burden and convicted Gwinn of felony DUI. 

B. Legal Discussion 

¶ 42 We review de novo a trial court’s determination that a 

statutory provision is a sentence enhancer rather than an element 

of the offense. Lopez v. People, 113 P.3d 713, 720 (Colo. 2005). 

¶ 43 State legislatures have plenary authority to define the 

elements of a crime; therefore, we look to the plain language of the 

statute to decide whether the prior convictions are elements or 

sentence enhancers. Vega v. People, 893 P.2d 107, 112 (Colo. 

1995); People v. Low, 732 P.2d 622, 627 (Colo. 1987). If the 
22 

legislative intent is clear from the plain language of the statute, our 

analysis is complete. People v. Vigil, 2013 COA 102, ¶ 13. 

¶ 44 A statutory provision is a sentence enhancer when the 

defendant may be convicted of the underlying offense without any 

proof of the prior conviction. People v. Whitley, 998 P.2d 31, 33 

(Colo. App. 1999); see also Vega, 893 P.2d at 112; Armintrout v. 

People, 864 P.2d 576, 580 (Colo. 1993); Schreiber, 226 P.3d at 

1223. Linking the severity of punishment to the presence or 

absence of an identified fact does not automatically make that fact 

an element. Almendarez-Torres v. United States, 523 U.S. 224, 242 

(1998). 

¶ 45 Generally, any fact, other than the fact of a prior conviction, 

that increases the penalty for a crime beyond the prescribed 

statutory maximum must be submitted to a jury and proved beyond 

a reasonable doubt. Blakely v. Washington, 542 U.S. 296, 303 

(2004); Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). 

“Although there is some doubt about the continued vitality of the 

prior conviction exception,” Lopez, 113 P.3d at 723, the United 

States Supreme Court and the Colorado Supreme Court have 

repeatedly affirmed this exception, see United States v. Booker, 543 
23 

U.S. 220, 224 (2005); Blakely, 542 U.S. at 301; People v. Huber, 

139 P.3d 628, 631 (Colo. 2006); Lopez, 113 P.3d at 723. 

¶ 46 Moreover, Apprendi’s prior conviction exception extends to the 

additional statutory factual findings for each conviction necessary 

to support an enhanced sentence, including (1) that each prior 

conviction was separately brought and tried; (2) that each prior 

conviction arose out of separate and distinct criminal episodes; and 

(3) that the accused was the person named in each prior conviction. 

Lopez, 113 P.3d at 726; People v. Parks, 2015 COA 158, ¶¶ 28-29; 

People v. Conyac, 2014 COA 8M, ¶ 167; People v. Poindexter, 2013 

COA 93, ¶¶ 72-73 (rejecting contention that habitual sentence must 

be vacated because it was based on facts found by a judge rather 

than a jury); People v. LaPage, 397 P.3d 1074, 1082-83 (Colo. App. 

2011) (“There is no right to a jury determination of habitual 

criminal charges.”), aff’d on other grounds, 2014 CO 13; People v. 

Moore, 226 P.3d 1076, 1089-90 (Colo. App. 2009) (rejecting the 

defendant’s claim that his Sixth Amendment right to a jury trial was 

violated because a judge, rather than a jury, determined the 

habitual criminal counts); People v. Nunn, 148 P.3d 222, 226-28 

(Colo. App. 2006) (habitual criminality may be constitutionally 
24 

adjudicated by a judge and not a jury); People v. Felder, 129 P.3d 

1072, 1074 (Colo. App. 2005) (rejecting the defendant’s argument 

that under Apprendi and Blakely his habitual criminality should 

have been pleaded and proved to a jury); People v. Flowers, 128 

P.3d 285, 289 (Colo. App. 2005) (noting that Apprendi does not 

require a jury to determine whether a defendant’s prior convictions 

were separately brought and tried); People v. Benzor, 100 P.3d 542, 

545 (Colo. App. 2004); People v. Carrasco, 85 P.3d 580, 582 (Colo. 

App. 2003). 

C. Analysis 

¶ 47 Section 42-4-1301(1)(a) provides in relevant part as follows: 

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 . . . or 

any combination thereof. 

¶ 48 Section 42-4-1301(1)(j) provides in relevant part as follows: 

For the purposes of this section, a person is 

deemed to have a prior conviction for DUI, DUI 

per se or DWAI; . . . if the person has been 

convicted under the laws of this state or under 

the laws of any other state, the United States, 

or any territory subject to the jurisdiction of 

the United States, of an act that, if committed 

within this state, would constitute any of these 
25 

offenses. The prosecution shall set forth such 

prior convictions in the indictment or 

information. 

¶ 49 The plain language of the statute convinces us that the 

General Assembly intended prior DUI convictions to constitute a 

sentence enhancer rather than an element of DUI. Section 42-4-

1301(1)(a) makes it unlawful for a person to “drive[] 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.” These are the 

only elements necessary to convict Gwinn of DUI. The fact of his 

prior convictions served only to determine the severity of his 

punishment. See Schreiber, 226 P.3d at 1223 (concluding that an 

enhancement from a misdemeanor was not an element “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”). 

¶ 50 To the extent that Gwinn claims the burden of proof should 

have been beyond a reasonable doubt, rather than a preponderance 

of the evidence, we are not persuaded. Unlike the habitual criminal 

statute, section 18-1.3-803(4)(b), C.R.S. 2017, which clearly states 

that the “prosecuting attorney has the burden of proving beyond a 
26 

reasonable doubt that the defendant has been previously convicted 

as alleged,” the DUI statute contains no such requirement. 

Similarly, unlike crime of violence counts, which must be submitted 

to the jury (§ 18-1.3-406(4), C.R.S. 2017) and proven beyond a 

reasonable doubt (People v. Russo, 713 P.2d 356, 364 (Colo. 1986)), 

the DUI statute does not require that prior convictions be submitted 

to a jury. We may not add language to a statute that does not exist. 

See People v. Diaz, 2015 CO 28, ¶ 12 (“We do not add words to the 

statute or subtract words from it.” (quoting Turbyne v. People, 151 

P.3d 563, 567 (Colo. 2007))). 

¶ 51 Moreover, when a sentencing statute does not establish a 

burden of proof, a court may properly apply the preponderance of 

the evidence standard. See People v. Wilson, 2013 COA 75, ¶ 58 

(finding prior drug felony used to enhance sentence properly proved 

by a preponderance of the evidence); Schreiber, 226 P.3d at 1224 

(where a statute does not establish a burden of proof, 

preponderance of the evidence determined by a judge is proper); see 

also People v. Lacey, 723 P.2d 111, 124 (Colo. 1986) (prosecution 

required to prove the defendant was on probation by a 

preponderance of the evidence standard at revocation hearing). 
27 

¶ 52 We acknowledge that the consequences of transforming a 

misdemeanor offense into a felony offense involve more than simply 

increasing the punishment and that critical constitutional and 

statutory protections attend felony charges. See Vigil, ¶ 27 (citing 

Schreiber, 226 P.3d at 1225 (Bernard, J. dissenting)). Indeed, 

article II, section 23 of the Colorado Constitution provides “a right 

to a jury of twelve in criminal cases in courts of record that cannot 

be circumscribed by the General Assembly or any rule of 

procedure.” Id. at ¶ 28 (quoting People v. Rodriguez, 112 P.3d 693, 

699 (Colo. 2005)). And our supreme court has interpreted this 

provision to require a jury of twelve in felony cases, as opposed to 

the jury of six a defendant receives in a misdemeanor case. See 

§ 18-1-406(1), C.R.S. 2017; Crim. P. 23(a)(1)(2); see also Rodriguez, 

112 P.3d at 703 (right to twelve jurors does not extend to 

misdemeanor cases). 

¶ 53 But this case is not like Vigil, where the defendant received no 

constitutional or procedural protections but instead, was charged, 

tried, and convicted of a misdemeanor in county court and then 

sentenced for a felony in county court based on his prior 

misdemeanor convictions. Rather, section 42-4-1301 requires the 
28 

prosecution to bring a felony DUI charge in an “indictment or 

information,” and to identify the prior DUI convictions that make it 

a felony. See § 42-4-1301(1)(j), C.R.S. 2017; see also § 16-5-101, 

C.R.S. 2017 (describing how felony charges are brought by 

indictment, information in district court and felony complaint). 

Consequently, the DUI prosecution occurs in the district court 

where felony protections exist. And the record here demonstrates 

that (1) the prosecution charged Gwinn by felony complaint and 

information; (2) the case proceeded in the district court; and (3) a 

jury of twelve persons convicted him of DUI. 

¶ 54 Finally, we note that courts in other jurisdictions with felony 

DUI statutes have consistently applied the holdings of Apprendi and 

Almendarez-Torres to find that prior convictions need not be 

submitted to a jury or be proved beyond a reasonable doubt. See 

State v. Palmer, 189 P.3d 69, 75-76 (Utah Ct. App. 2008) (collecting 

cases). 

¶ 55 To the extent Gwinn claims the prosecution failed to plead the 

prior convictions in the charging document, we reject that 

contention because the only charging document in the appellate 

record charges DUI as a class 4 felony. We note that the document 
29 

in the record is obscured and less than clear. However, the burden 

rests with the appellant to provide a complete appellate record, and 

we must presume the correctness of documents discussed by the 

court but not before us. See People v. Ullery, 984 P.2d 586, 591 

(Colo. 1999) (explaining that an appealing party must provide a 

complete record, without which we presume the correctness of the 

trial court’s proceedings); People in the Interest of A.W., 2015 COA 

144M, ¶ 18 (same). 

¶ 56 Because we agree with the reasoning of the cases cited above, 

and because we are bound by our supreme court’s recognition of 

the prior conviction exception, we perceive no error in the trial 

court’s adjudication of Gwinn as a felony DUI offender and affirm 

his conviction. 

VII. Conclusion 

¶ 57 The judgment is affirmed. 

JUDGE TERRY and JUDGE NAVARRO concur.