COLORADO COURT OF APPEALS 2016COA109 

Court of Appeals No. 15CA0682 

Adams County District Court No. 14CR1195 

Honorable John E. Popovich, Judge 

The People of the State of Colorado, 

Plaintiff-Appellee, 

v. 

Demetre Cardell Boulden, 

Defendant-Appellant. 

JUDGMENT VACATED AND CASE 

REMANDED WITH DIRECTIONS 

Division VI 

Opinion by JUDGE MILLER 

Furman and Navarro, JJ., concur 

Announced July 14, 2016 

Cynthia H. Coffman, Attorney General, Molly E. McNab, Assistant Attorney 

General, Denver, Colorado, for Plaintiff-Appellee 

Douglas K. Wilson, Colorado State Public Defender, Sarah Quinn, Deputy State 

Public Defender, Denver, Colorado, for Defendant-Appellant
1 

¶ 1 Defendant, Demetre Cardell Boulden, appeals the trial court’s 

entry of judgment of conviction upon a jury verdict finding him 

guilty of driving under restraint. We conclude that under People v. 

Ellison, 14 P.3d 1034 (Colo. 2000), the mere mailing of the notice of 

revocation is not sufficient to establish the knowledge element of 

the offense of driving under restraint. We therefore vacate the 

judgment and sentence and remand with directions. 

I. Background 

¶ 2 A police officer pulled defendant over for driving a car with a 

broken headlight. When the officer checked with dispatch on the 

license plate number of the car, he learned that the car had been 

reported as stolen. Defendant’s driving record indicated that his 

driver’s license had been suspended seven months before he was 

pulled over. 

¶ 3 Defendant was charged with second degree aggravated motor 

vehicle theft and driving under restraint. Following a jury trial, he 

was convicted of driving under restraint and acquitted of motor 

vehicle theft. 
2 

II. Sufficiency of the Evidence 

¶ 4 Defendant contends that there was insufficient evidence to 

find defendant guilty of driving under restraint. We agree.

A. Standard of Review 

¶ 5 The People contend that defendant did not preserve this 

argument and that we should accordingly apply plain error review. 

In People v. McCoy, 2015 COA 76M, ¶ 6, a division of this court 

concluded that sufficiency of the evidence claims are not subject to 

plain error review. We agree. In any event, defendant moved for 

judgment of acquittal at the close of the prosecution’s case-in-chief 

based on insufficiency of the evidence of defendant’s mental state. 

The trial court denied the motion, expressly finding that there was 

sufficient evidence of defendant’s knowledge for purposes of the 

driving under restraint charge. Where a defendant raises an issue 

sufficiently to give the trial court an opportunity to rule on the 

claim raised on appeal, we conclude the claim is sufficiently 

preserved. See People v. Rhea, 2014 COA 60, ¶ 55. Accordingly, 

plain error review does not apply. 

¶ 6 The evidence is sufficient if, after viewing the evidence in the 

light most favorable to the prosecution, a rational jury could have 
3 

found the essential elements of the crime beyond a reasonable 

doubt. Clark v. People, 232 P.3d 1287, 1291 (Colo. 2010). 

B. Law 

¶ 7 Driving under restraint occurs when “[a]ny person who drives 

a motor vehicle or off-highway vehicle upon any highway of this 

state with knowledge that the person’s license or privilege to drive, 

either as a resident or a nonresident, is under restraint for any 

reason other than conviction of DUI, DUI per se, DWAI, or UDD is 

guilty of a misdemeanor.” § 42-2-138(1)(a), C.R.S. 2015 (emphasis 

added). “Restraint” includes revocation or suspension of the 

driver’s license. § 42-2-138(4)(b). 

¶ 8 Knowledge is an essential element of the crime of driving 

under restraint. See Jolly v. People, 742 P.2d 891, 896 (Colo. 

1987); People v. Parga, 964 P.2d 571, 572 (Colo. App. 1998). In 

Jolly, the supreme court held that knowledge is an element in all 

criminal cases in which notice of a final agency action depriving a 

licensee of the driving privilege is an essential element of the 

charge, even if, as was then the case, the statute does not 

specifically mention knowledge. Jolly, 742 P.2d at 895; see also 

People v. Lesh, 668 P.2d 1362, 1365 (Colo. 1983). 
4 

¶ 9 Several years later, the General Assembly expressly added the 

knowledge element to the driving under restraint statute, as quoted 

above. Ch. 207, sec. 3, § 42-2-130(1)(a), 1993 Colo. Sess. Laws 

938. It also included a definition of knowledge applicable to driving 

under a restraint that encompasses both actual and constructive 

knowledge. § 42-2-130(4)(a), 1993 Colo. Sess. Laws at 939; see also

Parga, 964 P.2d at 574. That definition is currently codified in 

section 42-2-138(4)(a) and provides as follows: 

“Knowledge” means actual knowledge of any 

restraint from whatever source or knowledge of 

circumstances sufficient to cause a reasonable 

person to be aware that such person’s license 

or privilege to drive was under restraint. 

“Knowledge” does not mean knowledge of a 

particular restraint or knowledge of the 

duration of restraint. 

¶ 10 The second part of the definition of knowledge, while referring 

to the use of an objective reasonable person standard, still “requires 

that the particular defendant possess knowledge of those 

circumstances that would trigger a reasonable person to believe his 

license was under restraint.” Ellison, 14 P.3d at 1036-37 (emphasis 

added). The defendant must be “actually aware of specific 

circumstances.” Id. at 1037. In Ellison, the supreme court 
5 

explained that while a defendant who saw mail arrive from the 

Department of Motor Vehicles (DMV), but refused to open it, might 

have actual knowledge of circumstances that would lead a 

reasonable person to believe his license was under restraint, a 

defendant who inadvertently threw away mail from the DMV 

without seeing it could not have the same actual knowledge. Id. at 

1037, 1039. While some states make driving under restraint a 

strict liability crime, Colorado’s “knowledge” requirement limits 

punishment to “those who are subjectively aware of circumstances 

that would lead a responsible driver to realize his license was under 

restraint and thus not continue to drive.” Id. at 1039. 

¶ 11 The prosecution admitted into evidence a certified copy of 

defendant’s Colorado driver history. The history showed that 

defendant’s driver’s license had been suspended effective September 

9, 2013, and had not been reinstated since that time. Attached to 

the driver history is a page entitled “Verification of Mailing of 

Notices/Orders,” which includes a list of names and addresses. 

The following statement appears at the top of the page: “by checking 

off the name and initialing the statement, the mail room verifies 

that these notices/orders were deposited in the U.S. Mail First 
6 

Class.” Defendant’s name and address are listed on the page, and a 

handwritten check mark appears next to the entry with his name. 

A handwritten initial and date appears at the top of the page. 

¶ 12 In closing argument, the prosecutor addressed the knowledge 

requirement of driving under restraint: 

If you remember back in jury selection, we 

talked about a driver’s license, what you need 

to do to have a valid driver’s license. And we 

talked about insurance. Everybody knows 

that they need insurance on their vehicle and 

that if their insurance lapses they will not have 

a valid driver’s license anymore. Demetre 

Boulden knew his driver’s license was under 

restraint. 

In rebuttal closing, the prosecutor reiterated, “you can infer that 

notice being sent to [defendant’s last known] address, a reasonable 

person should have known his license was suspended.” 

¶ 13 In an administrative driver’s license revocation proceeding, it 

is sufficient for the DMV to mail by first-class mail a notice of 

revocation to the driver’s last known address on record with the 

DMV, which would then be deemed received by the driver three 

days after being sent. §§ 42-2-119(2), -126(6)(b)(II), C.R.S. 2015. 

No provision in the Motor Vehicle Code creates a comparable 

presumption for purposes of criminal proceedings. See Well 
7 

Augmentation Subdistrict of Cent. Colo. Water Conservancy Dist. v. 

City of Aurora, 221 P.3d 399, 419 (Colo. 2009) (“When the General 

Assembly includes a provision in one section of a statute, but 

excludes the same provision from another section, we presume that 

the General Assembly did so purposefully.”). Ellison clarifies that 

mere proof of mailing is not sufficient to prove beyond a reasonable 

doubt a defendant’s knowledge of restraint of his driver’s privilege. 

14 P.3d at 1039. Here, the prosecution presented no evidence on 

the issue of knowledge beyond the driving record and the mailing 

certification. 

¶ 14 The People cite People v. Espinoza, 195 P.3d 1122, 1128 (Colo. 

App. 2008), in support of the proposition that a driving record is 

sufficient evidence that a defendant had knowledge that his license 

had been revoked. We note that in Espinoza the driving record in 

question included proofs of service notifying the defendant it was 

unlawful for him to operate a motor vehicle in Colorado and stating 

that he was a habitual traffic offender. Id. The defendant had been 

previously convicted of multiple traffic offenses, as evidenced by his 

habitual traffic offender status. Id.; see also § 42-2-202, C.R.S. 
8 

2015. Upon being stopped by police, defendant fled by foot. 

Espinoza, 195 P.3d at 1128.

¶ 15 Thus, in Espinoza the record established that (1) the 

defendant had previously been convicted of multiple traffic offenses 

(he would necessarily have known of those convictions) and (2) he 

fled the scene when apprehended, a fact from which the jury could 

have inferred defendant’s consciousness of guilt that he drove with 

knowledge of his license revocation. See People v. Gee, 2015 COA 

151, ¶ 26 (evidence of flight may be relevant to show consciousness 

of guilt). 

¶ 16 By contrast, however, the only evidence in the record of this 

case bearing on the driving under restraint charge is (1) the driving 

record, indicating only that defendant’s license had been suspended 

on September 9, 2013, and not reinstated; and (2) the verification of 

mailing, showing that a single notice of that suspension had been 

mailed to his last known address on file. The prosecution presented 

no evidence that defendant had ever seen or was aware of either 

document or of the suspension of his license. 

¶ 17 Accordingly, even viewing all the evidence in the light most 

favorable to the prosecution, we conclude that no reasonable jury 
9 

could have found that the prosecution proved the knowledge 

element of driving under restraint. 

III. Remaining Issues 

¶ 18 In light of our conclusion that there was insufficient evidence 

to sustain the conviction for driving under restraint, we need not 

address defendant’s evidentiary arguments. 

IV. Conclusion 

¶ 19 Defendant’s conviction and sentence for driving under 

restraint are vacated, and the trial court is directed on remand to 

enter a judgment of acquittal on that charge. 

JUDGE FURMAN and JUDGE NAVARRO concur.