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People v. Cruthers6/30/2005
the statutory elements of the greater offense necessarily establishes all the elements of the lesser offense, then the lesser offense is included. However, when each offense requires proof of an additional element that the other does not, the strict elements test is not satisfied, and a presumption arises that the defendant can be convicted of both offenses. Meads v. People, supra.
The vehicular assault statute, § 18-3-205(1)(b), provides: If a person operates or drives a motor vehicle while under the influence of alcohol or one or more drugs, or a combination of both alcohol and one or more drugs, and this conduct is the proximate cause of a serious bodily injury to another, such person commits vehicular assault. This is a strict liability crime.
The DUI statute, § 42-4-1301(1)(a), states: "It is a misdemeanor for any person who is under the influence of alcohol or one or more drugs, or a combination of both alcohol and one or more drugs, to drive any vehicle in this state." DUI is also a strict liability crime. In re Kearns, 991 P.2d 824 (Colo. 1999).
Under the strict elements test, the elements of DUI must necessarily be proved to sustain a conviction for vehicular assault. Both statutes require proof that (1) a person drove a vehicle (2) under the influence of alcohol, drugs, or a combination of alcohol and drugs. Cf. In re Kearns, supra (acknowledging the trial court vacated a DUI conviction at sentencing as a lesser included offense of vehicular assault); People v. Kearns, 988 P.2d 189 (Colo. App. 1999)(same).
The People's reliance on cases decided before the adoption of the strict elements test in People v. Rivera, 186 Colo. 24, 525 P.2d 431 (1974), is unpersuasive. See People v. Olona, 180 Colo. 299, 505 P.2d 372 (1973); People v. Smith, 182 Colo. 228, 512 P.2d 269 (1973); Daniels v. People, 159 Colo. 190, 411 P.2d 316 (1966). People v. Clary, 950 P.2d 654 (Colo. App. 1997), also cited by the People, is inapposite because the defendant there was convicted of offenses involving separate victims.
Accordingly, we conclude the trial court committed plain error in entering judgment on defendant's DUI conviction because it constitutes a lesser included offense of his vehicular assault conviction.
The judgment of conviction for vehicular assault is affirmed, and the judgment of conviction for DUI is vacated.
JUDGE ROTHENBERG and JUDGE VOGT concur.
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