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People v. Lucero5/13/1999
JUDGMENTS AFFIRMED IN PART, VACATED IN PART, AND CAUSE REMANDED WITH DIRECTIONS
Division IV
Ney and Rothenberg, JJ., concur
Defendant, William J. Lucero, appeals from the judgments of conviction entered upon jury verdicts finding him guilty of numerous offenses. These offenses include three counts of vehicular homicide (DUI), three counts of vehicular homicide (reckless), three counts of careless driving resulting in death, thirty counts of vehicular assault (DUI), and thirty counts of vehicular assault (reckless). Defendant was also convicted of failure to drive on the right side of the road and careless driving, plus two counts of third degree assault (at-risk adults) and eight counts of third degree assault based upon the use of an automobile as a deadly weapon. With reference to non-driving offenses, defendant was convicted of possession of a schedule II controlled substance (cocaine), possession of marijuana, and possession of drug paraphernalia. We affirm in part, vacate in part, and remand with directions.
While defendant was driving on a two-lane mountain highway, he fell asleep at the wheel. His van crossed over the center line and collided with an oncoming tour bus. Three bus passengers were killed, thirty were seriously injured, and ten suffered bodily injury.
Medical testing conducted after the accident failed to reveal alcohol in defendant's blood. However, a trace amount of marijuana was found, along with trace amounts of "parent" cocaine and cocaethylene.
I.
Defendant contends that he was entitled to a judgment of acquittal on the vehicular homicide (DUI) and vehicular assault (DUI) charges. He argues that his motion to that effect should have been granted because the evidence was insufficient to prove that he was "under the influence."
In a related contention, defendant maintains that the trial court erred in refusing his jury instruction which stated that a person is not under the influence of drugs unless such substances are having a contemporaneous psychoactive effect. We are not persuaded by either contention.
A.
In assessing defendant's contention relative to the sufficiency of the evidence, we must first determine the applicable legal standard. Both the vehicular homicide and vehicular assault statutes define "driving under the influence" as:
"Driving a vehicle when a person has consumed [alcohol and/or drugs], which . . . affect such person to a degree that such person is substantially incapable, either mentally or physically, or [both], of exercising clear judgment, sufficient physical control, or due care in the safe operation of a vehicle." Sections 18-3-106(1)(b)(IV) and 18-3-205(1)(b)(IV), C.R.S. 1998 (emphasis supplied).
However, defendant's tendered jury instruction stated that:
"An individual is not 'under the influence' or 'impaired' by the ingestion of any drug, combination of drugs, or combination of drugs and alcohol unless such influence or impairment is caused by the psychoactive properties of the substance or substances at the time of the operation of the motor vehicle." (emphasis supplied)
In essence then, defendant argues that a state of intoxication occurs under the statute only while the drugs or alcohol are having the direct euphoric effect for which they are taken by the user. We disagree.
In Bieber v. People, 856 P.2d 811 (Colo. 1993), defendant had not used drugs for at least two days prior to the commission of a homicide. He claimed, however, that the effects of prior drug use caused him to commit the crime and he requested jury instructions on a "settled insa
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