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People v. Gregor12/21/2000
Division IV
JUDGMENT AFFIRMED
Marquez and Casebolt, JJ., concur
Defendant, Robert W. Gregor, appeals the judgment of conviction entered upon a jury verdict finding him guilty of one count of driving after revocation prohibited (DARP). We affirm.
Defendant and his fiancée went to a bar, and afterward they disagreed about whether they should go home. Defendant's fiancée decided to leave. She threw the car keys at defendant and walked to a nearby friend's house.
Four hours later, a police officer responded to a call reporting that there was a man in a truck outside a bar. When the officer arrived, she found defendant sitting in the driver's seat of his truck and noticed that the truck's lights were not on, but there was exhaust coming out of the tailpipe. Upon approaching the truck, she observed defendant turn off the ignition and throw what looked like the keys onto the front passenger seat.
When asked to get out of the truck, defendant stumbled. The officer smelled alcohol on his breath and also noticed his bloodshot eyes and slurred speech.
Another officer arrived and radioed defendant's driver's license information to the police dispatcher. The dispatcher responded that defendant was a habitual traffic offender. Defendant declined to take a roadside sobriety test and was arrested for driving under the influence . On the way to the police station, a police officer informed defendant that he was a habitual traffic offender. Defendant later admitted that he had received notice of his habitual traffic offender status through the mail.
Defendant was charged with one count of driving under the influence and one count of driving after revocation prohibited.
After a jury trial, he was acquitted of the driving under the influence charge, but was convicted of driving after revocation prohibited, a class six felony.
I. Jury Instruction on DARP
Defendant contends that the trial court committed structural error when it failed to instruct the jury on two essential elements of the driving after revocation prohibited statute. We conclude that there was no error, and so we need not consider whether there was structural error or plain error.
Defendant was convicted of driving after revocation prohibited under a prior version of the statute that is substantially similar to the present version, §42-2-206, C.R.S. 2000. The first sentence of this statute, which has not changed, states: "It is unlawful for any person to operate a motor vehicle in this state while the revocation of the department prohibiting the operation remains in effect." Section 42-2-206(1)(a)(I).
The model jury instruction for DARP sets forth the elements of the offense as including that the defendant:having been found to be a habitual traffic offender by the Department of Motor Vehicles,with notice of the revocation of his privilege to drive,operated a motor vehicle,while the revocation of the Department prohibiting such operation remained in effect. COLJI-Crim. No. 37:03 (1983).
Here, the trial court instructed the jurors that the elements of DARP were that the defendant:Knowingly,Operated or drove a motor vehicleKnowing his privilege to drive a motor vehicle in this state was revoked pursuant to the habitual offender statute.
Defendant argues that, because the jury instruction given at his trial did not include elements three and six of the model jury instruction, we should reverse his conviction. We decline to do so.
While the jury instruction given in defendant's case did not track each of the six elements listed in the model jury instruc
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