A motorist facing a felony for driving under the influence has the right to a preliminary hearing to determine whether there is enough evidence to go to trial, but that doesn't mean prosecutors have to present evidence to support the charge is warranted, under two conflicting rulings in the state's appellate courts.

That issue has prosecutors and defense attorneys — not to mention presiding judges — scratching their heads over how to handle felony DUI cases.

Generally, DUIs and many related alcohol and drug traffic offenses are considered misdemeanors. But under a new law approved in Colorado in 2015, if a motorist has three prior DUI convictions, a fourth or more DUI conviction can become a felony.

The legal quandary, however, is how a DUI misdemeanor becomes a felony. In other words, are prior DUI convictions sentence enhancers, something for a judge to consider in sentencing after a defendant is convicted a fourth or more times? Or is felony DUI a stand-alone charge, meaning a jury must consider prior DUI convictions during deliberations of a fourth or subsequent charge?

In February, the Colorado Supreme Court ruled that a Mesa County woman, Elizabeth Tafoya, should have had a preliminary hearing in a felony DUI charge against her. The court, however, declined to answer the question of whether prior DUI convictions are elements of a felony charge or just a sentence enhancer.

It did, however, suggest that the Colorado Legislature might want to take on that issue because its law is unclear.

By law, DUI cases are misdemeanors and, as such, defendants don't have the right to preliminary hearings. Enhancer charges are often levied against defendants as part of a package of criminal counts, such as a habitual criminal charge. As such, they are used to help judges determine if sentences should be harsher.

"These questions are inherent in the fact ... that (the law) and its related penalty provisions alternatively accord the prior convictions qualities of both elements of an offense and sentence enhancers," Justice Richard Gabriel wrote in that February opinion, which was unanimous.

"No party, however, has asked us to decide these difficult questions in this case, nor have those issues been briefed before us," the high court added. "Accordingly, we cannot properly decide these issues, and we express no opinion on them. We note, however, that our General Assembly may wish to address these matters in order to clarify its intent."

As a result of that ruling, a three-judge panel of the Colorado Court of Appeals on Thursday reversed a decision by Mesa County District Judge Lance Timbreza, who dismissed a similar case because prosecutors did not present evidence of three or more prior DUI convictions during a preliminary hearing for Grand Valley resident Eric Butz on a new DUI charge.

The appeals court said they were not required to do so because the felony DUI law is only an enhancer, meaning prosecutors aren't even required to present evidence of prior convictions at trial before a jury.

"It is true that the prosecution has to identify the defendant's prior DUI convictions when charging the defendant with a felony DUI," appeals Judge David Furman wrote in the Thursday opinion, which was joined by Judges John Webb and JoAnn Vogt.

"But, this requirement related to the form of the charging document does not alter our interpretation of the plain language of the DUI statute with regard to the elements of DUI," Furman added. "The DUI statute defines the elements of DUI without referring to prior DUI convictions."

Felony DUI is a class 4 felony punishable by up to six years in prison and a $500,000 fine. DUI misdemeanors, however, only carry sentences of up to a year in jail, but some of that time can be suspended if an offender undergoes alcohol or drug treatment.

Under the law, felony DUI applies to convictions for driving under the influence of drugs or alcohol, DUI per se, driving while ability impaired, vehicular homicide when alcohol is involved, vehicular assault when alcohol is a factor or any combination of those charges.

Dan Rubinstein, district attorney in the 21st Judicial District, which includes all of Mesa County, said via email that the appeals court ruling still leaves some issues up in the air.

"In the Tafoya case the Colorado Supreme Court left some unanswered questions regarding what evidence needs to be presented for a felony DUI conviction, and at what stage of the prosecution that evidence should be presented."

Rubinstein said the appeal in the Butz case was an attempt to get answers to some of those questions.

"We are grateful for the clarity and direction from the Court of Appeals in the Butz case," Rubinstein wrote.

According to the District Attorney's Office, the Butz case was listed as an unpublished opinion, meaning it can be used to persuade future rulings, but it can't be considered a legal precedent. The DA's office is petitioning the appeals court to publish the case, which would give it more legal heft

State Sen. Mike Foote, a Lafayette Democrat who has sponsored related DUI legislation, said he wasn't aware of the issue, but said it probably was something the Legislature could address.

Foote, however, said that would depend on which way people would want to go. Defense attorneys, for example, may not want prior DUI convictions to be brought up before juries for fear it might prejudice them against defendants.

Foote said the debate is similar to domestic violence charges, which isn't a stand-alone charge either, but a sentence enhancer for other related charges in a specific case.

"You would have to show evidence of prior DUIs in order to get a conviction, but I wonder if that's how it's playing out in the courts," Foote said. "If you have a trial for someone ... and it seems a little weak and a jury may not think you've proven it beyond a reasonable doubt, and then you represent evidence of three prior DUIs, you know which way the jury's going to go."

The Butz case is now back in district court; Tafoya was convicted in May and sentenced to 3½ years in the La Vista Correctional Facility in Pueblo. She is eligible for parole in March.

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