The Colorado Supreme Court on Monday agreed to review three appeals that implicate the state's drunk driving laws and the legal obligation of universities to conduct fair investigations into alleged sexual misconduct.
At least three of the court's seven members must consent to review a case.
One appeal raises yet another angle in the long-running fallout from the Supreme Court's recent reinterpretation of Colorado's 2015 felony drunk driving law, while another examines what constitutes a driver's "refusal" to take a chemical test if police suspect they are intoxicated.
The justices also showed interest in an ongoing parental rights case out of Douglas County, in which the father alleges his ex-wife is weaponizing a judge's order against him to halt all visitations with his children.
Felony DUI law continued
In 2020, the Supreme Court ruled that the state's law for felony driving under the influence, enacted five years prior, operated differently from how judges were applying it. Typically, a jury would find a defendant guilty of the charged DUI offense, which is ordinarily a misdemeanor, and a judge would later determine if the defendant had at least three prior DUIs. If the answer was yes, the misdemeanor conviction would become a felony.
That decision, Linnebur v. People, meant juries now have to decide both questions. But Linnebur triggered many other legal conundrums for the Supreme Court to deal with, and there is now another one for the justices to consider that has implications broader than the DUI law.
Specifically, if a defendant is convicted under one understanding of the law, but the law changes while the appeal is pending, what happens then?
When the defense does not raise an objection at trial, the appellate courts review the alleged error by asking if it was plain, or obvious. Plain error is normally a difficult standard for defendants to meet. The U.S. Supreme Court, however, has recognized that defendants will not object when the law appears settled, so an unobjected-to error can be treated as plain on appeal if there is a change in law.
A Boulder County jury convicted Charles James Crabtree of DUI in 2019 and a judge elevated it to a felony after finding Crabtree had prior offenses. Then the state Supreme Court decided Linnebur. Consequently, a three-judge panel for the Court of Appeals reversed Crabtree's felony conviction, agreeing the error of not submitting the prior offenses to the jury was plain at the time of appeal.
"(T)he procedure employed in Crabtree’s trial is clearly contrary to the law," wrote Judge Terry Fox last June.
The Colorado Attorney General's Office appealed, arguing for the state Supreme Court to reject the time-of-appeal standard, and only look at whether an unobjected-to legal error is obvious at the time of the trial. Crabtree, who represented himself in front of the jury, also challenged the appellate panel's conclusion that he validly gave up his right to an attorney. The panel had observed Crabtree's "nonsensical" statements appeared to stem from his belief in the anti-government "sovereign citizen" movement, rather than incompetence.
The Supreme Court agreed to review the issues raised by the government and declined to look at Crabtree's self-representation.
The case is People v. Crabtree.
Refusal to test for alcohol
Colorado has an "expressed consent" law, in which motorists have automatically consented to taking a blood or breath test if an officer has probable cause to suspect them of impaired driving. If drivers refuse a test, the refusal can be used against them at trial and is grounds for revoking their driver license.
Glen Gary Montoya rear-ended a vehicle in Arapahoe County and the responding officer believed him to be drunk. After hearing about the expressed consent law, Montoya agreed to take a blood test for his alcohol level.
At the detox facility, Montoya wavered about whether to take the test, before saying, "I don't think I'm gonna do it." Approximately 90 minutes after the accident, the officer recorded Montoya on his body-worn camera saying he refused the blood test, and that was what Montoya's jury saw. Jurors convicted him of felony DUI.
What they did not know, however, was that Montoya changed his mind again shortly after the refusal, and within the two-hour testing window established in the law. But the trial judge refused to allow jurors to hear that statement, believing it was self-serving and would confuse the jury.
The Court of Appeals reversed Montoya's DUI conviction. The panel synthesized multiple elements of the expressed consent law to conclude that drivers are not allowed to change what type of test they choose, but changing their mind on whether to cooperate is still possible. Looking to cases that dealt with driver license revocations, the panel determined a refusal to take a test within the two-hour window depends on whether the test can still be administered in time.
The panel also deemed it wrong to shield the jury from Montoya's final statement indicating he would cooperate after all.
"Redacting the video allowed the prosecution to stop it at the refusal," wrote Judge Sueanna P. Johnson, "and relieved it of its responsibility to present evidence as to why Montoya's later change of mind still nonetheless constituted refusal."
The Supreme Court will review both conclusions from the Court of Appeals.
The case is People v. Montoya.
University investigations of sexual misconduct
Under the federal law known as Title IX, educational programs may not exclude or discriminate against anyone on the basis of sex. Although the protections apply to college students, largely female, who are victims of sexual misconduct, increasingly students who have been found liable for misconduct, mostly male, are challenging the fairness of those investigations.
The University of Denver expelled "John Doe" after concluding he engaged in nonconsensual sex with female student "Jane Roe" in violation of campus policy. Doe sued, alleging several deficiencies in the university's handling of the case, such as interviewing 11 of the victim's witnesses but only one of Doe's.
Doe first received a favorable ruling from the U.S. Court of Appeals for the 10th Circuit, which in 2021 reinstated his lawsuit after finding the combination of Doe's allegations plus data suggesting disparate treatment of male students combined to form a viable claim. Then last year, the state Court of Appeals gave Doe another victory in his related lawsuit.
The appellate court decided DU's promise of a "thorough, impartial and fair" investigation was concrete enough to be subject to a breach of contract claim that a jury or judge would decide. Also, it concluded DU owed Doe a duty to adopt fair investigative procedures.
"A mere allegation of sexual misconduct can be devastating to the accused," wrote then-Judge Michael H. Berger. "We acknowledge that the purpose of the investigation can also be for the benefit of either DU or Jane (or both). But the burden and detriment of an unfair investigation and adjudication is borne almost entirely by John."
The university appealed to the Supreme Court, arguing the Court of Appeals had placed schools in a place of uncertainty about their obligations under student handbooks and other codes of conduct. Attorney General Phil Weiser also filed a supportive brief on behalf of the state arguing the Court of Appeals was wrong.
Policies that promise fair investigations of complaints "are not part of the educational contract between institutions of higher education and students," wrote Senior Assistant Attorney General Skip Spear.
The Supreme Court will decide whether sexual misconduct policies required under Title IX are contracts whose terms are enforceable, and whether universities have a duty to adopt fair processes for investigating sexual misconduct allegations.
The case is University of Denver v. Doe.
Shut out of parenting time
Finally, the Supreme Court expressed interest in a parenting dispute out of Douglas County, in which a father reportedly cannot see his children due to a quirk of his 2018 divorce.
Jason Strong and his wife divorced in Adams County and the orders governing Strong's visitation with his children included a list of conditions, including sobriety monitoring at his expense and mental health treatment. However, years later, when the case moved to Douglas County, Strong complained his ex-wife was using the conditions to prevent him from being with his children at all.
"It has reached a point where Father will never earn parenting time without the Court's intervention," Strong's attorneys wrote in April 2021.
Last year, Magistrate Jacob A. Edson held a hearing and found Strong's ex-wife had not violated the divorce orders by withholding visitation from Strong. However, he acknowledged the "crux" of the case was an upcoming hearing on Strong's request to modify his parenting time to regain his ability to visit.
After postponing the hearing so Strong's ex-wife could obtain an attorney, Edson issued an order on Feb. 16, the new date for Strong's hearing, canceling the proceedings and ordering further mediation.
Strong then appealed directly to the Supreme Court. He argued the "self-executing restrictions" in the original divorce orders have now indefinitely kept him from visiting with his children, despite his efforts to comply.
"These types of orders should be held void by this Court because of the cascade of due process, constitutional, and public policy problems they create," wrote Strong's lawyers.
They added that Strong was challenging the ability of divorce orders to automatically restrict parenting time without the other spouse requesting such restrictions or a judge finding the children are endangered.
The Supreme Court has ordered the government and Strong's ex-wife to respond to his petition.
The case is In Re the Marriage of Webb-Galarza and Strong.
