Colorado Court of Appeals People v. Medrano-Bustamante 10CA0791

Decision here.

   Medrano-Bustamante was driving drunk with two passengers, when he was involved in a single-vehicle accident.  One of his passengers (the adult, who was also drunk) suffered a broken femur.  The other passenger (a juvie) died several hours after the accident.  Being a real stand-up guy, Medrano-Bustamante claimed that the dead juvie had been driving.  DNA evidence and the pattern of everybody's injuries said otherwise, though, and Medrano-Bustamante was eventually convicted of DUI, vehicular assault, vehicular homicide, and two counts of hit and run (one for leaving the scene of an accident involving death, the other for leaving the scene of an accident involving serious bodily injury).

   On appeal, Medrano-Bustamante argued that DUI was a lesser included offense of vehicular assault and vehicular homicide.  Another division of the court of appeals had agreed with him in a previous case, but different divisions of the court of appeals aren't bound by each others' decisions.

   This time, the court held that DUI is not a lesser included version of vehicular assault or vehicular homicide, because of an extremely subtle difference in the elements.  On first glance, vehicular assault and vehicular homicide both contain all of the elements of DUI, but in order to be guilty of vehicular assault or homicide a defendant must drive a motor vehicle as that term is defined in the criminal code.  In order to be convicted of DUI, a person must drive a motor vehicle as that term is define in by the Uniform Motor Vehicle Law.  The criminal code definition basically describes anything designed to move someone by land, water, or air (unless supported by tracks or cables), and the traffic code version says any vehicle designed for use on highways.

   Long story short: the difference is minor, but enough that the elements of the offenses aren't actually the same.  So the DUI conviction stands as a separate offense from the vehicular assault and vehicular homicide convictions.  The hit and run convictions, on the other hand, had to be merged.  Hit and run crimes are charged per accident, not per victim.  So instead of charging our hero with one count of leaving the scene of an accident involving death and one of leaving the scene of an accident involving SBI, the prosecution should have charged him with just one count of leaving the scene of an accident involving death.

   Other than the two merged convictions, the trial court's decision stands.