People v. VanMATRE

Citations: 190 P.3d 770; 2008 Colo. App. LEXIS 157; 2008 WL 323816Docket: 05CA2386

Court: Colorado Court of Appeals; February 6, 2008; Colorado; State Appellate Court

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Jackie Arthur VanMatre was convicted on charges of aggravated driving with a revoked license, driving under the influence (DUI), and driving without insurance. The case arose after a citizen reported a vehicle parked near a gas station, where VanMatre was found drinking beer in the driver's seat and attempting to start the vehicle. Despite his claim that he was a passenger, the jury was instructed that "drive" and "operate" involved actual physical control of the vehicle, determined by various factors such as the vehicle's operability and VanMatre's position and actions.

The jury convicted him on all counts except for displaying fictitious plates. At sentencing, the court merged the DUI and aggravated driving convictions, giving a three-year community corrections sentence for the aggravated driving charge, citing VanMatre's history of five previous DUI convictions. 

VanMatre argued that the trial court erred by not requiring the jury to find that the vehicle was reasonably capable of being rendered operable for a conviction under the DUI and DARP statutes. The court noted that while such an instruction is warranted if evidence suggests the vehicle could not be operable, in this case, the evidence did not support that claim. The DARP statute defines the offense as operating a vehicle while the driver's license is revoked.

The DUI statute in Colorado, Section 42-4-1301(1)(b), prohibits individuals impaired by drugs or alcohol from "driving" any vehicle, where "drive" is defined as exercising actual physical control over a motor vehicle. The broader term "operate," as used in the DARP statute, refers to causing a vehicle to function, typically through direct effort. Notably, neither term necessitates actual movement of the vehicle or a specific distance traveled. 

The defendant asserts that "drive" and "operate" imply that the vehicle must be reasonably capable of being rendered operable. This claim is supported by various jurisdictions adopting a "reasonably capable of being rendered operable" standard for DWI convictions, indicating that actual physical control requires the vehicle to be capable of operation or easily made operable. Courts have established that the risk of impaired driving—which these statutes aim to mitigate—arises when a vehicle can be put into motion by an intoxicated person. This risk is absent if the vehicle is inoperable, not subject to quick repairs, or not in motion.

However, if the vehicle's inoperability is due to a temporary issue, such as a flat tire or dead battery, the risk remains, as these conditions can be quickly remedied. Distinctions are made between a vehicle out of gas and one that is "totally inoperable." The courts conclude that this "reasonably capable of being rendered operable" standard is appropriate, and while the People agree with it, they contend that it should be considered a factor for the jury rather than a strict requirement of the "drive" and "operate" definitions in the DUI and DARP statutes.

A vehicle must be reasonably capable of being rendered operable for a person to be convicted of driving or operating it while intoxicated. Several cases affirm that this operability is a requirement for DWI conviction, as it aligns with the intent of DUI and DARP statutes to protect public safety. The court emphasizes that if a vehicle's inoperability is solely due to a lack of fuel or a dead battery, it is still considered reasonably capable of being rendered operable. This means that a jury can conclude a defendant exercised actual physical control over the vehicle if it was operable or could have been made operable.

The jury must be instructed to consider total circumstances, including whether the vehicle was in motion or at risk of being put into motion, before convicting a defendant. Although the jury was not explicitly instructed on the operability requirement, the court found no error due to undisputed evidence of the vehicle's condition. The defendant’s argument that the DUI and DARP statutes are unconstitutionally vague was not considered since it was not raised in the trial court.

Regarding sentencing, the trial court's imposition of an aggravated sentence based on the defendant's five prior misdemeanor DUI convictions was upheld. The court noted that precedents allow for prior misdemeanor convictions to be considered in sentencing, affirming that the defendant's due process rights were not violated. The judgments of conviction and sentence were affirmed, with concurrence from the judges involved.