Previous  Next

18-3-106. Vehicular homicide.

Statute text

(1) (a) If a person operates or drives a motor vehicle in a reckless manner, and such conduct is the proximate cause of the death of another, such person commits vehicular homicide.

(b) (I) If a person operates or drives a motor vehicle while under the influence of alcohol or one or more drugs, or a combination of both alcohol and one or more drugs, and such conduct is the proximate cause of the death of another, such person commits vehicular homicide. This is a strict liability crime.

(II) For the purposes of this subsection (1), one or more drugs means any drug, as defined in section 27-80-203 (13), C.R.S., any controlled substance, as defined in section 18-18-102 (5), and any inhaled glue, aerosol, or other toxic vapor or vapors, as defined in section 18-18-412.

(III) The fact that any person charged with a violation of this subsection (1) is or has been entitled to use one or more drugs under the laws of this state shall not constitute a defense against any charge of violating this subsection (1).

(IV) "Driving under the influence" means driving a vehicle when a person has consumed alcohol or one or more drugs, or a combination of alcohol and one or more drugs, which alcohol alone, or one or more drugs alone, or alcohol combined with one or more drugs affect such person to a degree that such person is substantially incapable, either mentally or physically, or both mentally and physically, of exercising clear judgment, sufficient physical control, or due care in the safe operation of a vehicle.

(c) Vehicular homicide, in violation of paragraph (a) of this subsection (1), is a class 4 felony. Vehicular homicide, in violation of paragraph (b) of this subsection (1), is a class 3 felony.

(2) In any prosecution for a violation of subsection (1) of this section, the amount of alcohol in the defendant's blood or breath at the time of the commission of the alleged offense, or within a reasonable time thereafter, as shown by analysis of the defendant's blood or breath, gives rise to the following:

(a) If there was at such time 0.05 or less grams of alcohol per one hundred milliliters of blood, or if there was at such time 0.05 or less grams of alcohol per two hundred ten liters of breath, it shall be presumed that the defendant was not under the influence of alcohol.

(b) If there was at such time in excess of 0.05 but less than 0.08 grams of alcohol per one hundred milliliters of blood, or if there was at such time in excess of 0.05 but less than 0.08 grams of alcohol per two hundred ten liters of breath, such fact may be considered with other competent evidence in determining whether or not the defendant was under the influence of alcohol.

(c) If there was at such time 0.08 or more grams of alcohol per one hundred milliliters of blood, or if there was at such time 0.08 or more grams of alcohol per two hundred ten liters of breath, such fact gives rise to the permissible inference that the defendant was under the influence of alcohol.

(d) If at such time the driver's blood contained five nanograms or more of delta 9-tetrahydrocannabinol per milliliter in whole blood, as shown by analysis of the defendant's blood, such fact gives rise to a permissible inference that the defendant was under the influence of one or more drugs.

(3) The limitations of subsection (2) of this section shall not be construed as limiting the introduction, reception, or consideration of any other competent evidence bearing upon the question of whether or not the defendant was under the influence of alcohol.

(4) (a) If a law enforcement officer has probable cause to believe that any person was driving a motor vehicle in violation of paragraph (b) of subsection (1) of this section, the person, upon the request of the law enforcement officer, shall take, and complete, and cooperate in the completing of any test or tests of the person's blood, breath, saliva, or urine for the purpose of determining the alcoholic or drug content within his or her system. The type of test or tests shall be determined by the law enforcement officer requiring the test or tests. If the person refuses to take, or to complete, or to cooperate in the completing of any test or tests, the test or tests may be performed at the direction of a law enforcement officer having probable cause, without the person's authorization or consent. If any person refuses to take or complete, or cooperate in the taking or completing of any test or tests required by this paragraph (a), the person shall be subject to license revocation pursuant to the provisions of section 42-2-126 (3), C.R.S. When the test or tests show that the amount of alcohol in a person's blood was in violation of the limits provided for in section 42-2-126 (3)(a), (3)(b), (3)(d), or (3)(e), C.R.S., the person shall be subject to license revocation pursuant to the provisions of section 42-2-126, C.R.S.

(b) Any person who is required to submit to testing shall cooperate with the person authorized to obtain specimens of his blood, breath, saliva, or urine, including the signing of any release or consent forms required by any person, hospital, clinic, or association authorized to obtain such specimens. If such person does not cooperate with the person, hospital, clinic, or association authorized to obtain such specimens, including the signing of any release or consent forms, such noncooperation shall be considered a refusal to submit to testing.

(c) The tests shall be administered at the direction of a law enforcement officer having probable cause to believe that the person committed a violation of subparagraph (I) of paragraph (b) of subsection (1) of this section and in accordance with rules and regulations prescribed by the state board of health concerning the health of the person being tested and the accuracy of such testing. Strict compliance with such rules and regulations shall not be a prerequisite to the admissibility of test results at trial unless the court finds that the extent of noncompliance with a board of health rule has so impaired the validity and reliability of the testing method and the test results as to render the evidence inadmissible. In all other circumstances, failure to strictly comply with such rules and regulations shall only be considered in the weight to be given to the test results and not to the admissibility of such test results. It shall not be a prerequisite to the admissibility of test results at trial that the prosecution present testimony concerning the composition of any kit used to obtain blood, urine, saliva, or breath specimens. A sufficient evidentiary foundation concerning the compliance of such kits with the rules and regulations of the department of public health and environment shall be established by the introduction of a copy of the manufacturer's or supplier's certificate of compliance with such rules and regulations if such certificate specifies the contents, sterility, chemical makeup, and amounts of chemicals contained in such kit.

(d) No person except a physician, a registered nurse, a paramedic as certified in part 2 of article 3.5 of title 25, C.R.S., an emergency medical service provider as defined in part 1 of article 3.5 of title 25, C.R.S., or a person whose normal duties include withdrawing blood samples under the supervision of a physician or registered nurse is entitled to withdraw blood for the purpose of determining the alcoholic or drug content of the blood for purposes of this section. In a trial for a violation of paragraph (b) of subsection (1) of this section, testimony of a law enforcement officer that he or she witnessed the taking of a blood specimen by a person who he or she reasonably believed was authorized to withdraw blood specimens is sufficient evidence that the person was authorized, and testimony from the person who obtained the blood specimens concerning the person's authorization to obtain blood specimens is not a prerequisite to the admissibility of test results concerning the blood specimens obtained. No civil liability shall attach to any person authorized to obtain blood, breath, saliva, or urine specimens or to any hospital, clinic, or association in or for which such specimens are obtained pursuant to this subsection (4) as a result of the act of obtaining the specimens from a person if the specimens were obtained according to the rules prescribed by the state board of health; except that such provision does not relieve the person from liability for negligence in obtaining any specimen sample.

(e) Any person who is dead or unconscious shall be tested to determine the alcohol or drug content of his blood or any drug content of his system as provided in this subsection (4). If a test cannot be administered to a person who is unconscious, hospitalized, or undergoing medical treatment because the test would endanger the person's life or health, the law enforcement agency shall be allowed to test any blood, urine, or saliva which was obtained and not utilized by a health care provider and shall have access to that portion of the analysis and results of any tests administered by such provider which shows the alcohol or drug content of the person's blood or any drug content within his system. Such test results shall not be considered privileged communications and the provisions of section 13-90-107, C.R.S., relating to the physician-patient privilege shall not apply. Any person who is dead, in addition to the tests prescribed, shall also have his blood checked for carbon monoxide content and for the presence of drugs, as prescribed by the department of public health and environment. Such information obtained shall be made a part of the accident report.

(f) If a person refuses to take, or to complete, or to cooperate in the completing of any test or tests as provided in this subsection (4) and such person subsequently stands trial for a violation of subsection (1)(b) of this section, the refusal to take or to complete, or to cooperate with the completing of any test or tests shall be admissible into evidence at the trial, and a person may not claim the privilege against self-incrimination with regard to the admission of his refusal to take, or to complete, or to cooperate with the completing of any test or tests.

(g) Notwithstanding any provision in section 42-4-1301.1, C.R.S., concerning requirements which relate to the manner in which tests are administered, the test or tests taken pursuant to the provisions of this section may be used for the purposes of driver's license revocation proceedings under section 42-2-126, C.R.S., and for the purposes of prosecutions for violations of section 42-4-1301 (1) or (2), C.R.S.

(5) In all actions, suits, and judicial proceedings in any court of this state concerning alcohol-related or drug-related traffic offenses, the court shall take judicial notice of methods of testing a person's alcohol or drug level and of the design and operation of devices, as certified by the department of public health and environment, for testing a person's blood, breath, saliva, or urine to determine his alcohol or drug level. This subsection (5) shall not prevent the necessity of establishing during a trial that the testing devices used were working properly and that such testing devices were properly operated. Nothing in this subsection (5) shall preclude a defendant from offering evidence concerning the accuracy of testing devices.

History

Source: L. 71: R&RE, p. 419, 1. C.R.S. 1963: 40-3-106. L. 75: Entire section amended, p. 624, 1, effective June 26. L. 77: (1) R&RE, p. 960, 8, effective July 1. L. 81: (1)(b) amended, p. 1992, 4, effective June 19. L. 83: (4) added, p. 1648, 17, effective July 1. L. 88: IP(2) amended, p. 1365, 5, effective July 1. L. 89: (1)(b), (2), and (3) amended, (4) R&RE, and (5) added, pp. 893, 894, 1, 2, effective July 1. L. 93: (1) amended, p. 1986, 14, effective July 1; (1)(b)(II) amended, p. 1731, 13, effective July 1. L. 94: (4)(c), (4)(e), and (5) amended, p. 2733, 356, effective July 1; (4)(a) and (4)(g) amended, p. 2551, 40, effective January 1, 1995. L. 97: (4)(a) amended, p. 1470, 18, effective July 1. L. 2002: (4)(g) amended, p. 1915, 4, effective July 1. L. 2004: (2)(b) and (2)(c) amended, p. 781, 3, effective July 1. L. 2008: (4)(a) amended, p. 243, 3, effective July 1. L. 2012: (1)(b)(II) amended, (HB 12-1311), ch. 281, p. 1618, 38, effective July 1; (4)(d) amended, (HB 12-1059), ch. 271, p. 1434, 12, effective July 1. L. 2013: (1)(b)(II), IP(2), and (2)(c) amended and (2)(d) added, (HB 13-1325), ch. 331, p. 1878, 2, effective May 28.

Annotations

Editor's note: Amendments to subsection (1) in House Bill 93-1302 and House Bill 93-1088 were harmonized.

Annotations

Cross references: (1) For penalties for driving under the influence of intoxicating liquor, see 42-4-1301.

(2) For the legislative declaration contained in the 1994 act amending subsections (4)(c), (4)(e), and (5), see section 1 of chapter 345, Session Laws of Colorado 1994.

Annotations

 

ANNOTATION

Annotations

 

Analysis

 

I. General Consideration.
II. Elements of Offense.
III. Trial and Prosecution.
A. Indictment and Information.
B. Evidence.
C. Jury.
D. Instructions.

I. GENERAL CONSIDERATION.

Law reviews. For note, "Body Fluid Tests for Intoxication", see 22 Rocky Mt. L. Rev. 91 (1949). For comment on Kallnbach v. People (125 Colo. 144, 242 P.2d 222 (1952)), see 24 Rocky Mt. L. Rev. 391 (1952). For comment on Goodell v. People (137 Colo. 507, 327 P.2d 279 (1958)), see 31 Rocky Mt. L. Rev. 104 (1958). For article, "One Year Review of Criminal Law and Procedure", see 36 Dicta 34 (1959). For comment on Espinosa v. People (142 Colo. 96, 349 P.2d 689 (1960)), see 33 Rocky Mt. L. Rev. 425 (1961). For article, "One Year Review of Criminal Law and Procedure", see 38 Dicta 65 (1961). For article, "Homicides Under the Colorado Criminal Code", see 49 Den. L. J. 137 (1972). For article, "Drinking and Driving: An Update on the 1989 Legislation", see 18 Colo. Law. 1943 (1989).

Annotator's note. Since 18-3-106 is similar to former 40-2-10, C.R.S. 1963, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.

Purpose of section. The offense of driving an automobile in a careless and reckless manner and at an excessive rate of speed, especially when under the influence of intoxicating liquor, was created for the very purpose of preventing collisions and consequent injury to others who may be on the highway. Daniels v. People, 159 Colo. 190, 411 P.2d 316 (1966).

Constitutionality. The requirement of proof of proximate cause in this section is sufficiently intelligible to satisfy both federal and state constitutional standards of due process of law. People v. Rostad, 669 P.2d 126 (Colo. 1983); People v. Baca, 668 P.2d 1370 (Colo. 1983); People v. Ray, 678 P.2d 1019 (Colo. 1984); People v. Nhan Dao Van, 681 P.2d 932 (Colo. 1984); People v. Deadmond, 683 P.2d 763 (Colo. 1984); People v. Sutherland, 683 P.2d 1192 (Colo. 1984).

This section is not unconstitutional on the grounds that it denies the accused the opportunity to rebut the presumption raised by his or her blood alcohol content. People v. Rostad, 669 P.2d 126 (Colo. 1983); People v. Ray, 678 P.2d 1019 (Colo. 1984).

Subsection (1) does not violate equal protection rights or due process even though paragraph (c) calls for disparate sentences for violations outlined in paragraphs (a) and (b). People v. Loeser, 981 P.2d 197 (Colo. App. 1998).

No equal protection violation where felony first degree murder carries a greater punishment than aggravated vehicular homicide. These offenses are distinguished by the level of intent, the actus reus (commission or omission), the requirement that the actor operate or drive a motor vehicle for vehicular homicide, and the predicate felonies. People v. Prieto, 124 P.3d 842 (Colo. App. 2005).

Nothing in the language of this section or 18-1.3-401(8)(g) suggests a legislative intent to preempt the felony murder statute. People v. Prieto, 124 P.3d 842 (Colo. App. 2005).

The gravamen of both this section and vehicular assault, 18-3-205, is the "reckless" operation or driving of a motor vehicle, which results in the death of or serious bodily injury to another. People v. Sexton, 192 Colo. 81, 555 P.2d 1151 (1976).

Reckless operation of a motor vehicle and driving under the influence (DUI) are not separate and independent offenses, but alternatives by which criminal liability for vehicular homicide or vehicular assault may be charged and proven. Therefore a defendant may not be convicted under subsection (1)(a) and (1)(b) for the same actions. People v. Lucero, 985 P.2d 87 (Colo. App. 1999); People v. Barry, 2015 COA 4, 349 P.3d 1139.

This section creates a single offense of vehicular homicide, and subsections (1)(a) and (1)(b)(I) merely provide for alternative ways of committing the same offense. People v. Barry, 2015 COA 4, 349 P.3d 1139.

In this section and 18-3-105 there is a crucial difference in that the vehicular homicide statute requires for conviction that the prosecution prove the additional element of a death caused through the use of a motor vehicle. People v. Hulse, 192 Colo. 302, 557 P.2d 1205 (1976).

Offenses of vehicular homicide and DUI proscribe dissimilar conduct. Because the death of another is an essential element of vehicular homicide, but not of driving DUI, the offenses proscribe dissimilar conduct and a person prosecuted under this section is not situated similarly to a person charged with DUI. People v. Duemig, 620 P.2d 240 (Colo. 1980), cert. denied, 451 U.S. 971, 101 S. Ct. 2048, 68 L. Ed. 2d 350 (1981).

DUI is a lesser included offense of vehicular homicide-DUI. Reyna-Abarca v. People, 2017 CO 15, 390 P.3d 816.

DUI is a lesser included offense of vehicular homicide. People v. Grassi, 192 P.3d 496 (Colo. App. 2008), aff'd on other grounds, 2014 CO 12, 320 P.3d 332, cert. denied, __ U.S. __, 135 S. Ct. 678, 190 L. Ed. 2d 393 (2014).

Statutory right to refuse blood test not extended to this offense. The general assembly need not extend the legislative grace of a right to refuse a blood test, a test which is constitutionally permissible, to those charged with vehicular homicide or vehicular assault. People v. Myers, 198 Colo. 295, 599 P.2d 891 (1979).

The general assembly may legitimately decline to extend the privilege to refuse a blood test granted by 42-4-1202 to persons accused of vehicular homicide. People v. Duemig, 620 P.2d 240 (Colo. 1980), cert. denied, 451 U.S. 971, 101 S. Ct. 2048, 68 L. Ed. 2d 350 (1981).

Consent is not a prerequisite to the performance of a chemical test to determine the alcohol content of a defendant's blood when the defendant is charged with this offense. People v. Deadmond, 683 P.2d 763 (Colo. 1984).

Consent is not constitutionally required. Equal protection is not violated by the failure of this section and 18-3-205 to afford an accused the right to refuse a blood test afforded by 42-4-1202. People v. Myers, 198 Colo. 295, 599 P.2d 891 (1979).

The general assembly's decision to permit one charged with the less grievous offense of driving under the influence to refuse a blood test while not likewise permitting one charged with felonious vehicular homicide or felonious vehicular assault to refuse the test is not arbitrary or unreasonable. People v. Myers, 198 Colo. 295, 599 P.2d 891 (1979).

Blood test may precede formal arrest of defendant. The formal arrest of a defendant is not a prerequisite to obtaining a blood sample under this section as long as probable cause exists for such arrest. People v. Sutherland, 683 P.2d 1192 (Colo. 1984); People v. MacCallum, 925 P.2d 758 (Colo. 1996).

Regulations promulgated pursuant to implied consent statute apply to offenses charged under it and not to felonies charged under this section. People v. Acosta, 620 P.2d 55 (Colo. App. 1980); People v. Nhan Dao Van, 681 P.2d 932 (Colo. 1984).

More severe penalty for vehicular homicide does not deny equal protection. It cannot be said that the legislature's decision to provide a more severe penalty for vehicular homicide than for criminal negligent homicide is arbitrary or unreasonable. The state has a legitimate interest in discouraging a specific evil which it believes to be of greater societal consequence. This choice does not offend equal protection. People v. Hulse, 192 Colo. 302, 557 P.2d 1205 (1976).

Vehicular homicide while driving under the influence is grave and serious per se for purposes of a proportionality review because of the grave harm caused, the death of a person, and the culpability of the defendant's conduct, to drive while intoxicated. People v. Strock, 252 P.3d 1148 (Colo. App. 2010).

Acquittal not inconsistent with conviction for criminally negligent homicide. A conviction on a charge of criminally negligent homicide is not inconsistent with an acquittal on a charge of vehicular homicide. People v. Bettis, 43 Colo. App. 104, 602 P.2d 877 (1979).

When driver is "intoxicated". When a driver is so under the influence of intoxicating liquor that his capacity to operate an automobile is impaired, he is "intoxicated" within the meaning of that term as used in this section. Stevens v. People, 97 Colo. 559, 51 P.2d 1022 (1935).

"Intoxication" probably covers every condition from slight inebriation to complete paralysis. Patton v. People, 114 Colo. 534, 168 P.2d 266 (1946).

Former offense of involuntary manslaughter was not a lesser included offense in a charge based on this section. Daniels v. People, 159 Colo. 190, 411 P.2d 316 (1966).

Criminally negligent homicide is not a lesser included offense of vehicular homicide. People v. Nhan Dao Van, 681 P.2d 932 (Colo. 1984).

Reckless driving is not a lesser included offense of vehicular homicide or vehicular assault. People v. Clary, 950 P.2d 654 (Colo. App. 1997).

Vehicular homicide is not a lesser included offense of aggravated motor vehicle theft under the strict elements test even if its proof might satisfy an element of aggravated motor vehicle theft under the facts of a particular case. People v. Marquez, 107 P.3d 993 (Colo. App. 2004).

For former distinction between causing death and causing injury, see People v. Olona, 180 Colo. 299, 505 P.2d 372 (1973).

Both subsection (2) and 42-2-1202 (2) permit a jury to infer that a defendant was under the influence of alcohol if it finds that the amount of alcohol in his blood at the time of the commission of the alleged offense "or within a reasonable time thereafter," as shown by chemical analysis of the defendant's blood, is 0.10 percent or more. People v. Emery, 812 P.2d 665 (Colo. App. 1990).

The delay in obtaining samples did not affect the validity or reliability of the test nor did it affect the admissibility of the test results. The "reasonable time" limitation is to ensure that the request for the test is made close enough in time to the alleged offense that the results will be relevant in the determination of defendant's sobriety at the time of the incident. People v. Emery, 812 P.2d 665 (Colo. App. 1990).

While the timeliness of the blood test may affect its accuracy, evidence which relates to the accuracy of a chemical test affects the weight to be accorded the evidence, rather than its admissibility. People v. Emery, 812 P.2d 665 (Colo. App. 1990).

Former "percent by weight" language of subsection (2)(c) intended to mean a "weight per volume" measure and 1989 amendment of statute was clarification of meaning. Rickstrew v. People, 822 P.2d 505 (Colo. 1991) (decided under law in effect prior to 1989 amendment).

Since former "percent by weight" language of subsection (2)(c) establishes sufficient standard by which to measure blood alcohol levels, such language is not vague and does not violate due process. Rickstrew v. People, 822 P.2d 505 (Colo. 1991) (decided under law in effect prior to 1989 amendment).

Applied in St. Louis v. People, 120 Colo. 345, 209 P.2d 538 (1949); Jones v. People, 149 Colo. 338, 369 P.2d 65 (1962); People v. Fidler, 175 Colo. 90, 485 P.2d 725 (1971); People v. Dunhill, 40 Colo. App. 137, 570 P.2d 1097 (1977); People v. District Court, 195 Colo. 14, 580 P.2d 388 (1978); Riboni v. District Court, 196 Colo. 272, 586 P.2d 9 (1978); People v. Beltran, 634 P.2d 1003 (Colo. App. 1981); People v. Perez, 644 P.2d 40 (Colo. App. 1981).

II. ELEMENTS OF OFFENSE.

The use of the disjunctive "or" in this section cannot be ignored, nor can it be construed to mean "and". Espinosa v. People, 142 Colo. 96, 349 P.2d 689 (1960).

Section sets forth more than one means of causing death. In adopting this section, the general assembly intended to set forth more than one means by which the offense of causing a death while operating an automobile could be committed. Espinosa v. People, 142 Colo. 96, 349 P.2d 689 (1960).

Only one offense, with one punishment, is described in this section, although the offense can be committed in either one of the two ways detailed. People v. Viduya, 703 P.2d 1281 (Colo. 1985).

Death occasioned by specified acts constitutes felony. Neither of the offenses of driving under the influence of alcohol, nor reckless driving, nor causing an accident while under the influence of alcohol or by reckless driving, constitutes felonious acts. Only when these events caused a death or injury to another person does this section specifically provide that a felony had been committed. Penn Mut. Life Ins. Co. v. Gibson, 160 Colo. 462, 418 P.2d 50 (1966).

Elements of offense. To sustain a charge of causing a death while driving under the influence of intoxicating liquor, it must be established that an accident occurred, that there is evidence that a defendant was intoxicated, that a death resulted, and that the acts or conduct of the defendant were the sole proximate cause of the accident. Goodell v. People, 137 Colo. 507, 327 P.2d 279 (1958).

More than one proximate cause may exist. The function of the concept of proximate cause, to establish a causal connection between conduct and injury, is the same in both civil law and criminal law. In civil tort law there can be more than one proximate cause. Thus, in criminal law there can be more than one proximate cause of death, and defendant's conduct does not have to be the only, nearest, or last cause of death, so long as it is a cause but for which the death would not have occurred. People v. Lopez, 97 P.3d 277 (Colo. App. 2004), aff'd on other grounds, 113 P.3d 713 (Colo.), cert. denied, 546 U.S. 1017, 126 S. Ct. 654, 163 L. Ed. 2d 529 (2005).

Elements to be proven. In order to obtain a conviction under this statute, the prosecution must prove that the defendant voluntarily drove while intoxicated and that his driving resulted in the victim's death. People v. Garner, 781 P.2d 87 (Colo. 1989).

Unlawful conduct which is broken by independent intervening cause cannot be proximate cause of death of another. People v. Gentry, 738 P.2d 1188 (Colo. 1987).

Negligence plus intoxication constitute offense. A death caused by simple negligence committed by a driver while under the influence of liquor is an offense within the contemplation of this section. Espinosa v. People, 142 Colo. 96, 349 P.2d 689 (1960).

A prosecution under this section may be predicated on only negligent or careless driving, i.e., ordinary or simple negligence, as opposed to gross or criminal negligence. Daniels v. People, 159 Colo. 190, 411 P.2d 316 (1966).

Change should be alleged in the conjunctive. To validate an information based upon a statute such as this under which the several means by which a crime may be committed are set forth in the disjunctive, the charge should be alleged in the conjunctive. Espinosa v. People, 142 Colo. 96, 349 P.2d 689 (1960).

Defendant's fatigue could not be considered an independent intervening cause which would relieve the defendant from liability under the vehicular homicide statute. People v. Chopra, 782 P.2d 879 (Colo. App. 1989).

Failure of victim to employ a seatbelt not an intervening cause that would shield or partially shield the defendant from liability for a collision that resulted in a charge of vehicular homicide. People v. Lopez, 97 P.3d 277 (Colo. App. 2004), aff'd on other grounds, 113 P.3d 713 (Colo.), cert. denied, 546 U.S. 1017, 126 S. Ct. 654, 163 L. Ed. 2d 529 (2005).

III. TRIAL AND PROSECUTION.

A. Indictment and Information.

Judicial notice of fact that information was based on section. The supreme court will take judicial notice of the fact that an information on which a defendant was tried and found guilty by a jury is based on this section. Hart v. Best, 119 Colo. 569, 205 P.2d 787 (1949).

B. Evidence.

Burden of proof. It is incumbent upon the people to establish beyond a reasonable doubt that the defendant violated the provisions of this section. Kallnbach v. People, 125 Colo. 144, 242 P.2d 222 (1952).

In a prosecution for causing a death while driving under the influence of intoxicating liquor, proof of guilt must be established beyond a reasonable doubt, and where the evidence is such that a jury can only speculate as to the proximate cause of the accident, it is insufficient to support a conviction. Goodell v. People, 137 Colo. 507, 327 P.2d 279 (1958).

Since vehicular homicide is a strict liability crime, the contributory negligence of the victim is not a defense. People v. Maire, 705 P.2d 1023 (Colo. App. 1985).

Testimony concerning defendant's drinking admissible as a factor for consideration by the jury in determining the issue of defendant's recklessness. Yerby v. People, 176 Colo. 115, 489 P.2d 1308 (1971).

Subsection (3) pertains to admissibility of evidence of intoxication other than blood test, not the evidentiary significance the jury should accord such evidence. People v. Duemig, 620 P.2d 240 (Colo. 1980), cert. denied, 451 U.S. 971, 101 S. Ct. 2048, 68 L. Ed. 2d 350 (1981).

Evidence of blood analysis admissible. The evidence of a registered medical technologist concerning a blood analysis of a defendant being prosecuted under this section is competent. Kallnbach v. People, 125 Colo. 144, 242 P.2d 222 (1952).

Admission of blood analysis is not violative of 18 of art. II, Colo. Const. Kallnbach v. People, 125 Colo. 144, 242 P.2d 222 (1952); Compton v. People, 166 Colo. 419, 444 P.2d 263 (1968); Gibbons v. People, 167 Colo. 83, 445 P.2d 408 (1968).

Method of driving near scene admissible. A drunken man's method of driving half a mile from where he collided with another machine is admissible as evidence of negligence, recklessness, or want of care at the time of the collision. Patton v. People, 114 Colo. 534, 168 P.2d 266 (1946).

Officer permitted to express opinion of speed. In view of his training, experience, and on-the-scene investigation of the physical facts involved in the accident, the trial court did not abuse its discretion in permitting a police officer to express his opinion concerning the speed of the vehicle at the time of the accident. The weight to be accorded his opinion was solely a question for the jury. Meader v. People, 178 Colo. 383, 497 P.2d 1010 (1972).

Death certificate admissible. Where the death certificate showed the cause of death to be cerebral hemorrhage due to compound skull fractures due to or as a consequence of crushing beneath car, it would have been better to have deleted the phrase "crushing beneath car" from the death certificate before it was admitted into evidence, but since no request on the part of the defendant was made to do so, and the record shows no issue was raised by the defendant as to the cause of death, and it is clear that the victim was a passenger in the vehicle from which he was thrown, and as a consequence was killed, there was no prejudicial error. Meader v. People, 178 Colo. 383, 497 P.2d 1010 (1972).

It was not error to admit photographs taken of automobile involved in the accident after it had been removed from a creek and towed to a nearby filling station, where a proper foundation was laid showing that the automobile was in the same condition at the filling station as it was when resting upside down in the middle of the creek, and the photographs were used to depict facts which are relevant to the issue of recklessness. Meader v. People, 178 Colo. 383, 497 P.2d 1010 (1972).

Automobile scraps near scene of collision one week thereafter were properly rejected when offered as evidence of the place and manner in which the collision occurred, where shortly thereafter highway patrolmen picked up and threw aside, without regard to direction, practically all such debris left by the accident. Patton v. People, 114 Colo. 534, 168 P.2d 266 (1946).

Weight of toxicologist's testimony for trier of fact. The weight of a toxicologist's testimony for purposes of establishing whether the defendant was under the influence of intoxicating liquor in prosecution for vehicular homicide is for the trier of fact. People v. Mascarenas, 181 Colo. 268, 509 P.2d 303 (1973).

Evidence sufficient to sustain conviction. Patton v. People, 114 Colo. 534, 168 P.2d 266 (1946); Yerby v. People, 176 Colo. 115, 489 P.2d 1308 (1971); People v. McCollum, 38 Colo. App. 283, 555 P.2d 184 (1976); People v. Rodriguez, 645 P.2d 857 (Colo. App. 1982).

When the toxicologist's testimony is considered together with the testimony of the two investigating officers concerning the alcoholic odor about the defendant immediately after the accident, and the testimony that defendant was driving on the wrong side of the road, the evidence of defendant being under the influence of intoxicating liquor is abundant and sustains the verdict of guilty of vehicular homicide. People v. Mascarenas, 181 Colo. 268, 509 P.2d 303 (1973).

Insufficient evidence to show occupant of automobile was accessory. Where two men were charged with operating a car in a reckless manner while intoxicated, and the only evidence supporting the charge that defendant was an accessory was that he was in the car, and was under the influence of intoxicating liquor at the time of the accident, it was held that it could not be successfully contended from the evidence that defendant in any way aided and abetted in that regard. Quintana v. People, 106 Colo. 174, 102 P.2d 486 (1940).

Evidence did not support jury instructions in lesser nonincluded offenses of either careless driving or improper left turn. People v. Sisneros, 738 P.2d 1196 (Colo. App. 1987).

Admission of blood test results does not limit any efforts by the defendant to challenge the accuracy the results, or the weight they are to be given. Nor does it prohibit the jury from considering any other competent evidence regarding the inference of intoxication. People v. Emery, 812 P.2d 665 (Colo. App. 1990).

The blood alcohol test results are statutorily deemed to relate back to the alleged offense for purposes of applying the statutory inferences. People v. Emery, 812 P.2d 665 (Colo. App. 1990).

Jury could infer that the defendant was under the influence at the time of the offense where the prosecution presented evidence that approximately three hours after the accident, defendant's blood alcohol level was above the statutory percentage. Because the circumstances at issue permitted the jury to make such inference, the extrapolation evidence offered to establish a still higher blood alcohol level was neither necessary nor relevant and the admission thereof was harmless error. People v. Emery, 812 P.2d 665 (Colo. App. 1990).

C. Jury.

Connection of injuries to death a jury question. Where defendant struck decedent who was lying injured on street as a result of a prior accident, the question of which accident resulted in decedent's death should be determined by jury, and they should consider not whether injuries inflicted by defendant were the proximate cause of death, but whether they hastened or contributed to death. People v. Cox, 123 Colo. 179, 228 P.2d 163 (1951).

D. Instructions.

Approved instructions. In a prosecution for causing the death of another by driving a motor vehicle while under the influence of intoxicating liquor, a given instruction that a person is intoxicated within the meaning of the law when he is so under the influence of intoxicating liquor that his capacity to operate the automobile is impaired, approved. Rinehart v. People, 105 Colo. 123, 95 P.2d 10 (1939); Block v. People, 125 Colo. 36, 240 P.2d 512 (1951), cert. denied, 343 U.S. 978, 72 S. Ct. 1076, 96 L. Ed. 1370, reh'g denied, 344 U.S. 848, 73 S. Ct. 6, 97 L. Ed. 659 (1952); Kallnbach v. People, 125 Colo. 144, 242 P.2d 222 (1952).

Court properly rejected a tendered instruction that provided that a person was not under the influence or impaired by the ingestion of alcohol or drugs unless such influence or impairment is caused by the psychoactive properties of the substance ingested. Prosecution argued that use of cocaine the day before caused defendant to fall asleep. People v. Lucero, 985 P.2d 87 (Colo. App. 1999).

Failure to instruct on DUI and DWAI as lesser included offenses, if error, was harmless. Section creates strict liability crimes. When fact of collision and death are undisputed, the only issue was whether defendant was intoxicated or impaired. People v. Lucero, 985 P.2d 87 (Colo. App. 1999).

The court of appeals declined to judicially legislate a modification of this section and require an instruction on the elements of the offense of vehicular homicide to include a finding of unsafe or negligent driving. People v. McCollum, 38 Colo. App. 283, 555 P.2d 184 (1976).

Instructions on elements of offense insufficient. Goodell v. People, 137 Colo. 507, 327 P.2d 279 (1958); Espinosa v. People, 142 Colo. 96, 349 P.2d 689 (1960).

For discussion of appropriate jury instructions, see People v. Deadmond, 683 P.2d 763 (Colo. 1984).