The Colorado Court of Appeals’ decision in People v. Thomas, No. 22CA0901 (Colo. App. Aug. 14, 2025), represents a significant development in DUI law. The case involved a defendant with a long history of alcohol-related driving offenses, including a prior vehicular homicide and several convictions for DUI, DWAI, and vehicular assault. On appeal, Noah Ray Thomas challenged both the procedural and evidentiary rulings of the trial court.
The appellate court affirmed his conviction for felony DUI, rejecting arguments related to bifurcation, limiting instructions, evidentiary admissibility under Colorado Rules of Evidence 404(b), jury instruction variances, and hearsay challenges to machine-generated chemical testing reports. The case underscores the binding influence of recent precedent, most notably People v. Kembel, 2023 CO 5 (2023), and reflects the courts’ unwillingness to depart from a unitary trial structure despite clear prejudice risks associated with introducing prior convictions.
Statutory Framework: Felony DUI in Colorado
Under Colorado law, DUI is generally a misdemeanor offense. The legislature, however, enacted a felony provision in 2015, codified at C.R.S. § 42-4-1301(1)(a). This amendment elevates a DUI conviction to a class 4 felony if a defendant has three or more prior convictions for DUI, DUI per se, DWAI, vehicular homicide, or vehicular assault. The statute reflects a policy shift toward punitive enhancement for repeat offenders. The legislature has explicitly treated prior convictions not as sentence enhancers but as substantive elements of felony DUI. Thus, prior convictions must be submitted to the jury and proven beyond a reasonable doubt. Linnebur v. People, 2020 CO 79 (2020). This statutory structure creates tension between evidentiary fairness and legislative intent. Jurors who hear about prior convictions will naturally draw impermissible character inferences, yet the prosecution must present such evidence to prove the felony element. People v. Thomas illustrates how appellate courts navigate this tension while adhering to precedent.
Case Background
Thomas was charged in Larimer County with felony DUI based on his January 2021 arrest. The amended complaint alleged three prior convictions: DUI in 2003, DWAI in 2009, and vehicular homicide in 2011. At trial, the prosecution introduced certified records from the Division of Motor Vehicles (DMV) and a sentencing order confirming the 2011 convictions. The jury also heard testimony from officers and Thomas’s former partner, who described his drinking before the arrest. A chemical breath test registered a blood alcohol concentration of 0.13. The jury convicted Thomas of felony DUI and misdemeanor child abuse. He appealed the felony DUI conviction on multiple grounds.
Issue One: Bifurcation of Prior Convictions
Thomas sought a bifurcated trial, arguing that prior convictions should be considered separately from the substantive DUI elements. He emphasized the prejudicial nature of admitting vehicular homicide and vehicular assault convictions. The appellate court rejected his claim based on Kembel, 2023 CO 5. In Kembel, the Colorado Supreme Court held that trial courts may not bifurcate the elements of felony DUI. The Court reasoned that bifurcation would disrupt trial flow, create evidentiary confusion, and undermine legislative intent. The Thomas panel concluded that the nature of prior convictions does not affect the applicability of Kembel. Vehicular homicide and assault convictions present stronger prejudice risks than DUI or DWAI, but the court stressed that statutory uniformity must prevail.
The court’s strict reliance on Kembel illustrates judicial reluctance to allow procedural innovation in felony DUI trials. The defense attorneys argued for nuanced treatment when prior convictions involve death or injury, but the panel held firm to precedent. This raises due process concerns, as jurors may be incapable of disregarding the gravity of a prior vehicular homicide. The legislature’s requirement that jurors hear this evidence places defendants at a structural disadvantage.
Issue Two: Limiting Instructions
Thomas challenged the limiting instruction, which referenced only prior DUI and DWAI convictions, omitting vehicular homicide and vehicular assault. He argued this omission left jurors free to use the more prejudicial convictions for propensity reasoning. The appellate court applied a plain error review, as defense counsel accepted the instruction at trial. The court reiterated that failure to issue a more comprehensive instruction sua sponte is not plain error. It emphasized that overwhelming evidence of guilt, including BAC results and officer testimony, rendered any omission harmless. The opinion reflects the judiciary’s trust in limiting instructions, even though empirical studies suggest jurors struggle to follow them. By treating overwhelming evidence as curative, the court sidestepped deeper due process concerns. This reasoning highlights the Colorado courts’ reliance on procedural default doctrines to avoid expanding trial safeguards for defendants.
Issue Three: Admission of 2011 Convictions
Thomas argued that admission of his 2011 vehicular homicide and vehicular assault convictions violated CRE 404(b), which bars propensity evidence. The appellate court concluded that prior qualifying convictions are intrinsic to felony DUI. Citing Rojas v. People, 2022 CO 8 (2022), and People v. Schlehuber, 2025 COA 50 (2025), the court held that 404(b) applies only to extrinsic misconduct. Because the statute makes prior convictions an element of the offense, they fall outside the rule. The ruling demonstrates how Colorado courts treat prior convictions as intrinsic elements, even when highly prejudicial. The tension between statutory design and evidentiary fairness remains unresolved. Defense counsel face a structural disadvantage because jurors inevitably conflate prior convictions with current guilt. The intrinsic/extrinsic distinction shields the prosecution from exclusionary scrutiny, further entrenching legislative priorities over fairness concerns.
Issue Four: Variance
Thomas claimed a variance because the charging document listed vehicular homicide but not vehicular assault convictions from the same case. Jury instructions, however, allowed conviction based on vehicular assault. He argued this broadened the charges without proper notice. The appellate panel found no prejudice. Discovery materials disclosed all convictions from the 2011 case. Following Campbell v. People, 2020 CO 49 (2020), and Bock v. People, 2024 CO 61 (2021) the court reasoned that Thomas had notice of the essential facts. Absent surprise or a different defense strategy, any variance was harmless.
This ruling reflects a pragmatic approach to variances. Courts focus on prejudice rather than strict textual alignment between charging instruments and trial evidence. While efficient, this approach may dilute defendants’ constitutional right to precise notice. In felony DUI cases, where prior convictions are pivotal, notice concerns should warrant closer scrutiny.
Issue Five: Breath Test Results
Thomas argued that the breathalyzer report was inadmissible hearsay. The court rejected the claim, noting that machine-generated data are not hearsay. Citing People v. Abaci, 2021 COA 6 (2021), and People v. Hamilton, 2019 COA 101 (2019), the panel held that such outputs lack a human declarant. Any identifying information was cumulative of officer testimony, making admission harmless. This reasoning aligns with national trends. Courts consistently hold that machine-generated results fall outside hearsay doctrine. The ruling, however, leaves unresolved questions of reliability, calibration, and operator error. While admissibility is settled, defense attorneys must pivot to reliability challenges under foundational or constitutional grounds.
Constitutional Challenge
Thomas raised an as-applied challenge, arguing that admission of his vehicular homicide and assault convictions deprived him of a fair trial. The appellate court declined review because the claim was undeveloped and unpreserved, citing People v. Mountjoy, 2016 COA 86 (2016). This illustrates the difficulty of litigating constitutional challenges in DUI enhancement cases.
Conclusion
People v. Thomas illustrates the judiciary’s commitment to legislative design in felony DUI cases, even at the cost of heightened prejudice. The court’s reliance on precedent emphasizes finality and efficiency over fairness concerns. For Colorado DUI defense attorneys, the case underscores the importance of preserving objections, crafting detailed limiting instruction requests, and challenging reliability rather than admissibility of machine-generated evidence. As felony DUI prosecutions continue to rise, Thomas solidifies the evidentiary and procedural framework governing these trials in Colorado.