People v. Herold’s Impact on Felony DUI Defense

How is Felony DUI different from a Misdemeanor DUI?

In every criminal case, the prosecution must prove each element of the offense beyond a reasonable doubt. An “element” is simply a required component of the charge.

For a standard DUI in Colorado, the prosecution must prove that the defendant:

• Drove or was in actual physical control of a vehicle
• In the State of Colorado
• While under the influence of alcohol or drugs

A felony DUI adds an additional element. The prosecution must prove that the defendant had at least three prior qualifying convictions before committing the new offense.

Qualifying prior convictions may include:

• DUI
• Driving While Ability Impaired (DWAI)
• Vehicular assault
• Vehicular homicide

Unlike misdemeanor DUI trials, felony DUI cases require the jury to hear evidence of the defendant’s prior alcohol-related driving convictions. That fact alone creates substantial prejudice.

Ordinarily, prior bad acts or convictions are excluded from evidence under Colorado Rules of Evidence because juries may misuse them. However, in felony DUI cases, prior convictions are not merely background information — they are an element of the offense.

That means the prosecution must introduce them.

But the question becomes: how much proof is enough?

The Identification Problem in Felony DUI Cases

When introducing prior convictions, the prosecution must establish that the defendant in the current case is the same individual who was convicted in the prior cases.

At first glance, that may seem simple. But many prior conviction records — especially older or out-of-state ones — contain limited identifying information.

Records often include:

• Name
• Date of birth
• County of conviction
• Year of conviction

The issue is whether matching name and date of birth is sufficient to establish identity beyond a reasonable doubt.

This is where Colorado appellate case law becomes critical.

What happened in People v. Herold

Police responded to a call reporting an intoxicated individual passed out behind the wheel of a van. Upon arrival, law enforcement saw Herold on his hands and feet in the grass in front of the van.  Herold claimed another person was driving and he fell out of the van. He was ultimately arrested for Felony driving under the influence.

At trial, the prosecution presented evidence of prior convictions. This evidence consisted of conviction records. The record showed the year of conviction, the name of the person with the prior conviction, the date of birth of the person, and the county from which the conviction was obtained. For physical description, the record only indicated that the person was a “Caucasian Male”.

Herold was convicted. He appealed the conviction arguing there was insufficient evidence to convict him of felony DUI. His argument was that the prosecution failed to present specific corroborating evidence of identification connecting him to three or more prior DUI convictions. 

What was the holding of People v. Herold

Prior to the Herold case being heard, a previous case was argued before the Colorado Supreme Court. That case was People v. Gorostieta. In that case, the Supreme Court held that the prosecution must establish an essential link between the prior conviction and the defendant. 

A match between a defendant’s name and date of birth of the individual without more, will generally be insufficient.  The prosecution is required to present some documentary evidence combined with specific corroborating evidence of identification connecting the defendant to the prior conviction. 

Corroborating evidence includes things that specifically identify the defendant, unique identifiers, photographs or fingerprints, a physical description, distinguishing tattoos, or testimony of probation officers or others with personal knowledge.

The Herold court found that there was not sufficient corroborating evidence. Specifically, the court refused to expand list of what would be considered corroborating evidence. 

There were some arguments that were not addressed. The State argued that height and weight descriptions would be sufficient. Given the State’s findings, the court found that the issue was moot. 

The State also argued that location would be sufficient. The argument was that if the prior convictions were in the same geographic region or county, then a finding of sufficient corroboration would be established. 

What Does this Mean for Defendant’s Facing Felony DUI Charges?

As stated above, the introduction of prior convictions is extremely problematic. Courts are controlled by the rules of evidence. Prior bad acts or convictions in other cases are routinely excluded per CRE 405. The reasoning is that such evidence is readily misused by juries.

Given the priors are considered an element of the DUI felony statute, a prosecutor will be freely able to admit this evidence. However, the case law discussed above helps to create some hurdles to the admission of this evidence.

Arguments against prior convictions will be primarily useful as to old or out-of-state convictions. Within the last few years, courts have begun issuing fingerprinting orders in every criminal case. These are orders that require a defendant to submit to fingerprinting in order to link specific cases to individuals. 

This was not always the case. Additionally, it is a system that is utilized in Colorado. Other states do not have these practices. 

Constitutional and Trial Strategy Implication

The evidentiary burden in felony DUI cases carries constitutional significance.

Because prior convictions are elements of the offense, they must be proven to a jury beyond a reasonable doubt. This requirement stems from the Sixth Amendment right to trial by jury and due process protections.

From a defense perspective, this creates two strategic considerations:

1. Pretrial Motions

Defense attorneys may challenge the admissibility of prior conviction records and argue insufficient identification before trial.

2. Trial Strategy

If prior convictions are introduced, the defense must carefully navigate jury prejudice while preserving the identity challenge.

Jurors who hear about multiple prior alcohol-related convictions may approach the case with skepticism toward the defense. This makes evidentiary objections and identity challenges even more critical.

The prosecution cannot rely on assumptions. It must present proof.

Consult a DUI Defense Attorney if you are facing Felony DUI Charges in Colorado

A felony DUI conviction carries mandatory jail exposure, extended probation, ignition interlock requirements, and the long-term consequences of a felony record.

While DUI charges may appear straightforward, felony DUI litigation often involves complex evidentiary and constitutional issues — especially when prior convictions are disputed.

At The Lawrence Law Firm, we closely monitor developments in Colorado DUI case law and aggressively examine the prosecution’s proof in every case.

We represent clients throughout:

• Aurora
• Denver
• Arapahoe County
• Adams County
• Jefferson County
• Douglas County

If you are facing felony DUI charges, early strategic intervention is critical.

Contact our office today to schedule a free consultation and discuss your options.