Prima Facie Case Requirement

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  20. Prima Facie Case Requirement
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Similar to the prima facie case requirement in Domestic Violence cases, when a person is charged with DUI or DUI Per Se, the court cannot accept a plea to 1) a non-alcohol, 2) non-drug-related traffic offense, or 3) UDD unless the prosecuting attorney makes a good-faith representation to the court that the prosecution “could not establish a prima facie case if the defendant were brought to trial on the original alcohol-related or drug-related offense.” § 42-4-1301(4).

“Prima facie” is not defined in § 42-4-1301(4). It is, however, Latin for “on its face” or “at first sight.” According to Black’s Law Dictionary (11th Ed. 2019), prima facie evidence is “[e]vidence that will establish a fact or sustain a judgment unless contradictory evidence is produced.” People v. Ryan, 525 P.3d 673, 681 (Colo. App. 2022) (adopting this definition). Similarly, Black’s Law Dictionary (10th Ed. 2014) defines prima facie evidence as evidence that is “[s]ufficient to establish a fact or raise a presumption unless disproved or rebutted.” People In Int. of Z.T.T., 394 P.3d 700, 703 (Colo. 2017) (adopting this definition).

The prima facie case requirement in 42-4-1301(4) therefore means that any plea agreement in a DUI or DUI Per Se case must include a plea to DUI, DUI Per Se, or DWAI unless you can, at the time the court hears the plea, make a good-faith representation that you could not, even in the absence of cross-examination or contradictory evidence, meet the elements of DUI, DUI Per Se, or DWAI. Put differently, you cannot offer a non-alcohol, non-drug, or UDD plea in a DUI or DUI Per Se case unless you think you cannot prove even a case of DWAI. That’s a difficult standard to meet, considering that proof of impairment “to the slightest degree” qualifies as DWAI.

If, however, your original impaired driving charge is DWAI or UDD only, the prima facie case requirement does not apply and you may plead the case without making any good-faith representations to the court. See id. (specifying the requirement applies only to DUI and DUI Per Se). Just because you legally can do this, however, does not necessarily mean you should. It can be difficult for new prosecutors to know how to assess the provability of these kinds of cases. To help you better assess your evidence and the likelihood of conviction to at least DWAI, it might help to speak with experienced police officers, forensic toxicologists, or even CDAC’s Traffic Safety Resource Prosecutor. Whatever you do, before you plead a DWAI or UDD case to a non-alcohol offense, consult your supervisor and your office policies to be sure what you are doing is permitted in your jurisdiction.

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