Colorado Supreme Court Upholds DUI Complicity Conviction for Certain Passengers

drunk drivingIn the recent case of People v. Childress, the Colorado Supreme Court reinstated a conviction, previously overturned on appeal, for vehicular assault causing serious bodily injury through the operation of a vehicle while under the influence of alcohol or drugs. Additional charges included child abuse, reckless endangerment, and contributing to the delinquency of a minor.


The defendant had been drinking at a party with his two sons, the oldest of which was 17. The 17-year-old had also been drinking. They left the party with the 17-year-old behind the wheel, claiming that they had been prompted to depart because they feared the presence of a gun at the party. The defendant allegedly directed his older son to drive in a reckless manner (speeding and disregarding traffic signals), resulting in him colliding with another vehicle and crashing into a building. The youngest son was severely injured.

Principals and Accomplices

There are two general types of criminal liability: Principal liability and accomplice liability.  Accomplices are persons who aid or abet in a crime. Principals are the primary actors in a crime. Both are responsible for the underlying crime but on different theories. This distinction is key to understanding the broader legal discussion of the case.

The state charged the defendant as responsible for his son’s actions on two theories. The first, known as the “innocent dupe” provision is found in Colorado Revised Statutes § 18-1-601. That statute outlines a situation in which one person is accountable for the behavior of an innocent person if they induce that person to act in a criminal manner. Under this theory, however, the actor is actually viewed as innocent while the person urging them on is deemed liable as a principal rather than an accomplice. There does not appear to have been any indication on the record of this case that the 17-year-old acted innocently. Rather, the state’s strongest theory rested on the claim that he was not innocent, but that his father aided and abetted him in his criminal act. This brings us to the second theory, discussed below.

Complicitor Liability

In resolving the case, the court brought some badly needed clarity to the hazy legal issue of complicitor (or accomplice) liability. Complicitor liability is liability for participating in a criminal act—meaning when one is “complicit” (sharing the guilt) in the crime of another. Proof of complicity can be established where the defendant “aids, abets, advises, or encourages the other person in planning or committing the offense.” Prior court rulings had held that such liability could not extend to strict liability crimes. Strict liability crimes are crimes that do not require proof of intent, knowledge, or some other culpable mental state.

Mental State Requirements

There is a long-recognized principle in the criminal law that the government must prove not only a guilty act, but also a guilty mental state. Depending on how the crime is defined, this could mean a variety of mental states ranging from intent or premeditation to knowledge and recklessness. Because the statutory provision defining complicity requires that the defendant act “with the intent to promote or facilitate the commission of the offense,” it was long assumed by the courts that in a crime lacking an intent requirement, there could be no complicitor liability.  However, the Supreme Court in Childress, citing to an older case, reasoned that because complicity is not itself a separate crime but rather participation in the underlying crime of the principal, it could not reasonably require the proof of a separate and distinct mental state.

In other words, where an underlying crime requires a statutorily prescribed mental state, complicity in that crime requires proof of that mental state. However, when the underlying crime does not require proof of a specific mental state, complicity in that crime does not require proof of any additional mental state.

On this theory, therefore, the court held that the strict liability nature of the underlying crime charged did not bar the defendant from being convicted because no additional mental state needed to be proven. The mere participation and encouragement in the act, without respect to any intent, was sufficient to establish his complicitor liability.

Contact a Colorado DUI Defense Attorney Today

As you can see from the above discussion, the issues involved in a DUI case can be very complex and challenging, and the penalties can be very serious depending on the circumstances of the case. If you are charged with DUI or one of the many more serious charges that can arise from a DUI incident, you need the representation of expert attorneys dedicated to staying on the cutting edge of the law in this area. At the Tiftickjian Law Firm, we specialize in DUI law and devote the majority of our practice to building the best possible defenses in a wide variety of DUI matters. Contact us today for a free consultation and let us help you fight your case.

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