Peo v. Vigil

23CA1915 Peo v Vigil 02-20-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1915
Huerfano County District Court No. 22CR40
Honorable J. Clay McKisson, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Kevin James Vigil,

Defendant-Appellant.

JUDGMENT AFFIRMED IN PART AND REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS

Division VI
Opinion by JUDGE WELLING
Kuhn and Schutz, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced February 20, 2025

Philip J. Weiser, Attorney General, Caitlin E. Grant, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Michael J. Harris, Colorado Springs, Colorado, for Defendant-Appellant
¶1 Kevin James Vigil appeals his convictions for unlawful

possession of a controlled substance; driving under the influence

(DUI) of alcohol, drugs, or both; and driving too slowly. We affirm in

part, reverse in part, and remand for a new trial on the driving too

slowly charge.

I. Background

¶2 While on patrol, Captain Corey Daniels observed Vigil driving

his car from a gas station onto Main Street in Walsenburg,

Colorado. Vigil drove up Main Street, traveling between two and

five miles an hour, before coming to a stop in the roadway opposite

where Captain Daniels was parked. Captain Daniels pulled up

behind Vigil after traffic had cleared. By that time, Vigil had moved

his car to the shoulder. Vigil quickly exited his car and alerted

Daniels that his car had broken down. State Trooper Amber Garcia

saw the interaction and responded almost immediately. Deputy

Jacob Jenkins and his trainee, Deputy Guess, both responded to

the scene as well.

¶3 Captain Daniels testified at trial that Vigil appeared sweaty

and was easily distracted, mumbling, nervous, disheveled, and

“didn’t make a whole lot of sense.” The officers also saw what

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appeared to be a white powder residue around Vigil’s nostrils. After

Captain Daniels instructed Vigil not to reach into his pockets

several times, he eventually patted Vigil down for weapons in the

interest of officer safety. Captain Daniels testified that during that

pat-down he felt what he thought was a plastic bag in one of Vigil’s

pockets, but he didn’t remove it at that time. Captain Daniels then

asked Deputy Jenkins to have his canine do a sniff test of the

vehicle. Deputy Jenkins reported that the canine alerted twice to

the presence of narcotics in Vigil’s car. Ultimately, apart from the

dog sniff, no evidence from the car was presented at trial.

¶4 Next, Deputy Jenkins supervised while Deputy Guess

searched Vigil. Deputy Jenkins observed as Deputy Guess removed

the plastic bag from Vigil’s pocket. The bag contained what was

eventually determined to be over twenty-five grams of cocaine.

¶5 Vigil was placed in custody, and Trooper Garcia read him his

Miranda rights. Vigil agreed to perform several roadside sobriety

tests. First, Vigil permitted Trooper Garcia to perform a Horizontal

Gaze Nystagmus (HGN) test — a test involving the observation of a

suspect’s eyes which can yield evidence of impairment, primarily by

alcohol. Although Garcia didn’t observe an HGN, she also had Vigil

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perform a walk and turn test, which he failed. Next, Garcia had

Vigil stand on one leg, a test he also failed. Last, Trooper Garcia

had Vigil perform a Romberg test, which measures a person’s

internal clock. Vigil also failed this test. Trooper Garcia ultimately

made the determination that Vigil was under the influence of drugs

and returned him to Captain Daniels and his team’s custody.

Limited body camera footage from Captain Daniels was admitted at

trial.

¶6 Vigil was given an expressed consent advisement and chose to

submit a blood sample. Officers drove him to a nearby hospital to

have his blood drawn. Vigil’s blood tested positive for cocaine and

cocaine metabolites.

¶7 Vigil was charged with possession of drug paraphernalia,

unlawful possession of a controlled substance; DUI – alcohol,

drugs, or both; and driving too slowly. Vigil was acquitted of

possession of drug paraphernalia, convicted of the remaining

charges, and sentenced to one year in community corrections.

II. Issues on Appeal

¶8 Vigil advanced four issues on appeal. Specifically, he argues

that (1) there wasn’t probable cause for the dog sniff or his arrest;

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(2) while testifying, Trooper Garcia improperly commented on his

invocation of his right to remain silent; (3) there was insufficient

evidence presented at trial to support any of his convictions; and

(4) the trial court erred when it submitted a jury instruction on

driving too slowly that left out part of the governing statute. We

reject his first three arguments but agree with his fourth, so we

affirm Vigil’s convictions for unlawful possession of a controlled

substance and DUI and reverse his conviction for driving too slowly.

Accordingly, we remand for a new trial on the driving too slowly

charge.

A. Probable Cause

¶9 Before trial, Vigil moved to suppress all the evidence collected

after the stop and canine deployment, arguing that both actions

were unconstitutional due to a lack of probable cause. The court

denied the motion. Vigil argues that the court erred, but we

disagree.

1. Standard of Review

¶ 10 When reviewing a court’s ruling on a motion to suppress, “[w]e

defer to the trial court’s factual findings that are supported by

competent evidence but review the legal effect of those facts de

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novo.” People v. Ackerman, 2015 CO 27, ¶ 10 (quoting People v.

Munoz-Gutierrez, 2015 CO 9, ¶ 14).

¶ 11 Both the United States and Colorado Constitutions protect

against unreasonable searches and seizures. U.S. Const. amend.

IV; Colo. Const. art. II, § 7. A warrantless search is “presumptively

unreasonable” unless it falls within an exception to the warrant

requirement. People v. Berdahl, 2019 CO 29, ¶ 19. One such

exception allows an arresting officer to search an arrestee’s person

and the area within their immediate control. People v. Gothard, 185

P.3d 180, 184 (Colo. 2008). In order to have probable cause, at the

time an officer is making an arrest, the facts and circumstances

available to a reasonably cautious officer must justify a belief that

“(1) an offense has been or is being committed (2) by the person

arrested.” People v. King, 16 P.3d 807, 813 (Colo. 2001).

2. Additional Facts

¶ 12 At the suppression hearing, Captain Daniels testified that

when Vigil exited his car, he was shaky, sweaty, nervous, easily

confused, and not speaking in full sentences. Captain Daniels also

testified that Vigil had what appeared to be white residue around

his nostrils. Vigil’s attorney argued that Vigil had safely parked his

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car on the shoulder of the road and wasn’t a danger or an

impediment to traffic.

¶ 13 The trial court found that, based on Captain Daniels’

testimony, Vigil hadn’t legally parked his car on the shoulder and

that his vehicle was impeding traffic. Thus, the court found that

the initial stop was valid. The court also found that, based on

Captain Daniels’ observations of Vigil’s demeanor and the white

residue around his nostrils, that Daniels had probable cause “to

arrest [Vigil] on suspicion of DUI. As such, Daniels was justified in

searching [Vigil] without a warrant incident to his arrest.”

3. Analysis

¶ 14 Vigil argues that his arrest was unconstitutional because the

officers didn’t have probable cause to support his arrest.1 He

argues that “[f]or probable cause of DUI or [driving while ability

impaired (DWAI)], there must be more than a vehicle break down,

safely pulling it over as much as possible, and having consumed a

substance.” We disagree with Vigil’s contention for three reasons.

1 Because the trial court didn’t rely on the dog sniff in its order

denying the suppression motion, and because no evidence from
Vigil’s car was introduced at trial, we don’t need to — and therefore
don’t — address whether the dog sniff was constitutional.

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¶ 15 First, there was more. Captain Daniels testified that Vigil was

generally nervous, confused, and incoherent. These descriptions of

Vigil’s generally nervous demeanor were proper factors for Captain

Daniels to consider in determining if he had probable cause to

arrest Vigil. See People v. Zuniga, 2016 CO 52, ¶ 27 (exceptional

nervousness can be suggestive of suspicious activity).

¶ 16 Second, the DUI statute only requires that a person drive a car

while under the influence of alcohol, drugs, or both, so whether

Vigil was able to pull over safely isn’t dispositive as it relates to the

DUI charge. See § 42-4-1301(1)(a), C.R.S. 2024. Moreover, the

prosecution offered evidence to support the actual elements of the

crime — (1) driving (2) while under the influence of alcohol or a

drug. See id. Captain Daniels witnessed Vigil driving his car, and

immediately after Vigil stopped driving, Daniels observed white

residue — consistent with narcotics use — around his nose. While

we aren’t deciding that these two observations constitute probable

on their own, they were directly relevant to the suspected crime and

supported Captain Daniels’ suspicion that Vigil was driving his car

while under the influence of drugs.

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¶ 17 Third, the lone case Vigil cites to support his statement —

People v. McKnight, 2019 CO 36 — is inapplicable to this case. In

McKnight, police searched a car for drugs because it was parked

outside of a house where drugs had been found and because the

vehicle’s passenger had used methamphetamine in the past. Id. at

¶ 56. The court summarized this evidence as “a history of past

criminal activity in an area” and rejected it as a sufficient basis for

probable cause. Id. (citation omitted). In contrast, Captain Daniels’

testimony regarding Vigil and the circumstances surrounding the

interaction were focused on real time observations of Vigil and not

based on a criminal history. Thus, McKnight is inapplicable here.

¶ 18 Accordingly, we discern no error in the trial court’s order

denying Vigil’s motion to suppress evidence.

B. Trooper Garcia’s Testimony

¶ 19 Next, Vigil contends that, during her testimony at trial,

Trooper Garcia impermissibly commented on Vigil’s decision to

invoke his right to remain silent. Vigil argues that the trial court

erred by not interjecting, even without a contemporaneous objection

from Vigil’s counsel.

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1. Standard of Review

¶ 20 We review unpreserved claims of error, constitutional or

otherwise, for plain error. Hagos v. People, 2012 CO 63, ¶ 14. For

an error to be plain, it must be obvious and substantial. Id.

2. Additional Facts

¶ 21 At trial, Trooper Garcia testified that she read Vigil his

Miranda rights, which included the right to remain silent:

[Prosecutor:] Okay. Did you place Mr. Vigil
into custody?

[Trooper Garcia:] I did not.

[Prosecutor:] Okay. Did you ever advise him of
his Miranda rights?

[Trooper Garcia:] I did.

[Prosecutor:] Okay. And what was his
response?

[Trooper Garcia:] At the time, Mr. Vigil was
uncooperative. He would finish the Miranda
for me, basically, would finish my sentences.
And he said he would plead the Fifth, and he
understood his rights, but he was willing to
cooperate and willing to do the roadside[]
[sobriety tests].

3. Analysis

¶ 22 Vigil argues that Trooper Garcia’s comments related to the

invocation of Vigil’s right to remain silent, but the record

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contradicts his assertion. The context of Trooper Garcia’s comment

implies that Vigil was being uncooperative by not actually remaining

silent. Immediately following her statement that Vigil was

uncooperative, Garcia explained that Vigil interrupted her attempts

to Mirandize him by finishing her sentences. Refusing to remain

silent isn’t the same as invoking one’s right to remain silent. People

v. Cerda, 2024 CO 49, ¶ 24 (suspect must clearly articulate the

desire to remain silent). Thus, we discern no error, much less plain

error, by the trial court in permitting Trooper Garcia to testify as

she did.

C. Sufficiency of Evidence

¶ 23 Next, Vigil contends that the prosecution failed to introduce

evidence sufficient to support his convictions for unlawful

possession of a controlled substance and DUI. Again, we disagree.

1. Standard of Review

¶ 24 Sufficiency of the evidence claims can be raised at any time

and are reviewed de novo. McCoy v. People, 2019 CO 44, ¶ 27.

When considering a sufficiency of the evidence challenge, we view

the evidence admitted at trial in the light most favorable to the

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prosecution to determine if it is sufficient in both quantity and

quality to sustain a conviction. Johnson v. People, 2023 CO 7, ¶ 13.

2. Analysis

a. Unlawful Possession of a Controlled Substance

¶ 25 To obtain a conviction for unlawful possession of a controlled

substance, the prosecution must prove beyond a reasonable doubt

that the defendant knowingly possessed a controlled substance.

See § 18-18-403.5(1), (2)(a), C.R.S. 2024. Vigil argues the evidence

was insufficient to sustain his unlawful possession of a controlled

substance conviction because there was no evidence presented at

trial that established where the cocaine was found, and therefore,

there was no evidence that he knowingly possessed the cocaine.

The record contradicts this argument.

¶ 26 At trial, Deputy Jenkins testified that he was supervising his

trainee, Deputy Guess, as Guess searched Vigil, located the

cocaine, and handed it to Jenkins. And a moment later, after

watching a video of the search, Deputy Jenkins was even more

specific:

[Prosecutor:] Deputy Jenkins, just a few
moments ago in that video, you could see
Deputy Guess hand you something?

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[Deputy Jenkins:] Yes.

[Prosecutor:] What did he hand you?

[Deputy Jenkins:] From Mr. Vigil’s left pocket,
he removed and handed me a clear plastic
baggie that had numerous other baggies inside
that contained what appeared to be narcotics.

¶ 27 This portion of Deputy Jenkin’s testimony, if credited by the

jury, establishes that he was a witness to the discovery of the

cocaine in one of Vigil’s pockets. Deputy Jenkin’s testimony is

sufficient in both quantity and quality to support a finding that Vigil

knowingly possessed the cocaine that was found in his pocket.

b. Driving While Under the Influence

¶ 28 Vigil next argues that the evidence presented at trial was

insufficient to support his conviction for DUI because the roadside

tests didn’t account for Vigil being overweight, Vigil’s overall safe

driving, the lack of any depressant signs, and his proper conduct

with law enforcement officers.2 We disagree for three reasons.

2 Vigil also asserts that the evidence was insufficient because he

doesn’t appear to be impaired on the body camera footage
introduced at trial. Because we find the evidence was sufficient to
support Vigil’s conviction for DUI, we need not address whether he
appeared impaired on the video.

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¶ 29 First, Vigil’s ability to conduct himself properly with law

enforcement officers doesn’t negate any element of DUI that the

prosecution needed to prove. A person who drives a motor vehicle

under the influence of drugs or alcohol commits DUI. § 42-4-

1301(1)(a).

¶ 30 Second, Vigil doesn’t explain how his weight would have

affected his ability to perform the roadside sobriety maneuvers,

much less the Romberg test, which measures a person’s internal

clock. Trooper Garcia testified that she instructed Vigil to stand,

tilt his head back, close his eyes, and estimate when thirty seconds

had passed. Vigil estimated that thirty seconds had passed after

eighteen seconds and swayed back and forth, leading Garcia to

conclude he was under the influence. Vigil offers no reason why his

weight would make him unable to accurately measure the passing

of time.

¶ 31 Third and most importantly, the prosecution presented expert

testimony from Arielle Burdulis, the forensic scientist that tested

Vigil’s blood sample for cocaine. Burdulis testified that — at the

time of the blood draw — Vigil’s blood contained 174 nanograms of

cocaine per milliliter and more than 1,000 nanograms of

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benzoylecgonine per milliliter. Burdulis testified that the body

produces benzoylecgonine when breaking down cocaine, and its

presence in the blood indicates that a person recently ingested

cocaine.

¶ 32 Burdulis also testified to the effects of cocaine on a person’s

ability to function. She testified that driving was a task that

requires a person to focus on more than one thing at a time and

that “cocaine can negatively affect someone’s ability to do that.”

Burdulis testified that, in its initial stimulant phase, cocaine can

cause impatient, erratic, and risky driving behavior like weaving

through traffic, failing to yield at a stop light, or speeding. Burdulis

further testified that, in its later depressant stage, cocaine can

cause a person to cycle “between being alert and awake and dozing

off to sleep” while driving. She said this phase could also be

accompanied by “disorientation, overall general fatigue, and poor

ability to focus and concentrate on the road.”

¶ 33 Burdulis’ testimony, in tandem with Captain Daniels’ earlier

testimony — that Vigil was driving his car and was confused,

incoherent, and nervous shortly before his blood was drawn — and

Trooper Garcia’s testimony — that she concluded Vigil was under

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the influence because he had failed all but one of his roadside

sobriety tests — if credited by the jury, established all the elements

of DUI. Therefore, this testimony constitutes sufficient evidence in

both quantity and quality to support the jury’s conclusion that Vigil

was guilty of DUI.

D. Driving Too Slowly

¶ 34 Finally, Vigil contends that the trial court erred by tendering a

jury instruction that left out the last element of driving too slowly

and that the prosecution offered insufficient evidence to sustain his

conviction for that same offense. We agree that the instruction was

erroneous and necessitates reversal but disagree that insufficiency

of the evidence bars retrial of that charge.

1. Jury Instruction

¶ 35 We review jury instructions as a whole de novo to determine if

they accurately state and inform the jury of the law. People v.

Sloan, 2024 COA 52M, ¶ 26. While trial courts enjoy “broad

discretion to determine the form and style of jury instructions,” Day

v. Johnson, 255 P.3d 1064, 1067 (Colo. 2011), “[a] jury instruction

should substantially track the language of the statute describing

the crime,” People v. Weinreich, 119 P.3d 1073, 1076 (Colo. 2005).

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¶ 36 The statute that Vigil was charged with — driving too slowly—

provides, as follows: “No person shall drive a motor vehicle on any

highway at such a slow speed as to impede or block the normal and

reasonable forward movement of traffic, except when a reduced

speed is necessary for safe operation of such vehicle or in

compliance with law.” § 42-4-1103(1), C.R.S. 2024.

¶ 37 There is no model jury instruction for the charge of driving too

slowly, so the People crafted one and tendered it to the court and

defense counsel more than two months before trial. Vigil never

objected to the People’s proposed instruction. The court ultimately

gave the following instruction for driving too slowly:

The elements of driving too slowly are:

1. That the defendant,

2. in the State of Colorado, at or about the
date and place charged,

3. drove a motor vehicle or vehicle,

4. on a highway of the State

5. at such a slow speed as to impede or block
the normal and reasonable forward movement
of traffic.

After considering all of the evidence, if you
decide the prosecution has proven each of the
elements beyond a reasonable doubt, you

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should find the defendant guilty of driving too
slowly.

After considering all of the evidence, if you
decide the prosecution has failed to prove any
one or more of the elements beyond a
reasonable doubt, you should find the
defendant not guilty of driving too slowly.

¶ 38 Vigil contends that the court plainly erred in instructing the

jury on the charge of driving too slowly by omitting from its

instruction the “except when” portion of the statute that provides

driving slowly isn’t an offense when (1) “a reduced speed is

necessary for safe operation” of the defendant’s vehicle, or (2) the

slow travel is “in compliance with law.” § 42-4-1103(1).

¶ 39 We review unpreserved challenges to jury instructions for

plain error. See People v. Garcia, 28 P.3d 340, 344 (Colo. 2001).

Plain error is error that is both obvious and substantial. Hagos,

¶ 14. An error is obvious if, among other things, it contravenes a

statute. People v. Pollard, 2013 COA 31M, ¶ 40. An error is

substantial if it so undermines the fundamental fairness of the trial

as to cast serious doubt on the reliability of the conviction.

Hoggard v. People, 2020 CO 54, ¶ 13. Concerning an unpreserved

jury instruction challenge, the defendant must show not only that

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the erroneous instruction affected a substantial right but also that

the record reveals a reasonable possibility that the error contributed

to his conviction. Id.; People v. Miller, 113 P.3d 743, 750 (Colo.

2005).

¶ 40 We begin our analysis by determining if the instruction the

court gave accurately stated the law. We conclude it didn’t. It’s

undisputed that the instruction didn’t track the language of the

driving too slowly statute, as it omitted its “except when” provisions.

See, e.g., Hoggard, ¶ 34. Not only was this error, it was obvious

error. See id.; People v. Sloan, 2024 COA 52M, ¶ 35.

¶ 41 The People baldly contend, without citation to any case or any

meaningful analysis, that “this clause of the statute appears to be a

defense to the traffic offense rather than an element of the charge of

driving too slowly that the prosecution has to prove beyond a

reasonable doubt.” Because the People don’t develop this

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argument, we decline to address it.3 See People v. Liggett, 2021

COA 51, ¶ 53 (appellate courts don’t address undeveloped

arguments), aff’d, 2023 CO 22.

¶ 42 The next step in our analysis is to determine if the jury

instruction’s erroneous omission of the “except when” provisions

necessitates reversal. “[A]n erroneous jury instruction does not

normally constitute plain error where the issue is not contested at

3 If we were to address the People’s contention that the omitted

provisions set out an affirmative defense and not elements of the
offense, we would be skeptical of the argument’s soundness. An
affirmative defense “admit[s] the doing of the act charged but
seek[s] to justify, excuse, or mitigate it.” People v. Miller, 113 P.3d
743, 750 (Colo. 2005) (citing People v. Huckleberry, 768 P.2d 1235,
1238 (Colo. 1989)). Here, the statute is crafted such that driving
too slowly isn’t a violation when doing so is (1) “necessary for safe
operation” of the defendant’s vehicle or (2) “in compliance with law.”
§ 42-4-1103(1), C.R.S. 2024. Thus, the “except when” provisions
appear more akin to elements than an affirmative defense.
Moreover, even if they did constitute an affirmative defense, there
was some evidence presented at trial that Vigil’s slow travel was
necessary for the safe operation of his vehicle — namely, that he
was experiencing mechanical difficulties. Thus, he would have been
entitled to an affirmative defense instruction on at least the first of
two omitted provisions, and the People therefore would have had to
disprove that provision beyond a reasonable doubt to sustain Vigil’s
driving too slowly conviction. See, e.g., People v. Jacobson, 2017
COA 92, ¶ 15 (discussing the low evidentiary threshold that a
defendant has to meet to be entitled to an affirmative defense
instruction); People v. Platt, 170 P.3d 802, 806 (Colo. App. 2007)
(same), aff’d, 201 P.3d 545 (Colo. 2009).

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trial or where the record contains overwhelming evidence of the

defendant’s guilt.” Thompson v. People, 2020 CO 72, ¶ 54 (quoting

Miller, 113 P.3d at 750). Neither of those conditions is satisfied

here.

¶ 43 First, the issue of whether it was safe for Vigil to drive faster

was contested at trial. For instance, the body camera video

admitted at trial showed Vigil telling Captain Daniels that he was

having car trouble. Based on this, Vigil’s counsel argued that Vigil

was unable to drive faster because his car had broken down.

Second, the evidence presented at trial was far from overwhelming

with respect to whether it was safe for Vigil to drive faster. Indeed,

beyond the body camera footage described above, the People didn’t

present any evidence concerning whether Vigil’s slow speed was

“necessary for safe operation” of his vehicle. Therefore, we conclude

that the court’s instructional error constituted plain error

necessitating reversal. See, e.g., Sloan, ¶ 57.

¶ 44 But our inquiry doesn’t stop here because if the evidence

presented at trial was insufficient, the People would be barred from

retrying Vigil on this charge. That is where we turn our attention

next.

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2. Sufficiency of the Evidence

¶ 45 To begin, the evidence presented at trial was sufficient to prove

each of the elements of driving too slowly as that offense was

defined by the court’s instruction. As the jury was instructed, all it

had to find had been proven beyond a reasonable doubt to convict

Vigil of driving too slowly was that he “drove a motor vehicle or

vehicle . . . on a highway of the State . . . at such a slow speed as to

impede or block the normal and reasonable forward movement of

traffic.” There was sufficient evidence presented at trial to prove all

these elements. And Vigil doesn’t contend otherwise.

¶ 46 Instead, Vigil contends that the evidence was insufficient

because the People failed to present any evidence to prove one of

the omitted elements — namely, that he wasn’t driving slowly

because a reduced speed was necessary for safe operation of the

defendant’s vehicle. Whether the evidence presented at trial would

have been sufficient to prove the omitted element had it been

included in the instructions is a close call. Indeed, as both Vigil

and the People acknowledge in their briefs, very little attention was

afforded to any aspect of the driving too slowly charge by either side

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at trial given the offense’s relative lack of gravity compared to the

other charges Vigil faced.

¶ 47 But we don’t have to reach that question because we conclude

that failure to prove an omitted element — one that the People’s

proposed instruction failed to include well in advance of trial

without objection by the defense — doesn’t bar retrial. This is so

because “whether or not the Government will be able to carry its

burden of proof on retrial, the fact remains that retrial is the

Government’s first ‘bite at the apple’ to prove its case under the

correct legal standard.” Plemmons v. People, 2022 CO 45, ¶ 55

(alteration omitted) (quoting McDonald v. People, 2021 CO 64, ¶ 67);

cf. United States v. Wacker, 72 F.3d 1453, 1465 (10th Cir. 1995)

(holding that the prosecution wasn’t barred from retrying the

defendant when it failed to prove an element that was redefined

following trial). Accordingly, while we reverse Vigil’s conviction for

driving too slowly, we reject the contention that a retrial of Vigil on

that charge is barred under the double jeopardy clause for lack of

sufficient evidence.

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III. Disposition

¶ 48 For the reasons discussed above, we affirm Vigil’s convictions

for unlawful possession of a controlled substance and DUI, reverse

his conviction for driving too slowly, and remand the case for a new

trial on the driving too slowly charge.

JUDGE KUHN and JUDGE SCHUTZ concur.

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