December 15, 20252025 CO 63, 23SC847, People v. Kennedy

The opinion summaries are not part of the Colorado Supreme
Court’s opinion. They have been prepared solely for the reader’s
convenience. As such, they may not be cited or relied upon. If
there is any discrepancy between the language in the summary
and the opinion, the language in the opinion controls.
ADVANCE SHEET HEADNOTE
December 15, 2025
2025 CO 63
No. 23SC847, People v. Kennedy—Cruel and Unusual Punishment—Post-
Conviction Proportionality Review—Vehicular Homicide-DUI.
In this post-conviction appeal, the supreme court considers whether
vehicular homicide-DUI is a per se grave or serious crime for proportionality-
review purposes. The court holds that it is not.
The court also reviews whether the defendant’s sentence raises an inference
of gross disproportionality, which would entitle her to an extended
proportionality review of her sentence. After considering the specific
circumstances of the defendant’s crime, the court concludes that the sentence
imposed doesn’t raise an inference of gross disproportionality and therefore
affirms the defendant’s sentence.

The Supreme Court of the State of Colorado
2 East 14th Avenue • Denver, Colorado 80203
2025 CO 63
Supreme Court Case No. 23SC847
Certiorari to the Colorado Court of Appeals
Court of Appeals Case No. 21CA1203
Petitioner/Cross-Respondent:
The People of the State of Colorado,
v.
Respondent/Cross-Petitioner:
Kari Mobley Kennedy.
Judgment Affirmed
en banc
December 15, 2025
Attorneys for Petitioner/Cross-Respondent:
Philip J. Weiser, Attorney General
Melissa D. Allen, Senior Assistant Attorney General
Denver, Colorado
Attorneys for Respondent/Cross-Petitioner:
Mulligan Breit, LLC
Patrick J. Mulligan
Denver, Colorado

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JUSTICE HOOD delivered the Opinion of the Court, in which JUSTICE
GABRIEL, JUSTICE SAMOUR, and JUSTICE BERKENKOTTER joined.
JUSTICE BOATRIGHT, joined by CHIEF JUSTICE MÁRQUEZ, concurred in
part and concurred in the judgment.
JUSTICE SAMOUR, joined by JUSTICE GABRIEL, specially concurred.
JUSTICE HART did not participate.

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JUSTICE HOOD delivered the Opinion of the Court.
¶1 In this criminal case, we address whether Kari Mobley Kennedy’s sentence
was so grossly disproportionate to the offense she committed that the sentence is
unconstitutional. As presented to us, this question has two parts: one general
(focusing on the law that governs when an offense is particularly grave), and the
other specific (focusing on the facts of Kennedy’s case and the severity of her
sentence).
¶2 We first address whether vehicular homicide under section 18-3-106(1)(b)(I),
C.R.S. (2025) (causing the death of another while driving a motor vehicle under
the influence) (“vehicular homicide-DUI”), is a “per se” grave or serious
offense—meaning always grave or serious—under the proportionality principles
we refined in Wells-Yates v. People, 2019 CO 90M, 454 P.3d 191. In keeping with
those principles, we hold that vehicular homicide-DUI is not per se grave or
serious because it does not require proof of mens rea (that is, criminal intent), a
key gauge of culpability during sentencing.
¶3 We next consider whether Kennedy’s twenty-four-year sentence for
vehicular homicide-DUI was grossly disproportionate under the facts of her case.
We conclude that it was not.

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I. Facts and Procedural History
¶4 In 2018, a severely intoxicated Kennedy veered into oncoming traffic and
crashed into another car, killing the other driver. Both passengers from the other
car survived but were severely injured; one was partially paralyzed.
¶5 Responding police officers arrested Kennedy and took her to the hospital.
A blood test conducted at the hospital, hours after the crash, revealed that
Kennedy’s blood alcohol content (“BAC”) was still 0.282g/100ml, more than three
times the legal limit.
¶6 The prosecution charged Kennedy with vehicular homicide, vehicular
assault, driving under the influence (“DUI”), and careless driving. Because it was
Kennedy’s fourth drinking-and-driving offense, she was charged with felony DUI.
§ 42-4-1301(1)(a), C.R.S. (2025).
¶7 Kennedy pleaded guilty to one count of vehicular homicide-DUI and one
count of vehicular assault-DUI. As part of a plea bargain, she agreed to a
sentencing range of eight to thirty-three years in prison, with the possibility of
probation, and the prosecution agreed to drop the remaining charges against her.
¶8 The court sentenced Kennedy to consecutive prison terms of twenty-four
years for vehicular homicide-DUI (the maximum in the aggravated range) and five
years for vehicular assault-DUI.

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¶9 In 2021, Kennedy filed a post-conviction motion seeking a proportionality
review of her sentence, which the court denied, finding that vehicular
homicide-DUI is a per se grave or serious offense because it always results in the
death of another. On appeal, a division of the court of appeals held that vehicular
homicide-DUI is not a per se grave or serious offense but otherwise affirmed
Kennedy’s sentence. People v. Kennedy, 2023 COA 83M, ¶ 2, 541 P.3d 11, 13.
Kennedy disagreed with People v. Strock, 252 P.3d 1148, 1158 (Colo. App. 2010),
creating a split between published opinions of different divisions of the court of
appeals.
¶10 Both parties petitioned this court for certiorari review, and we granted both
petitions.1
1 We granted certiorari to review the following issues:
1. Whether vehicular homicide-DUI, § 18-3-106(1)(b)(I), C.R.S.
(2023), is a per se grave or serious offense for purposes of
proportionality review.
2. Whether the court of appeals erroneously ruled that the
maximum sentence in the aggravated range, for a defendant
with no prior felony convictions, did not give rise to an
inference of gross disproportionality.

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II. Analysis
A. Standard of Review
¶11 Whether the court of appeals division correctly applied Wells-Yates’s
interpretation of the per se grave and serious designation to the vehicular
homicide-DUI statute presents a question of law that we review de novo. See
McDonald v. People, 2024 CO 75, ¶ 7, 560 P.3d 412, 417. We also review the
proportionality of a criminal sentence de novo. Wells-Yates, ¶ 35, 454 P.3d at 204.
B. Proportionality Review
¶12 The United States and Colorado Constitutions prohibit the government
from imposing cruel and unusual punishments. U.S. Const. amend. VIII; Colo.
Const. art. II, § 20. A prison sentence is unconstitutionally cruel and unusual if it’s
“grossly disproportionate” to the crime committed. Harmelin v. Michigan, 501 U.S.
957, 1001 (1991) (Kennedy, J., concurring in part and concurring in the judgment)
(quoting Solem v. Helm, 463 U.S. 277, 288 (1983)); see also Close v. People, 48 P.3d 528,
532 (Colo. 2002), abrogated on other grounds by, Wells-Yates.
¶13 Courts evaluate proportionality using a two-step framework. Solem,
463 U.S. at 290–91. First, the court compares the gravity or seriousness of the
offense to the harshness of the penalty. Id. In Colorado, we call this “an
abbreviated proportionality review.” Close, 48 P.3d at 537. Determining the

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gravity or seriousness of a defendant’s conduct requires a case-by-case analysis of
factors, including
(1) “the harm caused or threatened to the victim or society”;
(2) whether the offense involved violence or the threat of violence;
(3) “[t]he absolute magnitude of the crime”; (4) whether the offense is
the lesser included or greater offense; (5) whether the offense was an
attempted or a completed crime; (6) whether the defendant was an
accessory, complicitor, or principal; and (7) the defendant’s
culpability and motive.
McDonald, ¶ 12, 560 P.3d at 418 (alteration in original) (quoting Solem, 463 U.S. at
292–93).
¶14 That gravity finding is then compared to the harshness of the sentence.
Sentencing regimes established by our General Assembly are presumed to be
constitutional, People v. Gross, 830 P.2d 933, 937 (Colo. 1992), so a sentence in the
statutorily authorized range likely won’t raise an inference of gross
disproportionality, Rutter v. People, 2015 CO 71, ¶ 19, 363 P.3d 183, 188. Parole
eligibility also reduces the harshness of the penalty, making it less likely that such
sentences will raise an inference of gross disproportionality. People v. Drake,
785 P.2d 1257, 1275 (Colo. 1990), abrogated on other grounds as recognized by, People v.
Chavez-Barragan, 2016 CO 66, ¶¶ 33–34, 379 P.3d 330, 338. If the gravity–harshness
comparison doesn’t lead to an inference of gross disproportionality, the analysis
ends.

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¶15 Second, if that comparison does give rise to an inference of gross
disproportionality, the court conducts a comparative analysis between the
defendant’s sentence and sentences for other crimes in the same jurisdiction and
sentences for the same crime in other jurisdictions. Solem, 463 U.S. at 290–91. We
refer to this step as “an extended proportionality review.” Close, 48 P.3d at 537.
C. The “Per Se” Shortcut
¶16 When considering the gravity or seriousness of an offense, we have
designated certain crimes “per se grave or serious”—a shortcut unique to
Colorado law. Wells-Yates, ¶ 13 n.6, 454 P.3d at 198 n.6. If a crime, “based on [its]
statutory elements, necessarily involve[s] grave or serious conduct” in all factual
scenarios, it’s designated as per se grave or serious, and the court begins its
abbreviated proportionality review by evaluating the harshness of the penalty. Id.
at ¶¶ 63, 65, 454 P.3d at 209. This designation not only saves time, but it allows
courts to avoid the “somewhat imprecise” practice of a case-by-case analysis. Id.
at ¶ 12, 454 P.3d at 198 (quoting People v. Gaskins, 825 P.2d 30, 36 (Colo. 1992)).
¶17 Despite these benefits of efficiency and consistency, we have encouraged
caution before labeling a crime as per se grave or serious. Wells-Yates, ¶¶ 61–62,
454 P.3d at 208. We have done so because the label eliminates a longstanding layer
of due process for criminal defendants. Hence, we have observed that the per se
designation should rarely be used. Id. at ¶ 63, 454 P.3d at 209.

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¶18 Analytically, evaluating whether a crime is per se grave or serious is like
evaluating a facial constitutional challenge—it requires a court to ensure that,
based on the elements of the offense, there’s “no set of circumstances” where the
conduct and culpability of a convicted individual aren’t grave and serious. United
States v. Salerno, 481 U.S. 739, 745 (1987).
¶19 For example, robbery, “by its very nature, . . . is per se grave or serious
because it will always involve knowing conduct and grave harm (or the threat of
grave harm) to the victim or society (or both).” Wells-Yates, ¶ 64, 454 P.3d at 209;
see also McDonald, ¶ 13, 560 P.3d at 419 (enumerating aggravated robbery, robbery,
burglary, attempted burglary, conspiracy to commit burglary, felony menacing,
accessory to first degree murder, and the sale or distribution of narcotics as crimes
that remain per se grave or serious after Wells-Yates).
D. Is Vehicular Homicide–DUI Per Se Grave or Serious?
¶20 In assessing culpability, courts consider the mens rea of an offense. See
Solem, 463 U.S. at 293. Here, there is none. A person commits vehicular
homicide-DUI when she: (1) “operates or drives a motor vehicle” (actus reus),
(2) “while under the influence of alcohol or one or more drugs” (actus reus), and
(3) “such conduct is the proximate cause of the death of another” (causation).
§ 18-3-106(1)(b)(I). “This is a strict liability crime,” id., which means it requires no
mens rea, § 18-1-502, C.R.S. (2025).

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¶21 The parties disagree about how to assess the requisite culpable mental state
for vehicular homicide-DUI when addressing proportionality. The prosecution
argues that the General Assembly’s choice to designate vehicular homicide-DUI
as a strict-liability crime signals its intent to elevate the seriousness of the conduct.
The prosecution infers that the legislature allowed a defendant’s “voluntary
conduct” to establish culpability for proportionality review. After all, to be guilty
of this offense, a defendant must have made a voluntary decision to drink and
drive. And sadly, drunk drivers kill far too many people year after year. See, e.g.,
Birchfield v. North Dakota, 579 U.S. 438, 443 (2016) (recognizing that throughout the
United States, drunk driving claims thousands of lives each year). While
acknowledging the seriousness of vehicular homicide-DUI, Kennedy counters that
a strict-liability offense provides no basis for uniformly discerning a defendant’s
state of mind. Wells-Yates, ¶ 12, 454 P.3d at 198. Thus, Kennedy argues that such
offenses should never be treated as per se grave or serious.
¶22 We agree with Kennedy. When a crime requires no proof of mens rea, it is
impossible to evaluate the culpability of defendants convicted of the offense under
every factual scenario. See id., ¶ 63, 454 P.3d at 209. Consequently, we have never

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designated a strict-liability crime per se grave or serious for purposes of a
proportionality review. We decline the prosecution’s invitation to start now.2
¶23 In reaching this conclusion, we don’t mean to diminish the significance of
vehicular homicide-DUI. To state the obvious, the harm is enormous because it
necessarily involves death. But that harm alone—no matter how tragic—is
insufficient to make the offense per se grave or serious. Other crimes, such as
manslaughter, criminally negligent homicide, and careless driving resulting in
death, also require evidence that the defendant caused a death, but they still have
not been designated as per se grave or serious.
E. Is Kennedy Entitled to an Extended Proportionality
Review?
¶24 So, we shift to a completely ad hoc assessment of whether Kennedy’s
sentence was unconstitutionally disproportionate. The trial court sentenced
Kennedy in the aggravated range based on “the accident, the history, the BAC, the
prior convictions, the [failed] attempts for rehabilitation.” And the division also
concluded that her sentence doesn’t raise an inference of gross disproportionality.
Kennedy, ¶¶ 27–28, 541 P.3d at 16.
2 To the extent our holding conflicts with prior decisions of the court of appeals,
those opinions are overruled. See, e.g., Strock, 252 P.3d at 1158.

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¶25 We agree with the courts below. Kennedy’s conduct resulted in death and
disability. And this was not an isolated incident; it was Kennedy’s fourth DUI.
Even after being discharged on bond in this matter, Kennedy was unable to abstain
from abusing medication and alcohol. Her conduct precludes an inference of gross
disproportionality, regardless of the elements of the offense.
¶26 In comparing the gravity of this conduct to the harshness of the penalty, we
note that Kennedy agreed to a sentencing range that included the twenty-four-
year sentence imposed. And that sentence was statutorily authorized.
§ 18-1.3-401(1)(a)(V)(A.1), (6), C.R.S. (2025). Moreover, her sentence includes the
possibility of parole. All these variables weigh against a conclusion that the
sentence is unconstitutional.
¶27 A comparison of the gravity of Kennedy’s offense to the harshness of her
sentence doesn’t raise an inference that her sentence is grossly disproportionate.
We therefore conclude that Kennedy is not entitled to an extended proportionality
review.
III. Conclusion
¶28 We affirm the judgment of the court of appeals.
JUSTICE BOATRIGHT, joined by CHIEF JUSTICE MÁRQUEZ, concurred in
part and concurred in the judgment.
JUSTICE SAMOUR, joined by JUSTICE GABRIEL, specially concurred.

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JUSTICE BOATRIGHT, joined by CHIEF JUSTICE MÁRQUEZ, concurring in
part and concurring in the judgment.
¶29 The majority concludes that vehicular homicide—driving under the
influence (“DUI”) is not per se grave or serious because it does not require proof
of mens rea. I see it completely the opposite: Vehicular homicide—DUI is per se
grave or serious because it is so devastating, life-ending, and destructive that it
does not need proof of mens rea. In other words, it does not matter what the
defendant intended, thought, or knew. Someone died because the defendant
made the voluntary decision to drink alcohol to excess and then drive a motor
vehicle.
¶30 The majority speculates about some type of benign vehicular
homicide—DUI with a lesser mental state, reasoning that because the offense is
strict liability, “it is impossible to evaluate the culpability of defendants convicted
of the offense under every factual scenario.” Maj. op. ¶ 22. But a vehicular
homicide—DUI with lesser “culpability” is not legally possible. The legislature
has determined that every vehicular homicide—DUI is culpable under strict
liability. § 18-3-106(1)(b), C.R.S. (2025). Therefore, while the majority implies that
not every vehicular homicide—DUI is grave or serious, Maj. op. ¶ 22, again, I see
it the opposite: There is no scenario of vehicular homicide—DUI that is not grave
or serious.

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¶31 In every instance of vehicular homicide—DUI, a person needlessly dies
because the defendant made the voluntary choice to become intoxicated and then
drive a motor vehicle. People v. Rostad, 669 P.2d 126, 129 (Colo. 1983) (holding that
the “minimal requirement for a ‘strict liability’ offense is proof that the proscribed
conduct was performed voluntarily”). What is more grave or serious than a
person needlessly dying due to the conduct of a drunk driver? In my view, our
admonition in Wells-Yates v. People, 2019 CO 90M, ¶¶ 62–63, 454 P.3d 191, 208–09,
that the per se grave or serious designation should be used “cautiously” and only
for “rare” offenses which are “grave or serious in every potential factual scenario,”
in fact supports designating vehicular homicide—DUI as per se grave or serious.
¶32 Hence, while I agree with the majority that the sentence here is not
unconstitutionally disproportionate, I ultimately only concur in the judgment
because I strongly disagree with the majority’s conclusion that vehicular
homicide—DUI is not per se grave or serious.
¶33 Based on the most recent data by the National Highway Traffic Safety
Administration (“NHTSA”), thirty-four people die every day in the United States
because someone chose to drink and then get behind the wheel of a vehicle. That’s
one person killed every forty-two minutes as a result of drunk driving. U.S. Dep’t
of Transp., NHTSA, Traffic Safety Facts: 2023 Data, Alcohol-Impaired Driving 1–2
(May 2025), https://crashstats.nhtsa.dot.gov/Api/Public/ViewPublication/

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813713 [https://perma.cc/AR4P-ZQGZ] (“Traffic Safety Facts: 2023 Data”). For
years, the “‘slaughter’” of irresponsible driving has rivaled the “ravages of war.”
Mitchell v. Wisconsin, 588 U.S. 840, 851 (2019) (quoting Breithaupt v. Abram, 352 U.S.
432, 439 (1957)). It is no surprise that the United States Supreme Court has
repeatedly spoken of the “carnage” and “frightful carnage” of preventable deaths
due to irresponsible driving. Mitchell, 588 U.S. at 851 (first quoting South Dakota v.
Neville, 459 U.S. 553, 558 (1983); and then quoting Tate v. Short, 401 U.S. 395, 401
(1971) (Blackmun, J., concurring)).
¶34 Importantly, the Supreme Court cited the effectiveness of state DUI laws in
reducing alcohol-related fatalities, particularly laws which increased penalties for
recidivist drunk drivers or drivers with higher blood alcohol content (“BAC”)
levels. Id. at 852 (noting that state DUI laws have contributed to a decrease in
annual highway fatalities from 25,000 deaths in the mid-1970s to mid-1980s, to
below 10,000 deaths in 2014 (relying on Birchfield v. North Dakota, 579 U.S. 438, 448
(2016)).1
1 It is notable that annual alcohol-related highway fatalities have since increased.
Compare 9,417 deaths in 2014 to 12,429 deaths in 2023. U.S. Dep’t of Transp.,
NHTSA, Traffic Safety Facts: 2014 Data, State Alcohol-Impaired-Driving Estimates 2
(June 2016), https://crashstats.nhtsa.dot.gov/Api/Public/ViewPublication/
812264 [https://perma.cc/D2YJ-YAQ9]; Traffic Safety Facts: 2023 Data, supra ¶ 13,
at 2.

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¶35 Time and again, we also have grappled with DUI-related offenses,
emphasizing the need for legislative deference when it comes to the penalties for
these offenses. Concerning the offense of reckless vehicular homicide under
Colorado law, we spoke of the “state[’s] . . . legitimate interest in discouraging a
specific evil which it believes to be of greater societal consequence.” People v. Hulse,
557 P.2d 1205, 1207 (Colo. 1976) (emphases added). And so, in Hulse, we rejected
an equal protection challenge to reckless vehicular homicide which punished the
offense more severely than the similarly defined offense of criminally negligent
homicide. Id. We reasoned that with reckless vehicular homicide, there is an
“additional element of a death caused [t]hrough the use of a motor vehicle,” which
the legislature chose to punish more severely. Id. at 1206.
¶36 Just as we deferred to the legislature’s decision to more severely punish
reckless vehicular homicide in Hulse, in Rostad, we gave similar deference to
“legislative choice” in the context of strict liability vehicular homicide—DUI, which
“established penal sanctions for conduct alone.” Rostad, 669 P.2d at 129. We
explained that “subject to constitutional limits, legislation may punish conduct
alone.” Id. at 128. We reasoned that it is “a rational choice among many public
policy alternatives” for the General Assembly to require “proof of proximate cause
in criminal proceedings relating to the operation of a motor vehicle” which does
not require “a finding of some undefinable mental state of the actor.” Id.

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Regarding the defendant’s mens rea, we held that “[a]lthough th[e] mental state
of voluntariness is not defined as a ‘culpable mental state’ for [the] purpose of the
criminal code, the General Assembly has in reality defined ‘strict liability’ offenses
to require proof of some minimal amount of conscious mental activity by the
accused.” Id. at 129.
¶37 Turning to the per se grave or serious designation, we append this label to
offenses which we determine to be grave or serious in themselves, rendering the
first part of an abbreviated proportionality review unnecessary in each individual
case. McDonald v. People, 2024 CO 75, ¶ 13, 560 P.3d 412, 419. When an offense is
per se grave or serious, Colorado courts move directly to assessing the second part,
the “harshness of the penalty.” Id.
¶38 The majority rightly begins by laying out the seven factors in McDonald that
we should consider when assessing the gravity or seriousness of an offense. Maj.
op. ¶ 13. But it is important to note that these seven factors are largely extrapolated
from the Supreme Court’s guidance in Solem v. Helm, 463 U.S. 277, 292 (1983), for
assessing the gravity or seriousness of an offense in each case. To judge the gravity
or seriousness of an offense, Solem guides courts to consider two major
factors: (1) the “culpability of the offender”; and (2) the “harm caused or
threatened to the victim or society” (the first two of the seven McDonald factors).
Id. at 292. In evaluating this second factor, “harm caused or threatened to the

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victim or society,” Solem states that we may consider factors such as (3) “[t]he
absolute magnitude of the crime,” (4) whether it is a “lesser included offense,”
(5) whether it is an attempted or completed crime, and (6) whether the defendant
was an accessory after the fact or the principal. Id. at 293. In McDonald, we
adopted all six as factors for determining the gravity or seriousness of an offense,
but consistent with our decision in Wells-Yates, we added one more—(7) “whether
the offense involved violence or the threat of violence.” McDonald, ¶ 12, 560 P.3d
at 418. Because McDonald factors (3) through (6) are meant to specifically address
Solem’s second factor, “harm caused or threatened to the victim or society,” I will
address only culpability and harm, which embrace nearly all seven McDonald
factors.
¶39 Section 18-1-503(3), C.R.S. (2025), sets forth the hierarchy of culpable mental
states under Colorado criminal law from most culpable to least culpable; namely,
(1) with intent, (2) knowingly, (3) recklessly, and (4) with criminal negligence.
People v. Rigsby, 2020 CO 74, ¶ 21, 471 P.3d 1068, 1074. Strict liability falls outside
this common range of culpability: It “does not require a culpable mental state on
the part of the actor.” § 18-1-502, C.R.S. (2025). But strict liability nonetheless
entails the “minimum requirement for criminal liability,” which involves “a
voluntary act or the omission to perform an act.” Id. (emphasis added). This
minimum level of voluntary mental activity is all that is necessary to prove a

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defendant’s guilt. Rostad rejected the assumption that proving a strict liability
offense under Colorado law is “characterized by the absence of any mental state.”
669 P.2d at 129. On the contrary, what suffices is that the conduct is a “product of
conscious mental activity involving effort or determination.” Id.
¶40 Vehicular homicide—DUI is a product of conscious mental activity. The
defendant chooses to imbibe an intoxicant to excess and then get behind the wheel
of a 3,000-pound vehicle. Even absent intent, the voluntariness and consciousness
of the decision to drink and drive involves both effort and determination. Of
course, a vehicular homicide—DUI defendant may not have intended to kill the
victim in the moment when a crash occurs. But the defendant voluntarily chose
to ingest an intoxicant and then drive a motor vehicle, knowing the intoxicant
impairs both their judgment and reaction time. Therefore, I disagree with the
majority’s comparison of vehicular homicide—DUI to manslaughter, criminally
negligent homicide, and careless driving resulting in death. Maj. op. ¶ 23. All of
these other offenses referenced by the majority require lesser mental states than
vehicular homicide—DUI. Without diminishing the societal impacts of these
other offenses, I stress that the scourge of motor vehicle deaths is a “specific evil”
of “greater societal consequence” that our legislature has chosen to tackle here by
means of strict liability. See Hulse, 557 P.2d at 1207. Defining the mental state that
is required for an offense is the responsibility of the legislature, not this court. See

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Randolph v. People, 2025 CO 44, ¶ 12, 570 P.3d 1022, 1026. And the legislature has
decided that the defendant is culpable because they voluntarily chose to drink to
excess and then drive, and this choice ultimately caused someone’s death. Thus,
the defendant’s voluntary actions create culpability.
¶41 In addition to culpability, a court must consider the “harm caused or
threatened to the victim or society” in order to deem an offense as grave or serious.
Solem, 463 U.S. at 292. Relevant factors include whether it is a “lesser included or
greater offense,” whether it is a complete or inchoate offense, and the “‘absolute
magnitude of the crime.’” McDonald, ¶ 12, 560 P.3d at 418 (quoting Solem, 463 U.S.
at 293). Vehicular homicide—DUI is not a lesser offense of any crime, and it is the
completed form of the offense. § 18-3-106(1)(b). As to the absolute magnitude of
the crime, there is no doubt that the deceased victim, their family, and society
suffer irreparable harm from the consequences of vehicular homicide—DUI. What
harm is of greater magnitude than the loss of human life, especially when it is
completely senseless? In this case, a twenty-two-year-old was killed, and his
mother was left paralyzed. The outcome of this crime leaves an innocent family
with a loss that will reverberate for at least a lifetime. I therefore believe that this
offense, having such palpable harm in all cases, is grave or serious.
¶42 While applying the Solem and McDonald factors to vehicular homicide—DUI
leads to a conclusion that the offense is grave or serious in each case, the inquiry

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does not end there. We must also consider whether vehicular homicide—DUI is
per se grave or serious. Wells-Yates controls this question. McDonald, ¶¶ 23–26,
560 P.3d at 420–21 (holding that Wells-Yates announced new and extant rules in its
holdings that subsequent legislative amendments should be considered; that not
all narcotic offenses are per se grave or serious; and that the designation “must be
reserved for those rare crimes” that are “grave or serious in every potential factual
scenario” (quoting Wells-Yates, ¶ 63, 454 P.3d at 209)).
¶43 In Wells-Yates, we addressed whether narcotic-related offenses generally,
and possession and possession with intent to distribute specifically, should be
deemed per se grave or serious. ¶¶ 54, 68, 454 P.3d at 207, 209. We answered no
for five reasons, only two of which are of import here following McDonald.
Wells-Yates, ¶¶ 54–75, 454 P.3d at 207–11. First, we observed that “recent
legislative amendments” and the fact that “the legislature does not treat [i.e.,
punish] all drug felonies equally” disfavored designating all drug offenses as per
se grave or serious. Id. at ¶¶ 58–59, 454 P.3d at 208. Second, we admonished courts
to use the label “cautiously” and to reserve it for “rare crimes” that are “grave or
serious in every potential factual scenario.” Id. at ¶¶ 62–63, 454 P.3d at 208–09.
Under this framework, vehicular homicide—DUI is per se grave or serious.
¶44 When it comes to DUI offenses, legislative amendments across the nation
over the past three decades have increased penalties and lowered BAC thresholds.

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Mitchell, 588 U.S. at 852 (noting that every state, including Colorado, adopted a
BAC limit of 0.08% for DUI offenses after Congress made this a requirement for
receiving federal highway funds (citing 23 U.S.C. § 163(a))); Ch. 236, sec. 3,
§ 18-3-106(2)(b), (c), 2004 Colo. Sess. Laws 780, 781. All this time, Colorado has not
reduced the penalty for DUI-related offenses including vehicular homicide. See
§ 18-3-106(1)(c), C.R.S. (1993) (making vehicular homicide—DUI a class 3 felony).
Once again, it is just the opposite: Colorado has in fact increased the penalties for
repeat DUI offenders. See Ch. 262, sec. 1, § 42-4-1301(1)(a), 2015 Colo. Sess. Laws
990, 990 (making a fourth DUI misdemeanor conviction a class 4 felony). Long
before Wells-Yates and after it was decided, there has been no legislative change
evincing a softening of the General Assembly’s tough stance on DUI offenses.
Unlike with drug offenders in Wells-Yates, our society has not found benefits to
lessening the penalties for drunk-drivers who cause a person’s death. I therefore
cannot see any trend of law or policy that would warrant a lessening of the gravity
or seriousness of this offense.
¶45 Second, Wells-Yates urged judicious use of the grave or serious label for
“rare” offenses which are “grave or serious in every potential factual scenario.”
¶¶ 62–63, 454 P.3d at 208–09. Crimes like robbery, burglary, or accessory to first
degree murder, which we have designated as grave or serious, are not rarer than
vehicular homicide—DUI. See McDonald, ¶ 13, 560 P.3d at 419; People v. Deroulet,

11
48 P.3d 520, 524 (Colo. 2002), abrogated on other grounds by, Wells-Yates, ¶¶ 16–17,
454 P.3d at 199. That said, only a few of these crimes result in death in every
potential factual scenario. While a very serious crime like robbery only sometimes
results in bodily injury, vehicular homicide—DUI always results in death, making
it arguably even more grave or serious in every factual scenario.
¶46 The majority acknowledges that the harm of death is “enormous,” but stops
short of affirming the gravity or seriousness of the offense that occasions it,
asserting that harm alone is insufficient. Maj. op. ¶ 23. In my view, the majority’s
analysis ignores the voluntary acts of the defendant. As I have explained, in
addition to the harm caused to the victim, their family, and society, the defendant
is also culpable in every potential factual scenario by virtue of their voluntary
decision to drink to excess and then drive.
¶47 In any event, assuming that there is a vehicular homicide that has
extraordinarily mitigating circumstances, the defendant is still eligible for
probation, even with the offense being designated per se grave or serious.
¶48 In sum, vehicular homicide—DUI should be deemed per se grave or serious
after carefully applying our own precedent and that of the Supreme Court to the
elements of the offense. Specifically, the crux of the majority’s reasoning that there
is no consideration of a defendant’s culpability is inaccurate because vehicular
homicide—DUI involves the voluntary choice to drink to excess and drive which

12
results in enormous harm in every instance. Accordingly, I respectfully concur in
the judgment only.

1
JUSTICE SAMOUR, joined by JUSTICE GABRIEL, specially concurring.
¶49 I fully concur in the majority opinion. I write separately, however, because
I believe that there are compelling reasons for our court to rid our jurisprudence
of the “per se grave or serious” designation in proportionality reviews of
sentences. Although Kari Mobley Kennedy’s counsel asked during oral
arguments that we do just that, the question is not before us and has not been fully
briefed. Therefore, for the same reason we couldn’t address the issue in Wells-
Yates v. People, 2019 CO 90M, ¶ 54, 454 P.3d 191, 207, we decline to tackle it here.
Still, this is a matter that deserves our attention.1
¶50 The determination of whether a crime is grave or serious is challenging
because it is “somewhat imprecise.” Id. at ¶ 12, 454 P.3d at 198 (quoting People v.
Gaskins, 825 P.2d 30, 36 (Colo. 1992)). While we now have “generally accepted
criteria for comparing the severity of different crimes on a broad scale,” assessing
whether a crime is grave or serious remains more of an art than a science. Id.
(quoting Solem v. Helm, 463 U.S. 277, 294 (1983)).
1 Were we to jettison the per se grave or serious designation in the future, it would
not affect convictions that are already final. See McDonald v. People, 2024 CO 75,
¶ 32, 560 P.3d 412, 422 (stating that Wells-Yates’s holding “removing narcotics-
related offenses from the per se grave or serious list . . . merely regulated how
habitual criminal sentences are to be evaluated during an abbreviated
proportionality review” and is thus a “‘prototypical procedural rule[],’” not a
substantive rule that must be applied retroactively (quoting People v. Johnson,
142 P.3d 722, 725 (Colo. 2006))).

2
¶51 It was in Solem, some forty-two years ago, that the Supreme Court shed
some light on appraising the gravity or seriousness of a crime for Eighth
Amendment purposes. 463 U.S. at 294. It explained that to ascertain whether a
crime is grave or serious, trial courts should consider “the harm caused or
threatened to the victim or society” and “the culpability of the offender.” Id. at
292. The Court then identified a non-exhaustive list of factors with respect to each
part of this inquiry. Id. at 293–94. As it relates to the harm to the victim or society,
trial courts should examine: the magnitude of the crime; whether the crime is a
lesser-included offense or the greater-inclusive offense; whether the crime
involves a completed act or an attempt to commit an act; and whether the
defendant’s role in the crime was that of a principal, complicitor, or accessory after
the fact. Id. at 293. And, as it relates to culpability, trial courts should consider
the defendant’s motive, as well as whether the defendant’s act was negligent,
reckless, knowing, intentional, or malicious. Id. at 293–94.
¶52 To be sure, the “per se” designation allows courts to sidestep this analysis,
thereby eliminating any concerns related to the difficult practice of making the
requisite determination and rendering any abbreviated proportionality review
more efficient. But easier and faster isn’t always better.
¶53 In declining to consider all narcotics-related offenses per se grave or serious
in Wells-Yates, we highlighted some shortcomings accompanying the per se

3
designation. For example, we mentioned that drug offenses sweep in “a wide
spectrum of conduct,” so it would be imprudent to paint them all with the same
broad brush. Wells-Yates, ¶ 60, 454 P.3d at 208. We reasoned that it made “little
sense to automatically treat the sale of a large quantity of cocaine by the leader of
a drug cartel as equally grave or serious as the mere possession of a very small
quantity of cocaine by a drug addict who is not involved in sale or distribution.”
Id. Indeed, we continued, the legislature itself doesn’t afford all drug offenses the
same treatment. Id. at ¶ 59, 454 P.3d at 208. And even when we’re dealing with
comparisons of the same offense—say, burglary in the second degree—in different
cases, the facts and circumstances can affect a determination of gravity or
seriousness; after all, not all burglaries in the second degree are created equally.
¶54 Along the same lines, Wells-Yates implicitly recognized that the designation
of a crime as per se grave or serious lacked a safety valve to reflect future
legislative adjustments lessening the punishment for that crime, which we have
characterized as “the best evidence of the views held by our maturing society, as
expressed through its representatives in the legislature.” Id. at ¶ 58, 454 P.3d at
208. For the first time, we held that recent legislative amendments making the
punishment of drug offenses less severe “militate[d] against preserving a blanket
rule rendering all such offenses inherently grave or serious.” Id. Of course, short

4
of litigation, a per se grave or serious crime will retain that status even after
relevant legislative adjustments.
¶55 These and other limitations are particularly troubling for at least two
reasons. First, the per se designation finds no support in Supreme Court
jurisprudence; it is unique to Colorado law. Id. at ¶ 61, 454 P.3d at 208; see also
Gaskins, 825 P.2d at 37 (following in the footsteps of three previous cases that had
concluded with no detailed analysis that the crimes in question were grave or
serious because those crimes involved either “violence or potential for violence by
their very nature” or the “sale of illegal drugs”). Yet, article II, section 20 of the
Colorado Constitution is identical to the Eighth Amendment, and we have
historically embraced the Supreme Court’s analytical approach to proportionality
challenges. Wells-Yates, ¶ 10, 454 P.3d at 197.
¶56 Second, and most importantly, as we cautioned in Wells-Yates, “designating
a crime per se grave or serious has significant consequences” because it allows a
court conducting an abbreviated proportionality review to bypass the first step of
the analysis (whether the crime is grave or serious) and simply consider the
harshness of the penalty. Id. at ¶ 62, 454 P.3d at 208–09. The concern for unfairness
is exacerbated by the fact that the legislature’s establishment of the harshness of
the penalty is entitled to great deference. Id., 454 P.3d at 209. Hence, designating
a crime per se grave or serious renders a sentence all but “impervious to attack on

5
proportionality grounds.” Id. (quoting Close v. People, 48 P.3d 528, 538 (Colo. 2002),
abrogated on other grounds by, Wells-Yates, ¶ 16, 454 P.3d at 199). Of course, any
uneasiness about a per se designation is more pronounced in habitual criminal
sentences, which are imposed without the trial court’s exercise of discretion. Id.
¶57 Given these concerns, the drawbacks of per se designations far outweigh
any purported benefits. This is especially true when, as here, we haven’t yet
decided whether to tag a particular crime as per se grave or serious.
Notwithstanding the test we formulated in Wells-Yates to determine per se status,
id. at ¶ 63, 454 P.3d at 209 (reserving the per se label for rare crimes which, based
on their statutory elements, inevitably involve grave or serious conduct), the
members of this court cannot agree on whether vehicular homicide should be
designated as per se grave or serious. Nor can my colleagues on the court of
appeals.
¶58 This is not surprising: There are reasonable arguments on both sides of the
coin. Absent per se designations, we’d be focused solely on the gravity or
seriousness of the vehicular homicide committed by Kennedy in this specific case
and on the harshness of her sentence. Those are less challenging considerations
that are hardly time-consuming. But don’t take my word for it; the proof of the
pudding is in the eating: The majority appropriately devotes a mere four short
paragraphs to this part of the analysis. Maj. op. ¶¶ 24–27; see also Gaskins, 825 P.2d

6
at 36 (indicating that “the initial scrutiny” of the gravity or seriousness of an
offense and the harshness of the penalty to determine whether more than an
abbreviated proportionality review is necessary “is not a demanding one”). The
point is that the justification for per se designations only goes so far.
¶59 In short, for more than three decades, Colorado has adhered to the idea that
defendants who stand convicted of crimes that our appellate courts have deemed
per se grave or serious are only entitled to a superficial proportionality review of
their sentences. There are strong reasons to believe it is time to deep-six this
concept.