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May 23, 2019

District Attorney Determines Ouray OHV Ruling Prevails


District Attorney Dan Hotsinpiller conducted a meeting Monday, April 22 during which the conflicting rulings from Judge Yoder and Judge Patrick regarding the operation of licensed Off-Highway Vehicles (OHVs) on state highways was discussed. Present at the meeting were all the deputies, sheriffs, and county attorneys in the Seventh Judicial District, as well as some of the Parks and Wildlife officers.
At the conclusion of the meeting, Hotsinpiller determined that the Yoder ruling prevails over the Patrick ruling and that, henceforth, the operator of any OHV – licensed or not – found driving on any state highway in his jurisdiction would be ticketed. The exception would be if the proposed “Pilot Program” is implemented, it allows OHV traffic on the section of Highway 149 between 2nd Street and County Road 30 in Lake City.
At the May 1 Town of Lake City Board of Trustees meeting, the OHV Pilot Program was an item on

both the workshop and regular meeting agenda. Town Manager Caroline Mitchell said, “Today, the County Commissioners did pass their resolution with regards to the Pilot Program, to put this into effect. It will take several weeks should you all decide to do this to get that program moving. The resolution is required by CDOT from the letter of intent that was sent previously that you all opted to go with for this program. The Pilot Program purely links Second Street to County Road 30; it is roughly 2.4 miles, and that would link it for the completion of the Alpine Loop. It would not allow OHVs to drive on the rest of the State Highway. They can cross [the Highway] under our existing ordinance, but they would not be able to drive on the rest of the Highway. The resolution is an action item on tonight’s regular meeting agenda and it is a requirement in order to move forward with the process.”
Trustee Alan Rae asked, “How long do you anticipate this to take?”
Mitchell replied, “The Transportation Commission will meet on the 16th of May to consider the new documents and it was my understanding it would take approximately two weeks to implement the project, which would put us right around Memorial Day. It is also my understanding that your Sheriff has attended a meeting, and there will be no [OHV] driving on the state Highway, and they will be enforcing that. The Pilot Program would allow OHVs to legally complete the loop between Second Street and County Road 30. Our existing ordinance would stay in place that allows them to cross the Highway in town and on town streets, and that would stay in effect until the [special election] vote that happens on July 23.”
Rae said, “But they can now go from Second Street to the Lake?”
Mitchell replied, “They cannot.”
She then addressed Sheriff Casey, who was present at the meeting, and he said, “Title 33 of Colorado Revised Statute says that OHVs are not allowed on state highways. There’s been a lot of confusion over the last several years about that; the meeting I had on the 22nd of April with DA Hotsinpiller and the other sheriffs in the Seventh Judicial District clarified the enforcement stance based on Judge Patrick versus Judge Yoder ruling.”
Mitchell said, “If the Pilot Program is approved, and the state grants the permit to both the county and the town, then for a period of time under this Pilot Program, they would be allowed to traverse that area between Second Street and County Road 30, or until such time as a change in the ordinances within the town of Lake City.”
Rae asked, “So, we are going to be sure that all of our citizens are notified of this fact? That they will be ticketed if they get caught out on [Highway] 149?”
Mitchell replied, “I’m sure that the county and the Sheriff’s Department and the town can work collectively to do some sort of public service announcement.”
The resolution to pass the joint Town and County Pilot Program passed unopposed during the regular meeting.

Patrick vs. Yoder: On September 2, 2017, Sgt. Gary Ray of the Ouray Police Department cited three OHV operators travelling on Ouray’s Main Street (US Highway 550), explaining Ouray’s prohibition of OHVs within city limits, and issued summonses for court November 9, 2017. Among the group was an off-duty Hinsdale County sheriff’s deputy, who communicated to Ray that, per the ruling of Seventh Judicial District, Judge J. Steven Patrick, it was legal to operate licensed out-of-state OHVs on all streets and highways in Colorado; Ray issued the citations nonetheless.
The matter was brought to trial by one of the OHV operators, Fred Walton, on March 8, 2018. At the trial, officiated by Ouray municipal Judge Zachary Martin, Walton used the Judge Patrick ruling as primary evidence. His argument was that if an OHV is licensed out of state, it becomes legal due to plated OHVs not being included as governed by Colorado’s state statutes on OHVs, because Colorado does not license OHVs.
Patrick’s ruling originated from the dismissal by the Hinsdale County District Court in 2002 of a similar OHV case. In that case, the ticketed OHVs were registered and approved for highway use in the state of Arizona. Patrick ruled that, since the vehicles were registered and licensed out of state, they did not fall under Colorado’s statute on OHVs and therefore were considered motor vehicles and could be operated on Colorado highways.
Ouray Munucipal Judge Martin, based on that defense, determined that Walton was not guilty according to two factors: the court found the name of the street ambiguous, as it is called both “Main Street” as well as “Highway 550” – Ray had called it “Main Street” when issuing the citations – and the evidence presented from Patrick’s ruling finding OHVs licensed as street legal out of state were considered exceptions to Colorado’s definition of an OHV. Walton’s vehicle was registered in the State of Montana.
Following the acquittal by Martin, prosecutor Masters and Viner appealed to the district court, stating in the appeal documents that “the court’s ruling was unfounded,” and that “the court’s reliance on the non-binding opinion of Judge Patrick in a Hinsdale County court case” was misplaced. The appeal was filed May 30, 2018.
Consideration of the appeal by District Judge Keri Yoder didn’t occur until August 22 of 2018. Yoder disapproved of Martin’s ruling, but citing double jeopardy, also ruled that Walton could not be re-tried.
Yoder’s disapproval was based on two factors: she found that the city’s definition of “city street” was not ambiguous and did apply to US Highway 550, within the city limits of Ouray. Additionally, she determined that Walton’s vehicle was not registered as a motor vehicle since he is not a resident of Montana, and the Colorado definition of motor vehicle requires the owner to be a resident of the state in which it is registered.
Yoder ruled that, for future consideration in OHV cases, a court must find that an OHV is a motor vehicle as defined by Colorado law, prior to determining that the non-resident registration exception applies to Colorado’s definition of an OHV.
According to Ouray city attorney Carol Viner, in future OHV cases, “the judge would now have a higher court opinion that he/she could rely on for guidance.”
On April 19, 2019, District Attorney Hotsinpiller received a letter from James D. Brown, Terry L. Camp and Curtis R. Smelser from the Delta-based law offices of Brown and Camp, LLC.
The letter explained that the law firm has been retained by David Cherry of Waco, Texas to assist him in efforts to clarify the law regarding the operation of out-of-state off highway vehicles on public roads in Colorado, and that Mr. Cherry owns a second home in Lake City around which the operation of OHVs is a common recreational activity.
The letter states that Mr. Cherry believes that the Yoder decision “is the correct view, both legally and as a matter of good public policy,” and that, understanding that Sheriff Justin Casey had requested Hotsinpiller’s opinion on the matter from an enforcement standpoint, Mr. Cherry requested that the law firm offer their analysis of the issue to assist in that endeavor.
The letter states, “Starting from a view of common-sense public policy, we believe that the State of Colorado, as well as county and municipal jurisdictions, have the authority to regulate the operation of OHVs on public roads as a matter of public health, safety and welfare.”
It goes on to say that opponents of Yoder’s decision have “attempted to ascribe some particular priority or precedential value to Judge Patrick’s decision because he happens to be the Chief Judge of the District Courts for the Seventh Judicial District. We are aware of no authority for this proposition and believe that Judge Patrick’s decision has no such precedential value. The designation of a “chief judge” in each judicial district is strictly a matter of judicial administration. See Colorado Constitution, Article VI, Section 5(4).”
Brown, Camp and Smelser further reference the fact that statutory changes occurred between the dates of the two decisions and that these changes are helpful in clarifying the intent of the Colorado Legislature concerning the issue, and that it is their opinion that the Yoder decision “correctly notes these statutory changes and applies the new statutory language in a common sense manner supporting the conclusion that the operation of out-of-state OHVs on public roads is properly subject to regulation by Colorado jurisdictions.”
The “Colorado Foreign Vehicle Law,” C.R.S. 42-3-128(1) is the statute the Patrick case relied on and reads as follows: A non-resident owner, except as otherwise provided in this section, owning any foreign vehicle which has been duly registered for the current registration period in the state, county, or
other place of which the owner is a resident in which at all times when operated in this state has displayed

upon it the number plate or plates issued for such vehicle in the place of residence of such owner may operate or permit the operation of such vehicle within this state without registering such vehicle or paying any fees to this state.
This statute was re-written as C.R.S. 42-3-117(1) in 2005, replacing the statutory language as follows: A non-resident owner, except as otherwise provided in this section, owning a foreign motor vehicle may operate or permit such vehicle to operate within this state without registering such vehicle or paying fees so long as the vehicle is currently registered in the state, county, or other place of which the owner is a resident, and the motor vehicle displays the number plate or plates issued for such vehicle in the place of residence of such owner.
Brown, Camp and Smelser concluded that “the most relevant change to this language is the clarification that it applies only to a foreign ‘motor vehicle,’ the definition of which includes only vehicles which are designed to be operated on public roads and not OHVs. See C.R.S. 42-1-102(58).”
The letter goes on to say that “Colorado is clearly free to determine the types of vehicles which may be operated safely on its highways and public roads without reference to vehicle licensing and registration laws of other states…in short, we believe the Yoder decision provides the correct analysis and outcome on this issue: that Colorado law does not permit nor require that out of state licensed OHVs be allowed to operate on local or state streets, roads or highways unless a) a local government has opened its streets or roads to such use or b) an agency of the state has opened a state road or highway to such use. Public road licensed OHVs are not immune from the regulatory authority of the State of Colorado and its local governments and must be treated the same as domestic OHVs.”
The Pilot Program, if it is approved by the state of Colorado, would last for two years. A special election to determine if OHVs will continue to be allowed within the Town of Lake City is scheduled for July 23, 2019.

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