DUI Suspect Did Not Have Right to be “Selectively Silent;” Rebuttal Inquiry Did Not Violate Constitutional Protections

Last year, the Appellate Court of Connecticut considered whether a prosecutor’s line of inquiry violated a defendant’s due process rights against self-incrimination under the state and federal constitutions.

This case arose from an incident that occurred at 1:22am on April 9, 2008. A state trooper was on routine patrol along I-95 in Fairfield, CT, when he received a report of an erratic driver in his vicinity. He promptly located the vehicle in question, which was driving only 35mph in a 55mph zone. In addition, the trooper saw the vehicle swerve multiple times and nearly strike a guardrail. Therefore, the trooper initiated a traffic stop. While interacting with the driver, who was later identified as the defendant, the trooper made the following observations: bloodshot and watery eyes, slurred speech, and the distinct odor of alcohol. The trooper spotted a plastic cup with a tan liquid in the center console, but the defendant would not answer any questions regarding it.

The trooper asked the defendant to exit the vehicle and administered three field sobriety tests. The defendant was then arrested for operating a motor vehicle while under the influence (OMVUI) and transported to state police barracks located in Bridgeport, CT. There, he agreed to submit to two breathalyzer tests, both taken within two hours of the defendant operating his car and with results over the legal limit. The defendant was advised of his Miranda rights and presented with questions from a motor vehicle supplemental form (A44 form): the defendant answered some, but refused to answer others regarding alcohol and food consumption.

Before trial, the defendant filed a motion in limine to exclude the admission of the A44 form, citing his constitutional right against self-incrimination, but the court denied the motion. At trial, the State conducted an “offer of proof” through the trooper regarding the A44 form, and the defendant objected, but the form was admitted into evidence. On cross-examination, defense counsel engaged the trooper in a line of questioning regarding the defendant’s cooperation in answering questions from the form. On redirect, the State asked whether the trooper inquired about the amount the defendant had to drink, and the defense objected on the ground of self-incrimination. The State argued that “the line of questioning had been opened by the defendant,” and the court agreed and overruled the objection. The defendant was subsequently found guilty by a jury and he appealed his conviction, arguing in part that his due process rights were violated by admission of the A44 form and related questioning during trial.

When one party engages a witness in a particular subject during examination at trial, he or she “cannot object if the opposing party later questions the witness on the same subject.” This is known as “opening the door” to rebuttal. Where a defendant has been advised of his Miranda rights, he does not also have the right to be “selectively silent.” Thus, the right against self-incrimination is inapplicable to a factual scenario where a defendant so advised chooses to answer some questions but “selectively declines to answer several others.”

In this case, the Appellate Court found that when the defense asked the trooper questions related to the defendant’s cooperation regarding the A44, the State had every right to follow up with questions on redirect evidencing the unresponsive answers. As the Court stated, “The defendant cannot reap the benefits of inquiry into one subject and expect the state’s questioning within the same scope to be held impermissible.” Therefore, there was no abuse of discretion when the court allowed the State’s inquiry on redirect regarding the defendant’s refusal to answer questions related to alcohol and food consumption. After addressing additional grounds for appeal, the Appellate Court affirmed judgment in its entirety.

When faced with a charge of operating a motor vehicle while intoxicated (a.k.a. driving under the influence), an individual is best served by consulting with an experienced criminal law practitioner. Should you have any questions regarding criminal defense, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County at 203-221-3100 or at JMaya@Mayalaw.com.

Written by Lindsay E. Raber, Esq.