Case Details

In a criminal law matter, the defendant was the subject of a traffic stop at 12:40am on April 29, 2005. University police believed that he was driving under the influence based on his erratic driving, a suspicion confirmed by the defendant’s slurred speech, red glassy eyes, the smell of alcohol in his car, and failed field sobriety tests. The defendant was arrested and transported to university police headquarters.

After being advised of his rights and the implied consent to take a breath test, the defendant stated he would not consent until he contacted an attorney. “The defendant repeatedly stated that he would not do anything without an attorney,” so police recorded the refusal. However, the defendant later requested to take the breathalyzer test, but officers would not administer it. They stated it was too late; however, if the officers administered the test at the time of this request, it would have occurred within the two-hour statutory window.

The OMVUI Charges

The defendant was charged with operating a motor vehicle while under the influence (OMVUI) in violation of General Statutes § 14-227a. Following the close of evidence at trial, the court proposed the following jury instruction: based on the evidence, if the jury concluded that the defendant refused to take the breathalyzer test, it could draw reasonable inferences stemming from that fact. The defendant requested that the jury instruction include “consciousness of innocence” language about the officers’ refusal to conduct the test after the defendant requested it, and to draw any reasonable inference from that fact as well.

The court denied the request and the defendant was found guilty of OMVUI. He appealed the conviction, stating, in part, that the jury instruction improperly focused on his refusal without enough emphasis on his later request to submit. Therefore, he claimed the court “improperly deprived him of a theory of defense” and the jury instruction was “imbalanced in favor of the state.”

Jury Instruction

The Supreme Court of Connecticut has stated that for a defendant to be entitled to a theory of defense instruction, he or she must assert a recognized legal theory. Likewise, our appellate court has “repeatedly refused to apply the consciousness of innocence principle to jury instructions regarding consciousness of guilt,” and as such is not a recognized legal theory. In this case, the Appellate Court of Connecticut found that because the proposed language from the defendant encompassed this very scenario, he was not entitled to a theory of defense instruction.

When a court considers a challenge to a jury instruction that does not give rise to constitutional implications, the charge is “considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts.” The instruction need only be correct in law (in light of the facts of the case) and not mislead the jury. In this case, the trial court properly instructed the jury that it first had to actually find that the defendant refused to submit to the breathalyzer test before it could draw any inferences from a refusal.

“The court told the jury it must consider all of the evidence… [T]he instruction… did not instruct the jury that it could not consider the defendant’s request to submit to the test. … [It] did not inform the jury that it could draw a negative inference from a refusal to take a Breathalyzer test.” Instead, the trial court “merely informed the jury that it could draw an inference from [the defendant’s] refusal.” After addressing additional arguments on appeal, the Appellate Court affirmed the judgment.

Written by Lindsay E. Raber, Esq.

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