Posts tagged with "§ 14-227a"

Liability Under Dram Shop Act Requires “Visible Intoxication”

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The Appellate Court of Connecticut considered whether or not a trial court’s denial of a motion to set aside the verdict in a case involving the Dram Shop Act was an abuse of discretion, because a required element of the offense charged was not established by the plaintiff.

Case Background

In this case, a citizen and his friend were at a restaurant-bar where they were playing billiards. The citizen consumed five beers, two alcoholic shots, and a blackberry brandy within a four-hour period, but did not exhibit any physical signs of intoxication. Nonetheless, while drunk, he purchased an alcoholic beverage from the restaurant’s bartender. Subsequently, the citizen and his friend left the restaurant-bar and were involved in an accident, resulting in the friend’s death.

The estate of the friend (plaintiff) brought a wrongful death action against the owners of the restaurant (defendant), claiming liability under the Dram Shop Act, Connecticut General Statutes (CGS) § 30-102. A jury found in the plaintiff’s favor and awarded $4 million in damages, though the defendant sought reduction to the statutory $250,000, which the court granted. The defendant also filed a motion to set aside the verdict and a directed verdict, arguing, in part, that “no evidence was presented from which the jury reasonably could have concluded that [the citizen] was intoxicated” under CGS § 30-102. The motion was denied, and the defendant appealed, arguing that the trial court abused its discretion in denying the motion.

Proof of “Visible Intoxication” Required

CGS § 30-102 is the statutory mechanism through which a plaintiff may recover damages from one who sells alcohol to an intoxicated person, and such person subsequently causes an injury. For the plaintiff to prevail in such an action, he or she must prove that “there was (1) a sale of intoxicating liquor (2) to an intoxicated person (3) who, in consequence of such intoxication, causes injury to the person or property of another.” At issue on appeal in this case was whether or not the second element requires proof of “visible intoxication” or what amounts to per se intoxication.

The Appellate Court agreed that a showing of visible intoxication was required, and stated that for purposes of CGS § 30-102, “an individual must exhibit some type of physical symptomology in such a way that an observer could perceive that the individual was indeed under the influence of alcohol to some noticeable extent.” In addition, the plaintiff must present evidence that shows the subject in question was either visibly or perceivably intoxicated.

Appellate Court Ruling

In this case, the Appellate Court noted that while the evidence presented at trial may establish intoxication as it is used in our DUI law (CGS § 14-227a), it was insufficient to prove intoxication under CGS § 30-102. As the Court elaborated, the plaintiff did not present any evidence of visible intoxication – indeed, there was no evidence at all showing that the citizen “was exhibiting any visible or perceivable indications that he was intoxicated.” Therefore, the court abused its discretion in denying the motion to set aside the verdict, because based on the evidence presented, a jury could not have found the required element of “intoxicated person.” Therefore, the judgment was reversed and case remanded.

Written by Lindsay E. Raber, Esq.

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If you have any questions regarding this posting, or any other matter, please do not hesitate to contact Attorney Joseph C. Maya at Maya Murphy, P.C. in Westport, Connecticut at (203) 221-3100 or JMaya@Mayalaw.com.

Motion to Dismiss Denied Where Defendant Failed to Establish Due Process Violation from Pre-Arrest Delay

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In a criminal law matter, a Superior Court of Connecticut considered a defendant’s pre-trial motion to dismiss charges against her due to “unreasonable delay” in prosecutorial efforts.

Case Background

This case arose from an incident that occurred on November 29, 2006, in New Haven, CT. The defendant was involved in an automobile collision with a city bus, resulting in her month-long hospitalization before she returned to her residence, which she occupied prior to and after the accident. A detective prepared an arrest warrant, which was signed on December 14, 2006, but made only one attempt to serve it on the defendant, which was unsuccessful. Approximately fifteen months of inaction passed before the defendant “turned herself in,” indicating she became award of the arrest warrant.

The defendant was charged with second-degree assault with a motor vehicle (Connecticut General Statutes (CGS) § 53a-60d), operating under the influence (CGS § 14-227a), and evading responsibility (CGS § 14-224(b)). She filed a motion to dismiss, arguing that warrant was not served within a reasonable time and beyond the statute of limitations. She further claimed that the pre-arrest delay violated her constitutionally protected due process rights. In support of her motion, the defendant did not present any evidence of “the impact, if any, the fifteen-month delay had on the defendant’s ability to present a defense.”

What Constitutes an Unreasonable Delay?

Under CGS § 54-193(b), our statute of limitations law, the State can prosecute an individual for a crime resulting in a sentence in excess of one year within five years after the date of the offense. However, “the warrant must still be executed without unreasonable delay to preserve the primary purpose of the statute of limitations.” Where a defendant asserts due process violations stemming from pre-arrest delays, he or she must prove “both that (1) actual substantial prejudice resulted from the delay and (2) that the reasons for the delay were wholly unjustifiable, as where the state seeks to gain a tactical advantage.”

There is no per se rule regarding whether the length of a delay is unreasonable. In State v. Crawford, a decision rendered by Connecticut’s Supreme Court, the arrest warrant was not executed for more than two years after it was issued, yet this did not warrant a dismissal of the charges.

Court’s Ruling

In this case, the Superior Court found that the fifteen-month delay was not per se unreasonable, in large part referencing the longer and unexplained, yet permissible delay in Crawford. Even if the delay due to a lack of due diligence was found unreasonable, “[t]he evidence presented to this court did not demonstrate that the defendant has suffered any disadvantage.” The defendant did not provide any evidence of prejudice beyond “mere allegations,” and there was “no evidence in the record to support a claim that the state sought to gain a tactical advantage over the defendant by virtue of the pre-arrest delay.” Therefore, the Superior Court denied the defendant’s motion to dismiss.

Written by Lindsay E. Raber, Esq.

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When faced with a charge of evading responsibility, 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.

Court Denies DUI Convict’s Request for Declaratory Judgment; License Suspensions Complied with Applicable Statutes

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In a criminal law matter, a Superior Court of Connecticut found in favor of the defendant Department of Motor Vehicles (DMV) after the plaintiff unsuccessfully asserted his claims of equal protection and due process violations following his license suspensions.

Case Details

In this case, the plaintiff was arrested for operating a motor vehicle while under the influence (OMVUI) of alcohol in violation of Connecticut General Statutes (CGS) § 14-227a. Police notified the DMV of the arrest, who held an administrative license suspension hearing. The hearing officer found that the plaintiff refused to submit to a chemical alcohol test, among three other considerations, and pursuant to CGS § 14-227b(i), ordered that the plaintiff’s driver’s license be suspended for six months.

The plaintiff fully served this administrative suspension before pleading guilty to OMVUI. In connection with this criminal conviction, the DMV ordered that the plaintiff’s driver’s license be suspended for twelve months in accordance with CGS § 14-227a(g). Plaintiff’s counsel requested a “credit” of six months in light of the administrative suspension, but the DMV denied this request. DMV practice allows administrative and criminal suspensions to run concurrently for whatever period of overlap exists, as long as they arose from the same incident. However, it is not DMV policy to issue credits against new suspensions when prior ones have already been fully served.

Equal Protection Violation

The plaintiff sought declaratory judgment, arguing that the DMV’s actions were unconstitutional. He first alleged that the DMV policy violated equal protection because it “confers a benefit on those able to serve some or all of their suspensions concurrently, while denying that benefit to those who must serve them consecutively.” The plaintiff further contended that his procedural due process rights were violated because the DMV did not advise him of the practice, thus depriving him of being able to make an informed decision regarding when to plead guilty.

Equal protection directs that similarly situated people be treated alike. This clause is implicated when a statute “either on its face or in practice, treats persons standing in the same relation to it differently.” The threshold inquiry for a reviewing court is whether a petitioner is “similarly situated for purposes of the challenged government action.” However, the equal protection clause does not prohibit a government entity from treating those who are not similar in a dissimilar manner.

In this case the Superior Court found that the plaintiff was similarly situated to drivers who have completed one suspension when the other is imposed, not drivers who were serving one suspension when subject to a second. Because the plaintiff failed to meet his burden proving dissimilar treatment, his equal protection claim failed.

Establishing a Due Process Violation

To establish a due process violation, a plaintiff must prove “1) that he has been deprived of a property interest cognizable under the due process clause; and 2) that deprivation occurred without due process of law.” In this case, the Court readily agreed that deprivation of a driver’s license clearly satisfies the first prong, but the plaintiff’s claim failed with respect to the second element. The suspensions were imposed in accordance to guidelines set forth in CGS §§ 14-227a and 14-227b, and the plaintiff did not provide any support for “for the proposition that the [DMV] was obligated to give him notice of the [DMV’s] practice.” Therefore, the plaintiff’s due process claim also failed, and his request for declaratory judgment was denied.

Written by Lindsay E. Raber, Esq.

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When faced with a charge of operating a motor vehicle while intoxicated (a.k.a. driving under the influence) or license suspension, 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, CT office at 203-221-3100 or at JMaya@Mayalaw.com.

Lower Court Did Not Abuse Its Discretion in Termination of Cross-Examination, Since Evidence Was Not Relevant in Suppression Hearing

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OMVUI Case Background

In a criminal law matter, the defendant was charged with operating a motor vehicle while under the influence (OMVUI) in violation of § 14-227a(a)(1). He filed a motion to suppress the arrest due to lack of probable cause, and a hearing was held. The State asked the arresting officer, who was their only witness, to describe his police training and what happened on the night of the defendant’s arrest. The prosecutor asked the officer questions related to his return to the defendant’s vehicle after the initial traffic stop.

However, the court interjected, stating this line of questioning was beyond the scope of the motion. The prosecutor agreed, and defense counsel began his cross-examination, repeatedly asking about the officer’s training. The court once more interrupted, stating the officer’s training and what occurred beyond the initial stop concerned questions of fact for the jury. Although defense counsel vehemently objected, he did not make a proffer “of other evidence he wanted to adduce during the cross-examination.”

The Right to a Cross-Examination 

The motion to suppress was denied and the defendant was subsequently convicted following a jury trial. On appeal, the defendant argued, in part, that the court abused its discretion when it cut off his counsel’s cross-examination during the suppression hearing. He stated that he was entitled to a “full and fair cross-examination of the state’s sole witness,” and the court’s action constituted a deprivation of his Sixth Amendment protections.

The right of confrontation is a cornerstone principle of the Sixth Amendment of the U.S. Constitution. A criminal defendant has a right to cross-examination, which “requires that the defendant be allowed to present the [fact finder] with facts from which it could appropriately draw inferences relating to the witness’ reliability.” In other words, during cross-examination, the defendant has the opportunity through counsel to expose a witness’ motive, interest, bias, or prejudice.

However, a defendant is not permitted to present “every piece of evidence he wishes,” and courts generally have considerable discretion in controlling matters discussed during cross-examination. When a defendant claims a violation of his right to cross-examine, a reviewing court will consider: “The nature of the excluded inquiry, whether the field of inquiry was adequately covered by other questions that were allowed, and the overall quality of the cross-examination viewed in relation to the issues actually litigated at trial.”

The Court’s Decision

In this case, the Appellate Court of Connecticut agreed that the court erred in determining that what happened after the initial traffic stop was a question for the jury and thus outside the scope of the suppression hearing. Nonetheless, it found that the court did not abuse its discretion because the officer’s training was not relevant and the defense counsel proffered no other evidence he sought to discuss during cross-examination.

In addition, counsel had ample opportunity at trial to extensively cross-examine the officer, but “nothing in it… could have affected the validity of the court’s ultimate ruling on the motion to suppress.” Because the evidence of the officer’s training was not relevant, the defendant’s confrontations rights were not violated. Therefore, the lower court properly excluded the evidence.

Written by Lindsay E. Raber, Esq.

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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, CT office at 203-221-3100 or at JMaya@Mayalaw.com.

State Supreme Court Addresses Whether DMV License Suspensions Constitute “Convictions” That Bar Subsequent OMVUI Prosecutions

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In a criminal law matter, the Supreme Court of Connecticut upheld a lower court’s ruling that an administrative license suspension does not constitute a “conviction” under our statutes for purposes of double jeopardy protections.

Case Background

This case arose from an incident that occurred on January 13, 2006. Police officers pulled over the defendant under suspicion that he was driving under the influence, and arrested him after he failed several field sobriety tests. The defendant was charged with operating a motor vehicle while under the influence (OMVUI) in violation of Connecticut General Statutes (CGS) § 14-227a. The Department of Motor Vehicles held an administrative hearing and the hearing officer ordered that the defendant’s driver’s license be suspended for ten months.

The defendant moved to dismiss all charges against him. He argued that “he already had been ‘convicted’ of the same offense in the administrative proceedings,” so to prosecute him for OMVUI would amount to double jeopardy in violation of state and federal constitutional protections. The trial court denied his motion, stating that an administrative license suspension under CGS § 14-227b was not a punishment, thus the defendant’s rights against double jeopardy were not violated by subsequent prosecution for OMVUI. The defendant entered a conditional plea of nolo contendere before promptly appealing his conviction.

Double Jeopardy Protections

The Fifth Amendment of the U.S. Constitution states, “No person shall… be subject for the same offense to be twice put in jeopardy of life or limb.” Double jeopardy, as it is commonly referred to, encompasses several protections, including against “a second prosecution for the same offense after conviction.” Connecticut does not have an explicit comparable statute, though double jeopardy protections are implicit through our due process statutes.

Our courts have determined that civil or administrative sanctions that serve “a legitimate remedial purpose” and are “rationally related to that purpose” do not constitute double jeopardy violations, even if the sanction has an attendant deterrent or retributive effect. In essence, “prosecutions or convictions for double jeopardy purposes arise only from proceedings that are essentially criminal.”

The Court’s Decision

In this case, the Supreme Court reviewed cases under which administrative hearings were found “sufficiently remedial” so as to not bar subsequent prosecution. In looking into the legislative history of CGS § 14-227b, the Court noted that the “principle purpose [of the statute] was to protect the public by removing potentially dangerous drivers from the state’s roadways.” License suspension hearings subsequent to OMVUI arrests facilitate that purpose.

Additionally, the language of CGS §§ 14-227b and 14-1 (21), which defines “conviction,” do not reveal an intent that “an administrative suspension forecloses future criminal proceedings against the defendant for the same offense.” The Supreme Court was thus not persuaded by the defendant’s argument that the suspension was a criminal “conviction” that would bar an OMVUI prosecution, and the judgment was affirmed.

Written by Lindsay E. Raber, Esq.

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When faced with a charge of operating a motor vehicle while intoxicated (a.k.a. driving under the influence) or license suspension, 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.

DMV License Suspension Hearings Are Limited in Scope, State Appellate Court Rejects Plaintiff’s Evidentiary Claim

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In a criminal law matter, the Appellate Court of Connecticut considered whether lack of recertification by an officer administering chemical analysis tests following a DUI arrest renders, as invalid, a hearing officer’s conclusions based on the results of these tests.

Case Details

This case arose from an incident that occurred on November 1, 2008. The plaintiff was arrested and charged with operating a motor vehicle while under the influence in violation of General Statutes § 14-227a. The Department of Motor Vehicles (DMV) held an administrative hearing, where two chemical analysis tests, which revealed a blood alcohol content more than twice the statutory limit, were admitted along with other evidence. After considering four statutory criteria, the DMV commissioner ordered that plaintiff’s driver’s license be suspended for a period of ten months, as well as a lifetime disqualification from operating a commercial motor vehicle.

The plaintiff appealed, arguing that the test results were inadmissible because the police officer who administered the tests “had failed to undergo a review of his proficiency in the operation of the breath test device within twelve months since his last review,” which took place in August, 2006. The court was not persuaded and dismissed the plaintiff’s appeal, and the plaintiff appealed once more.

Suspending a Driver’s License

When a DMV hearing officer considers a request to suspend a driver’s license, he or she is limited to four statutory criteria set forth in General Statute § 14-227b(g). The officer will consider whether the driver in question operated the motor vehicle and either refused or consented to a test or analysis within two hours of the operation, and if the results indicated an elevated blood alcohol content.

In addition, the officer must establish whether probable cause to arrest for operating a motor vehicle while under the influence existed, and if the driver was arrested. No other evidence will be considered for purposes of this administrative hearing. In a prior case, the State Supreme Court found that “lack of recertification as required by the regulations does not prevent the commissioner’s consideration of and reliance on the officer’s report.” Since this was the grounds for appeal by the plaintiff, the Appellate Court affirmed judgment.

Written by Lindsay E. Raber, Esq.

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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.

In Case Involving Lifetime Suspension of DUI Suspect’s Commercial Driver’s License, Hearing Officer Properly Applied Statutory Dictates

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Last April, the Appellate Court of Connecticut affirmed judgment dismissing a plaintiff’s appeal from the decision of the Department of Motor Vehicles (DMV) to suspend his commercial driver’s license (commercial license) for life.

Case Background

In this case, the plaintiff’s license was previously suspended in 2005 for six months pursuant to Connecticut General Statutes (CGS) § 14-227b after he refused to submit to a breathalyzer test. He thereafter obtained a commercial license in 2009. On March 28, 2010, the plaintiff was involved in an automobile accident. He failed several field sobriety tests, and two breathalyzer tests yielded results of 0.182 and 0.176, more than twice the legal limit.

Therefore, the plaintiff was charged with operating a motor vehicle while under the influence (OMVUI) in violation of CGS § 14-227a. The DMV held a suspension hearing, where over objection of plaintiff’s counsel the court admitted a case/incident report prepared by the arresting police officer as well as an A-44 form, which is used in reporting OMVUI-related arrests. After making four statutory findings, the hearing officer suspended the plaintiff’s license for ten months and imposed a lifetime suspension on his commercial license.

The Appeal

The plaintiff appealed to the Superior Court, who dismissed the appeal. The plaintiff sought remedy with the Appellate Court, stating that the hearing officer erroneously admitted the A-44 form into evidence. He argued that the A-44 form did not disclose the implications of refusing or taking a chemical alcohol test as it related to his commercial license. In addition, the plaintiff contended that under CGS § 14-44k(h), the lifetime suspension of his commercial license was improper because “this statutory requirement does not apply… because he had not obtained a commercial driver’s license at the time of his first license suspension.”

Suspension Hearing Questions

Under CGS § 14-227b(g), a hearing officer must make findings of fact related to the following four inquiries: 1) whether the police officer had probable cause to arrest a person for OMVUI; 2) whether the person was arrested; 3) whether the person refused or consented to take a chemical alcohol test (with additional inquiries if consent existed); and 4) whether the person operated a motor vehicle. The Supreme Court of Connecticut has held that these are the only dispositive questions at a suspension hearing. In light of legislative intent, “[W]hether an operator was warned of the consequences of refusing to submit to chemical tests is not made one of the issues to be adjudicated.”

In this case, it was immaterial that the plaintiff did not receive warnings regarding what would happen if he refused or consented to the breathalyzer test as it related to his commercial license. As such, the Appellate Court found that the plaintiff did not suffer prejudice by the A-44 form’s entry into evidence.

Driver’s License Suspension

CGS § 14-44k(h) dictates the circumstances under which a person’s commercial license may be suspended. In reviewing the language of the statute, the Appellate Court noted the distinct lack of “language limiting application [of the statute] to suspensions ordered after [a] person has obtained a commercial driver’s license.” Therefore, if a person is twice charged with OMVUI, his commercial license may be suspended for life, though reinstatement is possible.

The purpose of this statute is to further promote the legislature’s goal of protecting the public on our highways from “potentially dangerous drivers,” such as OMVUI offenders. In this case, the Appellate Court found that adopting the plaintiff’s interpretation of § 14-44k(h) would frustrate this purpose, and statute “means what is says” and was unambiguous. Therefore, the judgment was affirmed.

Written by Lindsay E. Raber, Esq.

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When faced with a charge of operating a motor vehicle while intoxicated (a.k.a. driving under the influence) or license suspension, 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.

An Illustration: Eligibility for the Pretrial Alcohol Education Program

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Connecticut Pretrial Alcohol Education Program

Connecticut provides individuals charged with operating a motor vehicle while under the influence (OMVUI), and a very limited number of other crimes, the opportunity to take part in a pretrial alcohol education program. The requirements of this program are set forth in Connecticut General Statutes (CGS) § 54-56g. Criminal defendants seek participation in hopes that should they successfully complete the program, they can have their charges dismissed.

However, entry is not guaranteed: in the case where a defendant is charged with OMVUI, eligibility requires that “such person has not been convicted in any other state at any time of an offense the essential elements of which are substantially the same as” either the behavioral or per se violations of our OMVUI statute, CGS § 14-227a.

What qualifies as an OMVUI?

To illustrate, in a recent criminal law matter, a defendant was charged in Connecticut with OMVUI and sought participation in the pretrial alcohol education program. The essential elements of OMVUI under CGS § 14-227a(a)(1) are “(1) operation of a (2) motor vehicle (3) while under the influence of alcohol or drugs.” However, the defendant was previously convicted of violating New York Vehicle & Traffic Law § 1192.03, which prohibits “(1) operation of a (2) motor vehicle (3) while in an intoxicated condition.”

As one can readily see, the required elements of these two crimes are substantially the same. Therefore, the defendant was denied eligibility because he was previously convicted of a New York offense that was substantially similar to the crime of OMVUI in Connecticut.

Written by Lindsay E. Raber, Esq.

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When faced with a charge of operating a motor vehicle while intoxicated (a.k.a. driving under the influence) or license suspension, 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.

Superior Court Denies Motion to Dismiss, Tape Recording of DUI Suspect’s Phone Call to Attorney Was Not Prejudicial State Intrusion

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In a criminal law matter, a Superior Court of Connecticut determined that the recording of a one-sided conversation between the defendant and his attorney was not a prejudicial intrusion into attorney-client protections, and as such the Court denied the defendant’s motion to dismiss.

Case Background

This case arose from an incident that occurred on the evening of March 25, 2010. A police officer on route patrol observed the defendant driving his motor vehicle on the Berlin Turnpike in Wethersfield, CT. The officer suspected that the defendant was driving under the influence, so he initiated a traffic stop and administered several field sobriety tests. The defendant was arrested for operating a motor vehicle while under the influence (OMVUI) in violation of General Statutes § 14-227a, advised of his Miranda rights, and transported to the police station.

The defendant was placed in a booking room specific to OMVUI cases. Pursuant to its own policy, the department records everything that goes on in this room. As the officer in this case later testified, “[U]ntil the processing is complete, police policy requires the officer to keep visual observation of the defendant ‘so they don’t put anything in their mouth.’”

The officer gave the defendant a notice of rights, which included information about the results of or the refusal to submit to a chemical alcohol test, and stated the defendant could contact an attorney. The defendant made telephone contact with an attorney, and police recorded the defendant’s side of this conversation, which at times was either muffled or inaudible.

The Sixth Amendment

After the phone call was completed, the defendant refused to take the Breathalyzer test. The officer did not use the contents of the tape in his investigation, nor did it influence the charges brought against the defendant. In addition, upon learning of the tape’s existence, the prosecutor advised defense counsel that the State also would not use it; indeed, the tape was not introduced into evidence. However, the defendant moved to dismiss the case, arguing that his Sixth Amendment rights were violated because the tape recording constituted an impermissible State invasion of the attorney-client relationship.

Under the Sixth Amendment, any communication between an attorney and his client “made in confidence for the purpose of seeking legal advice” is protected by the attorney client privilege. However, this is no reasonable expectation of confidentiality if the statements are made in the presence of a third party. Therefore, a reviewing court must consider whether or not an invasion by the State into this privilege was “so prejudicial to warrant dismissal of the charges.”

There is a rebuttable presumption of prejudice, which can be overcome if the prosecutor presents clear and convincing evidence that the intrusion was not prejudicial to the outcome of the case. In an opinion, the Supreme Court of Connecticut admitted that the Sixth Amendment is automatically violated where there is “mere unintentional intrusion into privileged information containing trial strategy.”

The Court’s Decision

In this case, the Superior Court reviewed the content of the one-sided phone call and determined that there was nothing of strategic value discussed, such as the credibility of trial witnesses, potential evidence, what to focus on during witness examinations, or specific arguments or defenses. Rather, from the conversation we learn that the defendant was concerned with his probation status, whether to take the Breathalyzer test, the implications of a refusal, and his wife’s reaction to the arrest. Therefore, the Court found the defendant was not prejudiced by the State intrusion and denied his motion to dismiss.

Written by Lindsay E. Raber, Esq.

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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.

Court’s Limiting Instruction Minimized Prejudicial Impact of Contested Evidence

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In a criminal law matter, the Appellate Court of Connecticut rejected a defendant’s claims of improperly-admitted evidence and prosecutorial impropriety, following his conviction in a DUI-related case. The defendant’s first claim is discussed in this article.

Case Background

This case arose from an incident that occurred on July 3 and 4, 2006. Officers initiated a traffic stop after observing the defendant driving erratically, and after personal interaction they determined the defendant was highly intoxicated. They placed him under arrest for operating a motor vehicle while under the influence (OMVUI) of alcohol in violation of Connecticut General Statutes (CGS) § 14-227a. The officers also arranged for the defendant’s truck to be towed. During the booking process, officers learned that the defendant’s driver’s license was suspended at the time of the traffic stop.

Therefore, they charged him with operating a motor vehicle with a suspended license (OMVSL) in violation of CGS § 14-215. The following morning, an officer saw the defendant being driven to the tow truck company that had towed the defendant’s truck the previous night. There, the officer observed the defendant driving his truck from the parking lot exit, so he initiated a traffic stop and issued a summons for OMVSL.

The Trial

At trial, the State sought to include redacted versions of the two suspension notices, but defense counsel objected. Citing un-redacted portions that showed duration of the suspensions, counsel argued, “[A]ny reasonable person would infer from the blacked out [portion] that the suspension notice [was] alcohol related, and… that would be unduly prejudicial for [the defendant].” The court overruled the objection, stating the argument involved mere speculation. The court later gave a limiting instruction to the jury that they were not to speculate as to the reasons for the instructions; rather, the suspension notices were only being used by the State to allege that the defendant was under suspension.

The defendant was convicted on all counts, and after sentencing he filed an appeal. He argued, in part, that the probative value of the suspension notices was outweighed by their prejudicial impact. He argued that inclusion of the notices would lead the jury to believe he was a “chronic drunk driver,” which would be highly prejudicial to the present case.

The Court’s Decision

The trial court has discretion to determine whether the probative value of evidence is outweighed by its prejudicial impact. Such findings are reversed only upon the showing of an abuse of discretion or manifest injustice. In this case, the Appellate Court determined that the notices were relevant because they tended to prove that the defendant’s license was suspended on July 3 and 4, 2006. The defendant failed to provide any compelling basis to indicate they were unduly prejudicial.

Assuming, for the sake of argument, that their admission into evidence was unduly prejudicial, the limiting instruction given by the court lessened or even eliminated any adverse impact on the outcome of the trial. Therefore, the court did not abuse its discretion by allowing the notices into evidence.

Written by Lindsay E. Raber, Esq.

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When faced with a charge of operating a motor vehicle while intoxicated (a.k.a. driving under the influence) or license suspension, 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.