Posts tagged with "§ 14-227a(a)(2)"

In Light of Recently Decided Precedent Regarding Breath Tests, Court Affirms Judgment in Pending DUI Appeal

In a criminal law matter, the Appellate Court of Connecticut considered whether a court improperly denied a defendant’s motions in limine to exclude toxicology evidence that he argued did not comply with statutory requirements.

Case Background

This case arose from an incident that occurred after midnight on July 10, 2004. The defendant was driving his vehicle on the Merritt Parkway when he drove off the Exit 38 off-ramp and hit multiple trees before coming to a stop. A Norwalk police officer arrived and observed the defendant outside the vehicle, but the defendant denied that he was the driver. Soon thereafter, a state trooper arrived and made the following observations of the defendant: the smell of alcohol, red glassy eyes, and a cut on his hand and lip. He concluded that the defendant was the driver, and administered field sobriety tests, which the defendant failed.

The defendant was brought to the state police barracks in Bridgeport and asked when he started to drink. He responded he consumed four beers at a restaurant in Stamford beginning at 10pm the night before and stopped drinking after the accident occurred. He additionally noted that he did not have anything to eat since breakfast the morning before. The defendant submitted to two breath tests on the Intoxilyzer 5000 machine, which resulted in blood alcohol content readings of 0.225 and 0.209, both more than two-and-a-half times the legal limit.

The Charges

The defendant was charged with operating a motor vehicle with an elevated blood alcohol content, which violated Connecticut General Statutes (CGS) § 14-227a(a)(2). Before trial, he submitted several motions in limine exclude the Intoxilyzer results, claiming that the tests “did not comply with state regulations in force at the time of the incident.” The court denied the motion, noting that the breath tests performed in this case were in compliance. The defendant plead nolo contendere (no contest), and after sentencing he appealed his conviction. He argued that the court improperly denied his motion because “the apparatus reports blood alcohol content in terms of weight per volume percent and not a weight per weight percent.”

Admissibility of Chemical Analysis Evidence

After the defendant’s initial brief was submitted, but prior to adjudication of this appeal, the Appellate Court published its decision in State v. Pilotti, 99 Conn. App. 563 (2007). In Pilotti, the facts were substantially the same and the defendant made the same argument as presented in the case at bar. The Pilotti Court noted that the legislature intended to include breath testing under CGS § 14-227a(b), not just blood testing, and further wrote:

[CGS] § 14-227a(b) requires the state to establish as a foundation for the admissibility of chemical analysis evidence that the test was performed with equipment approved by the department of public safety. It does not require … that the device satisfy the criteria set forth in the regulations.

In other words, evidence will not be deemed inadmissible where “testing that complies with the regulatory requirements is deemed to be competent evidence.” Thus, in the case at bar, the Appellate Court found that Pilotti was controlling, and because this case was nearly identical, it held that use of the Intoxilyzer 5000 machine satisfied the statutory requirements of CGS § 14-227a(b).

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) 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.

Petitioner’s Blood Properly Drawn Pursuant to Statutory Dictates Following DUI-Related Accident

In a criminal law matter, a Superior Court of Connecticut denied a petitioner’s request for a writ of habeas corpus, unconvinced by any of his claims of ineffective assistance of counsel.

Case Background

This case arose from an incident that occurred on December 24, 2007. The petitioner fled from police in his motor vehicle, and during the pursuit he struck and officer’s cruiser multiple times. Police were able to bring his car to a stop, through despite repeated exit commands, the petitioner refused to do so. Officers subdued him using a taser, then removed and placed him into the back of a cruiser. Because the petitioner continued to act erratically and vomited, police decided that he needed medical attention, so they transported him to Yale-New Haven Hospital.

At the hospital, in order to perform medical tests, a doctor (treating doctor) drew some of the petitioner’s blood. Police sought and obtained a warrant for this blood so they could determine whether the petitioner’s blood alcohol content exceeded the legal limit. Indeed it did, and the results were used in the subsequent criminal case.

The Charges

The petitioner was charged with operating a motor vehicle while having an elevated blood alcohol content in violation of General Statutes § 14-227a(a)(2), among other charges. At trial, the treating doctor testified that he ordered testing of the petitioner’s blood because he had been in a motor vehicle accident and taser afterward. According to the doctor, “the blood tests performed were the standard set if there was concern about neurological injury from trauma.” In addition, the officers testified that they did not play any role in ordering that the petitioner’s blood be drawn.

The petitioner was convicted on all counts, and thereafter submitted a pro se petition for a writ of habeas corpus. He put forth multiple claims alleging ineffective assistance of counsel, on one ground that his defense counsel did not present evidence – medical records, in particular – of the petitioner’s medical condition on the day the police chase occurred. As the Superior Court later discerned, the petitioner sought to establish that had his attorney submitted such evidence, the jury would have seen that the petitioner was not actually injured, thus negating the hospital’s basis to treat him and draw his blood.

The Court’s Decision

General Statutes § 14-227a(k) dictates when a blood sample may be taken for purposes of establishing probable cause to arrest for a violation of § 14-227a. The most relevant language, as it pertains to this case, is “an operator of a motor vehicle involved in an accident who has suffered or allegedly suffered physical injury in such accident.” (Emphasis added in case.) Other Connecticut cases have found that there is no distinction between whether the accident was intentional or unintentional. In this case, the Superior Court was not persuaded by the petitioner’s argument.

The evidence clearly showed that he operated a motor vehicle involved in an accident, the blood was drawn pursuant to the dictates of § 14-227a(k), and it did not matter whether the accident was intentional or unintentional. After considering and rejecting the petitioner’s other claims of ineffective assistance of counsel, the Superior Court denied his petition for a writ of habeas corpus.

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.

Written by Lindsay E. Raber, Esq.

Plaintiffs Contend Intoxilyzer Results Do Not Comply With Connecticut Statutes, but State DMV and Superior Court Disagree Leave a reply

In a criminal law matter, a Superior Court of Connecticut dismissed the appeals of four plaintiffs who were challenging their license suspensions, unconvinced that a device used to measure blood alcohol content (BAC) did not comply with statutory regulations.

Case Background 

In this case, the plaintiffs submitted to BAC tests administered using an Intoxilyzer machine and each had readings over the legal limit of 0.08. As such, they were charged with operating a motor vehicle with an elevated BAC in violation of General Statutes § 14-227a(a)(2), a per se statute. The Department of Motor Vehicles (DMV) suspended their licenses and the plaintiffs appealed, contesting the validity of the Intoxilyzer results. A hearing was held before the court, and the appeals were remanded to the DMV Commissioner.

During the remand hearing, the hearing officer found that the Intoxilyzer measures the amount of alcohol present on a person’s breath on a “weight-per-volume basis.” The machine itself does not have the ability to convert this number to a “weight-by-weight” figure, though this can be accomplished through extrapolation. The appeals were dismissed, and the plaintiffs appealed to the Superior Court. They argued that § 14-227b(o) of the per se statute requires that BAC be measured by weight in the context of administrative license suspension, and because the Intoxilyzer instead measures BAC by volume, the results were not valid.

BAC Measurement

Under § 14-227a(d), the Connecticut legislature clearly envisioned that a person’s BAC could be measured by breath. Indeed, the Superior Court reviewed case precedent which “implicitly approved” Intoxilyzers and held that a BAC measurement from breath is “an ‘equivalent’ of the blood alcohol content measure of blood.” These cases prompted the legislature to amend the criminal regulations “to permit equivalent measurements of [BAC] by the Intoxilyzer.” By extension, the per se regulations permit equivalent measurements because “the per se regulations piggyback on the criminal regulations.” Therefore, the Superior Court dismissed the plaintiffs’ appeals.

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.

Written by Lindsay E. Raber, Esq.

Defendant’s Double Jeopardy Protections Violated When Charged With and Convicted Under Both Subsections of State DUI Statute

In a criminal law matter, the Appellate Court of Connecticut reversed, in part, a defendant’s conviction of operating a motor vehicle while under the influence (OMVUI) under both General Statutes §§ 14-227a(a)(1) and (2).

Case Background

This case arose from an incident that occurred on April 6, 2005. The defendant was involved in a car accident that resulted in one fatality. He was charged and convicted of four counts: second degree manslaughter with a motor vehicle, second degree manslaughter, OMVUI in violation of § 14-227a(a)(1), and OMVUI in violation of § 14-227a(a)(2). The defendant appealed his conviction, claiming a violation of his protection against double jeopardy.

Double Jeopardy

Under the Fifth Amendment to the U.S. Constitution, criminal defendants cannot receive two punishments for two crimes, which he asserts to be a single crime, arising from the same transaction and prosecuted in a single trial. To be entitled to this protection, a criminal defendant must show that the charges arise from the same act or transaction and that the charged crimes are, in fact, the same offense.

In reviewing a defendant’s double jeopardy claim, a court will use the Blockburger test to determine whether one criminal statute has an element of proof that the other does not. Blockburger v. U.S., 284 U.S. 299 (1932). However, the protection against double jeopardy is not absolute where the legislature intended cumulative punishment under two statutes, and this intent is articulated either on the face of the statute or through legislative history.

The Court’s Findings

In this case, the Appellate Court did not agree that the defendant’s protections against double jeopardy were violated with respect to the manslaughter charges. The Court noted that each offense required proof of an element the other did not have, “namely, being under the influence of alcohol in count one and reckless conduct in count two.” The Court was not persuaded that driving under the influence is similar to reckless conduct, and noted that the legislature intended that defendants could be charged with and convicted of both of these crimes.

However, the Court agreed, and the State conceded, that the defendant’s constitutional rights were violated by the two OMVUI counts. Even though each had an element of proof the other did not – operation under the influence and an elevated blood alcohol content – it was not the legislature’s intent for a defendant to be charged with both in the same case. The two subsections of § 14-227a(a) are meant to be “alternative means of committing the same offense” and provide for “different methods of proof.” The legislature clearly indicated a defendant could not be punished under both subsections.

The Appellate Court concluded that the defendant’s double jeopardy protection was violated with respect to the OMVUI counts. Therefore, it reversed and remanded the case and instructed the trial court to combine these into a single OMVUI count and resentence the defendant accordingly. The judgment was otherwise affirmed.

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.

Because Curative Instructions were Properly Administered, Defendant Did Not Suffer Harmful Error in Her DUI Conviction

In a criminal law matter, the Appellate Court of Connecticut considered rejected a defendant’s claims that there was insufficient evidence to convict her of DUI, and that she was harmed by an improper limiting instruction.

Case Background

This case arose from an incident that occurred on August 17, 2005. A state police trooper observed the defendant’s vehicle weaving and leaving the traffic lane three times along Route 8 in Trumbull, so he conducted a traffic stop. The trooper noticed the defendant had bloodshot eyes and detected the strong odor of alcohol, and the defendant stated she had two glasses of wine at a restaurant in Fairfield.

The trooper administered three field sobriety tests, all of which the defendant failed, so she was placed under arrest and brought to state police barracks. During questioning, the defendant stated she had two vodka drinks at a restaurant in Bridgeport. She submitted to an Intoxilyzer test twice, which reported a blood alcohol content (BAC) of 0.159 and 0.143, both of which were above the legal limit of 0.08.

The Charges

The defendant was charged with violating General Statutes §§ 14-227a(a)(1) and (2): operation of a motor vehicle while under the influence (OMVUI) of an intoxicating liquor and while having an elevated blood alcohol content. At trial, the director of controlled substances in the toxicology laboratory for the Department of Public Safety extrapolated the defendant’s BAC to 0.185 at the time she was operating her car.

The court instructed the jury that the chemical test results could not be considered as evidence of the defendant’s guilt with respect to the behavioral count. “That evidence was offered for a limited purpose only and is admissible only with respect to the allegations contained in [the per se count] of the information.” The jury convicted the defendant and she appealed, arguing insufficiency of the evidence to convict, and that the jury impermissibly considered the toxicologist’s testimony “regarding the result of the Intoxylizer tests” in deciding upon the behavioral count.

Evidentiary Impropriety

When a reviewing court considers a claim of “evidentiary impropriety,” if the issue affects a constitutional right, the state must prove the error was harmless beyond a reasonable doubt. However, if the purported improper ruling is not constitutional in nature, the defendant must prove that the error was harmful. In cases, such as this one, where the defendant is charged under both subsections of § 14-227a(a), “appropriate limiting instructions regarding the use of chemical analysis serve as the proper safeguard.” Thus, if a defendant does not show evidence indicating otherwise, a jury presumably followed the curative instructions given by the trial court.

The Court’s Decision

In this case, the Appellate Court found that the defendant did not prove that the jury failed to follow the court’s limiting instruction. Therefore, she failed her burden in establishing harmful error. In addition, the Court agreed that there was plenty of evidence to establish guilt beyond a reasonable doubt with respect to the OMVUI charge. It noted the defendant’s appearance on the scene, the failed field sobriety tests, as well as the inconsistent stories she provided. Therefore, the Appellate Court affirmed judgment.

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.