Posts tagged with "BAC"

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

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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.

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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.

Written by Lindsay E. Raber, Esq.

In Light of Unreliable Chemical Test Results, Appeals Court Adjudicates DUI License Suspension Matter

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In a criminal law matter, the Appellate Court of Connecticut considered whether a hearing officer properly found that a plaintiff operated her motor vehicle with an elevated blood alcohol content (BAC), despite questions of chemical test reliability.

Case Details

This case arose from an incident that occurred on the afternoon of August 31, 2007. The plaintiff was arrested for operating a motor vehicle while under the influence (OMVUI) in violation of General Statutes § 14-227a. After failing multiple field sobriety tests, the plaintiff was transported to a police station and submitted two chemical alcohol tests. The results of these tests, taken over thirty minutes apart, both resulted in BAC readings of 0.30. In addition, the calibration tests yielded identical readings of 0.096.

The Department of Motor Vehicle (DMV) subsequently suspended the plaintiff’s license for two years and six months, a heightened penalty because her license was previously suspended twice. The plaintiff requested an administrative hearing, and after making various statutory findings, the hearing officer suspended the license for two and a half years. The plaintiff filed a petition for reconsideration based on “newly discovered evidence” that cast doubt as to the validity of the test results: a toxicologist with the Department of Public Safety (DPS) was concerned about the identical calibration readings and BAC results.

Reliability of Toxicology Tests

The petition was granted, and a second administrative hearing was held. The plaintiff submitted a letter from the DPS toxicologist, in which he wrote that the identical readings were unusual and “raise[d] my question as to what on Earth is going on here.” As such, he could not characterize the results as reliable. Regardless, the hearing officer made the requisite statutory findings and ordered that the plaintiff’s license be suspended for two years. The plaintiff appealed to the Superior Court, arguing that “the hearing officer cannot make a determination as to [BAC] independent of the test results.” The Court agreed and sustained the appeal, and the DMV Commissioner appealed.

The DMV Commissioner first argued that despite the toxicologist’s testimony regarding the unreliability of the chemical tests, the hearing officer’s finding that the plaintiff operated a motor vehicle with an elevated BAC was proper. He cited the “statutory rebuttable presumption” that the results of a chemical test are “sufficient to indicate the ratio of alcohol in the blood of such person… at the time of operation.” In the alternative, the DMV Commissioner argued that a hearing officer may find a BAC above the legal limit of 0.08, independent of the chemical alcohol tests, solely on the basis of extrinsic evidence presented at the hearing.

Under General Statutes § 14-227b(i)(3), the DMV will suspend an operator’s license for a period of two and a half years if he or she has two or more previous suspensions. However, in this case, the hearing officer deviated from the statute and instead imposed a two-year suspension. To the Appellate Court, this indicated that the officer concurred with the toxicologist that the test results were not reliable. As such, the DMV Commissioner’s first argument failed.

The Court’s Decision

The Appellate Court acknowledged that hearing officers may rely on the rebuttable presumption despite conflicting expert testimony. To determine whether or not a driver had an elevated BAC under the third criterion of General Statutes § 14-227b(g), a hearing officer may consider the record as a whole, not just the test results. However, the Appellate Court found, given their conclusion that the hearing officer “did not find the test results to be accurate,” that additional evidence submitted at the hearing did not provide a foundation of reliability for the test results. Therefore, the Appellate Court found that the Superior Court properly upheld the appeal, and as such the judgment was affirmed.

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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.

Written by Lindsay E. Raber, Esq.

Superior Court Denies Defendant’s Motions to Suppress Confession, Citing Sufficient, Independent Corroborating Proof

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In a criminal law matter, a Superior Court of Connecticut considered a defendant’s motions to suppress a confession and evidence arguing insufficiency of the evidence to establish that he was the driver a DUI-related incident.

Case Details

This case arose from an incident that occurred after midnight on January 16, 2009. While responding to a two-car accident in front of Foxwoods Casino, a state trooper came across a one-car accident along the away. The defendant was walking around the car and appeared confused and dazed. No one else was in the vicinity besides other vehicles passing by.

The trooper noticed that the defendant smelled of alcohol, had bloodshot glassy eyes, and was unsteady on his feet. The defendant stated he was the driver of the vehicle, and explained that while driving, an oncoming car crossed into his lane. To avoid a head-on collision, the defendant swerved off the road and hit a rock. He admitted to consuming seven glasses of wine while at Foxwoods.

The trooper observed that the defendant’s car was steaming and hissing, indicating the accident had recently occurred. There was heavy front-end damage, as well as debris next to a large rock along the side of the road, consistent with the damage to the car. The trooper conducted field sobriety tests, all of which the defendant failed. The defendant was placed under arrest and brought to the state trooper barracks, where he underwent blood alcohol tests at 12:58am and 1:50am. The defendant registered a blood alcohol content (BAC) of .135 and .121, respectively, both above the legal limit of 0.08.

The Charges

The defendant was charged with operation of a motor vehicle while under the influence (OMVUI) in violation of § 14-227a. He filed a motion to suppress his confession that he was the driver, as well as a motion to suppress the results of the field sobriety and blood alcohol tests administered to him after the accident. The defendant argued that there was insufficient corroborative evidence to establish that he operated the car, meaning his confession was inadmissible. In addition, he argued that the State did not present evidence to establish the blood alcohol tests were administered within the two-hour statutory window after operation.

When a defendant makes a “naked extrajudicial confession of guilt,” this on its own is not sufficient to sustain a criminal conviction unless supported by corroborative evidence. Such evidence need not be direct evidence, but may be circumstantial in nature as well. If, however, the crime charged does not involve a specific harm, loss, or injury, such as OMVUI, it “is [only] necessary … to require the Government to introduce substantial independent evidence which would tend to establish the trustworthiness of the [defendant’s] statement.” Finally, chemical tests measuring BAC must be taken within two hours after operation of the motor vehicle occurs.

The Court’s Decision

In this case, the Superior Court found sufficient independent proof, in the form of the trooper’s observations, to corroborate the truthfulness of the defendant’s assertion that he was the driver of the vehicle. In addition, the evidence supported the conclusion that the accident happened very recently: as the court wrote, “the accident could not have gone undetected for any substantial length of time.” In addition, since the trooper did not start his shift until 12:00am, and the second chemical blood alcohol test was administered at 1:50am, it was proper to conclude that the tests were taken prior to the expiration of the two-hour statutory window.

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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.

Written by Lindsay E. Raber, Esq.

Administrative Decision to Suspend Plaintiff’s License After DUI Arrest Upheld

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Last February, a Superior Court of Connecticut dismissed a plaintiff’s appeal of an administrative decision to suspend his license, despite his assertion that the breath test readings were inaccurate.

Case Background

This case arose from an incident that occurred on May 8, 2010. Police observed the plaintiff revving the engine of his car and then traveling at a high rate of speed down a public road. After police initiated a traffic stop, he admitted that he drank two beers at a bar. The officer observed the “strong distinct odor of an alcoholic beverage” and the plaintiff’s bloodshot, glassy eyes. The plaintiff failed three field sobriety tests and was then arrested. At the police station, he agreed to submit to breath tests, which returned blood alcohol content (BAC) readings of 0.206 and 0.135.

The police notified the Department of Motor Vehicles (DMV), who held an administrative hearing to determine whether to suspend the plaintiff’s license. An expert witness for the plaintiff testified that the BAC readings might be unreliable because the machine’s gas calibration readings were above the acceptable level of 0.105. Nonetheless, the hearing officer found that the police arrested the plaintiff while he was operating under the influence and that the Intoxilyzer machine was working properly at the time of the plaintiff’s tests. He ordered that the plaintiff’s license be suspended for ten months.

The Appeal

The plaintiff appealed this decision to the Superior Court, which ordered the DMV to hold another hearing regarding the reliability of the Intoxilyzer used on the night of the plaintiff’s arrest. After additional testimony, the hearing officer made the same findings, and credited the State toxicologist’s conclusion that the machine was properly working. The State toxicologist stated that these higher-end readings simply indicated that the gas canister needed to be replaced, but that this did not impact the subsequent BAC readings from the plaintiff’s tests. The hearing officer again suspended the plaintiff’s license for ten months, and the plaintiff appealed this decision, claiming he was not adequately tested.

When a court reviews the rulings of an administrative agency, it is guided by the Uniform Administrative Procedure Act (UAPA). The court must determine whether the agency issued an order that was unreasonable, arbitrary, illegal, or which constituted an abuse of discretion. Pursuant to the substantial evidence rule of UAPA, administrative findings are upheld so long as the record “affords a substantial basis of fact from which the fact in issue can be reasonably inferred.” It is the plaintiff’s burden to prove “that substantial rights possessed by him were prejudiced because the administrative decision was clearly erroneous in view of the reliable, probative and substantial evidence on the whole record.”

The Court’s Decision

In this case, the Superior Court rejected the plaintiff’s claim of inadequate testing. It found that under the substantial evidence rule, the hearing officer made an appropriate determination that the intoxilyzer readings were accurate. In addition, the plaintiff did not provide any evidence that his own BAC readings were affected by the higher-range calibration readings. Therefore, the appeal was dismissed.

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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.

Written by Lindsay E. Raber, Esq.

Appellate Court Upholds Admission of Expert Testimony Used to Refute Defendant’s Claimed Amount of Alcohol Consumed

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In a criminal law matter, the Appellate Court of Connecticut considered the admissibility of a State toxicologist’s testimony regarding the amount of alcohol the defendant had to have consumed to reach a blood alcohol content (BAC) level above the legal limit.

Case Details

This case arose from an incident that occurred after midnight on July 29, 2004. A Greenwich police officer was on duty when he heard the defendant’s car screech off the road and watched as it swerved over a yellow line multiple times before coming to a stop in a parking lot. The officer conducted a traffic stop, during which he made the following observations: the defendant smelled of alcohol, had slurred speech, and his eyes were watery and glassy.

The defendant told police that he only had four shots of gin between 5pm and 9pm the night before. Based on the defendant’s appearance and performance on the field sobriety tests, he was arrested and transported to the police station. He agreed to submit to two Intoxilyzer tests, which returned BAC readings of 0.138 and 0.143 at 12:29am and 1:04am, respectively.

OMVUI 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 State sought to refute the defendant’s claim that he only had four shots of gin. A Department of Public Safety toxicologist testified that if the defendant drank four shots of gin in the time period stated, it would have fully metabolized by 10pm, two hours before the incident in question. He estimated that given the defendant’s size, every alcoholic drink would produce 0.02 BAC.

Therefore, to generate a BAC of 0.143 at 1:04am, the defendant had to have consumed at least seven alcoholic drinks. The defendant was convicted on both subdivisions, and because of a previous OMVUI offense, he was charged as a second offender and subject to enhanced penalties. The defendant appealed his conviction on multiple grounds, including, in part, that the toxicologist’s testimony was irrelevant and it was improper for the trial court to allow it into evidence.

The Court’s Decision

Evidence is relevant, and thus admissible, if it has the “tendency to establish the existence of a material fact.” Decisions to exclude or admit evidence on the basis of relevance will only be overturned upon the showing of a clear abuse of discretion by the trial court. Upon review of the applicable case law, the Appellate Court stated that expert testimony regarding how many alcoholic drinks a defendant needed to consume to reach a particular BAC level has not been deemed irrelevant. Therefore, because the substance of the toxicologist’s testimony encompassed this very subject matter, the trial court did not clearly abuse its discretion by allowing it into evidence.

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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.

Written by Lindsay E. Raber, Esq.

Toxicology Report Suppressed in DUI Case Because Warrantless Search Exceptions Did Not Apply

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In this criminal law matter, a Superior Court of Connecticut granted a defendant’s motion to suppress evidence, because the State did not show exigent circumstances allowing the warrantless seizure.

Case Background

This case arose from an incident that occurred on August 15, 2003. The defendant was involved in an automobile accident, resulting in the death of the other driver. He was transported to a nearby hospital where, without a warrant, police requested that his blood be drawn. One of the officers unaware of this order was informed of that the blood had been drawn, so he elected to not perform the field sobriety and chemical alcohol tests. Five days later, police applied for and was granted a warrant for the blood toxicology report.

The defendant was charged with operating a motor vehicle while under the influence (OMVUI), in violation of Connecticut General Statutes (CGS) § 14-227a(a), and second-degree manslaughter with a motor vehicle, among several other counts. On March 8, 2004, the defendant submitted a motion to suppress the toxicology report, arguing that they were obtained in violation of the search and seizure protections of the state and federal constitutions.

Under state and federal law, individuals are protected against unreasonable searches and seizures of their persons, houses, papers, and effects. The “[c]ompulsory administration of a blood test” clearly constitutes a search and seizure of one’s person. If a search is conducted without a warrant evidencing probable cause, it is per se unreasonable, and evidence derived from this illegal search will be excluded unless one of a “few specifically established and well-delineated exceptions” applies. Two such exceptions to the exclusionary rule are inevitable discovery and exigent circumstances.

The Court’s Decision

The inevitable discovery exception will thwart suppression of evidence if the State can show, by the preponderance of the evidence (more likely than not), that through lawful means the evidence would have been discovered anyway. Officers must have been actively pursuing such means before the constitutional violation in question occurred.

In this case, the State argued that this exception applied because had the officer not been told the blood was drawn, he would have proceeded with the various OMVUI-related tests. Therefore, the State would have inevitably discovered the defendant’s blood alcohol content (BAC). However, the Superior Court was not persuaded, because the State assumed that the defendant would have consented to the alcohol chemical tests. Under CGS § 14-227b, a person is free to refuse the test, though he will face license suspension for doing so. As such, the police could not presume that this procedure would inevitably lead them to discovery of the defendant’s BAC level.

Exigent Circumstances Doctrine

Exigent circumstances doctrine applies where police officers, who have requisite probable cause, do not have time to get a warrant. They must act swiftly to effectuate an arrest, search, or seizure, to avoid, for example, the destruction of evidence. The State bears the burden to point to specific and articulable facts that gave rise to the exigent circumstances.

In this case, the State argued that if they did not order that the defendant’s blood be taken, they would have lost evidence of his BAC level. However, the Superior Court noted that the record was devoid of any facts to support this proposition. Therefore, because neither exception applied to the facts of this case, the Superior Court granted the defendant’s motion to suppress.

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.