Posts tagged with "blood alcohol content"

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

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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.

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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.

Being Asleep at the Wheel of a Parked, but Running, Vehicle Constitutes “Operation” Under State DUI Law

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In a criminal law matter, the Appellate Court of Connecticut considered whether a driver, who was asleep in the driver’s seat of his car while it was still running, operated a motor vehicle under Connecticut’s DUI law.

Case Background

This case arose from an incident that occurred after midnight on December 24, 2005. Officers found the defendant asleep in the driver’s seat of his motor vehicle while the engine was still running. After waking the defendant and observing him as visibly intoxicated, the officers administered the standard field sobriety tests, all of which the defendant failed. The defendant was arrested, and at the police department, he submitted to two chemical alcohol tests, which revealed the defendant’s blood alcohol content as more than twice the legal limit.

The defendant was charged with operating a motor vehicle while under the influence (OMVUI) of alcohol, in violation of Connecticut General Statutes § 14-227a. He filed a motion to dismiss, arguing that he was not operating his car. Rather, “he merely was asleep in his motor vehicle on a cold night with the motor running only to provide heat and power to run the radio.” However, the court denied the motion, and the defendant entered into a conditional plea of nolo contendere. Such a conditional plea reserves a defendant’s right to appeal. After sentencing, the defendant appealed, arguing that the court’s denial of his motion to dismiss was improper.

The Appellate Court’s Decision

Under Connecticut case law, “operation” of a motor vehicle does not require that the vehicle actually be driven. Rather, “the insertion of a key into the ignition is an act… which alone or in sequence will set into motion the motive power of the vehicle.” Thus, simply putting the key into the ignition “constitute[s] operation of a motor vehicle within the meaning of § 14-227a(a).” This proposition has been upheld, for example, even when the operator is unconscious in the driver’s seat while the engine is running.

In this case, the Appellate Court found that the defendant operated his car because he was in the driver’s seat of his vehicle with the engine turned on; it did not matter, for purposes of “operation,” that he was asleep at the time. Therefore, the trial court properly denied the defendant’s motion to dismiss, and 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) 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.

Sentencing Review Division Affirms Sentence of Remorseless DUI Driver with Rare Disease

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In a criminal law matter, a Superior Court of Connecticut affirmed the sentence of a petitioner following his conviction for a DUI related fatality.

Case Background

This case arose from an incident that occurred on night of July 28, 1998. The petitioner suffered from Neurofibromatosis Type 2 (NF2), a rare illness that can cause deafness, blindness, or even death. That morning, he underwent a radiation treatment, and then attended a farewell party that evening. At the party, the petitioner drank nine to twelve ounces of scotch and was visibly intoxicated by the time he left alone.

He traveled various highways in the wrong direction and then entered a northbound ramp going southbound. The petitioner drove into an oncoming vehicle, which resulted in a fatality. He was transported to a nearby hospital for treatment, and blood tests revealed that he had a blood alcohol content of 0.210, over two-and-a-half times the legal limit.

The Charges

The petitioner was charged with reckless manslaughter, second-degree manslaughter with a motor vehicle, and operating a motor vehicle while under the influence (OMVUI) of alcohol. At his jury trial, he argued that he was not intoxicated at the time of the accident; rather, a defense expert testified that the defendant “lost consciousness as a result of a seizure caused by his NF2 disease.” The jury was not convinced and convicted the petitioner on all counts, and he was sentenced to fifteen years execution suspended after ten years, with five years’ probation and a $21,000 fine.

The petitioner asked the Sentencing Review Division of the Superior Court to reduce the non-suspended part of his sentence for three reasons. He first argued that the sentence imposed was inappropriate and disproportionate, as those similarly situated received lighter sentences. Second, he argued that the trial court did not consider his health problems when determining his sentence, and that he was receiving inadequate treatment by the Department of Corrections. Finally the petitioner stated that because was “a person of good moral character” who accepted responsibility for his crime, modification was warranted.

The Court’s Decision

The Superior Court rejected all of the petitioner’s arguments for sentence reduction. It noted that despite claiming that individuals convicted of similar crimes received lighter sentences, the petitioner provided little to no information about those cases that would facilitate a proper comparative analysis. Furthermore, the Court acknowledged that the sentencing court was “fully aware of his health issues,” and the sentence was made after appropriate consideration of the petitioner’s health. In addition, the Court would not address the petitioner’s DOC complaint, because it “may only consider matters which were before the sentencing court at the time of sentencing.”

Finally, the sentencing court considered the petitioner’s background and history, and found that he was “in denial regarding the role that alcohol played [in] his crime, failed to show any empathy for the suffering caused by the victim’s family and posed a danger to society.” Therefore, the Superior Court affirmed the sentence because it was neither inappropriate nor disproportionate.

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.

For Remorseless Drunk Driver, Stiff Sentence Was Neither Disproportionate Nor Inappropriate

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In a criminal law matter, the Sentence Review Division of the Superior Court assessed whether a defendant’s sentence following a DUI-related trial was proper.

Case Background

This case arose from an incident that occurred on July 27, 1997. The defendant was driving under the influence when he struck two teenage pedestrians. One died at the scene and the other the next day at Hartford Hospital. The defendant did not stop to help them; rather, he drove until he got his car hit a tree, after which he fled. Soon after, police found the defendant, who admitted that he hit what he believed was a dog. A subsequent chemical alcohol test revealed the defendant’s blood alcohol content at 0.163, over twice the legal limit, as well as the presence of cannabis.

The defendant was charged with and convicted of two counts of second-degree manslaughter with a motor vehicle, offense committed while on release, and operating a motor vehicle while under the influence (OMVUI) of alcohol and/or drugs. At the sentencing hearing, the court noted that “the impact of the defendant’s actions was clearly significant,” noting the very young age of the victims.

The defendant did not exhibit remorse for his conduct, and he tried blaming the victims because at the time of the accident, they were wearing dark clothing. The court considered the defendant’s background and upbringing, but was particularly disturbed by the following statement from his pre-sentence investigation report: “I’ve been driving like this for 35 years… I can drink and drive… I am a good drunk driver.”

Disproportionate Sentencing 

The defendant was subsequently sentenced to thirty-five years execution suspended after twenty-six and a half years, with five years probation. He sought review of his sentence, arguing that it was “disproportionate” to the sentences imposed on others who were similarly situated.

The scope of review by the Sentencing Review Division is confined to the parameters of Connecticut Practice Book § 43-23 et seq. A sentence may be modified upon a showing that it was “inappropriate or disproportionate” in light of various factors, such as the nature of the offense and protection of public interests. In this case, the Court stated that modification was not warranted based on the unique facts of this case. It wrote how it appeared “the sentencing court was unable to identify anything that it could use as mitigation to merit a lesser sentence.” Therefore, the sentence 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.

“Mommy Just Got Into a Little Accident,” Along With Other Evidence, Was Sufficient to Find That DUI Driver Operated her Car

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In a criminal law matter, a Superior Court of Connecticut dismissed the plaintiff’s license suspension appeal, stating that the hearing officer had sufficient evidence to find that the plaintiff “operated” her motor vehicle.

Case Details

This case arose from an incident that occurred on December 12, 2010. Police responded to a complaint from a woman (neighbor), who stated that the plaintiff’s vehicle backed out of her driveway across the street and struck her car. Officers proceeded up the driveway in question and saw the plaintiff, who was accompanied by her four-year-old son, “fumbling with her keys and struggling to keep her balance as she attempted to open her garage.” The plaintiff was visibly intoxicated, and when the officer asked the son what happened, he responded, “Mommy just got into a little accident.”

Officers believed the plaintiff was so inebriated that administering the field sobriety tests would be unsafe. They arrested the plaintiff and transported her to police headquarters, where two breath tests revealed blood alcohol contents of 0.2181 and 0.2097, two-and-a-half times the legal limit. A subsequent inspection of the plaintiff’s vehicle revealed damage consistent with that from the neighbor’s car.

DUI Charges

The plaintiff was charged with driving under the influence in violation of Connecticut General Statutes (CGS) § 14-227a. The Department of Motor Vehicles (DMV) sent her a notice of suspension, and she requested an administrative hearing. The hearing officer made four statutory findings pursuant to CGS § 14-227b(g), and given the plaintiff’s history of suspensions, ordered that her license be suspended for two years and six months. The plaintiff appealed, stating that the hearing officer’s conclusion on the fourth criteria of CGS § 14-227b(g), “operation,” was without factual support. She contested the neighbor’s identification of her as the driver and use of her son’s hearsay statement, as well as the fact that police did not see her driving.

When a plaintiff contests the decision of a DMV hearing officer, they have the burden of proving that the decision was arbitrary and an abuse of discretion. A decision that is reasonably supported by the evidence will be sustained by a reviewing court. In addition, hearing officers have broad discretion in accepting or discrediting witness testimony, and are not bound to the strict rules of evidence regarding hearsay. Therefore, hearing officers have the authority to rely on hearsay of operation so long as the testimony is relevant and material to that finding.

The Court’s Decision

In this case, the Superior Court found that the hearing officer had ample evidence that the plaintiff operated her car. The officers personally saw the plaintiff in possession of her keys outside the garage in which her car was located. Given the coinciding damage between both cars, along with the neighbor’s and son’s statements, which the hearing officer was free to accept, there was sufficient evidence to find that the plaintiff operated her motor vehicle. Therefore, the hearing officer did not abuse his discretion, and after addressing the plaintiff’s additional claims, the Superior Court dismissed her appeal.

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.

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

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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.

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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 License Suspension, Citing Circumstantial Evidence That Plaintiff Operated the Motor Vehicle in Question

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In a criminal law matter, the Appellate Court of Connecticut rejected a plaintiff’s argument that the commissioner of the Department of Motor Vehicles (DMV) had insufficient evidence to suspend his driver’s license.

Case Details

This case arose from an incident that occurred at 2:31am on May 19, 2007. Police dispatch received emergency phone calls from two citizen informants (informants) regarding an erratic driver. They described the driver as male, provided a description of his vehicle, and indicated they were both following him in their own cars. The informants conveyed to dispatch that the driver was constantly switching lanes, traveling slowly then accelerating rapidly, and swerving, and that he pulled into a Home Depot parking lot.

When officers arrived at this location, they saw the plaintiff sitting alone in his vehicle, which matched the description given by the informants. His car was turned off and the ignition key was in his pocket. Additionally, no one else was in the vicinity, including the informants. When officers engaged in a conversation with the plaintiff, they observed slurred speech, glassy eyes, and the smell of alcohol.

In addition, after the plaintiff exited the vehicle he was unsteady on his feet. The plaintiff failed three field sobriety tests and was arrested for and charged with operating a motor vehicle while under the influence (OMVUI). Approximately a half hour later at the police station, the plaintiff spoke to an attorney and then refused to submit to a breathalyzer test.

Driver’s License Suspension

Because the plaintiff refused to submit to a chemical alcohol test, the DMV suspended his license for one year. The plaintiff requested an administrative hearing, during which the hearing officer found: 1) that police had probable cause to arrest the plaintiff for OMVUI; 2) the plaintiff was arrested; 3) the plaintiff refused to submit to the breathalyzer test; and 4) the plaintiff operated a motor vehicle. The one-year suspension was upheld, and the plaintiff appealed to the Superior Court, who dismissed the appeal. The plaintiff sought recourse with the Appellate Court, where he argued that the record lacked sufficient evidence to support a finding that he operated the motor vehicle at issue.

What qualifies as an OMVUI?

To be found guilty of OMVUI, the State must prove that the defendant operated a motor vehicle on a public highway while under the influence or with an elevated blood alcohol content. Direct evidence is not required to establish “operation;” oftentimes, circumstantial evidence “may be more certain, satisfying and persuasive.” Pursuant to the substantial evidence rule, the findings of an administrative agency are upheld “if the record affords a substantial basis of fact from which the fact in issue can be reasonably inferred.” This is a highly deferential standard, and the plaintiff must prove that the DMV commissioner abused his discretion in suspending the plaintiff’s license.

The Court’s Decision

The Appellate Court was not persuaded that there was insufficient evidence proving the plaintiff was the driver of the vehicle. It cited police observations that the defendant was alone in the vehicle and at the location precisely identified by the informants, whose absence was immaterial. In addition, because the commissioner determined “operation” on the basis of the informant’s observations and subsequent identification of the plaintiff as the operator of the erratically driven vehicle, it was not relevant that the plaintiff’s car was not running when officers arrived. Therefore, the Appellate Court concluded there was substantial evidence of the commissioner’s finding that the plaintiff operated the motor vehicle in question and affirmed judgment.

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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.

Porter Hearing Not Required Where Accident Reconstructionists’ Testimonies Were Based on Principles of Dynamics and the Law of Motion

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In a criminal law matter, the Appellate Court of Connecticut found that a trial court did not err in denying a defendant’s motion to strike the expert testimony of two State witnesses.

Case Details

This case arose from an incident that occurred at 10:00pm on September 2, 2003. The defendant became intoxicated at a bar and was asked by the bartender to leave. Two patrons attempted to persuade the defendant to allow them to drive him home, but abandoned their efforts once the defendant started to become violent. The defendant got into his truck and drove southbound on Route 85 in Hebron when he struck a car in the northbound lane. The other driver was pronounced dead at the scene and the defendant was transported to the hospital, where he registered a blood alcohol content of 0.248.

The defendant was charged with first-degree manslaughter, second-degree manslaughter with a motor vehicle, and two counts of operating a motor vehicle while under the influence (OMVUI) of alcohol. He filed a motion in limine, requesting that any and all evidence related to accident reconstruction be excluded because “the state would be unable to establish the scientific validity of the methodologies utilized by the state’s reconstructionists [State experts] under State v. Porter.” This motion was denied, though the defendant would have the option of filing a motion to strike after the State experts testified.

The Trial

At trial, the State experts rendered their opinions as to how the accident collision occurred. They stated that their methods of reconstruction are “generally accepted and used throughout the nation” and did not involve “new material.” Each reached conclusions that the accident could not have occurred in the lane in which the defendant was traveling due to the “[p]rincipal direction of force and momentum” and because “[t]he vehicle dynamics don’t allow that.” As such, they opined that the defendant’s truck crossed the center yellow line and struck the other driver’s car.

Defense counsel moved to strike the State experts’ testimonies, arguing that the methods used were scientifically unreliable. The State countered that “[t]he subject of the testimony… is no[t] new, novel science” but were based on principles of physics “that had been put forth centuries ago.” The court denied the defendant’s motion to strike testimony because the testimony was sufficiently reliable and did not require a Porter hearing. The defendant was subsequently convicted on three counts and appealed, arguing, in part, that the trial court erred in denying his motion to strike.

A Related Case

In the landmark case Daubert v. Merrill Dow Pharmaceuticals, the U.S. Supreme Court described the manner in which scientific evidence will be admissible in a trial. Connecticut adopted this analysis in State v. Porter, where a court will hold a so-called Porter hearing to determine whether the proffered evidence is reliable and relevant. However, some scientific principles are so well established that it is unnecessary to review evidence under an explicit Daubert analysis. Therefore, scientific evidence derived under these principles that would “clearly withstand a Daubert analysis” will be admissible at trial upon a showing a relevance.

The Court’s Decision

In this case, the Appellate Court concluded that the methods used by the State experts in reconstructing the accident and reaching their conclusions were not new and original. Rather, when the State experts determined where the accident occurred, they applied “principles and theories that have been in the recognized literature and have been taught at training academies for decades.” Therefore, a Porter hearing was not required prior to their testimony and the court’s subsequent refusal to grant the defendant’s motion to strike was proper.

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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.

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.

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.