Posts tagged with "breath test"

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

In a recent 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.

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 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.”

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).

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 Finds Sufficient Evidence to Convict, Declines Review of Other Claims Due to Inadequate Briefing

In a recent criminal law matter, the Appellate Court of Connecticut was not persuaded by a defendant’s claims of insufficient evidence to establish DUI and would not review his claim of prosecutorial impropriety because his appellate brief was inadequate.

This case arose from an incident that occurred at 7pm in Wilton on December 19, 2007. A citizen saw the defendant driving very slowly, hitting the right curb repeatedly, and nearly colliding with three cars in the opposite lane. This citizen and others boxed in the defendant after he came to a stop in the wrong lane. Police soon arrived and observed the smell of alcohol, the defendant’s slurred speech, and what appeared to be a red wine stain on his shirt. They administered the standard field sobriety tests, but the defendant failed one and then refused to perform the other two. He was arrested and brought to police headquarters, where he refused to submit to a breath test. The defendant admitted to consuming multiple drinks in his vehicle starting one hour before he was stopped.

The defendant was charged with operating a motor vehicle while under the influence (OMVUI) of alcohol in violation of Connecticut General Statutes (CGS) § 14-227a(a)(1). During closing arguments, the prosecutor stated, “What bigger piece of circumstantial evidence would there be if the defendant was under the influence other than his refusal to take the test?” The defendant was subsequently convicted, though he appealed on multiple grounds. He argued that the evidence was insufficient to prove OMVUI. He further claimed that prosecutorial impropriety deprived him of a fair trial, because the prosecutor’s statement constituted compulsory self-incrimination.

To convict a defendant of OMVUI, the State must prove, beyond a reasonable doubt, that he operated a motor vehicle on a public highway while under the influence of alcohol or drugs. When a reviewing court adjudicates a sufficiency of the evidence claim, it construes the evidence so as to favor sustaining the verdict. It then determines whether, based on the facts and attendant inferences, a reasonable jury would have found that “the cumulative effect of the evidence established guilt beyond a reasonable doubt.” A jury may consider, pursuant to CGS § 14-227a(e), any inference regarding a defendant’s refusal to submit to a chemical alcohol test. In this case, the Appellate Court found ample evidence that the defendant committed OMVUI, based on his appearance and behavior, the field sobriety tests, and his refusal to submit to a breath test. Therefore, the Court rejected this claim.

Courts are under no duty to review claims that are inadequately briefed. As the Appellate Court discussed in a previous case, “Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned.” In this case, the Appellate Court declined to review the defendant’s claim of prosecutorial impropriety because his brief was not adequate. He did not provide “any analysis, or cite any legal authority, to explain how his fifth amendment privilege against compulsory self-incrimination is implicated by the prosecutor’s statement in the present case.” After reviewing one additional claim on review, the Appellate Court affirmed the judgment.

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.

Jury Properly Instructed by Trial Court Regarding Inferences From Breath Test Refusal

In a recent criminal law matter, the defendant was the subject of a traffic stop at 12:40am on April 29, 2005. University police believed that he was driving under the influence based on his erratic driving, a suspicion confirmed by the defendant’s slurred speech, red glassy eyes, the smell of alcohol in his car, and failed field sobriety tests. The defendant was arrested and transported to university police headquarters. After being advised of his rights and the implied consent to take a breath test, the defendant stated he would not consent until he contacted an attorney. “The defendant repeatedly stated that he would not do anything without an attorney,” so police recorded the refusal. However, the defendant later requested to take the breathalyzer test, but officers would not administer it. They stated it was too late; however, if the officers administered the test at the time of this request, it would have occurred within the two-hour statutory window.

The defendant was charged with operating a motor vehicle while under the influence (OMVUI) in violation of General Statutes § 14-227a. Following the close of evidence at trial, the court proposed the following jury instruction: based on the evidence, if the jury concluded that the defendant refused to take the breathalyzer test, it could draw reasonable inferences stemming from that fact. The defendant requested that the jury instruction include “consciousness of innocence” language about the officers’ refusal to conduct the test after the defendant requested it, and to draw any reasonable inference from that fact as well. The court denied the request and the defendant was found guilty of OMVUI. He appealed the conviction, stating, in part, that the jury instruction improperly focused on his refusal without enough emphasis on his later request to submit. Therefore, he claimed the court “improperly deprived him of a theory of defense” and the jury instruction was “imbalanced in favor of the state.”

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

When a court considers a challenge to a jury instruction that does not give rise to constitutional implications, the charge is “considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts.” The instruction need only be correct in law (in light of the facts of the case) and not mislead the jury. In this case, the trial court properly instructed the jury that it first had to actually find that the defendant refused to submit to the breathalyzer test before it could draw any inferences from a refusal. “The court told the jury it must consider all of the evidence… [T]he instruction… did not instruct the jury that it could not consider the defendant’s request to submit to the test. … [It] did not inform the jury that it could draw a negative inference from a refusal to take a Breathalyzer test.” Instead, the trial court “merely informed the jury that it could draw an inference from [the defendant’s] refusal.” After addressing additional arguments on appeal, the Appellate Court affirmed the judgment.

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.

Court Suppresses Evidence After MTAPD Illegally Arrested DUI Suspect, Citing Jurisdictional Limitations

This April, the Superior Court of Connecticut, Judicial District of Stamford-Norwalk at Norwalk granted a defendant’s motion to suppress evidence collected after officers with the Metropolitan Transit Authority Police Department (MTAPD) illegally arrested him. However, the court declined to suppress evidence gathered prior to the arrest.

In this case, two MTAPD officers (officers) were traveling along I-95 North in Westport at 2:20am when they witnessed a motor vehicle traveling at a high rate of speed in the leftmost lane. This vehicle repeatedly forced other cars into the center lane, drove over the left solid white line, and abruptly crossed into the other lanes. The officers initiated a traffic stop, though the vehicle stopped partially in an entrance ramp onto I-95. One of the officers approached the passenger side of the vehicle and saw the defendant as the only occupant. When instructing the defendant to move his car to a safer location, the officer observed the strong odor of alcohol and the defendant’s bloodshot eyes. After backup was requested, the officers asked the defendant for his identification, but he instead spontaneously stated that his license was suspended.

At 2:45am a State trooper (trooper) arrived on the scene, and the MTAPD officers conducted several field sobriety tests, all of which the defendant failed. The defendant was placed under arrest by the officers, who transported him to Westport’s police department for a breathalyzer test. At this point, the trooper was no longer involved. At the police department, the defendant refused to submit to a breath test, and was subsequently charged with operating a motor vehicle while under the influence (OMVUI). However, he moved to suppress all evidence, arguing it was inadmissible because the officers illegally arrested him, and filed a motion to dismiss.

Police officers have the power to arrest within their respective jurisdictions, pursuant to General Statutes § 54-1f(c). MTAPD officers are considered Railroad Police Officers, and their enforcement powers are generally limited to railroad property (except in the case of pursuit). An arrest made outside the statutory parameters is illegal, and the typical remedy is to suppress the evidence obtained as a result of the illegal arrest. The purpose of this exclusionary rule is to ensure that a defendant receives a fair trial. However, an illegal arrest does not outright bar a State from pursuing charges against a defendant, and evidence may still be admissible if acquired “by means sufficiently distinguishable to be purged of the primary taint.”

In this case, the Superior Court wrote that because I-95 is not railroad property, and the officers were not effectuating their jurisdictional arrest powers as authorized under statute, they did not have authority to arrest the defendant. Therefore, the arrest in this case was illegal, and the Court agreed that all evidence obtained after the defendant was taken into custody, including his refusal to submit to a breath test, could be suppressed. However, the Court found that the evidence obtained prior to arrest was admissible. The MTAPD officers initiated an investigatory stop, which did not violate § 54-1f(a), and the presence of the trooper, whose jurisdiction includes interstate highways like I-95, rendered administration of the field sobriety tests proper. Therefore, the Court granted in part and denied in part the defendant’s motion to suppress evidence, and denied his motion to dismiss.

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.

Jury Instruction Relating to Defendant’s Refusal to Submit to a Breath Test Upheld by State Appellate Court

In a recent criminal law matter, the Appellate Court of Connecticut did not find that a trial court’s jury instruction on consciousness of guilt, as it related to a defendant’s refusal to submit to a breath test, was improper.

This case arose from an incident that occurred on August 7, 2005. The defendant and his friend spent approximately six hours fishing on Long Island Sound, during which the defendant drank four beers. Approximately an hour later, the defendant drove his friend to Danbury. While returning to his home in Norwalk, the defendant approached a well-marked construction zone that closed down one lane. The defendant swerved into this lane and crashed into a large orange sign, then continued toward the construction site. He nearly struck an off-duty Wilton police officer, who ordered the defendant into a nearby parking lot. The defendant was arrested after he failed multiple field sobriety tests administered by two officers, in conjunction with their observations of the smell of alcohol, glassy and glazed eyes, and disheveled clothing.

At the police station, the defendant was asked to submit to a breath test and advised of his right to counsel. He unsuccessfully attempted to contact an attorney, and then was asked once more to submit to the breath test. Because the defendant again insisted on speaking to an attorney, he was advised that his continued request would be deemed a refusal to take the test, but the defendant persisted. During trial, the judge instructed the jury that the defendant’s conduct may tend to show consciousness of guilt, and “if [the jury found] the defendant did refuse to submit to [the breath test, the jury] may make any reasonable inference that follows from that fact.” The defendant was convicted of operating a motor vehicle while under the influence (OMVUI) in violation of State law. He appealed on multiple grounds, including, in part, the claim that the court improperly instructed the jury that refusing to submit to a breath test could be treated as evidence of consciousness of guilt.

When a court considers a charge of the court, it must determine “whether [the instruction] fairly presents the case to the jury in such a way that injustice is not done to either party.” The instructions are not dissected in a piecemeal fashion; rather, when the challenge to a jury instruction does not raise a constitutional question, the reviewing court will consider its total effect. General Statute § 14-227a, the State’s OMVUI law, includes a subsection that reads, “[T]he court shall instruct the jury as to any inference that may or may not be drawn from the defendant’s refusal to submit to a … breath … test.” In other words, the Connecticut legislature intended for courts to instruct juries on “permissive inferences.”

In this case, the Appellate Court reviewed the language of the jury instruction and determined it was “well within the parameters of § 14-227a.” The court repeatedly told the jury that consciousness of guilt was only a permissive inference; as such, the trial court did not abuse its discretion. The Appellate Court argued that even if the instruction was improper, the defendant failed to provide evidence that it was harmful. The Court noted the amount of evidence, other than the defendant’s refusal, that indicated he was under the influence of alcohol at the time of the incident.

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.