Posts tagged with "criminal law"

Reasonable and Articulable Suspicion Allowing Police to Pull Over Intoxicated Driver

In a recent criminal law matter, the Appellate Court of Connecticut upheld a trial court’s decision that police officers had reasonable and articulable suspicion to pull over a defendant they believed was driving under the influence of alcohol.

This case arose from an incident that occurred at approximately 10:30pm on July 16, 2006. Two citizens (informants) were driving in their car when they observed a dark SUV driven poorly by the defendant. They decided to follow, and then called police because they were concerned for the safety of the public and the defendant. The informants provided dispatch with a description of the defendant’s vehicle, the direction he was traveling, and the following observations: he frequently swerved and crossed the center yellow line, weaved in and out of the travel lane, and nearly collided with another vehicle. Dispatch relayed this information to a nearby patrol car, which saw the defendant’s car stopped at a green light and driving only 15 miles per hour (mph) in a 40mph zone. After spotting the informants pointing to the defendant’s vehicle, the officers pulled him over. The defendant was later charged with operating a motor vehicle while under the influence (OMVUI) of alcohol in violation of State law.

The defendant submitted a motion to suppress evidence, which the trial court denied. It found that officers had at least “reasonable suspicion to believe the defendant was driving under the influence of alcohol,” given the informants’ information and the police officers’ personal observations. The defendant entered a conditional plea of nolo contendere, and upon conviction and sentencing, he appealed. The defendant argued that the record did not have enough corroborative evidence to establish a reasonable and articulable suspicion to pull him over. He further argued that the trial court improperly found that the stop was based, in part, on the police officers’ observations of his erratic driving.

When a police officer conducts an investigatory stop or seizure, he must have a “reasonable and articulable suspicion at the time the seizure occurred.” To determine whether such suspicion exists, a reviewing court will determine whether the trial court’s factual findings were clearly erroneous, and whether the conclusion based on those findings was legally correct. This decision relies on the totality of the circumstances, and the facts of a case are reviewed objectively. In the context of citizen informants, our State Supreme Court has held that there are situations involving an anonymous tip which, with police corroboration, “exhibits sufficient indicia of reliability to provide reasonable suspicion to make an investigatory stop.” Identifiable citizen informers are presumptively reliable because they can easily be located and held accountable if they provide false information to police.

In this case, the Appellate Court stated that in determining whether the police officers had a reasonable and articulable suspicion, the trial court did not have to rely on only their observations. It noted that the trial court declared the informants to be “identifiable citizen informant[s],” a finding with which the Appellate Court did not disagree. The Court described the extensive corroboration of the informants’ information by police officers, and noted that the police were “not required to wait for erratic driving or an accident to occur before pulling over the defendant.” Therefore, the Court found the presence of reasonable and articulable suspicion, and that the trial court did not commit clear error in their findings.

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.

State Supreme Court Tackles Question of “Operation” of Remotely Started Vehicles

In a recent criminal law matter, State v. Cyr, 291 Conn. 49, 967 A.2d 32 (2009), the Supreme Court of Connecticut was faced with the question of what acts constitute operation of motor vehicles, so as to fall within the purview of the State’s statutory prohibition against operating a motor vehicle while under the influence (OMVUI).

This case arose from an incident that occurred in the early hours of February 28, 2005. A police officer noticed the defendant and a passenger sitting in their vehicle in a parking lot near a local bar. The officer approached and spoke to the defendant, at which point he detected the odor of alcohol emanating from inside the vehicle. After the defendant failed a series of field sobriety tests, he was placed under arrest and charged with OMVUI. The defendant pled not guilty and filed a motion to dismiss, arguing that he was not operating his car. Rather, he claimed that a car which has been started using a remote starter cannot be operated until the ignition key is actually inserted and turned. The court was not persuaded and denied this motion, as well as a subsequent motion to dismiss. The defendant pled nolo contendere, and upon the entry of conviction, he filed an appeal.

The Appellate Court reversed judgment, stating that this scenario fell outside the meaning of “operation” under State law. It found that the state failed to provide sufficient evidence indicating the defendant “had undertaken an act that alone or in sequence [with other acts would] set in motion the motive power of the vehicle.” (Internal quotation omitted) The State appealed this decision, arguing that the definition of “operation” was broad and meant to include acts such as those in this case. The defendant countered that he started the engine outside the vehicle and he could not operate it because the key was not in the ignition.

General Statutes § 14-227a is Connecticut’s OMVUI statute. A person commits this offense when he or she operates a motor vehicle while under the influence of either drugs or alcohol. The statute, however, does not define “operate,” and its legislative history provides no insight. Therefore, the Supreme Court looked to case law, which has held the following:

A person operates a motor vehicle within the meaning of [the] statute, when in the vehicle he intentionally does any act or makes use of any mechanical or electrical agency which alone or in sequence will set in motion the motive power of the vehicle.

State v. Swift, 125 Conn. 399, 403 (1939) (emphasis added). Thus, the Supreme Court believed that the State legislature meant “operating” to encompass a wider spectrum of conduct than “driving” would. Furthermore, under State v. Haight, the court wrote, “Each act, in sequence with other steps, will set in motion the motive power of the vehicle. … Each act therefore constitutes operation of the vehicle…” 279 Conn. 551, 553 (2006).

In this case, the Supreme Court found the above principles applicable to the facts presented. The defendant “clearly undertook the first act in a sequence of steps necessary to set in motion the motive power of a vehicle that has been equipped with a remote starter.” The Court was not persuaded that a person must be in their vehicle first in order to perform an act that constituted operation. It considered the lack of the key in the ignition as a “temporary impediment” to the movement of a remotely started vehicle. Therefore, the judgment of the Appellate Court was reversed and the case remanded.

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.

Trial Court Rejects “Hydrocarbon Intoxication” Defense, DUI Conviction Upheld on Appeal

In a recent criminal law matter, the Appellate Court of Connecticut considered a defendant’s claim that the trial court had insufficient evidence to convict him of operating a motor vehicle while under the influence (OMVUI) of an intoxicating liquor or drug.

This case arose from an incident that occurred at approximately 4:00pm on June 15, 2006. A retired police officer was driving on his motorcycle, and while waiting at a traffic light, he was struck from behind by the defendant’s van. He approached the vehicle to inquire what happened, and saw that the defendant had squinty eyes and was slow or non-responsive with his answers. The defendant claimed that a five-gallon can of kerosene spilled in the van the night before, and that he was overcome by the kerosene fumes at the time of the accident.

A state trooper arrived at the scene soon after, and he made the following observations of the defendant: blank stare, slurred speech, disorientation, very slight odor of alcohol, a wet groin area, wobbly and lethargic walking, and extremely constricted pupils. In addition, the defendant admitted that he smoked marijuana, drank beer, and ingested Vicodin that morning. The officer conducted three field sobriety tests, all of which the defendant failed, and the officer did not detect a kerosene odor inside the van. Indeed, an Intoxilyzer test conducted at police barracks, which revealed the defendant’s blood alcohol content as below the legal limit, failed to alert the officers of the presence of hydrocarbon interferants. Based on this evidence, the defendant was charged, and later convicted, of OMVUI, and he appealed on the basis of insufficient evidence.

When a court reviews a sufficiency of the evidence claim, it must first construe the evidence “in the light most favorable to sustaining the verdict.” Afterward, the court must establish whether the cumulative force of direct and/or circumstantial facts can lead a jury to reasonably conclude the presence of guilt beyond a reasonable doubt. Driving under the influence occurs where “a driver had become so affected in his mental, physical or nervous processes that he lacked to an appreciable degree the ability to function properly in relation to the operation of his vehicle.”

In this case, the Appellate Court concluded that there was sufficient evidence on the record to support the defendant’s conviction. It noted the aforementioned evidence regarding the defendant’s behavior and appearance after the accident, and a toxicology expert testified that the absence of opiates from the Vicodin could be explained by the defendant’s urination in his van. The trial court found it “unlikely that there was such hydrocarbon intoxication,” instead crediting testimony regarding the absence of the smell of kerosene in the defendant’s van and absence of hydrocarbon interferants by the Intoxilyzer test. Therefore, there was ample evidence to support the finding that the defendant ingested alcohol and drugs, then operated his motor vehicle under the influence. The judgment was affirmed.

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), 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.

Criminal Law Update: Drug Analysis Must Be Supported By Live Testimony

This week, the United States Supreme Court ruled that criminal laboratory reports may not be used at trial unless the laboratory analyst actually responsible for preparing the report physically appears to give testimony in court and to be subjected to cross-examination.

In a 5-4 decision, the Court ruled that the Sixth Amendment confrontation clause gives criminal defendants the right to challenge the validity of chemical analyses proffered by prosecutors by examining a live witness who would be compelled to appear at trial.

Prosecutors argue that the landmark decision adds a significant burden to the government’s ability to prosecute crimes in which lab reports are routinely submitted with little or no supporting testimony.

By contrast, the majority decision notes that convenience is not the measure of constitutionality, pointing out that “the confrontation clause may make the prosecution of criminals more burdensome, but that is equally true of the right to trial by jury and the privilege against self-incrimination.”

The full decision can be found at: http://www.supremecourtus.gov/opinions/08pdf/07-591.pdf

If you have questions about drug analysis or a criminal matter, contact us at (203) 221-3100 or jmaya@mayalaw.com for a free consultation. 

Pretrial Diversionary Programs in Connecticut

If you are a first-time offender in Connecticut, you may be eligible for pretrial diversionary programs, which consists of several programs designed to rehabilitate the offender, rather than punish them.  The objective, of course, is also to reduce recidivism and, effectively, state costs.  The public interest in minimizing repeat offenders is significant, which is why Connecticut continues to offer many offenders the benefit of these programs.    

Each diversionary program, while serving similar objectives, has different eligibility criteria, program objectives, time limitations, and requirements for successful completion.  Here is what you need to know about Connecticut’s most common diversionary programs:  

Accelerated Rehabilitation

To be eligible for Accelerated Rehabilitation (“AR”) in Connecticut, the defendant must be charged with a crime or, in some instances, a motor vehicle violation, not of serious nature.  The law expressly prohibits the use of AR for certain crimes including any class A or class B felony, operating under the influence, 2nd degree manslaughter, 2nd degree assault with a motor vehicle, 2nd degree sexual assault, 3rd degree sexual assault, 3rd degree sexual assault with a firearm, enticing a minor, 2nd or 3rd degree possession of child pornography, a crime or motor vehicle violation resulting in the death of another, family violence crimes, and others.  Prior convictions may also result in ineligibility for this program.  

If you are deemed eligible for this program, you will be supervised by the Court Support Services Division (“CSSD”).  While under CSSD supervision, the prosecution may be stayed for up to two (2) years enabling you time to successfully complete the program.    

Pretrial Alcohol Education Program

To be eligible for the Alcohol Education Program (“AEP”) in Connecticut, the defendant must be charged with operating under the influence, violating safe boating rules, or 2nd degree reckless vessel operation while under the influence, with some exceptions.  Like AR, prior convictions may also result in ineligibility for this program.  

If you are deemed eligible, you will be allocated one (1) year to complete this program consisting of between ten (10) to fifteen (15) sessions of an alcohol intervention or substance abuse program.  

Pretrial Drug Education and Community Service

To be eligible for the Drug Education and Community Service program, the defendant must be charged with a drug paraphernalia or possession crime or possession of less than .5 ounce of marijuana punishable by fine.  

Under this program, the defendant must submit to a Department of Mental Health and Addiction Services (“DMHAS”) for evaluation.  The defendant is allocated one (1) year to complete this program consisting of a fifteen (15) session drug education or substance abuse treatment program.  

Pretrial Family Violence Education Program

To be eligible for the Family Violence Education Program (“FVEP”) in Connecticut, the defendant must be charged with a family violence crime, with some exceptions.  A family violence crime, in Connecticut, is defined as a crime that includes an element of family violence to a family or household member.  The law expressly prohibits the use of FVEP for class A, B, C, or unclassified felonies with possible prison sentences greater than ten (10) years, and class D or unclassified felonies with possible prison sentences greater than five (5) years.  Any offenders that were involved in a family violence crime that involved inflicting serious physical injury are also ineligible without good cause.  Prior family violence convictions may also result in ineligibility for this program. 

If you are deemed eligible for this program, the Court Support Services Division (“CSSD”) will supervise you to ensure successful completion.  While under CSSD supervision, the prosecution may be stayed for up to two (2) years.

Pretrial Supervised Diversionary Program

To be eligible for the Pretrial Supervised Diversionary Program in Connecticut, the defendant must be charged with a crime or motor vehicle violation that is not of serious nature and must have a mental or emotional condition that has substantial adverse effects on the defendant’s ability to function.  This condition must require care and treatment.  Alternatively, the defendant may be eligible if they are a veteran with a mental health condition that is amenable to treatment if not dishonorably discharged from the military.  

If deemed eligible for this program, CSSD will develop a tailored treatment plan, even collaborating with state and federal agencies including DMHAS and the state and federal veteran’s departments.  Unlike the other diversionary programs, specially trained probation officers will supervise the defendant ensuring successful completion.  

With all of these programs, eligibility and admission into the program will not always result in your charges being dismissed.  It is imperative that you are wholly compliant with the court’s directives to ensure successful completion.  

If you have any further questions about criminal diversionary programs in Connecticut or would like the representation of an experienced attorney to assist you, contact our Managing Partner Joseph Maya directly via email at JMaya@Mayalaw.com or by telephone at (203) 221-3100 for a free consultation.

Operating Under the Influence in Connecticut

If you are facing allegations of Operating Under the Influence (“OUI”) under Connecticut Law, you must understand the charges you are facing.  These offenses are taken seriously and can result in significant penalties including community service, probation, fines, license restrictions, and even jail time – depending on the facts and circumstances of your case.  The actions you take, or fail to take, before, during, and after you are charged can alter the outcome of the case significantly.

In the event that this is not your first-time facing allegations of Operating Under the Influence in Connecticut, the consequences become significantly more serious.  Here is what you need to know about OUI penalties in Connecticut:

1st Offense

Under Connecticut law, any person who violates the operating under the influence statute for the first time will be charged with a class B misdemeanor.  While this may sound relatively insignificant to you, the statute imposes additional penalties including a mandatory minimum of forty-eight (48) hours in jail and a fine of between five hundred and one thousand ($500-$1000) dollars.  If you are facing charges in addition to the OUI charge, expect even more consequences.  

2nd Offense

Any person who violates the operating under the influence statute for the second time in Connecticut will face even more serious consequences.  Under the statute, an OUI conviction as a second offender will result in a felony, rather than the misdemeanor charge given to first-time offenders.  The statute additionally imposes a much more severe mandatory minimum of one hundred twenty (120) days in jail and a fine somewhere between one and four ($1,000-$4,000) dollars.  Again, additional charges may result in even more penalties.

3rd Offense 

By the time you are charged with your third OUI in Connecticut, the law is not on your side and you can expect serious consequences.  If your choices have led to yet another OUI arrest, under Connecticut law you will be charged with an even more serious class E felony.  A conviction of a Class E felonies can mean up to three (3) years in prison.  The statute additionally requires a mandatory minimum of one (1) year in jail and a fine somewhere between two and five thousand ($2,000-$5,000) dollars.

On top of the already serious consequences, additional penalties may include community service, the requirement to complete a criminal diversionary program including the Alcohol Education Program, probation, conditional discharge outlining the terms of your release from custody, points on your license, the installation of an ignition interlock device on your vehicle requiring you to submit to a breath test every time you operate your vehicle, other license restrictions, and license suspension.   With so much at stake, it is imperative that you seek the assistance of competent counsel. An experienced OUI attorney can assist you in negotiating the best possible outcome for your case.

 

If you have any further questions about Operating Under the Influence in Connecticut or would like the representation of an experienced attorney to assist you, contact our Managing Partner Joseph Maya directly via email at JMaya@Mayalaw.com or by telephone at (203) 221-3100 for a free consultation.

 

What You Need to Know About Expungement in Connecticut

Is Your Criminal Record Haunting You Years Later?  What You Need to Know About Expungement in Connecticut…

If you live in Connecticut, the Connecticut Board of Pardons and Paroles (“BOPP”) Pardon Division has the power to grant a criminal expungement, also known as an Absolute Pardon.  Alternatively, for those not yet eligible for an absolute pardon, the BOPP has the power to issue a Certificate of Employability (“COE”) which can help you to secure employment while you get back on your feet.  

Absolute Pardon

An Absolute Pardon is an absolute erasure of your Connecticut criminal record.  To be eligible, certain requirements must be met:

  1. You must be a resident of the state of Connecticut.
  2. You must have one (1) or more criminal conviction(s) in any state of jurisdiction.
  3. Three (3) years must have passed since your most recent misdemeanor conviction.
  4. Five (5) years must have passed since your most recent felony conviction.
  5. Thirteen (13) months must have passed since the court nolled any charges against you.  
  6. You must have no pending charges, open cases, or be on any form of supervision in any jurisdiction, state of federal.

Assuming you have met all of these eligibility requirements, you may apply for an absolute pardon.  Once the application is started, you or your attorney will have six (6) months to complete the process, and it can be quite involved.  An Absolute Pardon in Connecticut requires a comprehensive background check that includes gathering imperative documents including your driver’s license, a criminal history report; fingerprints; incident reports; and court, probation, and police records.  In addition to these documents, you are required to submit at least three (3) character reference questionnaires.   Once your file has been complete, a pre-screen telephone interview will be scheduled and finally, you will be required to attend a hearing on the issue.

We get it – it sounds involved.  There is good news if your offenses are considered “non-violent” and do not involved a listed victim.  Non-violent offenders may be considered for expedited review, and it is possible for your expungement to be processed without the need for a pre-screen telephone interview or hearing.  However, this process is discretionary with the Pardons Board so do not hang your hat on it.

Like just about every other area of law, every case is different.  It is impossible to determine whether or not you will or will not succeed in the process, though some factors may help (or hurt) you.  The BOPP will look at a variety of factors, including but not limited to, the severity of the offense, the extent of your criminal record, how long it has been since your last conviction, whether the crime had any impact on the community, whether there were any listed victims and what input they might have had, and what you have been doing since the conviction are just some considerations that will go into assessing the application.  Have you been very active in your community?  Have you completely turned your life around?  Have you been able to hold steady employment?  The list can go on.

Certificate of Employability

Even if you are not eligible for an Absolute Pardon at this time, the BOPP offers an alternative; a Certificate of Employability.  A COE is also known as a Provisional Pardon or Certificate of Rehabilitation.  Unlike an Absolute Parson, the process of obtaining this certificate does not erase your criminal record.  A COE is intended for employment and licensure purposes only.  

To be eligible for a COE, certain requirements must be met:

  1. You must be a resident of the state of Connecticut.
  2. You must have one (1) or more criminal conviction(s) in any state of jurisdiction.
  3. If you have recently completed a sentence or are on parole or special parole:
    1. You must have been in the community for ninety (90) days and have no new arrest(s) if you have recently completed your sentence and are not currently under supervision.
    2. You must have completed ninety (90) days of supervision if you are under the supervision of the Department of Corrections Parole and Community Services Division.
  4. Thirteen (13) months must have passed since the court nolled any charges against you.  

If you are currently on probation and have more than ninety (90) days of supervision left, you must apply through the Court Support Services Division (“CSSD”).  Contact your probation officer for further information.

Assuming you have met all of these eligibility requirements, you may apply for a COE.  The BOPP requires you to submit a Background Investigation Authorization Form, a copy of your valid Driver’s License or State ID, and a Supervising Officer Questionnaire for those currently under any form of supervision.  

Like Absolute Pardon applications, once submitted, your application for a COE will be reviewed and investigated.  Once the investigation and administrative review are complete, the Board will either deny or grant the issuance of the Certificate.  Unlike an Absolute Pardon, a hearing is not necessary for your application for a COE.    

If you have any further questions about expungement in Connecticut, contact our Managing Partner Joseph Maya directly via email at JMaya@Mayalaw.com or by telephone at (203) 221-3100 for a free consultation.

How Do I Write a Writ of Discovery or Suppression in Connecticut?

If you are going through a criminal case in Connecticut unrepresented, you may consider checking the judicial website or the Connecticut Practice Book for information on court procedure.  However, in many criminal cases, as the stakes are often high, an inexperienced defendant should consult experienced counsel.  Counsel can easily file any discovery motions or motion to suppress, in a timely and competent manner.  Without representation it is likely that a defendant will become overwhelmed by complex court procedures and will fail to handle the matter as effectively as possible.

If you have any further questions regarding criminal law in Connecticut, please contact Joseph C. Maya, Esq. at (203) 221-3100 or e-mail him directly at JMaya@Mayalaw.com.

How Do I Write a Writ of Discovery or Suppression in Connecticut?

If you are going through a criminal case in Connecticut unrepresented, you may consider checking the judicial website or the Connecticut Practice Book for information on court procedure.  However, in many criminal cases, as the stakes are often high, an inexperienced defendant should consult experienced counsel.  Counsel can easily file any discovery motions or motion to suppress, in a timely and competent manner.  Without representation it is likely that a defendant will become overwhelmed by complex court procedures and will fail to handle the matter as effectively as possible.

If you have any further questions regarding criminal law in Connecticut, please contact Joseph C. Maya, Esq. at (203) 221-3100 or e-mail him directly at JMaya@Mayalaw.com.

GPS Evidence Stricken: A Victory for the Fourth Amendment

GPS units are not only handy devices which are, for many, becoming indispensable on the roads, but the technology is increasingly being utilized by law enforcement officials to track suspects, to gather evidence, and to ultimately build cases against criminal defendants. Advocates of individual civil liberties and opponents of excessive governmental intrusion argue that the surreptitious placement of a GPS device by the police under a private citizen’s automobile runs afoul of the Constitutional protections against unlawful searches and seizures. Prosecutors, on the other hand, contend that police have the right and option to view individuals operating their vehicles on private roads without a warrant, and the GPS device is merely an extension of such ability. A defendant’s constitutional challenge to the practice was recently upheld in the Court of Appeals in New York (resulting in a reversal of a conviction, and ultimately a dismissal of criminal charges). The issue is ripe to be challenged in Connecticut and other jurisdictions across the nation.

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Our firm in Westport serves clients with divorce, matrimonial, and family law issues from all over the state including the towns of: Bethel, Bridgeport, Brookfield, Danbury, Darien, Easton, Fairfield, Greenwich, Monroe, New Canaan, New Fairfield, Newton, Norwalk, Redding, Ridgefield, Shelton, Sherman, Stamford, Stratford, Trumbull, Weston, Westport, and Wilton.

If you have any questions or would like to speak to an attorney about a divorce or familial matter, please don’t hesitate to call our office at (203) 221-3100 for a free consultation. Divorce is difficult, education is power. Call today.

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The legal future of this type of “surveillance” – whether utilized by a police department (with or without a warrant), or by a suspicious spouse or private investigator in anticipation of a divorce proceeding – is still unclear, but surely provokes thought and discussion.

H. Daniel Murphy, Esq.

hdmurphy@mayalaw.com

Police GPS Surveillance Raises Legal Questions, D. Freedman, Connecticut Post, June 7, 2009: http://www.connpost.com/breakingnews/ci_12537316

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