Posts tagged with "elevated blood alcohol content"

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

In a recent 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.

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.

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 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.

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

In a recent 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.

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.

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.

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.

When faced with a charge of operating a motor vehicle while intoxicated (a.k.a. driving under the influence), an individual is best served by consulting with an experienced criminal law practitioner. Should you have any questions regarding criminal defense, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County at 203-221-3100 or at JMaya@Mayalaw.com.

Written by Lindsay E. Raber, Esq.

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

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

This case arose from an incident that occurred on August 17, 2005. A state police trooper observed the defendant’s vehicle weaving and leaving the traffic lane three times along Route 8 in Trumbull, so he conducted a traffic stop. The trooper noticed the defendant had bloodshot eyes and detected the strong odor of alcohol, and the defendant stated she had two glasses of wine at a restaurant in Fairfield. The trooper administered three field sobriety tests, all of which the defendant failed, so she was placed under arrest and brought to state police barracks. During questioning, the defendant stated she had two vodka drinks at a restaurant in Bridgeport. She submitted to an Intoxilyzer test twice, which reported a blood alcohol content (BAC) of 0.159 and 0.143, both of which were above the legal limit of 0.08.

The defendant was charged with violating General Statutes §§ 14-227a(a)(1) and (2): operation of a motor vehicle while under the influence (OMVUI) of an intoxicating liquor and while having an elevated blood alcohol content. At trial, the director of controlled substances in the toxicology laboratory for the Department of Public Safety extrapolated the defendant’s BAC to 0.185 at the time she was operating her car. The court instructed the jury that the chemical test results could not be considered as evidence of the defendant’s guilt with respect to the behavioral count. “That evidence was offered for a limited purpose only and is admissible only with respect to the allegations contained in [the per se count] of the information.” The jury convicted the defendant and she appealed, arguing insufficiency of the evidence to convict, and that the jury impermissibly considered the toxicologist’s testimony “regarding the result of the Intoxylizer tests” in deciding upon the behavioral count.

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

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

When faced with a charge of operating a motor vehicle while intoxicated (a.k.a. driving under the influence), an individual is best served by consulting with an experienced criminal law practitioner. Should you have any questions regarding criminal defense, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County at 203-221-3100 or at JMaya@Mayalaw.com.

Written by Lindsay E. Raber, Esq.

Defendant’s Motion to Dismiss Information Seeking Increased Penalty Denied

In a recent criminal law matter, a Superior Court of Connecticut entertained a defendant’s motion to dismiss a Part B information submitted by the State that sought to increase the penalty for his present DUI conviction based on a previous one.

In 2008, the defendant was convicted under New Hampshire’s statute criminalizing driving with an elevated alcohol content. The defendant requested that the conviction be reduced from a Class B Misdemeanor to a Violation, and the court granted this motion in January 2009. On June 27, 2009, the defendant was convicted in Connecticut of operating a motor vehicle while under the influence (OMVUI). Because the defendant had a prior conviction for a similar offense, the State submitted a Part B information seeking enhanced penalties. The defendant moved to dismiss the information.

General Statutes § 14-227a penalizes operation of a motor vehicle while under the influence. A person is guilty of this crime if they operate a motor vehicle “(1) while under the influence of intoxicating liquor or any drug or both, or (2) while such person has an elevated blood alcohol content.” New Hampshire’s law is markedly similar: a person cannot drive or attempt to drive “(a) while such person is under the influence of intoxicating liquor or any controlled drug … (b) while such person has an alcohol concentration of 0.08 or more.” NHRSA § 265-A:2.

Connecticut’s statutes also provide for enhanced penalties for multiple convictions of OMVUI. As required by § 14-227a(g), the essential elements of the two crimes must be substantially the same. In this case, the Superior Court found that the essential elements of the Connecticut and New Hampshire statutes were indeed substantially the same. It stated that the defendant placed an improper emphasis on the distinction between the terms “misdemeanor” and “violation,” noting that what matters is the “function and purpose” of the statutes. Because the Connecticut legislature intended to deter people from driving under the influence, it did not matter what label was applied. Therefore, the defendant’s motion to dismiss was denied.

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.