Posts tagged with "intoxicating liquor"

Liability Under Dram Shop Act Requires “Visible Intoxication”

Leave a reply

The Appellate Court of Connecticut considered whether or not a trial court’s denial of a motion to set aside the verdict in a case involving the Dram Shop Act was an abuse of discretion, because a required element of the offense charged was not established by the plaintiff.

Case Background

In this case, a citizen and his friend were at a restaurant-bar where they were playing billiards. The citizen consumed five beers, two alcoholic shots, and a blackberry brandy within a four-hour period, but did not exhibit any physical signs of intoxication. Nonetheless, while drunk, he purchased an alcoholic beverage from the restaurant’s bartender. Subsequently, the citizen and his friend left the restaurant-bar and were involved in an accident, resulting in the friend’s death.

The estate of the friend (plaintiff) brought a wrongful death action against the owners of the restaurant (defendant), claiming liability under the Dram Shop Act, Connecticut General Statutes (CGS) § 30-102. A jury found in the plaintiff’s favor and awarded $4 million in damages, though the defendant sought reduction to the statutory $250,000, which the court granted. The defendant also filed a motion to set aside the verdict and a directed verdict, arguing, in part, that “no evidence was presented from which the jury reasonably could have concluded that [the citizen] was intoxicated” under CGS § 30-102. The motion was denied, and the defendant appealed, arguing that the trial court abused its discretion in denying the motion.

Proof of “Visible Intoxication” Required

CGS § 30-102 is the statutory mechanism through which a plaintiff may recover damages from one who sells alcohol to an intoxicated person, and such person subsequently causes an injury. For the plaintiff to prevail in such an action, he or she must prove that “there was (1) a sale of intoxicating liquor (2) to an intoxicated person (3) who, in consequence of such intoxication, causes injury to the person or property of another.” At issue on appeal in this case was whether or not the second element requires proof of “visible intoxication” or what amounts to per se intoxication.

The Appellate Court agreed that a showing of visible intoxication was required, and stated that for purposes of CGS § 30-102, “an individual must exhibit some type of physical symptomology in such a way that an observer could perceive that the individual was indeed under the influence of alcohol to some noticeable extent.” In addition, the plaintiff must present evidence that shows the subject in question was either visibly or perceivably intoxicated.

Appellate Court Ruling

In this case, the Appellate Court noted that while the evidence presented at trial may establish intoxication as it is used in our DUI law (CGS § 14-227a), it was insufficient to prove intoxication under CGS § 30-102. As the Court elaborated, the plaintiff did not present any evidence of visible intoxication – indeed, there was no evidence at all showing that the citizen “was exhibiting any visible or perceivable indications that he was intoxicated.” Therefore, the court abused its discretion in denying the motion to set aside the verdict, because based on the evidence presented, a jury could not have found the required element of “intoxicated person.” Therefore, the judgment was reversed and case remanded.

Written by Lindsay E. Raber, Esq.

Should you have any questions, 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.

The Prosecutor’s Job in a DUI Case: Demonstrate the Defendant was Intoxicated, Not Educate the Jury About Field Sobriety Tests

Leave a reply

Last March, the Appellate Court of Connecticut reviewed a defendant’s insufficiency of the evidence claim as it related to his recent conviction of operating a motor vehicle while under the influence (OMVUI) of alcohol.

Case Details

This case arose from an incident that occurred at approximately 9pm on August 20, 2006. Police officers saw the defendant driving his moped on Route 12, a public roadway, in an erratic manner. After officers initiated a traffic stop, they made the following observations of the defendant: bloodshot glassy eyes, the smell of liquor, and disheveled clothing. When asked for his driver’s license, the defendant stated, “[y]ou don’t need a license to operate a moped… give me a break, I just got out on a DWI offense,” and indicated he should not have been driving.

The defendant became uncooperative with the officers, was unable to complete one field sobriety test, and refused to undergo other field tests and a breathalyzer test. The defendant was charged and convicted of OMVUI and operating a motor vehicle with a suspended license in violation of General Statutes §§ 14-227a and 14-215(c), respectively. On appeal, the defendant argued that the evidence presented by the State was insufficient to sustain his conviction for OMVUI.

To be found guilty of OMVUI, the state must prove beyond a reasonable doubt that the defendant “operated a motor vehicle, on a public highway and while the defendant was under the influence of an intoxicating liquor.” To establish the third element, there must be sufficient evidence demonstrating that the defendant “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.”

The Court’s Decision

In this case, the defendant contested that the State failed its burden in proving the third element. However, the Appellate Court was persuaded that the State satisfied this element through officer testimony regarding the defendant’s appearance and behavior. The defendant argued that the State failed to establish what a person must do to pass field sobriety tests and how the tests measure a driver’s ability to operate their car. However, the Appellate Court wrote, “The state… did not bear the burden of educating the jury with regard to field sobriety tests, but of demonstrating that the defendant was intoxicated.” After addressing additional grounds for appeal, 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.

Since Defendant Filed Appeal After Statutory Deadline, Trial Court Lacked Jurisdiction to Adjudicate

Leave a reply

Last April, the Appellate Court of Connecticut affirmed a trial court’s determination that it lacked subject matter jurisdiction to hear plaintiff’s appeal because the statutory filing period had already expired.

Case Background

In this case, the plaintiff was arrested for operating a motor vehicle while under the influence (OMVUI) of alcohol. At the police station, the plaintiff was informed that, under General Statutes § 14-227b(b), if he refused to submit to either a breathalyzer test or other sobriety tests, his license would be suspended for six months.

The plaintiff refused to take the tests, and the defendant Department of Motor Vehicles (DMV) began the process of suspending the plaintiff’s license. The plaintiff requested an administrative hearing, which was held on August 28, 2009. The hearing officer found that police had probable cause to arrest the plaintiff and that the plaintiff refused to take sobriety tests and operated a motor vehicle at the time he was arrested.

On September 16, 2009, the plaintiff moved for reconsideration, and this motion was denied on September 29. The plaintiff filed a recognizance bond with the clerk’s office on November 12, and then submitted his appeal on November 27. The trial court found it lacked subject matter jurisdiction to adjudicate the appeal because it was submitted after the statutory filing period. When the plaintiff appealed this decision, he argued that the trial court erred with this finding: he claimed he actually filed his appeal at the same time as his recognizance bond.

The Court’s Decision

Under General Statutes § 4-183(c), a party must file an appeal with the agency that renders a decision either within forty-five days 1) after mailing of the final decision or 2) after the agency denies a petition for reconsideration. In the context of administrative appeals, courts will strictly comply with statutory dictates, and § 4-183(c)’s forty-five day filing requirement is “a mandatory jurisdiction in the first instance.” A reviewing court will not disturb the findings of a trial court unless there is no evidence to support it, or if a review of the evidence leaves the sense that a mistake was made. This is known as the clearly erroneous standard of review.

In this case, the forty-five day statutory period began to run on September 29, 2009, and expired on November 12, 2009, the day the plaintiff filed his recognizance bond. The plaintiff claimed that he handed a copy of his appeal to the clerk at the same time. However, the trial court found that the filing of the bond “did not constitute a ‘filing’ with the clerk of the court” and that the plaintiff did not file his appeal until November 27, 2009. The Appellate Court stated that the trial court was within its discretion to weigh the evidence, and could not hold that the findings made in this case were clearly erroneous. Therefore, it affirmed 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.

Defendant’s Motion to Dismiss Information Seeking Increased Penalty Denied

Leave a reply

In a 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.

Operating a Vehicle Under the Influence in Connecticut

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.