Posts tagged with "reliable"

Facebook Photographs Depicting Alcohol Consumption Properly Considered in Probation Revocation Hearing

In a recent criminal law matter, the Supreme Court of Connecticut upheld a defendant’s probation revocation, finding that photographic evidence had a “minimal indicium of reliability” allowing their consideration by the trial court.

In this case, the defendant was convicted of operating a motor vehicle while under the influence by a person under age twenty-one, in violation of General Statutes § 14-227g, following an accident resulting in the drowning death of a passenger. She was sentenced to five years incarceration, execution suspended after one year, and five years probation. Eleven special conditions of probation were imposed, including operation of a car only with a valid license and the installation of an ignition interlock device on any car she owned or operated.

While on probation, the defendant was involved in a minor non-alcohol-related accident, and police determined she violated the above two conditions. A probation hearing was held, where the State sought revocation and imposition of the remaining four years incarceration. It argued the defendant was a “marginal probationer… worshipping at the altar of alcohol and debauchery and lewd behavior.” To support its position, the State referenced photographs (photos) posted on Facebook which, it asserted, depicted the defendant while on probation. Some of the photos “demonstrate or suggest alcohol consumption by the defendant” in various social settings. Defense counsel argued for a more lenient sentence because the violations were not severe and alcohol was not involved in the accident. He asserted that the images did not represent the defendant and were undated.

The court stated that alcohol consumption was an aggravating factor in the original sentence and it was appalled that the defendant “still has the audacity to go back on Facebook and show herself in the condition of being intoxicated.” When given the opportunity to respond to the prosecutor’s and court’s statements, the defendant simply apologized for what she did and asserted she did not drive after drinking. When the State sought to introduce the photos, defense counsel objected, arguing a potential due process violation. However, the court overruled, stating that “it could consider any evidence in a sentencing hearing as long as the evidence was found to be reliable.”

At the conclusion of the hearing, the court imposed a three-year sentence because the court believed that “the beneficial purposes of probation are no longer being served.” The defendant appealed, claiming that the Facebook photos were not reliable. However, the Appellate Court affirmed, noting that the claim was unpreserved and did not warrant special review because it did not involve a constitutional violation. The defendant then sought remedy with the Supreme Court.

When trial courts consider whether to impose an original sentence and order incarceration, it must exercise an informed use of discretion. The sentencing judge has authority to consider “a wide variety of information… only if it has some minimal indicium of reliability.” Particularly telling, “the absence of a denial itself provides an important [indicium] of reliability.” Therefore, a judge’s determination will be upheld “[a]s long as [he] has a reasonable, persuasive basis for relying on the information which he uses to fashion his ultimate sentence.”

In this case, the Supreme Court noted that the only suggestion the defendant denied as that she drove after drinking. She did not contest the prosecutor’s and court’s statements, and did not deny that the behavior depicted in the photos occurred while she was on probation. Rather, the court noted, “the defendant merely challenged the probative force of the evidence itself, not the underlying truth to which the evidence purportedly speaks.” Therefore, the Court concluded that the photos had the minimal indicia of reliability which would survive constitutional analysis in a probation revocation hearing setting. It affirmed the judgment of the Appellate Court.

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

Written by Lindsay E. Raber, Esq.

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

Written by Lindsay E. Raber, Esq.