Posts tagged with "under the influence"

An Illustration: Eligibility for the Pretrial Alcohol Education Program

Connecticut provides individuals charged with operating a motor vehicle while under the influence (OMVUI), and a very limited number of other crimes, the opportunity to take part in a pretrial alcohol education program. The requirements of this program are set forth in Connecticut General Statutes (CGS) § 54-56g. Criminal defendants seek participation in hopes that should they successfully complete the program, they can have their charges dismissed. However, entry is not guaranteed: in the case where a defendant is charged with OMVUI, eligibility requires that “such person has not been convicted in any other state at any time of an offense the essential elements of which are substantially the same as” either the behavioral or per se violations of our OMVUI statute, CGS § 14-227a.

To illustrate, in a recent criminal law matter, a defendant was charged in Connecticut with OMVUI and sought participation in the pretrial alcohol education program. The essential elements of OMVUI under CGS § 14-227a(a)(1) are “(1) operation of a (2) motor vehicle (3) while under the influence of alcohol or drugs.” However, the defendant was previously convicted of violating New York Vehicle & Traffic Law § 1192.03, which prohibits “(1) operation of a (2) motor vehicle (3) while in an intoxicated condition.” As one can readily see, the required elements of these two crimes are substantially the same. Therefore, the defendant was denied eligibility because he was previously convicted of a New York offense that was substantially similar to the crime of OMVUI in Connecticut.

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.

Conviction of DUI Requires Operating a Motor Vehicle, Not Driving Erratically

In a recent criminal law matter, the Appellate Court of Connecticut considered whether there was insufficient evidence to convict the defendant of operating a motor vehicle while under the influence (OMVUI) in violation of General Statutes § 14-227a(a)(1), because officers did not testify that the defendant was operating his vehicle in an erratic manner.

This case arose from an incident that occurred at 1am on May 8, 2005. A Brookfield police officer observed the defendant’s vehicle moving back and forth within his travel lane and cross the center solid yellow lines. He initiated a traffic stop, and noticed the defendant had red and glossy eyes, slurred speech, and smelled of alcohol. The defendant stated that he drank two or three alcoholic beverages only thirty minutes earlier. A back-up officer arrived, and field sobriety tests were administered. The defendant failed the two tests given, and the officers decided to arrest him. At this point, the defendant resisted arrest, but was ultimately handcuffed and secured.

The defendant was tried and convicted of OMVUI (and sentenced as a repeat offender) as well as interfering with an officer in violation of § 53a-167a. He appealed his judgment, arguing in part that there was insufficient evidence to convict him of OMVUI because officers could not testify that he was operating his car erratically before they pulled him over. Put differently, the defendant argued that the State must prove that he actually had difficulty driving the car because of the alcohol he consumed.

To convict a defendant of OMVUI, the State must prove three elements beyond a reasonable doubt: operation of a motor vehicle on a public highway (or other designated area) while under the influence of alcohol, drugs, or both. “Operation” within the meaning § 14-227a does not require that the defendant is actually driving the car; the court will determine if the defendant’s conduct facilitated use of the “motive power of the vehicle.”

In this case, the Appellate Court stated that the defendant had “misplaced” emphasis on evidentiary insufficiency of erratic driving. Operation, not driving, is a required element of OMVUI, and the jury had sufficient evidence to establish that the defendant (and no one else) operated his car on a public road while under the influence of alcohol. In addition, the Court rejected a corollary of the defendant’s argument that the observations made by police regarding his post-stop conduct and appearance were irrelevant. Criminal jurisprudence allows the admission of evidence after a crime has been committed to prove guilt so long as it is probative and not remotely acquired. The Court credited the police officer’s description of the defendant’s appearance and demeanor as probative, and thus rejected the defendant’s claims that the evidence was insufficient to convict him of OMVUI.

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.

Superior Court Denies Motions to Suppress in DUI Case, Finding Defendant’s Constitutional Rights Were Not Violated

This case arose from an incident that occurred on April 6, 2008. A police officer received word from dispatch that a restaurant drive-thru employee called in to report a customer, the defendant, who appeared to be under the influence of alcohol. The officer was given specific information about the vehicle and told that this was the third such report received. The officer promptly located the defendant’s vehicle and initiated a traffic stop.

When the officer approached the vehicle, he observed beer cans on the back floor of the defendant’s car in plain sight. Some of these were empty, and all were seized as evidence. After additional officers arrived on the scene, they conducted field sobriety tests and then arrested the defendant and brought her to police headquarters. There, the officers advised the defendant of her Miranda rights and had her review a Notice of Rights form, which included information regarding implied consent and the chemical alcohol test refusal. The defendant was told she could call an attorney, but she was unable to successfully make contact with one. After fifteen minutes passed, officers advised the defendant that she had to decide whether or not to take the test, so she refused.

The defendant was charged with operating a motor vehicle while under the influence (OMVUI) of alcohol in violation of General Statutes § 14-227a. She moved to suppress statements she made as well as evidence collected from the motor vehicle stop and during a search of her car. In support of her motions, the defendant argued that police violated her rights under the Fourth and Fifth Amendments of the U.S. Constitution.

The Fourth Amendment protects people from unreasonable searches and seizures, and generally police must have a warrant to conduct a search. However, there are four recognized, narrow exceptions where the warrantless search of a vehicle is reasonable, including “when there was probable cause to believe that the car contained contraband or evidence pertaining to a crime.” Officers may seize contraband that it finds in plain view, and “such observations give rise to probable cause justifying a search of the vehicle.”

The Fifth Amendment, in part, prohibits compelled self-incrimination. The well-known recitation of Miranda warnings stem from the construction of this Amendment, and two conditions are required before an officer must invoke this warning: custody and interrogation. Waiver of Miranda rights must be made knowingly and voluntarily, which must be proven by the State by the preponderance of the evidence.

Under Connecticut law, in an action where a defendant is charged with OMVUI, the jury may draw permissive inferences from the fact that the defendant refused to submit to a breathalyzer test. In addition, identifiable citizen informants are presumptively reliable, and officers are justified when they assume that the informant is providing truthful information. Because of the pervasive state interest in preventing drunk driving, officers do not have to wait for the defendant to drive erratically or cause an accident before pulling them over.

In this case, the Superior Court of Connecticut adjudicating the case denied all of the defendant’s motions. It found that police had a reasonable and articulable suspicion to stop the defendant, based on the information provided by the restaurant employee, an identifiable citizen informant. The seizure of the beer cans, which were in plain view, was permissible. In addition, because there was no interrogation at the police station, the defendant was not compelled to incriminate herself. Rather, pursuant to General Statutes § 14-227b(b), police officers have the explicit authority to request that a defendant arrested for OMVUI sub

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.

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. 

Liability Under Dram Shop Act Requires “Visible Intoxication”

Last year, the Appellate Court of Connecticut considered whether or not a trial court’s denial of a motion to set aside the verdict was an abuse of discretion, because a required element of the offense charged was not established by the plaintiff.

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.

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.

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.

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.

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