State v. Anonymous (1971-8)

• Citation: 6 Conn.Cir.Ct. 470,276 A.2d 452
• Parties: STATE of Connecticut v. ANONYMOUS (1971-8). . KOSICKI, Judge. The defendant was tried before a jury of twelve on the sole charge of operating a motor vehicle on a public highway while under the influence of intoxicating liquor, in violation of § 14-227a of the General Statutes. Of this charge he was found guilty. The defendant moved to set aside the verdict, and the motion was denied. From the judgment rendered, the defendant has appealed. We cannot overlook the irregularities in the procedure followed in pursuing this appeal, which are apparent from an examination of the record. The original finding of the trial court was drawn essentially in the form of a finding of facts on an appeal in a court case. This was followed later by a 'Corrected Finding, Jury Case.' In this latter finding, the facts are stated as in a court case, but the court included, as well, the claims of the defendant pertaining to the asserted errors in the charge and in rulings on evidence. This portion of the finding was in conformity with the requirements of § 999 of the Practice Book and Forms 604, 819(C) and 820 contained therein. The parties in this case acquiesced in the procedure followed and, to the extent that it is possible for us to do so, we shall consider the errors assigned in this appeal. There is no substantial dispute over the facts on which the state and the defendant offered evidence and which they claimed to have proved on the trial of this case to the jury. The defendant, who was deaf as a result of spinal meningitis, needed the assistance of an interpreter during his trial. Because of the availability of a competent interpreter, because of the defendant's ability to read lips, and because of the use of his other sensory capacities, the defendant was aware of the proceedings. He is employed in a responsible position and is alert, poised and well educated. On the evening in question, after leaving his office and while on his way to his home, he visited a restaurant.
• Decision Date: 01 January 1964
• Court: Circuit Court of Connecticut

Page 452

276 A.2d 452

6 Conn.Cir.Ct. 470

STATE of Connecticut v. ANONYMOUS (1971-8).

Circuit Court of Connecticut.

KOSICKI, Judge.

The defendant was tried before a jury of twelve on the sole charge of operating a motor vehicle on a public highway while under the influence of intoxicating liquor, in violation of § 14-227a of the General Statutes. Of this charge he was found guilty. The defendant moved to set aside the verdict, and the motion was denied. From the judgment rendered, the defendant has appealed.

We cannot overlook the irregularities in the procedure followed in pursuing this appeal, which are apparent from an examination of the record. The original finding of the trial court was drawn essentially in the form of a finding of facts on an appeal in a court case. This was followed later by a 'Corrected Finding, Jury Case.' In this latter finding, the facts are stated as in a court case, but the court included, as well, the claims of the defendant pertaining to the asserted errors in the charge and in rulings on evidence. This portion of the finding was in conformity with the requirements of § 999 of the Practice Book and Forms 604, 819(C) and 820 contained therein. The parties in this case acquiesced in the procedure followed and, to the extent that it is possible for us to do so, we shall consider the errors assigned in this appeal.

There is no substantial dispute over the facts on which the state and the defendant offered evidence and which they claimed to have proved on the trial of this case to the jury. The defendant, who was deaf as a result of spinal meningitis, needed the assistance of an interpreter during his trial. Because of the availability of a competent interpreter, because of the defendant's ability to read lips, and because of the use of his other sensory capacities, the defendant was aware of the proceedings. He is employed in a responsible position and is alert, poised and well educated.

On the evening in question, after leaving his office and while on his way to his home, he visited a restaurant. He remained there for about an hour and consumed some alcoholic drinks. Upon leaving the restaurant, he proceeded west, intending to drive to his home. As he approached an intersection, he was observed by a police officer stationed there on duty. The officer who had received a radio communication converning the operation of a car like that of the defendant, stepped into the intersection, put up his hand and motioned for the defendant's car to stop. The vehicle did not stop and the officer had to step to his right to get out of its way. The traffic behind the defendant's car had come to a halt in response to the officer's signal. The defendant proceeded through the intersection at approximately ten miles per hour. The officer moved rapidly along the driver's side and shouted at the operator to stop. The defendant turned and looked at the officer, gradually picked up speed, and continued west. The defendant appeared to be dazed and glassy-eyed, and his head was bobbing.

The defendant was next observed by a police officer in a cruiser. This officer, who had been alerted by radio communication, observed that the defendant's car was being operated erratically and was weaving and swaying. With his red light and siren in operation, the officer pulled up beside the defendant, blew his horn and motioned for the defendant to stop. The defendant looked at the officer but did not stop. There were no vehicles in front of the defendant, and traffic was moving between fifteen and twenty-five miles an hour. The officer finally stopped the defendant by pulling in front of his vehicle. Upon being asked, the defendant did not produce his license and registration.

The officer opened the door of the defendant's car, and the defendant stepped out. He had difficulty in keeping his balance, was stumbling, staggering, swaying, leaning against the car for support, and, at one point, fell over on top of the trunk. The officer detected a strong odor of alcohol. The defendant, after being placed in the police cruiser, attempted twice to get out. He was driven to police headquarters, arriving there at approximately 7 p.m. Both at the scene and at the police station, he was advised of his constitutional rights. This advice was given orally and in writing. The written document shown him at the scene was not retained by the officer and, therefore, was not offered in evidence. At the police headquarters, the defendant was given the standard form of warning, of which we can take judicial notice, setting forth his constitutional rights, and was asked to read and sign it. This he refused to do. He was unsteady on his feet. He asked that his daughter be called, and the police contacted her by telephone.

The defendant was asked to perform walking and balance tests. In doing so, he swayed, staggered, fumbled, and almost fell over. He was in custody for about two and one-half hours. The officer who had stopped the defendant testified that the defendant vomitted in the lavatory in the police station and that, in the officer's opinion, the defendant was under the influence of alcohol and unfit to operate a motor vehicle. The police communicated with the defendant by writing notes.

The defendant offered the testimony of a witness from the office where the defendant was employed. The witness held a master's degree and had worked for fifteen years in the field of education of the deaf. The testimony was to the effect that the defendant is a profoundly deaf person, receives no clues from sounds and, therefore, must learn to manipulate and communicate in his environment totally from a sense of sight. According to the witness, who did not profess to be a physician or to hold a degree in medicine, meningitis destroys the fluid in the semicircular canal of the ear, and this would affect the defendant's equilibrium and speech intonation. Normally, the defendant could walk and drive without any problem and he would not stagger while walking or weave back and forth on the highway. In the opinion of this witness, the defendant's responses were not merely characteristic of the deaf but also of the disadvntaged.

The defendant has assigned eleven claims of error directed toward the trial court's denial of the defendant's motion to set aside the verdict; its failure to correct the finding; the admission in evidence of the defendant's refusal to submit himself to certain medical or chemical tests for the alcoholic content of his blood; the introduction of evidence concerning his performance of certain physical tests; the admission of opinion evidence of the arresting officers § to the defendant's sobriety; and the court's instructions to the jury.

We are of the opinion that one of the claimed errors is valid and is dispositive of this appeal. On his direct examination, as a state's witness, an arresting officer testified, against the defendant's objection, that he had offered the defendant an opportunity to take certain chemical sobriety tests of his blood, breath and urine, and that the...