State v. Hancich
| Decision Date | 29 July 1986 |
| Parties | STATE of Connecticut v. Gail HANCICH. |
| Court | Connecticut Supreme Court |
Arnold B. Abrams, Meriden, and Philip A. Wright, Jr., with whom, on brief, was F. Woodward Lewis, Yalesville, for appellant (defendant in both cases).
Michael E. O'Hare, Deputy Asst. State's Atty., with whom, on brief, were Frank D'Addabbo, Asst. State's Atty., James G. Clark, Deputy Asst. State's Atty., and Mary Glassman, Law Student Intern, for appellee (State).
Before PETERS, C.J., and SHEA, DANNEHY, SANTANIELLO and CALLAHAN, JJ.
These two appeals arise from separate incidents in which this defendant was apprehended by police while driving her motor vehicle under the influence of intoxicating liquor, in violation of General Statutes § 14-227a. The first arrest occurred on August 22, 1983. On the basis of that arrest, the defendant applied for admission into the statutory pretrial alcohol education program; General Statutes § 14-227b; and was admitted on October 5, 1983. Little more than five months later, and before she had completed the program, the defendant was again arrested, on March 11, 1984, for operating her motor vehicle while under the influence of intoxicating liquor.
Thereafter, on October 11, 1984, the defendant completed the pretrial alcohol education program, and received a "certificate of completion" from the "program provider." The defendant's trial on her March 11, 1984 arrest began on November 1, 1984. Prior to the start of trial, the defendant moved to have dismissed the charges against her arising from the August 22, 1983 arrest in connection with which she had recently completed the pretrial alcohol education program. The trial court, Susco, J., reserved decision on the defendant's motion, pending the outcome of the defendant's trial on her March 11, 1984 arrest. That trial ended in a verdict of guilty on November 7, 1984. On the basis of that conviction, the trial court denied the defendant's motion to dismiss the charges stemming from her August 22, 1983 arrest, and the defendant entered a plea of nolo contendere to those charges on November 21, 1984.
The defendant raises several claims of error challenging her November 7, 1984 conviction for driving while under the influence of intoxicating liquor. We will consider those claims momentarily. At present it is sufficient to note that we find error in that conviction, and order a new trial. The defendant also claims error in the trial court's denial of her motion to dismiss the August 22, 1983 charges against her, to which she pleaded nolo contendere on November 21, 1984. The defendant's claim in this regard is essentially the same as that recently considered by this court in State v. Descoteaux, 200 Conn. 102, 509 A.2d 1035 (1986). In Descoteaux, the defendant had been removed from the pretrial alcohol education program on the basis of her conviction on a subsequent arrest for driving while under the influence of intoxicating liquor. We held that that conviction, even though arising from a subsequent incident, provided the trial court a sufficient reason to remove the defendant from the program. The only difference that we perceive between this case and Descoteaux is that in this case the defendant's November 7, 1984 conviction, which provided the reason for her removal from the program, was subsequently reversed on appeal, infra, in this opinion. Therefore, with regard to the trial court's denial of the defendant's motion to dismiss the August 22, 1983 charges, we believe that the only issue remaining for our consideration is whether our reversal of the defendant's November 7, 1984 conviction is sufficient to distinguish this case from the holding in Descoteaux. For the reasons to follow, we conclude that it is, and accordingly, the November 21, 1984 conviction may not stand. We turn now to the specific claims raised by the defendant.
Officer Thomas Curran of the Wallingford police department testified at the defendant's trial. According to Curran, he observed the defendant driving her automobile in an erratic manner shortly after 2 a.m. on March 11, 1984. He testified that the defendant had been driving at a high rate of speed, that she failed to stop at a stop sign, and that she crossed the yellow median four times. Curran also testified that he had followed the defendant with his strobe light and siren on for approximately one mile before she finally pulled over. The defendant could not recite the alphabet beyond the letter "F," nor could she stand on her feet without assistance. At 2:16 a.m., Curran placed the defendant under arrest for driving under the influence of intoxicating liquor, in violation of General Statutes § 14-227a(a). At 3 a.m., at the police station, the defendant submitted to chemical analysis of her breath as required by General Statutes § 14-227b. Buckley v. Muzio, 200 Conn. 1, 509 A.2d 489 (1986). The defendant's blood alcohol content measured at .165 percent.
The defendant claims on appeal that the trial court erred: (1) in not instructing the jury on the lesser included offense of driving while impaired in violation of General Statutes § 14-227a(b); (2) in failing to explain adequately the phrase "under the influence" in its charge to the jury; (3) in allowing into evidence the results of the defendant's breathalyzer test; and (4) in denying the defendant's motion for mistrial based on the trial court's redetermination, during jury selection, of the number of peremptory challenges remaining to the defendant. We find error only in the defendant's final claim. We consider the first three claims only insofar as they may likely recur on retrial.
The defendant claims that she was entitled to a lesser included offense instruction on driving while impaired, an offense defined in General Statutes § 14-227a(b). The trial court denied the defendant's request to charge because it believed that driving while impaired, an infraction; General Statutes § 14-227a(i); could not be considered an offense for purposes of the lesser included offense doctrine. While we do not agree with the trial court's reasoning, we believe that its decision may be sustained under our conventional analysis. As we have stated many times, a lesser included offense instruction is not appropriate unless "there is some evidence, introduced by either the state or the defendant ... which justifies conviction of the lesser offense; and ... the proof on the element or elements which differentiate the lesser offense from the offense charged is sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense but guilty of the lesser." State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980). General Statutes § 14-227a(b) provides that a "person shall be deemed impaired when at the time of the alleged offense the ratio of alcohol in the blood of such person was more than seven-hundredths of one per cent of alcohol, by weight, but less than ten-hundredths of one per cent of alcohol, by weight." Section 14-227a(d)(3) describes "impairment" in terms of the same numerical parameters. Therefore, under these two subsections it is clear that a person is impaired as a matter of law when his or her blood alcohol level is greater than .07 percent and less than .1 percent.
While "legal" impairment is conclusively established where a person's blood alcohol percentage falls between .07 and .1 percent, the version of General Statutes § 14-227a(d)(4) in effect when this offense was committed did not create a similar presumption of guilt, based on blood alcohol percentage, with respect to the crime of operating a motor vehicle while under the influence of intoxicating liquor as defined in General Statutes § 14-227a(a). The former § 14-227a(d)(4) 1 provided that a blood alcohol level of "ten-hundredths of one per cent or more ... shall be prima facie evidence that the defendant was under the influence of intoxicating liquor within the meaning of this section." That section thus created only a rebuttable presumption that a person was "under the influence of intoxicating liquor" where his or her blood alcohol level was found to equal or exceed .1 percent. While evidence of such an alcohol level was sufficient to establish the state's prima facie case, the defendant was formerly allowed to introduce evidence to show that, despite a blood alcohol level equal to or greater than .1 percent, he or she had not been under the influence of intoxicating liquor at the time of arrest. Thus, although in the present case the defendant's blood alcohol level was measured at .165 percent, the possibility that she was merely impaired, and not under the influence, cannot be excluded as a matter of law under the former General Statutes § 14-227a(d)(4). The question whether the defendant was entitled to a lesser included offense instruction thus turns on the peculiar facts of the case as revealed by the evidence at trial. In the present case, an instruction on the lesser included offense of operating while impaired would not have been appropriate unless there were some factual basis--some evidence introduced at trial--which would have supported a jury finding that the defendant was impaired, but not under the influence, when she was apprehended by police in the early morning of March 11, 1984.
From what we have said we find it rather obvious that the defendant in this case was not entitled to an instruction on the lesser included offense of driving while impaired. Our abbreviated account of Curran's testimony indicates that the defendant, irrespective of her blood alcohol level, was quite intoxicated. Curran's testimony was unrebutted by the defendant, and therefore, there was no evidence whatsoever from which the jury could find that the defendant was not under the influence of intoxicating...
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