State v. Hanusiak

Decision Date28 October 1966
Docket NumberNo. MV,MV
Citation225 A.2d 208,4 Conn.Cir.Ct. 34
CourtCircuit Court of Connecticut. Connecticut Circuit Court, Appellate Division
PartiesSTATE of Connecticut v. Louis HANUSIAK. 7-24863.

John A. Carrozzella, Wallingford, for appellant (defendant).

Edward B. Fitzgerald, Asst. Pros. Atty., for appellee (state).

KOSICKI, Judge.

On March 2, 1966, the defendant was tried before a jury on charges of operating a motor vehicle while under the influence of intoxicating liquor, in violation of § 14-227a of the General Statutes, and of reckless driving, in violation of § 14-222. The jury returned a verdict of not guilty on each count. The verdict was accepted and ordered recorded by the court, and the defendant was discharged. On March 8, 1966, the state filed a request for a finding and a draft finding, limited to the sole question whether the defendant was operating a motor vehicle on a public highway on September 5, 1965, the date when the offenses charged in the information were alleged to have occurred. To this request the defendant filed, on March 15, a plea in abatement on the ground that the court had no jurisdiction to decide judicially the state's request for a finding because the defendant was discharged on March 2 and was not within the power of the court. The plea was overruled on April 13 and the finding made as requested by the state. From these actions of the court the defendant has appealed.

The defendant, in his assignment of errors, claims that the court erred in (1) overruling the defendant's plea in abatement; (2) making a finding of operation under § 14-227b after the defendant had been discharged; (3) making that finding of fact in a case tried to a verdict by a jury; (4) making a finding that was not in accordance with § 14-227b; and (5) acting in an administrative capacity and not exercising a judicial function in making the finding. Because the construction as to the validity and extent of § 14-227b has been raised for the first time on appeal in any court of this state, and we deem it of sufficient importance in the interests of justice to give our utmost consideration to all of the aspects of the issues as presented to us, we shall review them in the order in which they were briefed and argued by the parties.

I

The first two assignments are so closely linked that we can, for convenience, consider them together. The plea in abatement was directed toward a want of jurisdiction in view of the jury's finding of not guilty and the discharge of the defendant by the court. This action of the court was in conformity with our procedure. Practice Book § 481. Although a motion to erase, under § 94 of the Practice Book, would have been more proper than a plea in abatement (§ 93), because want of jurisdiction did appear on the record, a resort to the plea was not incorrect. If lack of jurisdiction of subject matter comes to the attention of the court, it is of no consequence how it is suggested, and the court may even act suo motu. Felletter v. Thompson, 133 Conn. 277, 279, 280, 50 A.2d 81. For a court to acquire and maintain the power to hear and determine a case, jurisdiction must exist in three particulars: the subject matter of the cause, the parties, and the process. Mazzei v. Cantales, 142 Conn. 173, 175, 112 A.2d 205.

In State v. Carabetta, 106 Conn. 114, 137 A. 394, the defendant had been found not guilty by the jury and was discharged. More than two months later, the state was granted the right to appeal, after having completed all the proceedings relative to the appeal. The defendant filed a plea in abatement to the appeal to which the state demurred. The demurrer was overruled. The Supreme Court stated the rule to be as follows (p. 116, 137 A.p. 395): 'When the accused is acquitted, it is his privilege to move for discharge, and the duty of the court to discharge the accused, unless the state shall move for permission to appeal. When the court orders or permits the discharge, the accused is at liberty to depart, a free man, to go whithersoever he may choose. If he shall go to another jurisdiction, he may not be brought again within this jurisdiction by process of extradition or otherwise, since there is no longer a criminal charge against him. He cannot be put in jeopardy again for the crime of which he has been acquitted and discharged by the court. If he remains within the state, he cannot be again apprehended for a crime of which he has been acquitted and discharged. His bail would be discharged by his discharge by the court.'

The prosecution contends that no jurisdictional question is raised by the application for a finding, and by the finding by the court, of operation of the motor vehicle by the defendant at the time and place alleged. Such a finding, it is claimed, does not conclude any rights of the defendant, because it affects only his operator's license, which is purely a personal privilege issued by the state on account of fitness. Dempsey v. Tynan, 143 Conn. 202, 207, 120 A.2d 700. Whether we call it a privilege or a right, qualified, regulated and restricted by the police power of the state, exercised under our motor vehicle statutes, is of no particular significance. There is no question that the commissioner of motor vehicles may suspend or revoke any operator's license or the right of any person to operate on the public highways of this state, for any cause that he deems sufficient, with or without a hearing. General Statutes § 14-111(a). He may also cancel such a suspension or revocation, if the suspension was not for a definite term which was not completed, except as otherwise provided in subsection (k) of § 14-111, which empowers the commissioner, upon application, to hold a special hearing to determine whether to reverse a suspension or revocation.

Under certain circumstances, enumerated in § 14-111(b), including conviction under § 14-227a, the commissioner is required to suspend the operator's license for a period of not less than one year. Inferentially, but not expressly, such an order of suspension may be appealed to the Superior Court as provided in § 14-134. Young v. Tynan, 148 Conn. 456, 457, 172 A.2d 190. Such an appeal does not contemplate a trial de novo but only a judicial determination whether, upon the facts before him, the commissioner had mistaken the law, and so had acted illegally, or whether he had been arbitrary to the extent of abusing his discretion. Dempsey v. Tynan, supra, 143 Conn. 206, 120 A.2d 700. Section 14-134 further provides that '(n)o appeal taken from the order of a court in a criminal case involving the operation of a motor vehicle * * * while under the influence of intoxicating liquor * * * shall act as a stay to any action of the commissioner.' Section 14-227b, with which we are presently concerned, makes mandatory on the commissioner the suspension or revocation of an operator's license or his right to operate, even though he had been found not guilty, simply on the ground that he had refused to take one of the tests specified in § 14-227a. No appeal is provided from such an administrative action. Lacking any implementation in the statute for an ultimate judicial review affording ample protection against arbitrary or uninformed action by the commissioner, we cannot accept the claim of the state that the defendant has no standing and no ground for appeal from what must be regarded as a final judicial action by which he is aggrieved. We are of the opinion that the defendant's plea in abatement should have been sustained. State v. Carabetta, supra.

II

The third, fourth and fifth assignments of error are so closely related that no separate discussion is necessary as to each of them. All of them attack § 14-227b, which conclusively implies consent of a motor vehicle operator to a chemical analysis of his blood and breath after he has been placed under arrest for operating a motor vehicle while under the influence of intoxicating liquor. 1 The crucial point raised by this appeal is the construction of this statute, both as to its legal effect and as to its constitutionality under the circumstances of the case before us. Our attention is directed particularly to the portion of the statute which reads: 'If any such person (having been arrested for operating under the influence of intoxicating liquor and requested to submit to one of the designated chemical tests) refuses to submit to either a breath or blood test * * *, the test shall not be given, but if the court or jury, upon request, finds that such person was operating such motor vehicle, the commissioner of motor vehicles shall suspend or revoke his license or nonresident operating privilege, the terms and conditions of which shall be determined by said commissioner.'

Such 'implied consent' statutes have been enacted in many of our states and have been invariably upheld as a valid exercise of the police power in protecting the safety of the public, in its legitimate use of public highways, against intemperate, undisciplined and dangerous operators. See, e.g., Lee v. State, 187 Kan. 566, 358 P.2d 765; Finocchairo v. Kelly, 11 N.Y.2d 58, 226 N.Y.S.2d 403, 181 N.E.2d 427, cert. denied, 370 U,.s. 912, 82 S.Ct. 1259, 8 L.Ed.2d 405; Prucha v. Dept. of Motor Vehicles, 172 Neb. 415, 110 N.W.2d 75, 88 A.L.R.2d 1055; State v. Batterman, 79 S.D. 191, 110 N.W.2d 139; Timm v. State, 110 N.W.2d 359 (N.D.); State v. Hedding, 122 Vt. 379, 172 A.2d 599; note, 88 A.L.R.2d 1064. The objective of such statutes has been approved by the majority of the Supreme Court of the United States in Breithaupt v. Abram, 352 U.S. 432, 435 n. 2, 77 S.Ct. 408, 1 L.Ed.2d 448 (analysis of blood sample used in evidence though sample taken while defendant was unconscious), and Schmerber v. State of California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (sample of blood taken against defendant's vocal protest). Where actual consent is obtained, there is no need to rely on the statute, State v....

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6 cases
  • Sengchanthong v. COM'R OF MOTOR VEHICLES
    • United States
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    ... ... Commissioner of Motor Vehicles, 33 Conn.App. 501, 505, 636 A.2d 409, cert. denied, 229 Conn. 909, 642 A.2d 1205 (1994); see, e.g., State" v. Hanusiak, 4 Conn.Cir. 34, 46, 225 A.2d 208 (1966) (§ 14-227b contemplates that trier of facts shall make finding of operation) ...      \xC2" ... ...
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