State v. Lopez, AC 37912

CourtAppellate Court of Connecticut
Writing for the CourtPRESCOTT, J.
Citation173 A.3d 485,177 Conn.App. 651
Parties STATE of Connecticut v. Juan C. LOPEZ
Docket NumberAC 37912
Decision Date31 October 2017

177 Conn.App. 651
173 A.3d 485

STATE of Connecticut
v.
Juan C. LOPEZ

AC 37912

Appellate Court of Connecticut.

Argued May 31, 2017
Officially released October 31, 2017


173 A.3d 488

James B. Streeto, senior assistant public defender, with whom, on the brief, was Ani A. Desilets, certified legal intern, for the appellant (defendant).

Ronald G. Weller, senior assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, and Mark R. Durso, senior assistant state's attorney, for the appellee (state).

Lavine, Prescott and Harper, Js.

PRESCOTT, J.

177 Conn.App. 653

The defendant, Juan C. Lopez, appeals from the judgment of conviction, rendered after a jury

177 Conn.App. 654

trial, of operating a motor vehicle while under the influence of alcohol in violation of General Statutes § 14–227a(a)(1) and operating a motor vehicle while his license was suspended in violation of General Statutes § 14–215. On appeal, the defendant claims, among other things, that the trial court improperly (1) restricted his cross-examination of the state's expert witness and (2) admitted an "incomplete and altered" dashboard camera video taken from the arresting officer's patrol car. With respect to the first claim, we agree with the defendant that the court improperly restricted his cross-examination of the expert witness and that impropriety was harmful.1 We thus reverse the

173 A.3d 489

judgment and remand the case for a new trial.

The following facts, which the jury reasonably could have found, and procedural history are relevant to this appeal. In the early morning of March 3, 2013, state police Trooper Colin Richter was driving northbound on Interstate 95 in Fairfield at a rate of speed of seventy-five miles per hour, patrolling a portion of the highway for motor vehicle violations. At approximately 1:50 a.m., he observed the defendant's vehicle in his rearview mirror "coming up on [him] very quick." The defendant's vehicle passed Richter and "began to swerve from the left lane to the center lane." At that point, having estimated that the defendant was driving above the speed limit, Richter activated his vehicle's red lights and conducted a motor vehicle stop. The defendant pulled over onto the right shoulder of the highway.

177 Conn.App. 655

Richter approached the defendant's vehicle and, upon speaking with him, noticed that the defendant was slurring his speech and had glassy, bloodshot eyes. Richter also detected the odor of alcohol on the defendant's breath. When asked for his license and registration, the defendant could not produce a license. At that point, Richter asked the defendant where he had come from and whether he had been drinking beforehand. The defendant replied that he was coming from Stamford and had not been drinking.

After his initial contact with the defendant, Richter went back to his cruiser and looked up the defendant by his name and date of birth. Upon running the defendant's information in the Department of Motor Vehicles (department) database, Richter learned that the defendant's license had been suspended. Richter then called into dispatch, stating that he would be performing tests on the defendant to determine whether the defendant was intoxicated. He then administered the following three field sobriety tests:2 (1) the horizontal gaze nystagmus test,3 (2) the walk and turn test,4 and (3) the one leg stand test.5

177 Conn.App. 656

The defendant failed all three tests. On the basis of these results, Richter determined that the defendant could not safely operate a motor vehicle and placed him under arrest. Richter then transported the defendant to the police barracks, where he read the defendant his constitutional rights and asked if the defendant was injured or suffered from any medical

173 A.3d 490

conditions, to which the defendant replied in the negative.6 Richter also asked the defendant, for a second time, whether he had anything to drink the night of March 2, 2013, into the early morning of March 3, 2013. The defendant responded that he had two mojitos between 7:30 and 9:30 p.m. at a restaurant in New York City, and then had stopped at his grandmother's residence in Stamford on his way home to Bridgeport. After this admission, Richter asked the defendant to submit to a Breathalyzer test to measure his blood alcohol content, but he refused.

On November 17, 2014, a jury trial commenced against the defendant. The state called three witnesses to testify on its behalf: Richter; Dr. Robert H. Powers, a forensic toxicologist; and department analyst Brian Clarke. After the state rested, the defendant did not present any additional evidence. Subsequently, the defendant was found guilty of operating a motor vehicle while under the influence of alcohol in violation of § 14–227a(a)(1) and operating a motor vehicle while his license was suspended in violation of § 14–215. Thereafter, he pleaded guilty to a part B information charging him as a third time offender pursuant to § 14–227a(g)(3).7

177 Conn.App. 657

The court sentenced the defendant to three years of incarceration, execution suspended after two years, followed by three years of probation. This appeal followed. Additional facts and procedural history will be set forth as necessary.

I

The defendant claims on appeal that the trial court unduly restricted his cross-examination of Dr. Powers on the subject of his opinion testimony regarding the blood alcohol level of a person exhibiting the same behaviors as the state alleged the defendant exhibited in this case. More specifically, the defendant argues that once Dr. Powers testified on direct examination that an individual who performed in a certain way on each of the field sobriety tests had an extrapolated blood alcohol content of 0.12 or higher, the court should not have foreclosed the defendant from later cross-examining him about this central, relevant issue. We agree with the defendant that the court's ruling was an abuse of discretion and conclude that the impropriety was not harmless.

The following facts are relevant to the defendant's claim. At trial, the state's witness, Dr. Powers, was permitted to testify as an expert in the field of forensic toxicology without objection. He testified that nystagmus exhibited during a horizontal gaze nystagmus test is caused by the presence of a central nervous system depressant, such as alcohol, in the operator's system. The state then asked Dr. Powers several hypothetical

177 Conn.App. 658

questions comprised

173 A.3d 491

of facts mirroring those present in the case.

In its first hypothetical, the state described a man who exhibited an odor of alcohol on his breath, bloodshot/glassy eyes, and who failed the horizontal gaze nystagmus test by exhibiting the same signs the defendant had—a lack of smooth pursuit in each eye, a distinct and sustained nystagmus at maximum deviation, and the onset of nystagmus prior to forty-five degrees. The second hypothetical went on to posit that the man described in the first hypothetical had also failed the walk and turn test in the same way the defendant had. The third hypothetical described the same man failing the one leg stand test in the way the defendant had.

After each hypothetical, the state asked Dr. Powers whether he could opine to a reasonable degree of scientific certainty as to whether the man described was under the influence of a central nervous system depressant such as alcohol. In each instance, Dr. Powers responded that he could and answered in the affirmative that he would expect the individual in question to have been affected by a central nervous system active agent.

The state then asked Dr. Powers what he would expect the hypothetical man's blood alcohol level to be on the basis of the behavior he exhibited and his performance on each of the three field sobriety tests. The defendant objected to the question on the ground that there was not an appropriate foundation laid as to "how much alcohol" was ingested. The court overruled his objection. Dr. Powers then responded that he would be looking for "blood alcohol concentration of a 0.12 or higher. How much higher, that's very hard to say. But I'd be looking for at least a 0.12. Below a 0.12, we tend not to see complete failures on the standardized field sobriety tests.... [O]ur research actually [that] we've done recently shows that when basically all the

177 Conn.App. 659

clues in the ... standardized field sobriety tests are being generated, that individuals tend to have a concentration above 0.12 or 0.15 or even higher.... [T]he ability to operate motor vehicles diminishes with increased blood alcohol concentration, or with an increase in the concentration of any...

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7 practice notes
  • U.S. Bank Nat'l Ass'n v. Blowers, AC 39219
    • United States
    • Appellate Court of Connecticut
    • 31 octobre 2017
    ...modification negotiations, the plaintiff repeatedly requested duplicative and unnecessary documentation updates and made material 177 Conn.App. 651misrepresentations, including communicating false information to the defendants' insurance carrier.The court did not strike the counterclaims be......
  • Ray v. Ray, AC 38865
    • United States
    • Appellate Court of Connecticut
    • 31 octobre 2017
    ...essentially argued, without any additional proof, that the defendant had misrepresented the extent of his income.17 We conclude that the 173 A.3d 485court applied the well-known standard on motions to reargue in making its decision and did not abuse its discretion in denying the relief soug......
  • State v. Waters, AC 44342
    • United States
    • Appellate Court of Connecticut
    • 2 août 2022
    ...we are nevertheless troubled by the state's introduction of Lockwood's testimony regarding blood alcohol content. In State v. Lopez, 177 Conn.App. 651, 669-70, 173 A.3d 485, cert, denied, 327 Conn. 989, 175 A.3d 563 (2017), we made it clear that evidence pertaining to the expected BAC of a ......
  • State v. Marcus H., AC 39379, (AC 40796)
    • United States
    • Appellate Court of Connecticut
    • 4 juin 2019
    ...of operating a motor vehicle while under the influence of intoxicating liquor in violation of § 14-227a (a) (1). See State v. Lopez , 177 Conn. App. 651, 668–69, 173 A.3d 485 (2017) ("[t]he legislative history reflects that the two subdivisions of § 14-227a (a) describe alternative means fo......
  • Request a trial to view additional results
6 cases
  • U.S. Bank Nat'l Ass'n v. Blowers, AC 39219
    • United States
    • Appellate Court of Connecticut
    • 31 octobre 2017
    ...modification negotiations, the plaintiff repeatedly requested duplicative and unnecessary documentation updates and made material 177 Conn.App. 651misrepresentations, including communicating false information to the defendants' insurance carrier.The court did not strike the counterclaims be......
  • Ray v. Ray, AC 38865
    • United States
    • Appellate Court of Connecticut
    • 31 octobre 2017
    ...essentially argued, without any additional proof, that the defendant had misrepresented the extent of his income.17 We conclude that the 173 A.3d 485court applied the well-known standard on motions to reargue in making its decision and did not abuse its discretion in denying the relief soug......
  • State v. Marcus H., AC 39379, (AC 40796)
    • United States
    • Appellate Court of Connecticut
    • 4 juin 2019
    ...of operating a motor vehicle while under the influence of intoxicating liquor in violation of § 14-227a (a) (1). See State v. Lopez , 177 Conn. App. 651, 668–69, 173 A.3d 485 (2017) ("[t]he legislative history reflects that the two subdivisions of § 14-227a (a) describe alternative means fo......
  • State v. Lanier, AC 43671
    • United States
    • Appellate Court of Connecticut
    • 6 juillet 2021
    ...error is clear and involves a misconception of the law." (Citation omitted; internal quotation marks omitted.) State Page 15v. Lopez, 177 Conn. App. 651, 661-62, 173 A.3d 485, cert. denied, 327 Conn. 989, 175 A.3d 563 (2017). Thus, this court "must engage in a two step analysis. We must det......
  • Request a trial to view additional results

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