State v. Nesteriak
| Decision Date | 07 November 2000 |
| Docket Number | (AC 20262) |
| Citation | 60 Conn. App. 647,760 A.2d 984 |
| Court | Connecticut Court of Appeals |
| Parties | STATE OF CONNECTICUT v. STEPHEN NESTERIAK |
Landau, Pellegrino and Peters, JS. Dominick J. Thomas, Jr., for the appellant (defendant).
Robin S. Schwartz, special deputy assistant state's attorney, with whom, on the brief, were Mary M. Galvin, state's attorney, Francis J. McQuade, supervisory assistant state's attorney, and John Kerwin, assistant state's attorney, for the appellee (state).
This case arises out of the operation of an emergency vehicle by the defendant, Stephen Nesteriak, an assistant fire chief, on his way to the site of a fire emergency. En route, the defendant drove the emergency vehicle with its emergency lights on and its siren in use. The dispositive issue is whether, without a finding that the defendant was driving at an unsafe speed or recklessly, he can be held criminally liable pursuant to General Statutes §§ 14-2321 and 14-2352 for swerving briefly into the lane of oncoming traffic across the double yellow line on the road. Contrary to the conclusion of the trial court, we hold that, under the circumstances of this case, General Statutes § 14-283 (b) (4)3 shields the defendant from criminal liability. Accordingly, we reverse the judgment of the trial court.
Before the trial, the state withdrew a count charging the defendant with reckless driving in violation of General Statutes § 14-222.4 After the trial, the court acquitted him of two other charges: (1) traveling unreasonably fast in violation of General Statutes § 14-218a5 and (2) illegal operation of an emergency vehicle in violation of § 14-283 (b). See footnote 3.
After a court trial, the defendant was convicted of having committed two infractions: (1) improper passing in violation of § 14-232 and (2) improper driving on the left side of the highway on a curve in violation of § 14-235. The court declined the defendant's request to articulate its reason for enforcing §§ 14-232 and 14-235 despite the provisions of § 14-283 (b) (4). The relevant facts are largely undisputed. The court's oral decision6 and the record establish that, on July 9, 1998, in Shelton, the defendant operated his emergency vehicle with its siren and lights on. On his way to the fire emergency, in order to pass a motorcycle, he crossed the double yellow center line while he was entering a curve on the road at a place where his line of sight was partially obscured. In so doing, he forced Sara Cayer, a driver in the oncoming lane, to pull off to the side of the road, to her distress, but without physical injury to her, her passenger or her vehicle. Although Cayer had heard the defendant's siren earlier, she had decided at that time not to pull her vehicle over but to be on the alert. When, upon seeing the defendant's vehicle, she did pull over, the defendant's vehicle was some 350 to 400 feet away.7
On the basis of these facts, the court concluded that the defendant was guilty of violating §§ 14-232 and 14-235 because he had operated his vehicle without due regard for the safety of others. Even in the absence of actual injury to person or property, the court found that the defendant could not safely assume that his siren would give a sufficiently timely warning to other traffic to avoid any possible hazard. The court assigned no significance to Cayer's testimony that the siren was in fact audible at an earlier time and that she chose not to pull her vehicle over at that time, despite the terms of General Statutes § 14-283 (e). See footnote 3. Furthermore, the court expressly declined to rule on the defendant's assertion that the operator of an emergency vehicle may disregard statutes such as §§ 14-232 and 14-235, which govern the direction of movement. General Statutes § 14-283 (b) (4); see footnote 3. Viewing the evidence as a whole, the court found that the defendant was driving unsafely because he had created a risk of injury to persons or property. The court ordered the defendant to pay fines totalling $150.
On appeal, the defendant's principal claim is that his conviction must be set aside because § 14-283 (b) (4) provides him immunity from criminal liability for violating §§ 14-232 and 14-235.8 We agree.
The parties agree that the manner in which the defendant drove his emergency vehicle implicated the provisions of §§ 14-232 and 14-235. Neither side disputes that these statutes govern "direction of movement or turning in specific directions" under General Statutes § 14-283 (b) (4).
The state, however, disputes the defendant's claim that the immunity conferred by § 14-283 (b) (4) governs here. It claims that § 14-283 (b) (4) is to be read together with General Statutes § 14-283 (d), so as to require the conclusion that safety concerns override the immunity conferred by the prior clause. Specifically, although § 14-283 (b) (4) permits the operator of an emergency vehicle, with lights flashing and siren on, to "disregard statutes, ordinances or regulations governing direction of movement or turning in specific directions," § 14-283 (d) requires such an operator "to drive with due regard for the safety of all persons and property."9 It is also noteworthy that General Statutes § 14-283 (b) (3) allows the operator to "exceed ... speed limits... as long as he does not endanger life or property by so doing...." Finally, none of the immunity provisions contained in § 14-283 confers express authority on such an operator to drive in violation of statutes to which § 14-283 (b) does not address itself.
Section 14-283 is not a model of the draftsman's art. It is axiomatic that, in adjudicating a question of statutory construction, we seek to ascertain the intent of the legislature. State v. Valinski, 254 Conn. 107, 121, 756 A.2d 1250 (2000). In pursuit of this inquiry, we read a statute in its entirety and, in so doing, presumptively give greater weight to specific provisions governing the subject matter than to general language of the same statute that might otherwise be controlling. Gifford v. Freedom of Information Commission, 227 Conn. 641, 652, 631 A.2d 252 (1993); Hallenbeck v. St. Mark the Evangelist Corp., 29 Conn. App. 618, 624, 616 A.2d 1170 (1992).
Applying these maxims of statutory construction to § 14-283, we conclude that we must focus our attention on subsection (b), which includes specific provisions granting immunity to operators of emergency vehicles under some circumstances. If subsection (b) were subject to override by subsection (d), the inclusion of safety conditions in the immunity granted by subsection (b) (3) would be superfluous. See footnote 3. We construe statutes, however, so as to give effect to all of their provisions. State v. Szymkiewicz, 237 Conn. 613, 621, 678 A.2d 473 (1996); Skakel v. Benedict, 54 Conn. App. 663, 673, 738 A.2d 170 (1999).
Within subsection (b) of § 14-283, only some, but not all, clauses expressly require the operator of an emergency vehicle to take account of safety concerns. See footnote 3. Section 14-283 (b) (3) requires such an officer, if he speeds, not to "endanger life or property." Subsection (b) (4) of § 14-283 contains no such language. It is logical to conclude that this omission was intentional.
The state argues that this logical construction of subsection (b) must be rejected because it would allow the operator of an emergency vehicle to claim immunity even if he were driving recklessly. That is not so. Driving recklessly is governed not by § 14-283 (b), but by § 14-222. As noted previously, the state ultimately chose not to charge the defendant with having violated that statute. Further, as the defendant aptly observes, § 14-283 (b) also does not immunize the operator of an emergency vehicle from criminal liability for violation of General Statutes §§ 14-215 (), 14-222a (negligent homicide with a motor vehicle), 14-227a (operating a motor vehicle while under the influence of alcohol or drugs) or 14-228 (leaving motor vehicle without setting brake).
We are not persuaded to engraft onto § 14-283 (b) (4) language that it does not contain. The legislature manifestly had safety concerns in mind when enacting § 14-283. We have no reason to assume that its failure expressly to include such concerns in § 14-283 (b) (4) was inadvertent. We are especially reluctant to rewrite statutory language in a case in which the evidentiary basis for the defendant's conviction fails to establish any actual injury to person or property.10
The judgment is reversed and the case is remanded with direction to render a judgment of acquittal.
In this opinion the other judges concurred.
1. General Statutes § 14-232 provides in relevant part:
2. General Statutes § 14-235 provides: ...
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