State v. Nokes
| Decision Date | 02 July 1996 |
| Docket Number | No. 14355,14355 |
| Citation | 678 A.2d 510,42 Conn.App. 10 |
| Court | Connecticut Court of Appeals |
| Parties | STATE of Connecticut v. Alan M. NOKES. |
Stephen F. Cashman, Hartford, for appellant (defendant).
Christopher T. Godialis, Deputy Assistant State's Attorney, with whom, on the brief, were James E. Thomas, State's Attorney, and Mary Rose Flaherty, Deputy Assistant State's Attorney, for appellee (state).
Before DUPONT, C.J., and EDWARD Y. O'CONNELL and SPEAR, JJ.
The principal issue of this appeal is whether the trial court's instruction on the rebuttable presumption in General Statutes § 14-227a(c) 1 impermissibly shifted the burden of proof on an essential element of the offense of operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a(a). 2
The defendant was arrested without a warrant after a Berlin police officer witnessed the defendant driving erratically. The defendant failed field sobriety tests, was read his Miranda rights and was taken to the police station where he submitted to two breath tests. The first test was administered about twenty-eight minutes after the defendant's arrest and measured his blood alcohol content (BAC) at 0.219 percent; the second test was administered about one hour after his arrest and measured his BAC at 0.210 percent. The defendant was found guilty by a jury of operating a motor vehicle while under the influence of intoxicating liquor.
The pertinent part of the charge that must be analyzed in order to resolve the defendant's claim is as follows: (Emphasis added.)
The defendant excepted to the instruction, claiming that it unconstitutionally shifted the burden of proof from the state to the defendant and that, because he had presented evidence to rebut the presumption, the jury should not have been instructed on the presumption at all.
A challenge to a jury instruction requires a review to determine whether it is reasonably possible that a jury was misled; State v. Ortiz, 217 Conn. 648, 667, 588 A.2d 127 (1991); and the instruction is to be read as a whole to judge its total effect rather than its individual parts. State v. Leroy, 232 Conn. 1, 8, 653 A.2d 161 (1995).
The jury charge here allowed the jury to make a permissive inference in that it could consider the test results and attach whatever weight it chose to them. The charge did not impermissibly allow the state to use an evidentiary presumption to relieve itself of its burden of persuasion beyond a reasonable doubt of every essential element of a crime. See Francis v. Franklin, 471 U.S. 307, 313, 105 S.Ct. 1965, 1970-71, 85 L.Ed.2d 344 (1985). The court told the jury that if the defendant's ...
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Bancroft v. Commissioner of Motor Vehicles
...plaintiff's claim, the trial court referred to two recent cases of this court to support its position. Those cases were State v. Nokes, 42 Conn.App. 10, 678 A.2d 510, remanded for reconsideration, 239 Conn. 926, 683 A.2d 22, on remand, 44 Conn.App. 40, 686 A.2d 999 (1996), and State v. Korh......
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State v. Nokes
...decision in State v. Gerardi, 237 Conn. 348, 677 A.2d 937 (1996). The facts of the present case are set forth in State v. Nokes, 42 Conn.App. 10, 11-13, 678 A.2d 510 (1996), and do not warrant repetition here. The dispositive question was "whether the trial court's instruction on the rebutt......
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State v. Nokes
...Deputy Assistant State's Attorney, in opposition. The defendant's petition for certification for appeal from the Appellate Court, 42 Conn.App. 10, 678 A.2d 510 (AC 14355), is granted. It is further ordered that the matter be remanded to the Appellate Court for reconsideration in light of th......