State v. Novotasky
| Citation | 251 A.2d 189,5 Conn.Cir.Ct. 326 |
| Decision Date | 06 December 1968 |
| Docket Number | No. MV,MV |
| Court | Circuit Court of Connecticut. Connecticut Circuit Court, Appellate Division |
| Parties | STATE of Connecticut v. George NOVOTASKY. 12-45084. |
Edward C. Wynne, Glastonbury, for appellant (defendant).
John N. Lombardo, Asst. Pros. Atty., for appellee (state).
After a trial to the jury, the defendant was found guilty of operating a motor vehicle on or about November 27, 1967, while under the influence of intoxicating liquor and from this judgment he has appealed, assigning error in the rulings of the court on certain evidence, which matters he has set forth in exhibits attached to his assignment of errors.
The issues relate to the court's ruling in admitting certain testimony of Dr. Herman A. Ellenberger, a state toxicologist of the department of health. General Statutes § 14-227a 1 provides in subsection (a) that '(n)o person shall operate a motor vehicle upon a public highway of this state * * * while under the influence of intoxicating liquor or any drug'; subsection (b) provides that '(i)n any criminal prosecution for a violation of subsection (a) of this section, evidence respecting the amount of alcohol in the defendant's blood at the time of the alleged offense, as shown by a chemical analysis of the defendant's breath or blood shall be admissible and competent provided * * *,' and thereafter six conditions are set forth as conditions precedent to the admission of such evidence.
The defendant objected to the admission of Dr. Ellenberger's testimony as it related to the results of his analysis of the sample of the defendant's breath performed in the state's laboratory, claiming that one of the conditions precedent as set forth in subsection (b)(4) had not been met and thus the evidence was inadmissible. He argues that 'device' as used in (b)(4) refers to the apparatus used in collecting the sample and that there was no evidence that such 'device' had been checked for accuracy by the state department of health 'within thirty days before the test and by the operator thereof immediately after the test,' as required by this subsection. The state argues that 'device' as used here refers to the apparatus used in analyzing the sample collected, and not the 'device' used in collecting the sample. The trial court was in accord with the state's contention and admitted the testimony. The question raised here is whether 'device' as used in subsection (b)(4) refers to that used in collecting the sample or that used in the analysis of the sample so collected.
The construction of a statute presents a question of law. Pascale v. Board of Zoning Appeals, 150 Conn. 113, 116, 186 A.2d 377, 94 A.L.R.2d 414. Since this is so, a general statement of our law relative to interpreting a legislative intent embodied in a statute will be helpful. A statute must be construed as a whole and so as to reconcile all parts as far as possible. Obuchowski v. Dental Commission, 149 Conn. 257, 266, 178 A.2d 537. In ascertaining the intent of the legislature, the object of the legislation is to be considered. City of Norwalk v. Daniele, 143 Conn. 85, 87, 119 A.2d 732. Even if, as claimed, two constructions were possible, the Muller v. Town Plan & Zoning Commission, 145 Conn. 325, 331, 142 A.2d 524, 527.
Section 14-227a(b)(4) commences with the words 'the device used for such test'; thus we must examine the entire statute to ascertain the type of test that the phrase 'such test' refers to. Subsection (d) requires the commissioner of health to 'adopt such regulations governing the conduct of chemical tests, the operation and use of chemical test devices and the training and certification of operators of such devices as he finds necessary to protect the health and safety of persons who submit to chemical tests and to insure reasonable accuracy in testing results.' Thus the operator of such chemical testing device must be certified by the commissioner. We take judicial notice that only six operators have been certified by the commissioner to operate such devices, of whom Dr. Ellenberger is one. 25 Conn.L.J., No., 43, p. 20 (April 21, 1964).
It is obvious that such operators do not participate in obtaining a sample of the breath or blood but only in the test of such sample after it is obtained, that is, in chemically analyzing such sample. It follows that the device used for 'such test' is that which is under the control of such operator. Furthermore, subsection (b)(4) requires that the 'device used for such test was checked for accuracy * * * by the operator thereof immediately after the test' (italics supplied). The adverb 'immediately' is significant. The only device within the control of the operator which could immediately be checked for accuaracy would be the device which the operator used in analyzing the sample. The construction insisted upon by the defendant would require the operator to travel at all times to each location in the state after a sample had been obtained and check the sampling apparatus for accuracy. It is apparent that such a checking could not be 'immediately' accomplished as required by the statute. 'An intent to enact an unworkable statute is not to be imputed to the General Assembly unless the statutory language expressly requires it.' Pecora v. Zoning Commission, 145 Conn. 435, 440, 144 A.2d 48, 51. Moreover, subsection (b)(2) requires that 'a true copy of the report of the test result * * * (be) mailed to the defendant within twenty-four hours after such result was known.' It is clear that the test result is that resulting from the 'device' used in chemically analyzing the sample submitted to the operator. Such a construction tends to create a single definite standard applicable to all cases. Muller v. Town Plan & Zoning Commission, supra. The object of this section of the statute is to establish a standard by which samples of breath and blood of a defendant are analyzed for the purpose of determining the amount of alcohol by weight in the defendant's blood. We are satisfied from the reading of the entire statute, in the light of its reasonable application to the purposes sought, that the 'device' referred to in (b)(4) means the device used by the operator in performing the chemical test....
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State v. Zagora
...requirements relate only to the laboratory operator and the device used during the analysis in the state laboratory. State v. Novotasky, 5 Conn. Cir. 326, 328, 251 A.2d 189. The request was not an adequate statement of our law and was properly refused. State v. Manganella, 113 Conn. 209, 21......
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...State v. Anonymous (1975-5), 32 Conn.Sup. 611, 349 A.2d 146; State v. Blanchard, 6 Conn.Cir. 303, 271 A.2d 860; State v. Novotasky, 5 Conn.Cir. 326, 328, 251 A.2d 189. In the present matter, the condition precedent which must be met and satisfied is expressed in § 14-227a(b)(5) of the Gener......
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...analysis of the subject sample, and not to auxiliary equipment or devices used during the testing procedure. See State v. Novotasky, 5 Conn.Cir. 326, 251 A.2d 189 (1968) [the "device" that must be checked for accuracy pursuant to statute before chemical analysis of breath or blood may be ad......
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State v. Anonymous
...to the introduction of such evidence in a criminal prosecution. The Appellate Division of the Circuit Court in State v. Novotasky, 5 Conn.Cir.Ct. 326, 330, 251 A.2d 189, 192 pointed out that 'subsection (b)(4) requires that the 'device used for such test was checked for accuracy . . . by th......