159 Conn.App. 137
Conn. App. Ct.2015Background
- On June 26, 2010, defendant Robert J. Mosback (an off‑duty Bristol police officer) drank at neighborhood gatherings, later reported for his shift, drove his cruiser, crossed lanes at high speed, nearly caused a head‑on collision, and crashed into a utility pole; he was unconscious and taken to Saint Francis Hospital.
- Hospital trauma protocol included an ETOH blood test drawn ~12:01 a.m.; laboratory Vitros serum test returned 151 mg/dL (serum) ≈ 0.13% whole blood when converted by the state toxicology expert.
- Portions of Mosback’s medical records were provided to state police by his then‑counsel, Theodore Wurz, and full records were later obtained by search warrant after the defendant signed releases; the state filed an information (Nov. 22, 2010) charging § 14‑227a and later an amended information (May 29, 2012) adding reckless driving (§ 14‑222) and other counts.
- At trial the court denied: (1) defendant’s motion to suppress medical records (claiming attorney‑client breach / ineffective assistance), (2) motion for judgment of acquittal challenging sufficiency of blood test evidence, and (3) motion to dismiss the reckless‑driving count as time‑barred; defendant was convicted of elevated BAC and reckless driving.
- On appeal the court affirmed, addressing (A) whether sixth‑amendment assistance of counsel attached at the time Wurz disclosed records, (B) whether serum (weight/volume) test evidence satisfied the statute’s weight‑by‑weight BAC requirement, and (C) whether the amended reckless driving charge was time‑barred or broadened the original information.
Issues
| Issue | State's Argument | Mosback's Argument | Held |
|---|---|---|---|
| 1. Motion to suppress medical records (ineffective assistance/attorney‑client breach) | Wurz’s disclosures occurred before criminal proceedings began; sixth‑amendment right to counsel had not attached, so ineffective assistance cannot be the basis to suppress. | Wurz breached attorney‑client privilege and provided ineffective assistance by releasing records and failing to investigate, so the records should be suppressed. | Denied — right to counsel had not yet attached when records were disclosed (no prosecution filed), so ineffective assistance claim did not require suppression. |
| 2. Sufficiency of blood test evidence to prove elevated BAC under § 14‑227a(a)(2) (statute requires alcohol by weight in blood) | Serum (weight/volume) test results are admissible and, when converted by expert to whole blood equivalent, are sufficient to prove BAC ≥ 0.08% by weight. | Vitros measured weight/volume (serum) not weight/weight (whole blood); the state failed to prove BAC by weight as the statute requires. | Denied — jury could reasonably find, based on serum result and expert conversion, that defendant’s whole‑blood BAC exceeded 0.08% (sufficient evidence). |
| 3. Motion to dismiss reckless driving (statute of limitations) | Original timely information and arrest affidavit gave notice of same factual allegations (erratic driving) such that the amended count did not broaden or substantially amend charges; tolling/notice principles permit the late addition. | Reckless driving added in amended information (filed >1 year after offense) is time‑barred and not sufficiently related to original § 14‑227a charge. | Denied — factual allegations underlying original information and amended reckless driving count were substantially similar and on notice; amendment did not impermissibly broaden charges. |
| 4. Request to present statute‑of‑limitations defense to jury / jury instruction on limitations | Determination whether amended information broadened charges is a question of law for the court, not a jury question; thus no jury instruction required. | Defendant should have been permitted to present statute‑of‑limitations defense to jury and receive an instruction. | Denied — the court properly resolved the legal question of whether the amendment broadened charges; statute‑of‑limitations issue was not a jury question. |
Key Cases Cited
- Thiersaint v. Commissioner of Correction, 316 Conn. 89 (Conn. 2015) (right to effective assistance of counsel under Sixth Amendment explained)
- State v. Pierre, 277 Conn. 42 (Conn. 2006) (Sixth Amendment right to counsel attaches only at initiation of adversary judicial proceedings)
- State v. Kirsch, 263 Conn. 390 (Conn. 2003) (hospital serum blood alcohol results admissible when converted to whole‑blood equivalent)
- Stash v. Commissioner of Motor Vehicles, 297 Conn. 204 (Conn. 2010) (Intoxilyzer results expressed in weight/volume suffice to show statutory elevated BAC)
- State v. Pilotti, 99 Conn. App. 563 (Conn. App. 2007) (weight/volume breath test results sufficient to support per se BAC conviction)
- State v. Golodner, 305 Conn. 330 (Conn. 2012) (an amended information filed after limitations period may impermissibly broaden charges where new allegations involve different victims or exposures)
- State v. Jennings, 101 Conn. App. 810 (Conn. App. 2007) (analysis of whether amended information broadens original charges for limitations/tolling purposes)
- State v. Almeda, 211 Conn. 441 (Conn. 1989) (timely notice from original information permits later substitution where factual allegations are identical)