Lead
Opinion
The defendant, the commissioner of public safety,
The record reveals the following undisputed facts and procedural history. On May 7, 2004, the plaintiff was convicted of driving while intoxicated for the second time in a ten year period. Subsequently, at the plaintiffs request, the defendant provided him with a copy of his criminal history record, which included the designation “CONVICTED FELON.” Following the receipt of that record, the plaintiff, pursuant to General Statutes § 4-174,
The trial court granted in part and denied in part the parties’ motions. Specifically, the trial court rendered judgment
The defendant contends that the text and history of § 14-227a evidence a clear legislative intent that driving while intoxicated constitutes a criminal offense, which in turn is subject to classification as a felony upon a second conviction within a ten year period by virtue of the punishment prescribed. The defendant claims that, in concluding that a breach of § 14-227a falls within the motor vehicle violation exception to the definition of offense under § 53a-24 (a) of the Penal Code, the trial court improperly declined to apply the definition of violation to the phrase motor vehicle violation, which would have limited that exception to breaches punishable by fine only. Finally, the defendant contends that the trial court relied on mere dicta to support its construction. In response, the plaintiff claims that the trial court properly determined that a second conviction under § 14-227a falls within the motor vehicle violation exception to the definition of offense and therefore cannot be a felony. The plaintiff contends that this construction is supported by other statutes and case law evidencing that the definition of violation under the Penal Code does not apply to the motor vehicle violation exception to the definition of offense. We agree with the defendant.
At the outset, we set forth the standard of review. The resolution of this appeal requires us to interpret § 14-227a. “Well settled principles of statutory interpretation govern our review. . . . Because statutory interpretation is a question of law, our review is de novo. . . . When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. ... In seeking to determine that meaning, General Statutes § l-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered. . . . The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation. . . . When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to
We begin with the relevant statutory text. Section 14-227a provides in relevant part: “(a) No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. A person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor or any drug or both if such person operates a motor vehicle (1) while under the influence of intoxicating liquor or any drug or both, or (2) while such person has an elevated blood alcohol content. For the purposes of this section, ‘elevated blood alcohol content’ means a ratio of alcohol in the blood of such person that is eight-hundredths of one per cent or more of alcohol, by weight . . . and ‘motor vehicle’ includes a snowmobile and all-terrain vehicle, as those terms are defined in section 14-379.
* * *
“(g) Any person who violates any provision of subsection (a) of this section shall ... (2) for conviction of a second violation within ten years after a prior conviction for the same offense, (A) be fined not less than one thousand dollars or more than four thousand dollars, (B) be imprisoned not more than two years, one hundred twenty consecutive days of which may not be suspended or reduced in any manner, and sentenced to a period of probation requiring as a condition of such probation that such person perform one hundred hours of community service, as defined in section 14-227e, and (C) (i) if such person is under twenty-one years of age at the time of the offense, have such person’s motor vehicle operator’s license or nonresident operating privilege suspended for three years or until the date of such person’s twenty-first birthday, whichever is longer, and be prohibited for the two-year period following completion of such period of suspension from operating a motor vehicle unless such motor vehicle is equipped with a functioning, approved interlock device, as defined in section 14-227j; or (ii) if such person is twenty-one years of age or older at the time of the offense, have such person’s motor vehicle operator’s license or nonresident operating privilege suspended for one year and be prohibited for the two-year period following completion of such period of suspension from operating a motor vehicle unless such motor vehicle is equipped with a functioning, approved ignition interlock device, as defined in section 14-227j . . . (Emphasis added.)
The plain language of § 14-227a clearly indicates that the legislature intended a violation of that provision to be a criminal offense. First, the statute clearly defines operating a motor vehicle while under the influence of intoxicating liquor or any drug as an offense. Section 14-227a (a) provides in relevant part: “Aperson commits the offense of operating a motor vehicle while under the influence of intoxicating liquor or any drug . . . .” (Emphasis added.) Indeed, the statute repeatedly uses the term offense to describe a breach of § 14-227a. See General Statutes § 14-227a (b) (“at the time of the alleged offense”); General Statutes § 14-227a (c) (“at the time of the alleged offense”); General Statutes § 14-227a (g) (2) (“a prior conviction for the same offense”); General Statutes § 14-227a (g) (3) (“a second or third and subsequent offense . . . [and] a conviction in any other state of any offense . . . shall constitute a prior conviction for the same offense”).
Second, the statute repeatedly refers to a prosecution for a breach of § 14-227a.
Third, the plain language of the statute demonstrates that the legislature understood a breach of § 14-227a to be a serious criminal offense. Section 14-227a (g) provides that a conviction under General Statutes § 53a-56b, which defines the offense of manslaughter in the second degree with a motor vehicle and is a class C felony, or General Statutes § 53a-60d, which defines assault in the second degree with a motor vehicle and is a class D felony, shall constitute a prior conviction for the same offense as § 14-227a.
The legislature made clear its intent that a second conviction under § 14-227a within a ten year period be a felony when it amended that statute in 1999. Public Acts 1999, No. 99-255, § 1 (P.A. 99-255). General Statutes § 53a-25
“(c) . . . Any offense defined in any other section of the general statutes which, by virtue of an expressly specified sentence, is within the definition set forth in subsection (a) shall be deemed an unclassified felony.” Section 14-227a (g) (2) provides, inter alia, that a person who is convicted of a second violation of § 14-227a within ten years after a prior conviction for the same offense shall “be imprisoned not more than two years . . . .” The legislature chose to increase the penalty for a second conviction under § 14-227a within ten years to a possible term of imprisonment up to two years in 1999. See P.A. 99-255, § 1. Prior to that time, a second conviction under § 14-227a within a ten year period was punishable by a term of imprisonment of not more than one year.
Thus, the plain language of the statute supports the conclusion that the legislature intended a breach of § 14-227a to be a crime. The plaintiff asserts, however, that a breach of § 14-227a is a motor vehicle violation and therefore excluded from the definition of offense by§ 53a-24 (a).
Section 53a-24 (a) provides in relevant part: “The term ‘offense’ means any crime or violation which constitutes a breach of any law of this state or any other state, federal law or local law or ordinance of a political subdivision of this state, for which a sentence to a term of imprisonment or to a fine, or both, may be imposed, except one that defines a motor vehicle violation or is deemed to be an infraction. ...” Section 53a-24 does not define the term motor vehicle violation. The term violation is defined, however, in General Statutes § 53a-27. Section 53a-27 provides: “(a) An offense, for which the only sentence authorized is a fine, is a violation unless expressly designated an infraction.
“(b) Every violation defined in this chapter is expressly designated as such. Any offense defined in any other section which is not expressly designated a violation or infraction shall be deemed a violation if, notwithstanding any other express designation, it is within the definition set forth in subsection (a).”
Because the legislature has not defined motor vehicle violation, but has defined violation, we conclude that it is reasonable to apply the definition of violation to the phrase motor vehicle violation. See Rainforest Cafe, Inc. v. Dept. of Revenue Services,
Indeed, under § 53a-24, the motor vehicle violation exception to the definition of offense is limited to those offenses that are defined as motor vehicle violations. Specifically, § 53a-24 (a) provides in relevant part that “[t]he term ‘offense’ means any crime or violation which constitutes a breach of any law of this state or any other state, federal law or local law or ordinance of a political subdivision of this state, for which
We also find it persuasive that the phrase “define [d] [as] a motor vehicle violation” is contained in the same clause as infraction within § 53a-24 (a). “Where a provision contains two or more words grouped together, we often examine a particular word’s relationship to the associated words and phrases to determine its meaning pursuant to the canon of construction noscitur a sociis. ” Cantonbury Heights Condominium Assn., Inc. v. Local Land Development, LLC,
The plaintiff seems to assert that a breach of § 14-227a is a motor vehicle violation simply because of its placement within the motor vehicle chapter. We disagree. At the time § 14-227a was originally enacted in 1963, the Penal Code did not exist. See Public Acts 1963, No. 616, § 1. The Penal Code was not adopted until 1969, approximately six years after the legislature decided to criminalize driving under the influence in § 14-227a. Because the Penal Code did not exist at the time the legislature adopted § 14-227a, its placement within the motor vehicle statutes has no impact on determining legislative intent.
A review of the motor vehicle chapter reveals other statutes that, like § 14-227a, provide for a term of imprisonment
Indeed, § 14-224 also supports the conclusion that a second conviction for a breach of § 14-227a within a ten year period is a felony. Section 14-224 addresses evading responsibility in the operation of motor vehicles. Subsection (f) of § 14-224 provides that “[a]ny person who [is knowingly involved in an accident which causes serious physical injury ... or results in the death of any other person and does not at once stop and render such assistance as may be needed and give his name, address and operator’s license number and registration number to the person injured or to any officer or witness to the death or serious physical injury of any person] shall be fined not more than ten thousand dollars or be imprisoned not less than one year nor more than ten years or be both fined and imprisoned.” Applying the plaintiff’s reasoning, any statute within the motor vehicle chapter that is not specified as a felony or misdemeanor is not a crime and, therefore, an individual could be imprisoned for up to ten years for a violation of § 14-224, but it still would not be considered a crime.
We acknowledge that the legislature, on occasion, has used the term violation and the phrase motor vehicle violation in a manner that is inconsistent with the definition of violation as an offense punishable by fine only as set forth in § 53a-27. See General Statutes § 53a-28 (e) (2) (referring to conditions relevant to probation for “a motor vehicle violation for which a sentence to a term of imprisonment may be imposed”); General Statutes § 53a-173 (a) (1) (addressing failure to appear in second degree in context of person “charged with the commission of a misdemeanor or a motor vehicle violation for which a sentence to a term of imprisonment may be imposed”); General Statutes § 53a-222a (a) (addressing violation of conditions of release in second degree in context of person “charged with the commission of a misdemeanor or motor vehicle violation for which a sentence to a term of imprisonment maybe imposed”). This inconsistency gives rise to some ambiguity in § 53a-24 as to whether the phrase motor vehicle violation is intended only to apply to breaches of a statute for which only fines may be imposed, or also to breaches of a statute for which a term of imprisonment may be imposed. “A statute is ambiguous if, when read in context, it is susceptible to more than one reasonable interpretation.” In re Jan Carlos D.,
The legislative history of § 14-227a supports our conclusion that the legislature intended a second conviction of § 14~227a within a ten year period to be a felony. Section 14-227a was adopted in 1963. Public Acts 1963, No. 616, § 1. At that time, the statute authorized terms of imprisonment. Specifically, the statute provided for imprisonment of not more than six months for a first offense; not less than sixty days nor more than one year for a second offense; and not less than six months nor more than one year for a subsequent offense. See Public Acts 1963, No. 616, § 1. In 1983, the legislature amended the statute and increased the possible terms of imprisonment under the statute to not more than six months for a first offense; not more than one year, forty-eight consecutive horns of which cannot be suspended or reduced, for a second offense; not more than two years, thirty days of which cannot be suspended or reduced, for a third offense.
A thorough examination of the legislative history surrounding these amendments reveals that the legislature considered driving under the influence of alcohol or drugs a serious criminal offense. Indeed, each of these amendments was designed to discourage driving under the influence by making the penalties more severe. In discussing the 1983 amendments to § 14-227a, Representative Martha D. Rothman explained the purpose as follows: “[W]hat we’re talking about is starting to change public
In 1985, when the legislature again amended § 14-227a and adopted a “per se” violation, the legislators again recognized the seriousness of driving under the influence and commented on the criminal nature of the offense. For instance, Representative Thomas Dudchik said that “[t]his legislation . . . will make the punishment fit the crime . . . .” 28 H.R. Proc., Pt. 19, 1985 Sess., p. 7031. Senator James Giulietti also remarked as follows: “I am in favor of this legislation ... it is the only piece of drunk driving legislation that I’ve seen in fron[t] of the General Assembly, and that we’ve voted on, that deals with the individual. An individual who has committed the crime of drunk driving. . . . This is the only bill that pinpoints an individual, that punishes an individual, more severely for drunk driving.” 28 S. Proc., Pt. 12,1985 Sess., p. 3951; see also 28 H.R. Proc., Pt. 19, 1985 Sess., p. 7035, remarks of Representative David Wenc (asking whether “crime [of driving under the influence] as-defined under the state law meet[s] the same definition as the federal crime”); 28 H.R. Proc., Pt. 30, 1985 Sess., pp. 10,879-80, 10,912, remarks of Representatives Wenc, Robert Farr, and Richard Cunningham (addressing question of whether amendment setting blood alcohol limit as proof of intoxication is setting forth “new crime” for driving with blood alcohol content above specified level, “new definition for the present crime” or “two different crimes’’); 28 S. Proc., Pt. 16, 1986 Sess., pp. 5364-66, remarks of Senators Richard Johnston and Cornelius O’Leary (characterizing statute and punishment therein as “criminal prosecutions,” “criminal penalty,” and “criminal offense”).
In 1999, the legislature again amended § 14-227a to provide for a term of imprisonment of not more than two years for a second offense within ten years. In the discussion of this amendment, the legislature again referred to the penalties under § 14-227a as “criminal penalties” and discussed the statute as “criminalizing” conduct. See 42 S. Proc., Pt. 9,1999 Sess., pp. 2903-2904, remarks of Senator Martin Looney; see also 42 H.R. Proc., Pt. 19,1999 Sess., p. 6732, remarks of Representative Paul Doyle (“[i]f the person drank a glass of wine and it was above .02 the normal criminal penalties would apply and for the first, basically that person would be able to get . . . the alcohol education program” [emphasis added]).
The legislative history of § 14-227a clearly demonstrates that the legislature has long understood driving while under the influence to be a crime. Furthermore, this legislative history also demonstrates that, over time, the legislature has adopted increasingly more severe punishments in an effort to discouragb driving under the influence.
The treatment of driving under the influence m other jurisdictions also bolsters our conclusion that a second conviction for driving under the influence within a ten year period is a felony. “It is true that ‘[w]here the meaning of a statute is in doubt, reference to legislation in other states and jurisdictions which pertains to the same subject matter, persons, things, or relations may be a helpful source of interpretative guidance.’ 2A [J.] Sutherland, Statutory Construction [Sands 4th Ed. 1984] § 52.03.” Johnson v. Manson,
The official commentary to the definition of offense in § 53a-24 also evidences the legislature’s intent to treat a breach of § 14-227a as a criminal offense and not include it within the motor vehicle violation exception to the definition of offense. The commentary explains: “(a). This section defines the terms ‘offense’, ‘crime’, and ‘violation’. ‘Offense’ is a general term which means a breach of state or local ‘criminal’ law — i.e., one that calls for imprisonment or fine for breach thereof. ‘Crime’ means either a felony or misdemeanor.
Finally, we note that this court has frequently referred to a conviction under § 14-227a as a crime or a criminal prosecution. See State v. Singleton,
The plaintiff relies, however, on the 1987 Appellate Court decision in State v. Kluttz,
In concluding that a violation of § 14-222a fell within the motor vehicle violation exception to the definition of offense, the court in Kluttz primarily relied on the unique genealogy of § 14-222a. The Appellate Court noted that the negligent homicide with a motor vehicle statute was originally enacted in 1941, and was codified with the motor vehicle statutes. General Statutes (Sup. 1941) § 235f. Then, in 1971, after the adoption of the Penal Code, the legislature repealed General Statutes § 14-218, the prior negligent homicide with a motor vehicle statute, and reenacted it a few years later in the Penal Code. State v. Kluttz, supra,
The plaintiff also relies on a number of cases, subsequent to the KLuttz decision, in which the Appellate Corut concluded that a conviction under § 14-227a is not a crime because it falls within the motor vehicle violation exception to the definition of offense. These decisions lack persuasive force because they simply adopted the KLuttz conclusion without undertaking any independent analysis. See State v. Brown,
On the basis of the foregoing, we conclude that the language of § 14-227a, its relationship to other statutes, its legislative history and the commentary to the Penal Code reveal that the legislature intended driving under the influence to be a criminal offense and not to fall within the motor vehicle violation exception to the
The judgment is reversed and the case is remanded with direction to render judgment for the defendant.
Notes
We note that although the complaint specifically named Leonard C. Boyle, in his capacity as the commissioner of public safety, as the defendant, we refer herein to the commissioner of public safety as the defendant.
General Statutes § 14-227a provides in relevant part: “(a) No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. A person commits the offense of operating a motor vehicle while ünder the influence of intoxicating liquor or any drug or both if such person operates a motor vehicle (1) while under the influence of intoxicating liquor or any drug or both, or (2) while such person has an elevated blood alcohol content. For the purposes of this section, ‘elevated blood alcohol content’ means a ratio of alcohol in the blood of such person that is eight-hundredths of one per cent or more of alcohol, by weight . . . and ‘motor vehicle’ includes a snowmobile and all-terrain vehicle, as those terms are defined in section 14-379.
“(g) Any person who violates any provision of subsection (a) of this section shall: (1) For conviction of a first violation, (A) be fined not less than five hundred dollars or more than one thousand dollars, and (B) be (i) imprisoned not more than six months, forty-eight consecutive hours of which may not be suspended or reduced in any manner, or (ii) imprisoned not more than six months, with the execution of such sentence of imprisonment suspended entirely and a period of probation imposed requiring as a condition of such probation that such person perform one hundred hours of community service, as defined in section 14-227e, and (C) have such person’s motor vehicle operator’s license or nonresident operating privilege suspended for one year; (2) for conviction of a second violation within ten years after a prior conviction for the same offense, (A) be fined not less than one thousand dollars or more than four thousand dollars, (B) be imprisoned not more than two years, one hundred twenty consecutive days of which may not be suspended or reduced in any manner, and sentenced to a period of probation requiring as a condition of such probation that such person perform one hundred hours of community service, as defined in section 14-227e, and (C) (i) if such person is under twenty-one years of age at the time of the offense, have such person’s motor vehicle operator’s license or nonresident operating privilege suspended for three years or until the date of such person’s twenty-first birthday, whichever is longer, and be prohibited for the two-year period following completion of such period of suspension from operating a motor vehicle unless such motor vehicle is equipped with a functioning, approved ignition interlock device, as defined in section 14-227j; or (ii) if such person is twenty-one years of age or older at the time of the offense, have such person’s motor vehicle operator’s license or nonresident operating privilege suspended for one year and be prohibited for the two-year period following completion of such period of suspension from operating a motor vehicle unless such motor vehicle is equipped with a functioning, approved ignition interlock device, as defined in section 14-227j; and (3) for conviction of a third and subsequent violation within ten years after a prior conviction for the same offense, (A) be fined not less than two thousand dollars or more than eight thousand dollars, (B) be imprisoned not more than three years, one year of which may not be suspended or reduced in any manner, and sentenced to a period of probation requiring as a condition of such probation that such person perform one hundred hours of community service, as defined in section 14-227e, and (C) have such person’s motor vehicle operator’s license or nonresident operating privilege permanently revoked upon such third offense. For purposes of the imposition of penalties for a second or third and subsequent offense pursuant to this subsection, a conviction under the provisions of subsection (a) of this section in effect on October 1,1981, or as amended thereafter, a conviction under the provisions of either subdivision (1) or (2) of subsection (a) of this section, a conviction under the provisions of section 53a-56b or 53a-60d or a conviction in any other state of any offense the essential elements of which are determined by the court to be substantially the same as subdivision (1) or (2) of subsection (a) of this section or section 53a-56b or 53a-60d, shall constitute a prior conviction for the same offense. . . .”
Several technical changes have been made to various subsections of § 14-227a since the relevant time of the proceedings in the present case. See, e.g., Public Acts 2004, No. 04-199, § 31; Public Acts 2004, No. 04-257, § 101; Public Acts 2006, No. 06-147, § 1; Public Acts 2010, No. 10-110, §§ 6, 45, 46. Those changes, however, are not relevant to this appeal. For purposes of clarity, we refer to the current revision of the statute.
Throughout this opinion, we use the term “breach” to indicate conduct that is prohibited by a given statutory provision. In the interest of clarity, our use of the terms “violation,” “infraction,” “offense,” or their various forms is restricted to the meanings provided in General Statutes §§ 53a-24 through 53a-27.
General Statutes § 4-174 provides: “Any interested person may petition an agency requesting the promulgation, amendment, orrepealof aregulation. Each agency shall prescribe by regulation the form for petitions and the procedure for their submission, consideration, and disposition. Within thirty days after submission of a petition, the agency either shall deny the petition in writing stating its reasons for the denials or shall initiate regulation-making proceedings in accordance with section 4-168.”
The plaintiff also sought an order compelling the defendant to provide him with a new printed criminal history, without a convicted felon notation.
The defendant appealed from the judgment of the trial court to the Appellate Court, and we thereafter transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1.
See footnote 2 of this opinion.
It is important to note that the legislature amended § 14-227a to provide that convictions under §§ 53a-56b and 53a-60d constitute prior convictions for the same offense at the same time it increased the term of imprisonment for a second conviction to two years. See Public Acts 1999, No. 99-255, § 1.
General Statutes § 53a-25 provides: “(a) An offense for which a person may be sentenced to a term of imprisonment in excess of one year is a felony.
“(b) Felonies are classified for the purposes of sentence as follows: (1) Class A, (2) class B, (3) class C, (4) class D, (5) unclassified and (6) capital felonies.
“(c) The particular classification of each felony defined in this chapter is expressly designated in the section defining it. Any offense defined in any other section of the general statutes which, by virtue of an expressly specified sentence, is within the definition set forth in subsection (a) shall be deemed an unclassified felony.”
From 1983 through 1999, a third conviction under § 14-227a within a ten year period was punishable by a term of imprisonment of up to two years.
General Statutes § 53a-24 provides: “(a) The term ‘offense’ means any crime or violation which constitutes a breach of any law of this state or any other state, federal law or local law or ordinance of apolitical subdivision of this state, for which a sentence to a term of imprisonment or to a fine, or both, may be imposed, except one that defines a motor vehicle violation or is deemed to be an infraction. The term ‘crime’ comprises felonies and misdemeanors. Every offense which is not a ‘crime’ is a ‘violation’. Conviction of a violation shall not give rise to any disability or legal disadvantage based on conviction of a criminal offense.
“(b) Notwithstanding the provisions of subsection (a) of this section, the provisions of sections 53a-28 to 53a-44, inclusive, shall apply to motor vehicle violations. Said provisions shall apply to convictions under section 21a-278 except that the execution of any mandatory minimum sentence imposed under the provisions of said section may not be suspended.”
The dissent asserts that a breach of the laws contained in the motor vehicle code cannot constitute a crime because the legislature has drawn a distinction between a person convicted of a crime and a person convicted of a violation of § 14-227a, or other motor vehicle laws that carry a potential term of imprisonment. First, the dissent cites to General Statutes § 14-44 (b), which delineates the requirements for obtaining a commercial operator’s license. Section 14-44 (b) provides in relevant part: “Each applicant for an operator’s license bearing an endorsement or the renewal of such a license shall furnish the commissioner [of motor vehicles], or the commissioner’s authorized representative, with satisfactory evidence, under oath, to prove that such person has no criminal record and has not been convicted of a violation of subsection (a) of section 14-227a within five years of the date of application and that no reason exists for a refusal to grant or renew such an operator’s license bearing an endorsement. ...”
It is important to note that, contrary to the language quoted in the dissenting opinion, § 14-44 (b) does not contain the word “or” between “criminal record” and “has not been convicted of a violation of subsection (a) of section 14-227a within five years . . . .” To the contrary, we conclude that the language of the statute allows for an applicant to have a criminal record containing a conviction for a violation of § 14-227a as long as it is not within five years of the date of application. Nothing in that statute prohibits this court from construing § 14-227a as a criminal offense.
Second, we disagree with the dissent that subsection (b) of § 53a-24, which sets forth the limitation on the motor vehicle violation exception to the definition of offense in subsection (a), supports the conclusion that a violation of § 14-227a falls within the motor vehicle violation exception to the definition of offense. That subsection provides in relevant part: “Notwithstanding the provisions of subsection (a) of this section, the provisions of sections 53a-28 to 53a-44, inclusive, shall apply to motor vehicle violations. . . .” General Statutes § 53a-24 (b). The dissent asserts that because § 53a-24 (b) references sections that apply to convictions with terms of imprisonment when it was describing procedures applicable to motor vehicle violations, the legislature could not have intended the term motor vehicle violation to apply only to those breaches punishable by a fine. A review of §§ 53a-28 to 53a-44 reveals that some of the provisions in the specified range never could be applied to a breach of the motor vehicle laws. See, e.g., General Statutes §§ 53a-35b and 53a-35c (addressing life imprisonment). Therefore, we conclude that the legislature intended to apply only those provisions, or parts thereof, within the stated range that are relevant to motor vehicle laws punishable by fine only to a motor vehicle violation.
Indeed, a review of the other statutes in the motor vehicle chapter reveals that the legislature has not chosen to define a breach of any statute as a motor vehicle violation.
The dissent asserts that “construing the ‘motor vehicle violation’ exception to the definition of offense in § 53a-24 to mean a breach of any motor vehicle law, irrespective of the penalty attached, is the only construction consistent with both these cases [treating breaches of motor vehicle statutes with potential terms of imprisonment as not being classified as criminal offenses under the Penal Code] and the body of our General Statutes . . . ." We disagree and conclude that it is entirely unreasonable to conclude that the legislature intended for an individual to be imprisoned for up to ten years for a breach that is not considered a crime.
General Statutes § 53a-40f (b) provides: “When any person has been found to be a persistent operating while under the influence felony offender, the court, in lieu of imposing the sentence authorized by section 53a-35a for the crime of which such person presently stands convicted, may impose the sentence of imprisonment authorized by said section for the next more serious degree of felony.”
The dissent concludes that “[t]he ‘persistent’ designation is attached to the conduct — operating under the influence, an element shared by all the offenses — not the felony designation.” (Emphasis in original.) In support of its conclusion, the dissent relies on the fact that “because a first offense under § 14-227a carries a maximum term of imprisonment that would render it a misdemeanor, if subject to classification as a criminal offense, it could not under such circumstances constitute a felony.” The dissent also relies on the fact that driving under the influence may be considered a lesser included offense of §§ 53a-56b and 53a-60d. The dissent’s position distorts the plain meaning of the statute. What the dissent fails to note is that the above-referenced criminal statutes were first referenced in § 14-227a at the same time that the legislature increased the term of imprisonment for a second conviction to up to two years. See P.A. 99-255, § 1. Therefore, “a conviction under the provisions of section 53a-56b or 53a-60d or a conviction in any other state of any offense the essential elements of which are determined by the court to be substantially the same as subdivision (1) or (2) of subsection (a) of this section or section 53a-56b or 53a-60d, shall constitute a prior conviction for the same offense.” General Statutes § 14-227a (g).
Section 53a-40f is entitled: “Persistent operating under the influence felony offender. Authorized sentences.” That section explains the elements of being “[a] persistent operating while under the influence felony offender . . . .” General Statutes § 53a-40f (a). Although § 53a-40f does not define the word persistent, in its common usage, the word persistent means, “insistently repetitive or continuous.” American Heritage Dictionary of the English Language (3d Ed. 1992); see also Potvin v. Lincoln Service & Equipment Co.,
The dissent relies on the fact that the legislature did not explicitly state that the 1999 amendments to § 14-227a that increased the penalty for a second conviction under § 14-227a within a ten year period to not more than two years made it a felony. Specifically, the dissent asserts that it “simply cannot accept that the legislature would have intended to establish a new felony under our General Statutes without the barest acknowledgment of that decision and its consequences.” As we have explained herein, however, 1999 was not the first time that a repeat offense of driving under the influence was deemed a felony. Indeed, the legislature has treated a third conviction under § 14-227a as a felony since 1983. Therefore, we are not persuaded that the legislature’s failure to mention the term felony in discussing the 1999 amendments to § 14-227a is indicative of legislative intent.
It is also important to note that General Statutes § 54-56g provides a pretrial alcohol education program for individuals who are facing their first charge of a violation of § 14-227a. If an eligible individual completes the program, he or she is not convicted of a violation of § 14-227a. Therefore, in most cases, a person who is convicted for a second violation of § 14-227a within a ten year period has actually been charged with a violation of § 14-227a three times during that period.
Although the dissent asserts that, “[u]nlike the appropriateness of attaching such consequences to crimes of violence or moral turpitude, a review of the collateral consequences of having been convicted of a felony leads us to conclude that all but two of those consequences would seem to be inappropriately applied to an individual solely on the basis of a qualifying conviction under § 14-227a.” We disagree and conclude that whether a second conviction under § 14-227a within a ten year period should carry the collateral consequences of a felony conviction was within the province of the legislature when it chose to make a second conviction of driving under the influence punishable by up to two years imprisonment; the legislature was aware of the ramifications of its decision. Moreover, as we explained previously herein; see footnote 18 of this opinion; due to the existence of the pretrial alcohol education program, in most cases, a person who is convicted for a second violation of § 14-227a within a ten year period has actually been charged with a violation of § 14-227a three times during that period. Accordingly, we are not persuaded that the legislature did not intend for an individual who was convicted of a second breach of § 14-227a within a ten year period to suffer the collateral consequences of a felony conviction.
The dissent asserts that “at the time the Penal Code was enacted and ‘motor vehicle violations’ were excepted from the classification of criminal offenses, the dominant opinion of breaches of § 14-227a was that such conduct was not particularly reprehensible, and certainly was not considered ‘criminal.’ ” We disagree. First, as we previously explained herein, breaches of § 14-227a have always carried a possible term of imprisonment. Second, in construing § 14-227a for the purposes of this case, we must look to the entire legislative history of the statute and not just the public policy in place at the time the statute was enacted. As we have explained, this legislative history clearly indicates that the legislature considers driving under the influence to be a serious criminal offense.
Alabama (Ala. Code § 32-5A-191 [1999]); Alaska (Alaska Stat. § 28.35.030 [2008]); Arizona (Ariz. Rev. Stat. Ann. § 13-604 [2010]); Arkansas (Ark. Code Ann. §§ 5-65-111 and 5-65-112 [2005]); California (Cal. Veh. Code §§ 23152, 23550 and 40000.15 [Deering 2000]); Delaware (Del. Code. Ann. tit. 11, § 4202 [b] [2007]; Del. Code. Ann. tit. 21, §§ 4177 [d] and 4177B [e] [2] [2005]); Florida (Fla Stat. §§ 316.193 and 775.082 [2007]); Georgia (Ga. Code. Ann. § 40-6-391 [c] and [k] [2007]); Hawaii (Haw. Rev. Stat. § 291E-61 [b] [2007]); Idaho (Idaho Code Ann. §§ 18-8004C [1] [a] and [2] [a], 18-8005 and 18-8006 [2004]); Illinois (625 HI. Comp. Stat. Ann. 5/11-501 [West 2008]; 730 Ill. Comp. Stat. Ann. 5/5-8-1 [a] [7] and 5/5-8-3 [a] [1] [West 2007]); Indiana (Ind. Code Ann. § 9-30-5-1 et seq. [LexisNexis 2004]; Ind. Code Ann. §§ 35-50-2-6 and 35-50-3-2 et seq. [LexisNexis 2009]); Iowa (Iowa Code Ann. § 321J.2 [2] and [3] [West 2005]); Kansas (Kan. Stat. Arm. § 8-1567 [2001]; Kan. Stat. Ann. § 21-4502 [1] [2007]); Kentucky (Ky. Rev. Stat. Ann. § 189A.010 [5] [Lex-isNexis 2009]); Louisiana (La. Rev. Stat. Ann. § 14:98 [2004]); Maryland (Md. Code Ann. Transp. §§ 21-902, 27-101 and 27-102 [LexisNexis 2009]); Massachusetts (Mass. Ann. Laws c. 90, § 24 [LexisNexis 2005]; Mass. Ann. Laws c. 274, § 1 [Law. Co-op. 1992]); Michigan (Mich. Comp. Laws Serv. § 257.625 [8] and [10] [LexisNexis 2010]); Minnesota (Minn. Stat. § 169A.20 et seq. [2008]); Mississippi (Miss. Code Ann. § 63-11-30-[Cum. Sup. 2010]); Missouri (Mo. Rev. Stat. §§ 577.010, 577.012, 577.023, 558.011 and 560.016 [2000]); Montana (Mont. Code Ann. §§ 61-8-401, 61-8-711 [1] and 61-8-714 [2007]); Nebraska (Neb. Rev. Stat. §§ 28-105 and 28-106 [1995]; Neb. Rev. Stat. § 60-6196 et seq. [2007]); Nevada (Nev. Rev. Stat. §§ 193.120 and 484C.400 [2009]); New Hampshire (N.H. Rev. Stat. Ann. § 265-A:18 [Cum. Sup. 2009]); New Mexico (N.M. Stat. § 66-8-102 [2004]); New York (N.Y. Veh. & Traf. Law § 1193 [McKinney 1996]); North Carolina (N.C. Gen. Stat § 20-138.5 [2009]); North Dakota (N.D. Cent. Code § 12.1-32-01 [1997]; N.D. Cent. Code § 39-08-01 [2008]); Ohio (Ohio Rev. Code Ann. §§ 2929.14, 2929.16, 2929.18 [B] [3], 2929.19 [C] and 2929.21 [2006]; Ohio. Rev. Code Ann. § 4511.99 [2008]); Oklahoma (Okla. Stat. tit. 47, § 11-902 [2007]); Oregon (Or. Rev. Stat. §§ 813.010, 161.605 and 161.615 [2007]); Pennsylvania (75 Pa. Const. Stat. Ann. §§ 3735.1, 3802, 3803 and 3804 [West 2006]); Rhode Island (R.I. Gen. Laws § 31-27-2 [2010]); South Carolina (S.C. Code Ann. §§ 16-1-10, 16-1-20, 16-1-90 [F] and 16-1-100 [2003]; S.C. Code Ann. § 56-5-2940 [2006]); South Dakota (S.D. Codified Laws §§ 22-6-1 and 22-6-2 [2006]; S.D. Codified Laws § 32-23-2 et seq. [2004]); Tennessee (Term. Code Ann. § 40-35-111 [2010]; Term. Code Ann. § 55-10-403 [Sup. 2010]); Texas (Tex. Penal Code Ann. §§ 12.21, 12.22, 12.34, 49.04 and 49.09 [West 2003]); Utah (Utah Code Ann. § 41-6a-505 [2005]); Vermont (Vt. Stat. Ann. tit. 13, § 1 [2009]; Vt. Stat. Ann. tit. 23, § 1210 [2009]); Virginia (Va. Code Ann. §§ 18.2-10 [f|, 18.2-11 [a] and 18.2-270 [2009]); West Virginia (W. Va. Code Ann. § 17C-5-2 [LexisNexis 2009]); Wisconsin (Wis. Stat. Ann. §§ 346.63,346.65,939.50 and 940.25 [West 2005]); and Wyoming (Wyo. Stat. Ann. §§ 6-10-101 and 31-5-233 [2009]).
Idaho, Indiana, Maryland, New York and Oklahoma treat a second conviction for driving under the influence as a felony. As previously explained herein; see footnote 18 of this opinion; due to the presence of the pretrial alcohol education program, in most cases in Connecticut, a second conviction under § 14-227a usually indicates that the person has actually been arrested three times in a ten year period for a violation of § 14-227a.
The dissent asserts that it is “unpersuaded that the choices of other states in this area are relevant to the present question; the majority has not pointed to any state with a comparable motor vehicle exception in their laws, meaning that the question of classifying operating a motor vehicle while under the influence in other states would be, as a matter of statute, a far simpler exercise.” See footnote 31 of the dissenting opinion. As we have explained herein, the legislative history of § 14-227a demonstrates that many of the amendments to § 14-227a over the years have been intended to make our driving under the influence law consistent with the law of other states and federally recommended guidelines. Accordingly, whether other states have a motor vehicle exception is irrelevant. The only factor that is indicative of whether our legislature intended a second conviction under § 14-227a within a ten year period to be a felony is the fact that the vast majority of other states treat repeat offenses of driving under the influence as a felony, regardless of whether those states have a motor vehicle exception.
In State v. Harrison, supra,
Dissenting Opinion
with whom ROGERS, C. J., and McLACH-LAN, J., join, dissenting. The majority concludes that a second conviction for operating a motor vehicle while under the influence of intoxicating liquor or drugs in violation of General Statutes § 14-227a
This appeal turns on the meaning of the “motor vehicle violation” exception to the definition of “ ‘offense’ ” under General Statutes § 53a-24 (a),
. “ [W]e are [also] guided by the principle that the legislature is always presumed to have created a harmonious and consistent body of law .... [T]his tenet of statutory construction . . . requires us to read statutes together when they relate to the same subject matter .... Accordingly, [i]n determining the meaning of a statute ... we look not only at the provision at issue, but also to the broader statutory scheme to ensure the coherency of our construction.” (Internal quotation marks omitted.) Hartford/Windsor Healthcare Properties, LLC v. Hartford,
Interpreting the statutory scheme at issue in the present case involves the consideration of several distinct, but related, statutory provisions. To determine whether a conviction under § 14-227a can constitute a felony, I begin with the Penal Code’s definition of that term. A felony is defined as “[a]n offense for which a person may be sentenced to a term of imprisonment in excess of one year . . . .” (Emphasis added.) General Statutes § 53a-25 (a). The Penal Code instructs that “[a]ny offense defined in any other section of the general statutes which, by virtue of an expressly specified sentence, is within th[is] definition . . . [is] deemed an unclassified felony.” General Statutes § 53a-25 (c). Because § 14-227a (g) (2) provides that a second conviction under that statute within ten years can be punished by a term of imprisonment of “not more than two years,” it undoubtedly meets the incarceration requirement of a felony. Thus, the issue that must be resolved, however, is whether a breach of § 14-227a is an “offense” as that term is defined under the Penal Code.
The term offense is defined in relevant part as “any crime or violation which constitutes a breach of any law of this state or any other state, federal law or local law or ordinance of a political subdivision of this state, for which a sentence to a term of imprisonment or to a fine, or both, may be imposed, except one that defines a motor vehicle violation or is deemed to be an infraction. The term ‘crime’ comprises felonies and misdemeanors. ...” (Emphasis added.) General Statutes § 53a-24 (a). Thus, an offense is either a crime (felony or misdemeanor) or a violation, unless the breach constitutes a motor vehicle violation or is deemed an infraction. In addition to providing a definition of felony, the Penal Code also defines the terms misdemeanor, violation and infraction.
Turning to the definitions provided, crimes are distinguished by a potential term of imprisonment. See General Statutes § 53a-25 (a) (felony); General Statutes § 53a-26 (a) (misdemeanor).
Putting the majority’s construction aside, I recognize that if we were to incorporate the definition of “violation” under § 53a-27 (a) into the term “motor vehicle violation,” such a construction would not render the exception superfluous, as it would limit application to numerous motor vehicle laws that are punishable by fine only. See General Statutes § 53a-27 (a). Under that view, a breach of § 14-227a would not fall into the exception to the definition of a criminal offense. Indeed, § 14-227a uses the term “criminal prosecution . . . .”
“It is of course true that, when a statutory definition applies to a statutory term, the courts must apply that definition. The question in the present case, however, is whether the statutory definition applies in the first instance.” Commissioner of Environmental Protection v. Mellon,
I begin with the definition of “ ‘offense’ ” in subsection (b) of § 53a-24, which sets forth a limitation on the motor vehicle exception in subsection (a) of § 53a-24.
Significantly, one of the sections in the enumerated range specifically refers to “a motor vehicle violation for which a sentence to a term of imprisonment may be imposed . . . .” General Statutes § 53a-28 (e) (2) (addressing conditions of sentence of probation).
Consistent with the legislature’s express acknowledgment that a motor vehicle violation can be punished by a term of imprisonment, the phrase “motor vehicle violation” would appear to incorporate the common meaning of “violation,” rather than the statutory definition in § 53a-24. A violation is, in general parlance, “[a]n infraction or breach of the law; a transgression”; Black’s Law Dictionary (9th Ed. 2009); or “the act of violating”; Merriam-Webster’s Collegiate Dictionary (10th Ed. 1995); and “violate,” in turn, is defined as “break[ing], disregard[ing] (the law).” Merriam-Webster’s Collegiate Dictionary (9th Ed. 1987). Under that meaning, a breach of § 14-227a would constitute a “motor vehicle violation,” as it undoubtedly is a violation of a motor vehicle law. Thus, applying that rubric, a breach of § 14-227a would fall within the motor vehicle violation exception to “ ‘offense’ ” under § 53a-24 (a) and, thus, could not be a crime, either a felony or a misdemeanor.
I note that such a conclusion would be bolstered by two other distinctions apparent in the General Statutes. First, there are several provisions in which the legislature has drawn a distinction between a person convicted of a crime and a person convicted of a violation of § 14-227a or another motor vehicle law that carries a potential term of imprisonment. See General Statutes § 14-44 (b) (limiting commercial operator’s license to person who “[h]as no criminal record [or] has not been convicted of a violation of subsection [a] of section 14-227a within five years of the date of application”); General Statutes § 54-56e (b) (2) (conferring discretion on court to invoke accelerated rehabilitation program with respect to defendant who, inter alia, “has no previous record of conviction of a crime or of a violation of section 14-196, subsection [c] of section 14-215, section 14-222a, subsection [a] of section 14-224 or section 14-227a”); General Statutes § 54-143 (a) (imposing fees on persons “convicted of a felony,” “convicted of a misdemeanor or convicted under sections 14-219, 14-222, 14-224, 14-225 and 14-227a”). Second, a review of title 14 of the General Statutes governing motor vehicles reveals eleven statutes in which, unlike § 14-227a, the legislature expressly has designated breaches as misdemeanors or felonies.
There is one aspect of the statutory scheme that superficially appears to support the conclusion that a breach of § 14-227a is a crime, but I disagree with the majority’s treatment of that provision. Specifically, General Statutes § 53a-40f
In sum, the majority’s interpretation creates contradictions and inconsistencies within the Penal Code and throughout the General Statutes that my interpretation wholly avoids. “We do not mechanistically apply [P]enai [C]ode definitions to a statute but interpret the language in a manner that implements the statute’s purpose.” State v. Harrison,
I also note that this court is not writing on a blank slate in determining whether breaches of motor vehicle laws that carry a term of imprisonment constitute criminal offenses under the Penal Code.
In subsequent decisions, however, this court has assumed the correctness of the predicate conclusions in Kluttz and Brown and, thus, has treated breaches of motor vehicle statutes with potential terms of imprisonment as not being classified as criminal offenses under the Penal Code. I have, therefore, focused my inquiry on whether convictions under such motor vehicle statutes nonetheless could be treated as crimes for other purposes. In State v. Guckian,
Although construing the “motor vehicle violation” exception to the definition of offense in § 53a-24 to mean a breach of any motor vehicle law, irrespective of the penalty attached, is the only construction consistent with both these cases and the body of our General Statutes, I nevertheless consider whether there is anything in the genealogy or legislative history of §§ 53a-24 and 14-227ato undermine such a conclusion. I conclude that there is not. Section 14-227a, or its predecessors, predated the enactment of § 53a-24 and the rest of the Penal Code. At the time the Penal Code was enacted, the treatment of persons who were convicted of driving while intoxicated was fundamentally different than it is today. Although such conduct always had been punishable by some term of imprisonment,
The purpose of the classification system set forth in §§ 53a-24 through 53a-27 was, “[according to the drafters of the [Penal] Code ... ‘to eliminate the kind of irrationally disparate sentences which often existed in prior law between essentially similar serious crimes, and irrationally similar sentences between crimes of greatly varying seriousness, and to substitute therefore a system which will, as nearly as is possible, treat essentially the same similarly serious kinds of conduct.’ ” J. Gittler, Connnecticut Penal Code Reference Manual (1971) p. 2-1. There is no apparent connection between that purpose and the classification of breaches under the motor vehicle laws as misdemeanors or felonies.
The commentary to § 53a-24 is not particularly illuminating.
The majority suggests that legislative debates over various amendments to § 14-227a and related provisions support the conclusion that a breach of § 14-227a constitutes a crime.
Although the majority focuses on the generic use of the term “crime,” it fails to give any consideration to the fact that the legislators never referred to a breach of § 14-227a as a felony. During debate over No. 99-255, § 1, of the 1999 Public Acts, the amendment to § 14-227a that increased the potential sentence for a second qualifying offense into a range where for the first time it would satisfy the incarceration requirements of a felony, the amendment’s sponsor stated that his proposal “substantially increases the penalties both in terms of financial penalties, incarceration, and [counseling] programs for repeat offenders.” 42 S. Proc., Pt. 9, 1999 Sess., p. 2926, remarks of Senator Robert Gen-uario. In the course of his detailed discussion of the increased penalties for repeat offenders under § 14-227a, Senator Genuario emphasized the explicitly listed statutory consequences, but at no point mentioned any altered criminal status or any additional collateral consequence. While debate over the amendment was limited, at each point at which the amendment was debated in either legislative chamber, at least one legislator spoke about the increased penalties for repeat offenders, but no legislator ever discussed a change in criminal status, mentioned any collateral consequences, or even uttered the word felony. Especially in light of the overwhelming textual evidence to the contrary, I simply cannot accept that the legislature would have intended to establish a new felony under our General Statutes without the barest acknowledgment of that decision and its consequences.
It is important to note that the only consequence flowing from the decision in the present case is whether a second qualifying conviction under § 14-227a would impose on the plaintiff both the stigma of being designated a convicted felon and, more significantly, a number of other collateral consequences that attach to such a
I note, finally, that, in reaching my conclusion that a breach of § 14-227a is a “motor vehicle violation,” and accordingly cannot be classified as a crime generally or a felony specifically, I am mindful of the legislature’s intent to treat driving while intoxicated as a serious problem that calls for penalties commensurate with the potential harm caused by such actions. As one legislator aptly remarked, the legislative intent of § 14-227a is to “[impose] severe and appropriate penalties on those individuals who insist on endangering innocent people by drinking and driving”; 42 S. Proc., supra, p. 2929, remarks of Senator Catherine Cook; and to give “those individuals who do not fear the penalties
I respectfully dissent.
General Statutes § 14-227a provides in relevant part: “(a) No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. A person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor or any drug or both if such person operates a motor vehicle (1) while under the influence of intoxicating liquor or any drug or both, or (2) while such person has an elevated blood alcohol content. Por the purposes of this section, ‘elevated blood alcohol content’ means a ratio of alcohol in the blood of such person that is eight-hundredths of one per cent or more of alcohol, by weight . . . and ‘motor vehicle’ includes a snowmobile and all-terrain vehicle, as those terms are defined in section 14-379. . . .
“(g) Any person who violates any provision of subsection (a) of this section shall: (1) For conviction of a first violation, (A) be fined not less than five hundred dollars or more than one thousand dollars, and (B) be (i) imprisoned not more than six months, forty-eight consecutive hours of which may not be suspended or reduced in any manner, or (ii) imprisoned not more than six months, with the execution of such sentence of imprisonment suspended entirely and a period of probation imposed requiring as a condition of such probation that such person perform one hundred hours of community service, as defined in section 14-227e, and (C) have such person’s motor vehicle operator’s license or nonresident operating privilege suspended for one year; (2) for conviction of a second violation within ten years after a prior conviction for the same offense, (A) be fined not less than one thousand dollars or more than four thousand dollars, (B) be imprisoned not more than two years, one hundred twenty consecutive days of which may not be suspended or reduced in any manner, and sentenced to a period of probation requiring as a condition of such probation that such person perform one hundred hours of community service, as defined in section 14-227e, and (C) (i) if such person is under twenty-one years of age at the time of the offense, have such person’s motor vehicle operator’s license or nonresident operating privilege suspended for three years or until the date of such person’s twenty-first birthday, whichever is longer, and be prohibited for the two-year period following completion of such period of suspension from operating a motor vehicle unless such motor vehicle is equipped with a functioning, approved ignition interlock device, as defined in section 14-227j, or (ii) if such person is twenty-one years of age or older at the time of the offense, have such person’s motor vehicle operator’s license or nonresident operating privilege suspended for one year and be prohibited for the two-year period following completion of such period of suspension from operating a motor vehicle unless such motor vehicle is equipped with a functioning, approved ignition interlock device, as defined in section 14-227j; and (3) for conviction of a third and subsequent violation within ten years after a prior conviction for the same offense, (A) be fined not less than two thousand dollars or more than eight thousand dollars, (B) be imprisoned not more than three years, one year of which may not be suspended or reduced in any manner, and sentenced to aperiod of probation requiring as a condition of such probation that such person perform one hundred hours of community service, as defined in section 14-227e, and (C) have such person’s motor vehicle operator’s license or nonresident operating privilege permanently revoked upon such third offense. For purposes of the imposition of penalties for a second or third and subsequent offense pursuant to this subsection, a conviction under the provisions of subsection (a) of this section in effect on October 1,1981, or as amended thereafter, a conviction under the provisions of either subdivision (1) or (2) of subsection (a) of this section, a conviction under the provisions of section 53a-56b or 53a-60d or a conviction in any other state of any offense the essential elements of which are determined by the court to be substantially the same as subdivision (1) or (2) of subsection (a) of this section or section 53a-56b or 53a-60d, shall constitute a prior conviction for the same offense . . . .”
Although there have been several changes made to § 14-227a since the time of the relevant proceedings in the present case, those changes are not relevant to this appeal and, consistent with the majority, I refer herein to the current revision of the statutes. See footnote 2 of the majority opinion.
Throughout this dissenting opinion, I use the term “breach” as a generic term to indicate conduct that is prohibited by a given statutory provision. In the interests of clarity, my use of the terms “violation,” “infraction,” “offense,” or their various forms is restricted to the meanings provided in General Statutes §§ 53a-24 through 53a-27.
As noted later in this dissenting opinion, I recognize that the legislature expressly has designated breaches of certain motor vehicle statutes as misdemeanors or felonies. These designations are given their effect under the rule that more specific provisions control over more general ones. In re Jan Carlos D.,
General Statutes § 53a-24 provides: “(a) The term ‘offense’ means any crime or violation which constitutes a breach of any law of this state or any other state, federal law or local law or ordinance of a political subdivision of this state, for which a sentence to a term of imprisonment or to a fine, or both, may be imposed, except one that defines a motor vehicle violation or is deemed to be an infraction. The term ‘crime’ comprises felonies and misdemeanors. Every offense which is not a ‘crime’ is a ‘violation’. Conviction of a violation shall not give rise to any disability or legal disadvantage based on conviction of a criminal offense.
“(b) Notwithstanding the provisions of subsection (a) of this section, the provisions of sections 53a-28 to 53a-44, inclusive, shall apply to motor vehicle violations. Said provisions shall apply to convictions under section 2 la-278 except that the execution of any mandatory minimum sentence imposed under the provisions of said section may not be suspended.”
General Statutes § 53a-26 (a) provides: “An offense for which a person may be sentenced to a term of imprisonment of not more than one year is a misdemeanor.”
The msoority acknowledges in footnote 13 of its opinion that “a review of the other statutes in the motor vehicle chapter reveals that the legislature has not chosen to define a breach of any statute as a motor vehicle violation.”
The majority argues that the exclusion of § 14-227a from the “motor vehicle violation” exception also is supported by the fact that § 14-227a refers to the “offense” of operating under the influence. That usage, however, is insufficient to compel any conclusion about legislative intent. When defining the conduct prohibited and punishment prescribed, the motor vehicle chapter often uses the word “offense” as that term is commonly understood, rather than as it is defined under the Penal Code. “[Ojffense” means, generally, “[a] violation of the law”; Black’s Law Dictionary (9th Ed. 2009); or “an infraction of law . . . .” Merriam-Webster’s Collegiate Dictionary (10th Ed. 1995).
For example, the motor vehicle provision addressing a failure to stop when signaled by a police officer is referred to as an “offense” and designates a breach of its terms as an “infraction . . . .” General Statutes (Rev. to 2009) § 14-223 (a); see also General Statutes § 14-36 (i) (1) (referring to individual committing first “offense” who shall “be deemed to have commit ted an infraction”). An offense expressly designated as an infraction, however, expressly is excluded from the definition of offense, as is a “motor vehicle violation.”
The majority also relies upon the use of the term “criminal prosecution” in § 14-227a in reaching its conclusion that § 14-227a is a crime. While this reference superficially appears to support the majority’s conclusion, the legislature has referred to persons who may be “prosecuted” for breaches of motor vehicle laws that carry no term of imprisonment. See General Statutes § 14-107 (a) (referring to persons who “may be prosecuted jointly or individually for violation of [specified provisions, including ones expressly designated as ‘infractions’]”); General Statutes § 14-286 (i) (addressing how individual may be “prosecuted” for breach of provision dealing with operation of motorized cycles, provision expressly designated as infraction). Indeed, looking at the context of the term “criminal prosecution” in § 14-227a suggests that the legislature simply may use this term to incorporate certain standards and procedures into the process of seeking a conviction for breach of § 14-227a, rather than implying that the process will be a prosecution for a “crime.” Specifically, the reference to such a prosecution is used in the course of establishing evidentiary rules for any proceedings seeking conviction for a breach of § 14-227a.
See footnote 4 of this dissenting opinion for the text of § 53a-24.
As the Appellate Court previously has noted: “General Statutes §§ 53a-28 through 53a-44 are the sections of the [P]enal [C]ode which, inter alia, set out the authorized sentences for the classified and unclassified offenses (i.e., felonies, misdemeanors and violations) and provide for such sentencing mechanisms as probation, conditional discharge and unconditional discharge. [Section 53a-24 (b)] would be rendered meaningless by the state’s analysis, since ‘motor vehicle violations,’ within the meaning of ... § 53a-24 (a), could only be transgressions carrying a fine. Yet, the purpose of [§ 53a-24 (b)] is to make clear that ‘the sentencing principles enumerated in sections 53a-28 to 53a-44, inclusive, shall apply to motor vehicle violations. ’ Commission to Revise the Criminal Statutes, Penal Code Comments, [Conn. Gen. Stat. Ann. § 53a-24], p. 8. There would be no purpose served by legislatively authorizing the application of sentencing provisions of the [P]enal [C]ode, i.e., suspension of execution of sentences of imprisonment conditioned on terms of probation and conditional discharge, to a ‘motor vehicle violation’ if a ‘motor vehicle violation’ consisted only of statutes authorizing punishment by a fine.” State v. Kluttz,
General Statutes § 53a-28 (e) provides: “When sentencing a person to a period of probation who has been convicted of (1) a misdemeanor that did not involve the use, attempted use or threatened use of physical force against another person or (2) a motor vehicle violation for which a sentence to a term of imprisonment may be imposed, the court shall consider, as a condition of such sentence of probation, ordering the person to perform community service in the community in which the offense or violation occurred. If the court determines that community service is appropriate, such community service may be implemented by a community court established in accordance with section 51-181c if the offense or violation occurred within the jurisdiction of a community court established by said section.” (Emphasis added.)
General Statutes § 53a-173 (a) provides: “A person is guilty of failure to appear in the second degree when (1) while charged with the commission of a misdemeanor or a motor vehicle violation for which a sentence to a term of imprisonment may be imposed and while out on bail or released under other procedure of law, such person wilfully fails to appear when legally called according to the terms of such person’s bail bond or promise to appear, or (2) while on probation for conviction of a misdemeanor or motor vehicle violation, such person wilfully fails to appear when legally called for any court hearing relating to a violation of such probation.” (Emphasis added.)
General Statutes § 53a-222a (a) provides: “A person is guilty of violation of conditions of release in the second degree when, while charged with the commission of a misdemeanor or motor vehicle violation for which a sentence to a term of imprisonment may be imposed, such person is released pursuant to subsection (b) of section 54-63c, subsection (c) of section 54-63d or subsection (c) of section 54-64a and intentionally violates one or more of the imposed conditions of release.” (Emphasis added.)
The legislative history of this provision evidences that the legislature intended for the term “violation” to include motor vehicle violations. Number 07-57, § 1, of the 2007 Public Acts expanded the authority of the board of parole and pardons (board) over “offense [s] against the state” to include “a violation for which a sentence to a term of imprisonment may be imposed . . . During debate on the Public Act, one member of the legislature clarified that the expansion of the board’s authority would encompass “violations, for example, motor vehicle violations, which do carry a possible sentence of incarceration.” (Emphasis added.) 50 H.R. Proc., Pt. 11, 2007 Sess., p. 3601, remarks of Representative Michael P. Lawlor. These comments evidence that the legislature believed both that certain “motor vehicle violations” could carry a term of imprisonment, and that it was necessary to explicitly grant the board authority over petitions from convictions for such offenses. That expansion of authority would have been unnecessary if the legislature had believed that those particular convictions fell within the extant authority over petitions relating to “offenses against the state . . . .”
See General Statutes § 14-10 (k) (disclosure of personal information from department of motor vehicles is class A misdemeanor); General Statutes § 14-52 (selling or repairing motor vehicle without license is class B misdemeanor); General Statutes § 14-62b (e) (selling used motor vehicle parts without recycler’s license is class C misdemeanor); General Statutes § 14-65 (f) (selling motor vehicle at auction without license is class B misdemeanor); General Statutes § 14-100a (d) (5) (transporting child in motor vehicle without required restraint is class A misdemeanor); General Statutes § 14-103d (b) (violation of regulations regarding motor vehicle’s using pressurized gas is class C misdemeanor); General Statutes § 14-106b (d) (operating motor vehicle without functioning odometer is class A misdemeanor); General Statutes § 14-106d (c) (selling or offering to sell fake air bag is class A misdemeanor); General Statutes § 14-213b (b) (operating motor vehicle with insufficient insurance coverage is class D felony); General Statutes § 14-223 (b) (failure to stop motor vehicle when signaled to do so by officer in police vehicle is class A misdemeanor and class C felony); General Statutes § 14-227k (c) (avoiding or tampering with motor vehicle ignition interlock device is class C misdemeanor).
General Statutes § 53a-40f provides: “(a) A persistent operating while under the influence felony offender is a person who (1) stands convicted of a violation of section 53a-56b or 53a-60d and (2) has, prior to the commission of the present crime and within the preceding ten years, been convicted of a violation of section 53a-56b or 53a-60d or subsection (a) of section 14-227a or been convicted in any other state of an offense the essential elements of which are substantially the same as section 53a-56b or 53a-60d or subsection (a) of section 14-227a.
“(b) When any person has been found to be a persistent operating while under the influence felony offender, the court, in lieu of imposing the sentence authorized by section 53a-35a for the crime of which such person presently stands convicted, may impose the sentence of imprisonment authorized by said section for the next more serious degree of felony.”
General Statutes § 53a-56b (a) provides: “Aperson is guilty of manslaughter in the second degree with a motor vehicle when, while operating a motor vehicle under the influence of intoxicating liquor or any drug or both, he causes the death of another person as a consequence of the effect of such liquor or drug.”
General Statutes § 53a-60d (a) provides: “A person is guilty of assault in the second degree with a motor vehicle when, while operating a motor vehicle under the influence of intoxicating liquor or any drug or both, he causes serious physical injury to another person as a consequence of the effect of such liquor or drug.”
It is well settled that a law may not be classified as a crime, but nonetheless can be treated as such for purposes of the lesser included offense doctrine. See State v. Kluttz,
As this court previously has noted, there is nothing in the legislative history to § l-2z to suggest that the legislature intended to overrule cases decided prior to the enactment of § l-2z. See Commission on Human Bights & Opportunities v. Sullivan,
The majority suggests that reliance on Kluttz and its progeny is inappropriate, however, because the Kluttz decision relied on the “unique genealogy of § 14-222a.” Kluttz also, however, relied on a textual analysis of the Penal Code definitions and related provisions in reaching its conclusion, provisions that equally are applicable to § 14-227a. While the majority does not dispute the correctness of Kluttz as it pertains to § 14-222a, they have not provided a textual basis for distinguishing §§ 14-222a and 14-227a in connection with the motor vehicle exception to the definition of offense under the Penal Code.
In addition to the decisions discussed in this opinion, the majority points to this court’s decision in State v. Dukes,
See, e.g., General Statutes (1949 Eev.) § 2412 (predecessor to current § 14-227a, imposing possible penalty of six months imprisonment for first breach, up to one year for second or subsequent breaches).
Indeed, at the time of passage of Public Act 80-438, the legislatively established blood alcohol level required for breach of § 14-227a was more than twice its current level. See General Statutes (Rev. to 1979) § 14-227a (blood alcohol level ten-hundredths of one percent).
The fact that attitudes had been more lax about the treatment of drunk drivers similarly is reflected in our decisions in Shore v. Stonington,
The commentary provides in its entirety: “Subsec. (a). This section defines the terms ‘offense’, ‘crime’, and ‘violation’. ‘Offense’ is a general term which means a breach of state or local ‘criminal’ law — i.e., one that calls for imprisonment or fine for breach thereof. ‘Crime’ means either a felony or a misdemeanor. ‘Violation’, which must be read in connection with section 53a-27, means an offense calling only for a fine for breach thereof. The concept of a ‘violation’, which is taken from the Model Penal Code, is new. Section 53a-24 makes clear that conviction of a violation does not ‘give rise to any disability or legal disadvantage based on conviction of a criminal offense.’ It is a new category of non-criminal offense; conduct which should be proscribed but conviction for which should in no way brand the offender a ‘criminal.’ Thus, for example, a person who has been convicted only of a violation can truthfully answer ‘no’ to the question: Have you ever been convicted of a crime?
“Subsec. (b). The definition of ‘offense’ in subsection (a) makes clear that it does not include motor vehicle infractions. The purpose of this provision is to except from the operation of the Code, except as provided in subsection (b), motor vehicle infractions. Subsection (b), however, provides that the sentencing principles enumerated in sections 53a-28 to 53a-44, inclusive, should apply to motor vehicle violations. Thus, a motor vehicle violator would have the limits of his sentence determined by the motor vehicle section, since his ‘offense’ would be an ‘unclassified misdemeanor’ within the meaning of section 53a-26 (c); but he would be sentenced under the principles and procedures of sections 53a-28 to 53a-44.” Commission to Revise the Criminal Statutes, Penal Code Comments, Conn. Gen. Stat. Ann. (West 2007) § 53a-24, comment, pp. 454^55.
We note that, at the time this commentary was written, § 53a-24 did not expressly exclude “infractions” or “motor vehicle infractions” from the definition of offense; it simply excluded “motor vehicle violations.” That fact and the commentary’s references to “motor vehicle violations” lead us to assume that the commentary uses “motor vehicle infractions” synonymously with “motor vehicle violations.” Because the commentary’s use of the word “infraction” predated the statutory definition of that term in § 53a-27, we further assume that the authors of the commentary intended “infraction” to have its ordinary meaning; at that time, “the act of breaching or violation; infringement; a violation.” The American Heritage Dictionary of the English Language (1969). Accordingly, we interpret “motor vehicle infractions” as encompassing all breaches of motor vehicle laws; that the phrase is apparently used synonymously with the term “motor vehicle violations” in the commentary only further supports our ultimate conclusion.
The defendant also argues that a 1985 amendment to § 14-227a first inserted the word “offense”; see Public Acts 1985, No. 85-596, § 1; and did so essentially to codify the Appellate Session of the Superior Court’s decision in State v. Anonymous (1980-5),
In the course of a debate over amendments to § 14-227a, for instance, the president pro tempore and chair of the Senate clarified a confusing statement made by another Senator on the distinction between a speeding violation and a conviction for operating under the influence, saying “whether it be a motor vehicle violation [speeding] or a drunken driving violation, it falls under the broad category of criminal offense.” 28 S. Proc., Pt. 16, 1985 Sess., p. 5365, remarks of Senator Philip S. Robertson. The imprecision in this terminology is reflected in the fact that, even under the majority’s construction, a motor vehicle violation would not be a criminal offense under the Penal Code.
Accordingly, I am unpersuaded by the majority’s argument that the mere increase in potential sentence indicates legislative intent that a second qualifying breach of § 14-227a subjects an individual to the full consequences of a felony conviction.
Although the plaintiff has not made this argument, we recognize that a “convicted felon” status would, under General Statutes § 7-294d (c) (2), preclude him from serving as a police officer, and, under General Statutes § 29-28 (b), would preclude him from possessing a firearm. While we can understand the logic of attaching these collateral consequences for a second qualifying conviction of driving while intoxicated, these two consequences are overwhelmingly outnumbered by consequences that appear to lack any logical connection to the nature of a conviction under § 14-227a.
The majority argues, however, that it would yield an absurd result to treat a second qualifying breach of § 14-227a as a motor vehicle violation while treating certain expressly designated motor vehicle crimes, which the majority apparently suggests are less blameworthy than a breach of § 14-227a, as crimes. I hesitate to substitute my own judgment for what is appropriately considered “criminal” for that of the legislature; I note that the legislature has attached severe penalties to a second breach of § 14-227a, and, accordingly, I am unpersuaded by the majority’s suggestion that such breaches are not punished appropriately without the attachment of felony status. Additionally, I would suggest that the express designation of some sections of the motor vehicle code as crimes; see footnote 14 of this dissenting opinion; supports the view that the absence of such a designation is both deliberate and meaningful.
Among numerous other consequences by virtue of that felony conviction, the plaintiff could be precluded from acting as a sports agent; General Statutes § 20-559e; or as a wholesaler’s salesman. General Statutes § 30-17b. The plaintiff also would be precluded from: serving as a juror; General Statutes § 51-217 (a); conducting a bazaar or raffle; General Statutes § 7-174; working as a “major contractor”; General Statutes § 20-341gg (b); working as a licensed pawnbroker; General Statutes § 21-40; working as a telecommuni-cator; see General Statutes § 28-30 (e); or working as a private detective. General Statutes § 29-154a.
The majority suggests that the choice of sister jurisdictions to treat operating a motor vehicle while under the influence as a crime should weigh into our consideration. Ultimately, I am unpersuaded that the choices of other states in this area are relevant to the present question; the majority has not pointed to any state with a comparable motor vehicle exception in their laws, meaning that the question of classifying operating a motor vehicle while under the influence in other states would be, as a matter of statute, a far simpler exercise.