17 Conn. App. 209 | Conn. App. Ct. | 1988
The defendant appeals from a judgment of conviction, rendered upon his conditional plea of nolo contendere, of operating a motor vehicle under the influence of intoxicating liquor in violation of General Statutes § 14-227a (a),
Certain facts are pertinent. On November 7, 1986, at about 5:21 p.m., the defendant was operating his motor vehicle on Whitney Avenue in Hamden. Two vehicles, apparently preparing to make left turns, were stopped in front of the defendant’s vehicle. The defendant struck the vehicle in front of his car, and this vehicle collided with the vehicle in front of it. The officers who appeared on the scene noticed an odor of alcohol on the defendant’s breath and asked him to perform a series of field sobriety tests. These tests confirmed the officers’ suspicions of intoxication, and the defendant was placed under arrest.
The defendant consented to the administration of two blood tests that were performed at a hospital in New Haven. The first test was administered at approximately 7:34 p.m., and showed the defendant’s blood alcohol content to be above the allowable limit set forth in General Statutes § 14-227a (a) (2). The second test was administered at 8:08 p.m., and also showed the defend
The defendant claims that the trial court erred in denying his motion to suppress the toxicological reports because (1) the reports did not meet the statutory conditions for admissibility under the provisions of General Statutes § 14-227a (c), and (2) the reports did not comply with the requirements of § 14-227a-9 (e) of the department of health services regulations.
I
Before turning to the merits of the defendant’s claim, we must decide whether the defendant’s claim is reviewable. The defendant entered a plea of nolo contendere, conditional on the right to appeal the court’s adverse determination of his motion to suppress the toxicological reports. In this case, the grounds for the defendant’s motion to suppress are “ ‘not included within the statutory language [of General Statutes § 54-94a] allowing appeals from ... an illegal search or seizure in violation of the fourth amendment.’ ” State v. Scott, 16 Conn. App. 172, 173-74 n.1, 547 A.2d 77 (1988), quoting State v. Chung, 202 Conn. 39, 43, 519 A.2d 1175 (1987). Jurisdiction arises, however, under Practice Book § 4003 (b).
II
The defendant claims that the trial court erred in denying his motion to suppress the toxicological reports because the general statutory conditions precedent contained in General Statutes § 14-227a (c)
Ill
The defendant’s final claim is that the trial court erred in denying his motion to suppress the results of sobriety tests contained in the two toxicological laboratory reports. These reports indicated that the signature of the officer who sealed the blood alcohol sample was not legible on the first report, and was omitted from the second report. General Statutes § 14-227a (c) sets forth the six elements that must be satisfied before the results of chemical analysis tests of a defendant’s blood, breath or urine are admissible in a criminal prosecution for a violation of § 14-227a (a). The defendant’s challenge relates to the third element, which provides that chemical analysis results are inadmissible unless “the test was performed by or at the direction of a police officer according to methods . . . approved by the department of health services . . . .” (Emphasis added.) General Statutes § 14-227a (c) (3).
The “method” at issue in this case is -allegedly prescribed by § 14-227a-9 (e), a regulation promulgated by the department of health services in order to maintain the integrity of samples that are used to analyze the percentage of alcohol in a subject’s blood. Section 14-227a-9 (e) states that: “Containers and other equipment for sample collection shall be of a type which will preserve the integrity and suitability of the sample from
It is evident from the language of § 14-227a-9 (e) that the purpose of requiring a sealed container is to ensure that the sample reliably reflects the percentage of alcohol in the subject tested. The defendant does not argue that the containers that held his samples were unsealed. Rather, his concern is that the toxicological reports do not indicate who sealed the containers. This concern does not address the reliability of the samples taken, but is an attempt to exact form over substance. Moreover, the regulation at issue requires only that the sample be “properly sealed.” Regs., Conn. State Agencies § 14-227a-9 (e). The regulation does not require that the form issued by the department of health services be signed by the officer who sealed the sample. As regulations that are promulgated under express legislative authorization have the force of law, we decline to read this requirement into § 14-227a-9 (e). State v. Desso, 16 Conn. App. 165, 167-68 n.3, 547 A.2d 74 (1988).
There is no error.
In this opinion the other judges concurred.
General Statutes § 14-227a provides in pertinent part: “(a) operation while under THE influence. 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 ... if he operates a motor vehicle . . . (2) while the ratio of alcohol in the blood of such person is ten-hundredths of one per cent or more of alcohol, by weight.”
Practice Book § 4003, which became effective October 1,1986, provides: “APPEALS OF RULINGS ON MOTIONS TO DISMISS OR SUPPRESS FOLLOWING JUDGMENTS ENTERED UPON CONDITIONAL PLEAS OF NOLO CONDENDERE
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“(b) With approval of the court, after a hearing to consider any objections thereto, a defendant may enter a conditional plea of guilty or nolo contendere, reserving in writing the right, on appeal from the judgment,
General Statutes § 14-227a (c) provides: “admissibility of chemical analysis. Except as provided in subsection (d) of this section, in any criminal prosecution for violation of subsection (a) or (b) of this section, evidence respecting the amount of alcohol or drug in the defendant’s blood or urine at the time of the alleged offense, as shown by a chemical analysis of the
We note that a recent amendment to General Statutes § 14-227a (c) (4), effective October 1,1988, requires accuracy testing to be performed “immediately before and after such test was performed by a person certified by the department of health services.” Public Acts 1988, No. 88-85.
“The Court: Mr. Lyons, your claim is that the tests performed in this case were not done in accordance with the standards set forth by the Department of Health Services in the State of Connecticut due to the fact that number 4 on each of the two samples, being Defendant’s A and Defend
“Mr. Lyons: Precisely.”