State v. DessoState v. Desso
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- Dupont
The defendant appeals from the judgment of conviction, rendered after a jury trial, of operating a motor vehicle while under the influence of intoxicating liquor in violation of
The evidence at trial was that a state police officer stopped the defendant’s car after the officer had observed an erratic operation of the car. The officer smelled alcohol on the defendant’s breath, and noted that the defendant’s eyes were bloodshot and that his speech was slurred. On the basis of these observations and on the results of a roadside sobriety test, the officer placed the defendant under arrest. The defendant was taken to a state police barracks where an intoximeter breath test was administered to him about one hour after he had been stopped. The test measured his blood alcohol level at .191, a level above the legal alcohol limit set forth in
I
The defendant moved to suppress the intoximeter test results, contending that there had not been compliance with the regulations of the department of health services issued pursuant to
There are six preconditions to the admissiblity of breathalizer tests.
*168The defendant argues that the regulations were not complied with because the operator of the test had not had the four hours of training necessary for certification; Regs., Conn. State Agencies § 14-227a-10 (c) (a) (ii); and because the operator of the test had not placed the defendant under “continuous observation” prior to the testing of the defendant. Regs., Conn. State Agencies § 14-227a-10 (b) (1) (A). The officer who administered the test testified that he had undergone training for certification in excess of the four hour minimum. The same witness also produced copies of his original certification and his recertification. He further testified that he kept the defendant in his sight for sixty minutes prior to the test and did not see him ingest any alcoholic beverages or food, or see him regurgitate or smoke, and that he would have noticed if the defendant had done so. We decided in State v. Smith, supra, 164, that “continuous observation” as used in regulation § 14-227a-10 (b) (1) (A) does not require observation without cessation. The trial court properly admitted the intoximeter test results.
II
The defendant’s next claim of error is that the trial court should have charged the jury on the statutory and regulatory requirements of the intoximeter test so that *169the jury might review the requirements “in determining the weight to be given to the test results and the testimony related thereto.” Once the trial court had properly admitted the result of the test into evidence, the jury would have no reason to consider the requirements of the statute or the regulations. Those requirements relate to the admissibility of the test as evidence, a function solely in the province of the court. The jury could give the test result whatever weight it chose in its determination of whether the state had proved the defendant guilty beyond a reasonable doubt.
Furthermore, the defendant’s request to charge the jury sought simply to request the court to read the statutes and regulations, and was without citation to a substantive principle of law. See
Ill
The last claim of error asserted by the defendant is that his motions to excuse certain jurors for cause should have been granted because the particular jurors could not be impartial. The defendant had a total of four peremptory challenges. He exercised one peremptory challenge, and then, rather than exercise his second challenge, he moved to exclude for cause a venireperson who testified that his wife’s grandmother had been killed by a drunken driver, and that he could remain impartial about the case only if he did not tell his wife about the kind of case he was hearing as a juror. The prospective juror had met his wife’s grandmother once and stated that her death had quite an impact on his wife. The court denied the defendant’s motion to excuse this venireperson for cause, and the defendant used his second peremptory challenge to excuse him.
The defendant subsequently used his third peremptory challenge to excuse another venireperson, and he *170later moved to excuse another venireperson for cause, at which time he had one peremptory challenge left. The court denied the motion and the defendant moved for an additional peremptory challenge. At the time those motions were denied, the defendant still had one challenge left which he failed to exercise. Instead, he allowed that venireperson to serve on the jury panel. The juror he allowed on the panel was the mother of a prosecutor. The prosecutor in this case stated that he knew the juror’s son and was friendly with him, but there is no indication that the juror herself knew the prosecutor in this case.
Unless all peremptory challenges have been exercised before the completion of jury selection, there is a presumption that there is no juror serving who is regarded by the defendant as biased, although the defendant may have preferred other jurors. State v. Mercer, 208 Conn. 52, 61-62, 544 A.2d 611 (1988); State v. Vitale, 190 Conn. 219, 225, 460 A.2d 961 (1983). A trial court has discretion as to whether it will excuse a juror for cause. State v. Mercer, supra. This discretion is a wide one.
In Johnson v. New Britain General Hospital, 203 Conn. 570, 572, 575, 525 A.2d 1319 (1987), a medical malpractice case, a prospective juror, who was a retired dentist, stated during his voir dire that he had “an antagonism against malpractice suits and awards. . . . My general opinion is that many cases are frivolous. . . . Many awards are exorbitant.” Although the *171plaintiff had exercised all of his peremptory challenges at the time of the voir dire, it was held that it was not an abuse of discretion for the trial court to refuse to excuse the juror for cause. The assurance by the juror, “I think I would be fair,” was deemed to be sufficient assurance that he would be fair and impartial. The plaintiff claimed in Johnson that the testimony of the juror indicated actual bias and that the juror should have been disqualified under the common law. The court found that the responses of the juror tended to show bias but did not create a conclusive presumption of bias. It held that under the facts of the case, the juror had indicated that he could lay aside his impression or opinion and render a verdict based on the evidence presented.
We conclude that neither juror in this case showed such prejudice and bias that he or she should have been excused for cause. State v. Mercer, supra; Johnson v. New Britain General Hospital, supra; State v. Cubano, 203 Conn. 81, 88-89, 523 A.2d 495 (1987); see also United States v. Haynes, 398 F.2d 980 (2d Cir. 1968). Since the defendant need not have accepted the juror who was allowed to sit after the denials of his motions to excuse for cause because he still had a peremptory challenge left, it is all the more apparent that the trial court did not abuse its discretion. State v. Vitale, supra, 225.
There is no error.
In this opinion the other judges concurred.
Notes
The appeal in this case and the appeals in State v. Scott, 16 Conn. App. 172, 547 A.2d 77 (1988), and State v. Smith, 16 Conn. App. 156, 547 A.2d 69 (1988), were argued together in this court. Separate briefs, however, were filed in each appeal.
The defendant also claims that he had the right to introduce the regulations into evidence. The trial court took judicial notice of the regulations and they were marked for identification. Since regulations adopted pursuant to a legislative command have the force of law; Griffin Hospital v. Commission on Hospitals & Health Care, 200 Conn. 489, 497, 512 A.2d 199, appeal dismissed, 479 U.S. 1023, 107 S. Ct. 781, 93 L. Ed. 2d 819 (1986); it is no more necessary that a court admit regulations as full exhibits into evidence than it would be necessary for a court to admit statutes as full exhibits into evidence.