State v. KorhnState v. Korhn
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- Before:
- Hennessy
The defendant, Robert Korhn, appeals from the judgment of conviction, rendered after a jury trial, of operating a motor vehicle while under the influ*875ence of intoxicating liquor in violation of
The jury reasonably could have found the following facts. After spending several hours in a New London bar, the defendant proceeded onto Interstate 95, where an off-duty state trooper observed him traveling at a high rate of speed. The trooper stopped the defendant *876and administered two field sobriety tests. After concluding that the defendant was intoxicated, he radioed the Troop E barracks by radio and asked that an on-duty trooper come to the scene. After observing the appearance of the defendant, the responding trooper administered a field sobriety test, concluded that the defendant was intoxicated and arrested him.4
The defendant contends that the rebuttable presumption set forth in
*877In State v. Geisler, 22 Conn. App. 142, 160-62, 576 A.2d 1283, cert. denied, 215 Conn. 819, 576 A.2d 547 (1990), vacated on other grounds, 498 U.S. 1019, 111 S. Ct. 663, 112 L. Ed. 2d 657, on remand, 25 Conn. App. 282, 594 A.2d 985 (1991), aff‘d, 222 Conn. 672, 610 A.2d 1225 (1992), this court determined, under
Subsequent to the Geisler decision, in Public Acts 1993, No. 93-371, the legislature amended the “analysis thereof’ language of
Connecticut has joined a growing number of states that do not generally require expert testimony to relate a driver’s BAC at the time of the test to the driver’s BAC at the time of operation. The laws in these states provide that if the test is administered within a certain time after the offense, the chemical test results can be used to infer a violation. State v. Geisler, supra, 22 Conn. App. 162-63, citing Erickson v. Municipality of Anchorage, 662 P.2d 963, 964-65 (Alaska App. 1983) (presumption of violation if administered within four hours); People v. Pritchard, 162 Cal. App. 3d Sup. 13, 16, 209 Cal. Rptr. 314 (1984) (rebuttable presumption of illegal BAC if within three hours); State v. Larson, 429 N.W.2d 674, 676-77 (Minn. App. 1988) (within two hours); People v. Mertz, 68 N.Y.2d 136, 139, 497 N.E.2d 657, 506 N.Y.S.2d 290 (1986) (prima facie case established if administered within two hours); State v. Ulrich, 17 Ohio App. 3d 182, 190, 478 N.E.2d 812 (1984) (within two hours).
Although the defendant wants this court to address the constitutionality of
In the present case, the defendant contends that the statutory presumption, as applied to him and as explained to the jury, denied him his right to due process. The defendant argues that the application of the presumption in the jury charge constituted a denial of due process because no rational connection exists between the facts proved and the facts presumed. He contends that the possibility that his BAC at the time of the offense was the same as it was at the time of the first test is so remote as to render the
The court emphasized in its charge to the jury that the “presumption” was an inference that a fact exists, that the presumption is not binding and the jury is not obligated to attach any weight to it, that it can be overcome by other evidence presented in the case and that all of the evidence in the case must still be considered in determining if the state has proven the defendant’s guilt beyond a reasonable doubt. The words “rebuttable presumption” were defined by the court as a permissive inference. Our Supreme Court has stated that “[a] permissive inference suggests to the jury a possible conclusion to be drawn if the state proves predicate facts, but does not require the juiy to draw that conclusion.” (Internal quotation marks omitted.) State v. Amarillo, 198 Conn. 285, 302, 503 A.2d 146 (1986). “An ‘entirely permissive inference or presump*880tion, which allows — but does not require — the trier of fact to infer the elemental fact from the proof by the prosecutor of the basic one and that places no burden of any kind on the defendant . . . [does not violate due process unless] there is no rational way the trier could make the connection permitted by the inference.’ Ulster County Court v. Allen, [supra, 442 U.S. 157] . . . .” State v. Truppi, 182 Conn. 449, 456, 438 A.2d 712 (1980), cert. denied, 451 U.S. 941, 101 S. Ct. 2024, 68 L. Ed 2d 329 (1981).
The permissive presumption or inference set forth in the statute as presented to the jury does not shift the burden of proof on the element of being under the influence of intoxicating liquor at the time of operation of a motor vehicle to the defendant. The jury was never instructed that the presumption or inference was mandatory. This permissive inference permits an instruction that the jury may conclude that the presumed fact exists if it finds that the basic fact exists. See 1 W. LaFave & A. Scott, Substantive Criminal Law (1986) § 2.13 (a), pp. 224-25.
The inference in the statute is based on the legislative assumptions that a person driving a vehicle after consuming sufficient alcohol to register a BAC of 0.10 percent or more presents an unacceptable risk of danger to the public and that if the driver has not consumed any alcohol between the time he ceases driving and the time he takes the BAC test, the BAC results will always be equal to or less than his BAC at the time he was driving. Erickson v. Municipality of Anchorage, supra, 662 P.2d 969 (Singleton, J. concurring). While these factual assumptions may be subject to dispute, “[i]t is sufficient if a reasonable legislator could believe them to be true.” Id.
The statute also provides that the presumption can exist when the second test result is higher than the first test result.
In the present case, the presumption applies because the result of the second test was 0.170 percent, far above the 0.12 percent threshold. The defendant’s BAC one and one-half hours after he was observed operating a motor vehicle on a public highway was 0.169 percent. Forty-one minutes after the first test, the defendant’s BAC was 0.170 percent. The defendant did not consume any alcohol from the time he was observed operating the motor vehicle until the tests were administered, and the breathalyzer equipment was operating properly.5 These facts are adjudicative and must be proven beyond a reasonable doubt in order to be used to support the inference set forth in the statute. The court so instructed the jury.
On the basis of the facts that were presented, the instruction to the jury that it must find those facts to be true beyond a reasonable doubt, and the instruction that the jurors could draw on their experience and common sense, it was reasonable for the jury to infer that the defendant’s BAC was 0.10 percent or higher at the time of operation. Additionally, the instructions to the jury clearly stated that the rebuttable presumption *882as set forth in
The judgment is affirmed.
In this opinion the other judges concurred.
Notes
Although the defendant refers to the statutory language under consideraüon as being part of subdivision (6) of subsection (c) of
The defendant was stopped by the trooper at approximately 1:15 a.m. After he was taken to the barracks, he was administered a breathalyzer test at 2:46 a.m. with a result of 0.169 percent BAC. He was administered a second test at 3:27 a.m., with a result of 0.170 percent BAC.
The defendant argued at trial that the breathalyzer was not functioning properly. The trial court charged the jury that it could weigh that testimony in determining the validity of the tests. The jury apparently did not credit this testimony.