2 Conn. Cir. Ct. 221 | Conn. App. Ct. | 1963
The defendant was charged with, tried to the court for, and convicted of, the offense of operating a motor vehicle while he was under the influence of intoxicating liquor, in violation of § 14-227 of the General Statutes, and he has appealed upon the sole ground that the court erred “[i]n concluding upon all the evidence that the defendant was guilty [as charged] beyond a reasonable doubt.”
The record before us shows that the defendant was arrested on December 31, 1962, at approximately 4:30 p.m. Chief Eose of the Willimantic police department, responding to an emergency radio call, proceeded at once to the Eailroad Street municipal parking lot in the city of Willimantic. Upon his arrival there, he observed that a station wagon had rolled out of a parking stall and was obstructing traffic in the traveled portion of the parking lot. The defendant was slumped over the front seat either asleep or in a stupor. His hips and buttocks were resting on the driver’s side of the front seat of the car; his head and the rest of his body were slumped horizontally on the front seat and generally to the right of the driver’s side. His extremities were under the wheel near the controls, but not on the controls. The defendant was alone in the automobile. The engine was running. Two unopened bottles of wine were found in the vehicle.
Chief Rose attempted to arouse the defendant but did so only after some difficulty. The defendant had to be assisted out of the station wagon. He was unsteady on his feet, his breath smelled of alcohol and his eyes were bloodshot. His speech was “rather slow and somewhat thick.” With some assistance, he was escorted into the chief’s cruiser and taken to police headquarters. There, Sergeant Haddad
In State v. Saunders, 2 Conn. Cir. Ct. 207, we pointed out: “ ‘Settled medical opinion apparently is that any person is unfit to drive when his blood alcohol concentration is at or in excess of fifteen hundredths of one per cent.’ State v. Hunter, 4 N.J. Super. 531, 534; Uniform Chemical Test for Intoxication Act § 7, 9 U.L.A. (Sup. 1962); see Proc. of House of Delegates, Am. Med. Assn., June 8-12, 1944. ‘The standards of the American Medical Association fulfill adequately the purpose they were designed to serve, namely, to provide a scientific yardstick of reasonable accuracy for evaluating the condition of a person accused of driving a motor vehicle while “under the influence of intoxicating liquor.” They are also practical and fair, even generous.’ Letourneau, ‘Chemical Tests in Alcoholic Intoxication,’ 28 Can. B. Rev. 858, 864; see commissioners’ prefatory note, Uniform Chemical Test for Intoxication Act.” And to this we may add: “A blood alcohol figure of 150 milligrams per 100 cubic centimeters of blood (or 0.150 per cent by weight) is considered indicative of intoxication because practically everyone
The defendant’s argument, in the main, is that the evidence does not show that the defendant was “operating” the car within the meaning of the statute. He relies upon State v. McDonough, 129 Conn. 483, to secure a reversal of his conviction. In the McDonough case, there was evidence that the defendant was under the influence of liquor when he was found in a stationary automobile; there was no direct evidence that he was or had been driving the car. These additional facts appear in the McDonough case: (1) A policeman saw an automobile at about 9:30 p.m. in a ditch on the right-hand side of the road, with a wheel over the wire of a fence; (2) the motor was not running; (3) it was dark and the headlights were lighted; (4) the defendant was seated in the middle of the front seat, leaning towards the right, with one hand on the floor and the other on the dashboard, as though he was reaching or feeling for something; (5) there was no evidence (a) as to how long the car was standing, (b) as to who owned it, (c) that the defendant had been driving the car prior to the occurrence, (d) that he could drive a car, or (e) as to whether he had a driver’s license. In reversing the conviction, the court held (p. 486): “We conclude that the evidence in the instant case does not exclude every reasonable supposition of the innocence of the defendant. A rational and reasonable conclusion
Many authorities have attempted to interpret the meaning to be given to the term “operating” as used in statutes of the kind under consideration here. See 5A Am. Jur., Automobiles and Highway Traffic, §1162; 61 C.J.S., Motor Vehicles, §628; 8 Blashfield, Automobile Law and Practice (Perm. Ed.) §5393; Berry, Automobiles (7th Ed.) §5.386; note, 47 A.L.R.2d 570, 577. We do not undertake to give the term a definition which would be applicable to all situations, nor are we required to decide where the line shall be drawn between acts which constitute “operation” and those which do not. “[T]he well considered and reasoned cases sustain the view that a person may be convicted of ‘operating’ a motor vehicle while under the influence of intoxicating liquor without it necessarily being shown that the automobile was actually in motion or even had the engine going; in short, circumstantial evidence will show that the accused was ‘operating’ the motor vehicle while under the influence of intoxicating liquor.” State v. Pritchett, 53 Del. 583, 593; see State v. Kreske, 130 Conn. 558, 563; State v. Webb, 78 Ariz. 8; State v. Hazen, 176 Kan. 594; State v. Damoorgian, 53 N.J. Super. 108; State v. Baumgartner, 21 N.J. Super. 348; State v. Haddock, 254 N.C. 162.
In the instant ease, the following facts were obvious to Chief Rose when he arrived at the municipal
We think that at the time the state rested its case, a prima facie case against the defendant had been established. “[T]he evidence produced by the state was sufficient to suggest the need of some denial or explanation by the defendant himself.” State v. Nelson, 139 Conn. 124, 127. The defendant chose
There is no error.
In this opinion Pbuyn and Kinmonth, Js., concurred.