437 A.2d 131 | Conn. Super. Ct. | 1981
Lead Opinion
The defendant was convicted of operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes
The defendant was stopped by a Colchester police officer about midnight on December 19, 1979, while he was operating a pickup truck on route 16 from Colchester to East Hampton. The officer testified that she stopped the defendant because of the erratic manner in which he was driving. Two East Hampton officers, who had been called to assist, soon arrived. An altercation arose in the course of removing the defendant from his vehicle. The defendant struggled and he was handcuffed and taken to the East Hampton police station. *770
At the police station the handcuffs were removed and the defendant was given the standard Miranda warning of his constitutional rights. He signed a printed form furnished by the police acknowledging that he had been so advised. In the absence of the jury, the parties agreed that testimony concerning the defendant's refusal to consent to tests to determine the amount of alcohol in his system would not be presented. He did, however, submit to certain performance tests, such as walking a straight line, picking up coins from the floor and standing on one leg. The officer relied on those tests, as well as on the slurred speech and the strong alcoholic odor of the defendant, in forming his opinion that the defendant had been driving under the influence of alcohol. He also relied on the answers of the defendant while he was questioned which indicated that he had last eaten at 4 p.m. when he had pizza and beer and that he also had two bottles of beer at a restaurant where he had been drinking from 5 p.m. until 12:30 a.m. The defendant had answered a series of questions concerning his health in such a way as to negate any physical problem which might explain his inability to perform the tests adequately.
At the trial the defendant testified that after work he and some fellow employees went to a restaurant for pizza and beer. Afterward they visited the home of a friend in Salem, but the defendant maintained he had nothing further to drink, a contention which was contradicted by a witness called to testify in his behalf.
We are not persuaded that the record before us shows either a deprivation of a constitutional right or prejudice to the defendant from the admission of his statements. State v. Evans, supra. The defendant now argues that his intoxicated condition as described by the police officer indicated that he could not have understood the Miranda warning given to him and he *771
also points to the absence of any express testimony concerning his understanding of his rights. "[A] heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel." Miranda v. Arizona, supra, 475. The waiver need not be explicit, however, but may be inferred from the words and conduct of the person interrogated as well as from his educational background and from other circumstances relating to mental capacity. North Carolina v. Butler,
It is also obvious that the posture of the defendant on appeal in claiming that he was too intoxicated to waive his constitutional rights effectively is wholly inconsistent with his position at the trial that he was not under the influence of alcohol. As a matter of trial strategy he may well have decided to forgo a hearing *772
upon the admissibility of his statements because they generally coincided with the evidence he presented in his own behalf. He could hardly have testified at a suppression hearing in the absence of the jury that he was so intoxicated that he did not comprehend what he was doing without jeopardizing the defense he chose to make. Even if the statements had been excluded, the testimony of the defendant at the suppression hearing would have been available for impeachment of his later testimony at the trial. Harris v. New York,
We conclude, therefore, that the record does not adequately support the defendant's claim that the evidence of his responses to the questions of the police officer violated the principles of Miranda. It is also our view that such testimony could not have prejudiced the defendant because it was not essentially different from his testimony at the trial.
This recital would adequately support a finding that the defendant, "with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof" had engaged "in fighting or in violent, tumultuous or threatening behavior" in violation of subsection (1) of
Although, as we have already concluded, the evidence would have supported a finding that the defendant had engaged "in fighting or in violent, tumultuous or threatening behavior" in violation of subsection (1) of
The instructions8 given by the trial court upon disorderly conduct are quite similar to those we found inadequate in State v. Anonymous (1978-4), supra. No limitation was placed upon the broad terms of the statute in order to avoid the possibility of a conviction resting upon utterances not constituting "fighting words." Unlike the situation in State v. Anonymous (1978-4), where the only evidence supporting the disorderly conduct conviction consisted of words spoken to the victim, there was in this case evidence *777
of acts and conduct not protected by the first amendment which was sufficient of itself to support the conviction. This distinction is of no benefit to the state, however, because a general verdict of guilty cannot stand if it is possible that under the instructions given the jury may have relied upon a constitutionally impermissible ground. Bachellar v. Maryland,
When the defendant's application for accelerated rehabilitation was presented to the court, the prosecutor offered to present the testimony of one of the *779
police officers concerning the circumstances of the arrest. He also offered to read the report he had received from the police into the record. The defendant stated that those matters should be considered later, presumably after the report of the probation officer concerning the defendant's background and eligibility had been received. The trial court stated that before any referral to the probation department for a report it should be determined whether the offense was of a "serious nature." Section
In State v. Anonymous (1980-5), supra, we indicated that in exercising its discretion upon an application for accelerated rehabilitation the trial court must consider both "the nature of the particular offense and the circumstances of its commission." In denying the defendant's application wholly on the basis of the charge, the trial court failed to consider the circumstances under which the offense was committed as required for a proper exercise of discretion. Except where the offense falls within one of the categories specifically mentioned in the statute as disqualifications, the determination of whether the crime is of a "serious nature" ordinarily depends upon the facts surrounding its commission. Although it is possible that some offenses, in addition to those named in the statute, may be so heinous that a conclusion of their "serious nature" may be reached without any knowledge of the factual basis for the charge, we cannot say that every instance of operating under the influence must inevitably be so categorized. Despite the great danger to the public usually created by intoxicated drivers, it is possible to envision the extraordinary situation of an arrest upon such a charge *780
where no substantial traffic hazard has been created and where the motorist ceased his operation of the vehicle after proceeding a short distance and realizing that his ability to drive was impaired. A court might reasonably conclude that under such extenuating circumstances the offense was not serious enough to warrant the denial of accelerated rehabilitation. Since we have determined that not every occasion of operating while under the influence constitutes a crime of a "serious nature" so as to preclude the availability of
There is error in respect to the conviction of the defendant for disorderly conduct and the case is remanded for a new trial upon that charge.
There is no error with respect to the trial resulting in the conviction of the defendant for operating under the influence, but there is error in the denial of his application for accelerated rehabilitation. The judgment on that charge is vacated for the purpose of enabling the court to consider this application, but it is ordered to be reinstated if the application is not granted.
In this opinion DALY, J., concurred.
Dissenting Opinion
I disagree with that portion of the opinion which finds error in the denial of the defendant's application for accelerated rehabilitation. There are several steps involved in the procedure of applying for accelerated rehabilitation. These are outlined on the application form furnished by the court as follows: (1) Application; (2) Oath; (3) 1st Order, and (4) 2nd Order (if applicable). *781
The statute authorizing accelerated rehabilitation; General Statutes
The statute is plain and unequivocal, and the application form tracks its terms in clear and precise steps. The court is bound to follow the provisions of the law. There is no room left for judicial deviation from the specified mode of application. The law is to be interpreted and followed according to the intent of *782
the legislature apparent upon its face in the express language of the statute. We must follow the judicial "principle that `[w]e have no choice but to interpret the statutes as they are written.' Mancinone v. Warden,
After the completed application for accelerated rehabilitation has been sworn to by the defendant, it is then presented to the court for the "1st Order," the third step in the proceedings. At this time the judge must determine whether he will allow the application to be continued with an order of notice to the victim or victims "of the opportunity to be heard on this matter" on a prescribed form. The alternative to a continuance is an order that "[t]he foregoing Application is denied." In deciding whether to deny the application at this stage of the proceedings, the court must determine whether the crime charged was of a serious nature. Before arriving at this decision, the judge must consider (1) the nature of the specific offense itself and, thereafter, if necessary for such a conclusion, (2) the circumstances surrounding its commission by the defendant. Once a determination is made by the court that the crime charged is of a serious nature, with or without a review of the particulars of the charge, the application may be denied by the court.
The trial court was reasonable in concluding that the charge against the defendant of operating a motor vehicle while under the influence of intoxicating liquor was of a serious nature. It is an acknowledged fact that accidents caused by drunken drivers kill many people in our state annually. Because of such *783 consequences, the public at large considers drunken driving to be a serious problem which has both human and economic costs.
Indeed, our legislature has recognized the increasing concern about this problem and has recently enacted legislation which demonstrates the seriousness with which it views drunken driving. Public Acts 1980, No. 80-438, for example, deals with the problem in the following manner. Section 1 of the act requires compulsory treatment or rehabilitation in order to reverse a license suspension or revocation following a conviction under
More recently, the seriousness of the problem of drunken drivers resulted in the legislature's enactment of Public Acts 1981, No. 81-446: "An Act Concerning the Pretrial Alcohol Education System and *784
the Prosecution of Violations for Operating Under the Influence of Alcohol." This act creates a specific form of rehabilitation for violators of
Although not effective until October 1, 1981, this act represents in clear terms the seriousness with which the legislature views the problem of drunken driving. I am convinced, therefore, that the majority opinion is incorrect in its refusal to conclude that every instance of operating under the influence may be considered a serious offense, thereby constituting an exception to the accelerated rehabilitation statute. Furthermore, the act demonstrates that the legislature never intended that the general provisions for accelerated rehabilitation under
The trial judge's determination that the serious nature of the charge against the defendant precluded any further consideration of his application for accelerated rehabilitation and compelled its denial on the "1st Order" should not be disturbed by this court on review. "In Hayward v. Plant,
The majority opinion's suggestion that the court should have held a hearing on the seriousness of the crime, in any event, is not appropriate in this case. First, at the time of the application the prosecutor *786 offered for the court's consideration (1) the testimony of one of the officers involved in the defendant's apprehension and arrest, and (2) the officer's report to the prosecutor, being "the statement of the people that were involved that gave rise to the arrest in this case." Defense counsel disagreed with this procedure, saying that "this is to be considered at a future time, you know, by the Court — in the ultimate disposition of the case." The court then stated: "Well, I think that under that contention you're right because I think that the first determination has got to be made by the Court before it goes to Probation whether it is appropriate in view of the charges." If the court erred, as the majority opinion holds, then it was led to this error by the defendant, and not by the prosecutor who was denied in his effort to substantiate the seriousness of the particular arrest.
Second, a review of the transcript reasonably establishes that the circumstances preceding and surrounding the defendant's arrest were serious in nature and even after the majority opinion's required inquiry do not warrant further accelerated rehabilitation consideration.
I would find no error.