State v. PilottiState v. Pilotti
Opinion
Thе defendant, Charles Pilotti, appeals from the judgment of conviction, rendered after a jury trial, of operating a motor vehicle while having an elevated blood alcohol content in violation of
The following facts, which the jury reasonably could have found, and procedural history are relevant to the defendant’s appeal. At approximately 11:25 p.m. on September 3, 2003, Sergeant Jay Falcioni of the East Haven police department stopped the defendant for speeding in East Haven. Upon asking the defendant for his driver’s license, registration and insurance card, Falcioni detected the odor of alcohol on the defendant’s breath and observed that the defendant’s eyes were bloodshot and glassy, his pupils were dilated and his speech was slightly slurred. The defendant told Falcioni that he had consumed two beers. Falcioni asked the defendant to exit the vehicle and conducted three field sobriety tests. 2 On the basis of the defendant’s performance of these tests, Falcioni concluded that the defendant was under the influence of alcohol to the extent that he could not safely operate a motor vehicle and placed him under arrest.
The defеndant was transported to the East Haven police department. At 12:03 a.m., the defendant took a
*566
breath test on the Intoxilyzer, which reported a result of 0.126 of a percent. The defendant took a second breath test on the Intoxilyzer at 12:41 a.m., with a result of 0.113 of a percent. Thereafter, the state charged the defendant with operating a motor vehicle while under the influence of alcohol in violation of
Prior to trial, the defendant made several motions in limine to exclude the results of the breath tests. On December 1, 2004, the defendant filed a memorandum of law in which he argued that the court was required to conduct a Porter 3 hearing before the test results from the Intoxilyzer could be admitted into evidence. On December 1, 2004, the parties argued the motions. The court ruled that the state had to make an offer of proof that it would be able to meet the statutory and regulatory foundations for the admission of the test results. On December 2, 2004, the court held a hearing concerning the state’s offer of proof. The court ruled that it would take the papers but that a Porter hearing was not necessary. 4 On December 6, 2004, the court denied the defendant’s motions to suppress the Intoxilyzer evidence, concluding that although suppression was not required by law, nothing in the ruling should be interpreted as a limitation on the defendant’s ability to attack vigorously the validity and soundness of the results from the Intoxilyzer.
The jury found the defendant not guilty of the charge of operating a motor vehicle while under the influence of intoxicating liquor in violation of
I
The defendant first claims that the court improperly admitted the test results from the Intoxilyzer because the results failed to comply with state statutes and regulations. 5 We disagree.
“[T]he trial court has broad discretion in ruling on the admissibility [and relevancy] of evidence. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion.” (Citations omitted; internal quotation marks omittеd.)
State v. Coleman,
The admissibility of chemical analysis evidence is controlled by
The defendant argues that the Intoxilyzer reports the test results in terms of volume, not weight, and therefore fails to comply with the statutes and regulations. He argues that
At trial, Robert H. Powers, director of the controlled substance toxicology laboratory for the state department of public safety, testified for the state regarding the Intoxilyzer test results. The defendant asserts that Powers was referring to § 14-227a-la (4) when he testified that the test results from the Intoxilyzer were not in “strict complianсe” with the state regulations because the regulations require that “percentage [to] be calculated based on 100 grams of blood” and instead the result was measured in terms of weight of alcohol per 210 liters of breath or 100 milliliters of blood. 8 The defendant concludes that because Powers testified that the Intoxilyzer reported the results in terms of volume and was not in strict compliance with § 14-227a-la (4), which requires the result to be reported as a percentage of weight, the court could not properly admit the test results. 9
*570
The defendant misconstrues the requirements for the admission of chemical analysis evidеnce.
The court properly admitted the Intoxilyzer results because the statutory requirement at issue,
II
The defendant next clаims that the court improperly denied his motion for a judgment of acquittal 10 because the evidence adduced at trial was insufficient to sustain his conviction of operating a motor vehicle while under the influence of intoxicating liquor. Specifically, the defendant argues that the evidence was insufficient to prove that he had a blood alcohol content of 0.08 percent or more by weight, as opposed to volume, at the time he operated his motor vehicle and that he had the requisite concentration of alcohol in his blood, as opposed to breath. We are not pеrsuaded.
We first set forth our standard of review. “The standard of review we apply to a claim of insufficient evidence is well established. In reviewing the sufficiency of the evidence to support a criminal conviction we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. *572 Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.
“We note that thе [finder of fact] must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, [but] each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. ... If it is reasonable and logical ... to conclude that a basic fact or an inferred fact is true, the [fact finder] is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt.” (Internal quotation marks omitted.)
State
v.
Ledbetter,
The defendant argues that the evidence was insufficient because the Intoxilyzer reported the amount of alcohol in breath measured by volume rather than the amount of alcohol in blood measured by weight. 11 We disagree and conclude that there was sufficient evidence from which the jury reasonably could have concluded that he was operating a motor vehicle with a blood alcohol content of 0.08 or more by weight, as required by statute.
There was evidence from which the jury reasonably could have determined that the Intoxilyzer did not simply report the amount of alcohol in the defendant’s *573 breath, but also reported the amount of alcohol in his blood. Powers testified that the Intoxilyzer tests a subject’s breath and produces a printed test result. The result is reported as a “percent [blood alcohol content (BAC)],” which Powers testified, “refers to both breath or blood.” Powers explained that the Intoxilyzer tests breath alcohol and expresses the concentration of alcohol in terms of grams of alcohol per 210 liters of breath, which is expected to be equivalent to grams of alcohol per 100 milliliters of blood,. 12 Powers stated that thеre is an “expectation of equivalency” between these measurements of breath and blood, which is generally accepted in the scientific community.
Powers also testified that the ratio of grams of alcohol per 210 liters of breath to grams of alcohol per 100 milliliters of blood understates the actual blood equivalent by approximately 10 percent. That notwithstanding, Powers testified that expressed as a blood alcohol concentration, the first and second test results were 0.126 grams of alcohol per 100 milliliters of blood and 0.113 grams of alcohol per 100 milliliters of blood, respectively. The jury was free to credit Powers’ testimony concerning the test results of 0.126 and 0.113 expressing the defendant’s alcohol concentration in terms of grams of alcohol per 100 milliliters of blood. From Powers’ testimony, the jury could have concluded that the test results of 0.126 and 0.113 as expressed as grams of *574 alcohol per 100 milliliters of blood may actually understate the defendant’s blood alcohol concentration by approximately 10 percent. To whatever extent the blood equivalent is understated when the grams of alcohol per 210 liters of breath is converted to grams of alcohol per 100 milliliters of blood, it aids the defendant.
The defendant further contends that the evidence of elevated blood alcоhol content was insufficient because the Intoxilyzer measured alcohol as a percentage of volume, not weight. In response to the prosecutor’s question on direct examination concerning whether the Intoxilyzer produces a result in strict compliance -with state regulations promulgated by the department of public safety with respect to such devices, Powers replied: “Well, strict compliance, not exactly. There’s a small correction factor. The result is put out in terms of alcohol percent on a weight volume basis. So, weight of alcohol per 210 liters of breath or рer 100 milliliters ... of blood. The strict reading of the regulations suggests that that percentage should be calculated based on 100 grams of blood. So, it winds up being about a 3 to a 5 percent difference.” 13 The defendant essentially argues that the evidence is insufficient because Powers testified that the Intoxilyzer reported results on a weight volume basis—specifically in terms of grams of alcohol per 210 liters of breath or 100 milliliters of blood, rather than on a weight weight basis—specifically grams of alcohol per 100 grams of blood—as required by the regulations. On the basis of Powers’ testimony, a small correction factor of about 3 to 5 percent is required to convert grams of alcohol as a percentage of volume— that being milliliters of blood or liters of breath—to grams of alcohol as a percentagе of weight—that being *575 grams of blood. 14 Although Powers did not indicate whether the correction will make the result smaller or larger, even if the correction factor were to cause a reduction in the test results by 5 percent, the results would be 0.120 and 0.107 grams of alcohol per 100 grams of blood, respectively, 15 which is still greater than 0.08.
Accordingly, the jury had evidence from which it reasonably could have made the following conclusions. The Intoxilyzer tested the defendant’s breath, with results of 0.126 and 0.113. Those test results can be expressed as 0.126 and 0.113 grams of alcohol per 100 milliliters of blood. Those results, however, when expressed in terms of units of blood may understate the defendant’s blood alcohol content by approximately 10 percent. The juiy could have decided to give the defendant the benefit of any understatement in this first conversion of breath to blood by keeping the results at 0.126 and 0.113 grams of alcohol per 100 milliliters of blood. The jury could have determined that a second conversion was needed to transform the expression of these test results from grams of alcohol per 100 milliliters of blood to grams of alcohol per 100 grams of blood, to comply with the regulation. The jury could have given the defendant any benefit of this second conversion by assuming a correction factor resulting in a 5 percent reduction in blood alсohol concentration, thereby reducing the test results, as stated previously, to 0.120 and 0.107 grams of alcohol per 100 grams of blood, respectively. Even if we assume that the jury gave the defendant the benefit of both conversions, there was sufficient evidence for the jury to find that the test results were still greater than the statutory limit. 16
*576 Finally, the defendant claims that there was insufficient evidence that his blood alcohol content was 0.08 of a percent or greater at the time of operation of the motor vehicle. The defendant argues that the tests did not show his blood alcohol content at the time of operаtion.
Powers testified during cross-examination concerning three processes regarding alcohol concentration in the blood: absorption, distribution and elimination. He testified that the three processes overlap but that absorption happens rapidly, dominating at first, and that elimination can take a long time, continuing on after absorption and distribution are complete. Powers further stated that usually, more than 90 percent of the alcohol consumed is absorbed within fifteen to twenty minutes after it is ingested and that normally alcohol takes sixty to ninety minutes to be absorbed completely. He explained that elimination can take a long time. 17 *577 Individuals, he stated, metabolize alcohol at slightly different rates, and the average rate of metabolism of alcohol can range from 0.008 gram per deciliter per hour to 0.039 gram per deciliter per hour.
From this evidence, the juiy reasonably could have inferred that the defendant’s blood alcohol content was in excess of the statutory limits at the time he operated the motor vehicle. The test results were both significantly greater than 0.08. The defendant was arrested at approximately 11:25 p.m., and the first test was administered at 12:03 a.m., with a result of 0.126, and the second test was administered at 12:41 a.m., with a result of 0.113. As stated previously, the jury could have determined that, giving the defendant the benefit of both conversions, the test results were at the least 0.120 and 0.107 grams of alcohol per 100 grams of blood, respectively. The defendant did not ingest any substance or vomit between the time of the arrest and the time of the two tests. Powers testified that absorption takes place quickly and is generally 90 percent complete within fifteen to twenty minutes, and elimination takes a long time. He further testified that the average rate of metabolism of alcohol ranges from 0.008 gram per deciliter per hour to 0.039 gram per deciliter per hour. Although Powers testified that individual rates may vary, the jury did not hear evidence of the defendant’s specific rate of metabolism or an opinion that his blood alcohol content was less than 0.08 at the time of operation. The jury reasonably could have found that because the first test occurred thirty-eight minutes after his arrest, the defendant had absorbed at least 90 percent of the alcohol in his system at the time of the first *578 test. Accordingly, the jury could have inferred that the defendant’s blood alcohol concentration was, if anything, greater at the time of his arrest than it was at the time of the tests.
The jury reasonably could also have inferred, on the basis of common knowledge and experience, that a person becomes sober gradually. See
State
v.
Padua,
The judgment is affirmed.
In this opinion the other judges concurred.
Notes
At trial, the defendant offered evidence from an expert witness, who testified that on the basis of 1 he defendant's medical history, the field sobriety tests were not an accurate measurement to evaluate intoxication. At the defendant’s request, the court instructed the jury that the evidence of the field sobriety tests was limited to count one of the information, which charged the defendant under
State
v.
Porter,
The defendant does not claim on appeal that the court improperly declined to conduct a hearing pursuant to
State
v.
Porter,
The state argues that the claim should not be reviewed because the defendant did not object to the admission of the test results on the ground argued on appeal, namely that the Intoxilyzer fails to comply with the regulations because it reports tеst results in terms of volume, not weight. The state further argues that the defendant did not seek review of his unpreserved claim pursuant to
State
v.
Golding,
The defendant’s challenge relates to the third of the six conditions, and he does not contest that the other five have been met.
Section 14-227a-la of the Regulations of Connecticut State Agencies was repealed in 2005.
On direct examination, the prosecutor asked: “Does the Intoxilzyer 500 EN produce a result, which is in strict compliance with the regulations promulgated by the department of public safety with respect to such devices?” Powers replied, “Well, strict compliance, not exactly. There’s a small correction factor. The result is put out in terms of alcohol percent on a weight volume basis. So, weight of alcohol per 210 liters of breath or per 100 milliliters of—of blood. The strict reading of the regulations suggests that that percentage should be calculated based on 100 grams of blood. So, it winds up being about a 3 to a 5 percent difference.”
“Volume” is defined as “the amount of space, measured in cubic units, that an object or substance occupies.” Webster’s Unabridged Dictionary (2d Ed. 2001). “Liter” is defined as “a metric unit of volume equal to a cubic *570 decimeter. ...” American Heritage Dictionary of the English Language (New College Ed. 1981).
“Weight” is defined as “the amount or quantity of heaviness or mass; amount a thing weighs.” Webster’s Unabridged Dictionary (2d Ed. 2001). “Gram” is defined as “a metric unit of mass and weight . . . .” American Heritage Dictionary of the English Language (New College Ed. 1981).
After the state rested, the defendant moved for a judgment of acquittal, arguing that Powers testified that the breath test readings were readings of breath alcohol content only and that no opinion was given as to the blood alcohol content at the time of operation of the motor vehicle. The court denied the motion, ruling that “[t]here was some evidence offered by the expert . . . and if the jury accepts that, there will be a basis for [it] to find [that] conversion is аppropriate from breath alcohol to blood alcohol content.” At the end of the evidence, the defendant again moved for a judgment of acquittal, arguing that there was insufficient evidence as to the blood alcohol content at the time of operation. The court deferred its ruling on the motion. Although there does not appear to be a ruling on the record with respect to this motion, the court did send the case to the jury.
Powers testified as follows: “ [T]he Intoxilyzer determines the concentration of alcohol as an amount of alcohol per unit volume. That then is converted, not altered, but expressed not in terms of one liter, but actually expressed in terms of 210 liters, and that number has been chosen or selected for a number of reasons, but one of which is when one uses that way of expressing breath alcohol, the number comes out like a 0.153 to be equivalent in—as to what one expects in blood. ... If we have a 0.153 grams per 210 liters, we alsо expect that the blood is going to be 0.153 grams per 100 milliliters. . . . [I]t’s actually probably not quite right in that it understates the direct conversion by about 10 percent, which means that all Breathalyzer results are roughly more or less 10 percent below what the blood equivalent really would be.”
The regulations in effect in 2003 provided that “blood alcohol concentration” means “the unit weight of alcohol per one hundred (100) unit weights of blood expressed as a percentage. . . .” Regs., Conn. State Agencies § 14-227a-la (4).
See footnote 9.
Reducing 0.126 and 0.113 by 5 percent results in the following calculations: (1) 0.126 x 95% = 0.120 and (2) 0.113 x 95% = 0.107.
In other words, the jury could have made two conversiоns, and even if we assume that both conversions were made in the defendant’s favor, the results would still be greater than the statutory limit. First, the jury *576 could have determined that although the Intoxilyzer measured breath, the results should be expressed in terms of blood. The jury could have recognized that the expression of the test results as 0.126 and 0.113 grams of alcohol per 100 milliliters of blood understated the defendant’s blood alcohol concentration by approximately 10 percent. The jury, however, could have kept the test results at 0.126 and 0.113 grams of alcohol per 100 milliliters of blood, thereby giving the defendant any benefit of the conversiоn from grams of alcohol per 210 liters of breath to grams of alcohol per 100 milliliters of blood. Second, based again on Power’s testimony, the jury could have determined that expressing the results as 0.126 and 0.113 grams of alcohol per 100 milliliters of blood did not strictly comply with the regulations, which suggest that the concentration of alcohol should be expressed in terms of grams of alcohol per 100 grams of blood. Powers testified that converting grams of alcohol per 100 milliliters of blood to grams of alcohol per 100 grams of blood resulted in a 3 to 5 percent difference. The jury could have given the defendant the benefit of this conversion, thereby decreasing the results to 0.120 and 0.107 grаms of alcohol per 100 grams of blood, respectively.
Powers explained that it is well established that alcohol eliminates from a person’s body under what is called the zero order kinetic model for the elimination of alcohol. He explained that typically, under first order, the ability to eliminate a drug is more rapid when there is more concentration of the drug in the body, but alcohol is different and is eliminated under zero order kinetics. The problem with alcohol, he explained, is that for *577 “most of the common range that people drink, the amount of alcohol in our body is more than our body can get rid оf ... . The problem is, there’s so much alcohol there that the enzymes . . . [are] maxed out.” Powers testified that an individual’s rate of metabolism will be a function of how much of a particular enzyme that person has.
The defendant requested that the court refrain from charging the jury on the statutory presumption in
“In State v. Geisler,
“Subsequent to the
Geisler
decision, in Public Acts 1993, No. 93-371, the legislature amended the ‘analysis thereof language of