17 Conn. App. 250 | Conn. App. Ct. | 1989
The defendant appeals from a judgment of conviction, rendered upon his conditional plea of nolo contendere,
Certain facts are pertinent. On December 19, 1986, the defendant was involved in an automobile accident in Hartford. Hartford Patrolman Charles M. Allen was called to the scene of the accident. At the hearing on the defendant’s motion to suppress, Allen testified that at the scene of the accident the defendant had shown signs of intoxication and that he had required the defendant to perform a series of roadside sobriety tests. Those tests confirmed the officer’s suspicions of intoxication. The defendant was arrested and transported to the state police barracks where he remained for approximately fifteen to twenty minutes before chemical tests for alcohol consumption were given. Allen testified that he had advised the defendant of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), including his right to
The issue to be resolved is whether the results of the tests were obtained in compliance with the governing statutory requirements for ensuring that such tests are admissible.
General Statutes § 14-227a (c)
The defendant argues, however, that the Miranda warnings given informed him only that he had a right to an attorney before answering any questions, not of his right to telephone an attorney prior to deciding whether or not to consent to take the chemical breath tests. This argument is without merit.
In interpreting the meaning or requirements of a statute, we rely on the traditional rules of statutory construction. Mitchell v. Mitchell, 194 Conn. 312, 320, 481 A.2d 31 (1984). It is a fundamental principle of construction that a statute such as § 14-227a (a), which imposes criminal liability, is to be strictly construed. State v. Roque, 190 Conn. 143, 151, 460 A.2d 26 (1983). This rule of strict construction, however, does not
The language of §§ 14-227b (b) and 14-227a (c) (1) indicates that their purpose is to ensure that the defendant is afforded a reasonable opportunity to consult with an attorney before he submits to breath alcohol tests. A determination of what constitutes a “reasonable opportunity” is a question of fact for the trial court. See Phillipe v. Thomas, 3 Conn. App. 471, 475, 489 A.2d 1056 (1985). It is not within this court’s province to find facts or draw conclusions therefrom. As an appellate court, we review the factual findings of the trial court to ensure that they could have been legally, logically and reasonably found, thereby establishing that the trial court could reasonably conclude as it did. Ruwet-Sibley Equipment Corporation v. Stebbins, 15 Conn. App. 21, 25, 542 A.2d 1171, cert. dismissed, 209 Conn. 806, 548 A.2d 437 (1988). The trial court reasonably could have concluded that the evidence adduced at the suppression hearing amply supported a finding that the defendant had a reasonable opportunity to consult with an attorney prior to taking the breath alcohol tests.
There is no error.
In this opinion the other judges concurred.
General Statutes § 54-94a allows a defendant to enter a plea of nolo contendere conditional on the right to take an appeal from the trial court’s denial of a motion to suppress evidence based on an unreasonable search and seizure or from the denial of a motion to dismiss. That section provides: “When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s motion to suppress evidence based on an unreasonable search or seizure or motion to dismiss, the defendant after the imposition of sentence may file an appeal within the time prescribed by law. The issue to be considered in such an appeal shall be limited to whether it was proper for the court to have denied the motion to suppress or the motion to dismiss. A plea of nolo contendere by a defendant under this section shall not constitute a waiver by the defendant of nonjurisdictional defects in the criminal prosecution.” See also Practice Book § 4003 (a).
In this case, the ground for the defendant’s motion to suppress, namely, that the results of the breath alcohol tests were obtained without compliance with applicable state statutory requirements, “is not included within the statutory language [of General Statutes § 54-94a] allowing appeals from an illegal search or seizure in violation of the fourth amendment. See State v. Madera, [198 Conn. 92, 99, 503 A.2d 136 (1985)].” State v. Chung, 202 Conn. 39, 43, 519 A.2d 1175 (1987). Jurisdiction arises however, from a rule of practice. Practice Book § 4003 (b).
Section 4003, which became effective October 1,1986, provides in pertinent part: “appeals of RULINGS ON MOTIONS TO DISMISS OR SUPPRESS FOLLOWING JUDGMENTS ENTERED UPON CONDITIONAL PLEAS OF NOLO CONTENDERE
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“(b) With the approval of the court, after a hearing to consider any objections thereto, a defendant may enter a conditional plea of guilty or nolo contendere, reserving in writing the right, on appeal from the judgment, to review of the adverse determination of any motion made prior to the close of evidence, which motion must be specified in such written reserva
General Statutes § 14-227a (a) provides in pertinent part: “operation while under the influence. No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. A person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor ... if he operates a motor vehicle . . . (2) while the ratio of alcohol in the blood of such person is ten-hundredths of one percent or more of alcohol, by weight.”
General Statutes § 14-227a (c) provides: “admissibility OP chemical analysis. Except as provided in subsection (d) of this section, in any criminal prosecution for violation of subsection (a) or (b) of this section, evidence respecting the amount of alcohol or drug in the defendant’s blood or urine at the time of the alleged offense, as shown by the chemical analysis of the defendant’s breath, blood or urine shall be admissible and competent provided: (X) The defendant was afforded a reasonable opportunity to telephone an attorney prior to the performance of the test and consented to the taking of the test result upon which such analysis is made; (2) a true copy of the report of the test result was mailed to or personally delivered to the defendant within twenty-four hours or by the end of the next regular business day, after such result was known, whichever is later; (3) the test was performed by or at the direction of a police officer according to methods and with equipment approved by the department of health services and was performed by a person certified or recertified for such purpose by said department or recertified by persons certified as instructors by the commissioner of health services. If a blood test is taken, it shall be on a blood sample taken by a person licensed to practice medicine and surgery in this state, a qualified laboratory technician, an emergency medical
An amendment to General Statutes § 14-227a (c) (4), effective October 1, 1988, now requires accuracy testing to be performed “immediately before and after such test was performed by a person certified by the department of health services.” See Public Acts 1988, No. 88-85.
General Statutes § 14-227b (b) provides: “If any such person, having been placed under arrest for operating a motor vehicle while under the influence of intoxicating liquor or any drug or both or while his ability to operate such motor vehicle is impaired by the consumption of intoxicating liquor, and thereafter, after being apprised of his constitutional rights, having been requested to submit to a blood, breath or urine test at the option of the police officer, having been afforded a reasonable opportunity to telephone an attorney prior to the performance of such test and having been informed that his license or nonresident operating privilege will be suspended in