State v. Barber

681 A.2d 348, 42 Conn. App. 589, 1996 Conn. App. LEXIS 422
CourtConnecticut Appellate Court
DecidedAugust 13, 1996
Docket14735
StatusPublished
Cited by11 cases

This text of 681 A.2d 348 (State v. Barber) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Barber, 681 A.2d 348, 42 Conn. App. 589, 1996 Conn. App. LEXIS 422 (Colo. Ct. App. 1996).

Opinion

HENNESSY, J.

The defendant, Donald Barber, Jr., entered a conditional plea of nolo contendere1 to the charge of violating subdivisions (1) and (2) of General Statutes § 14-227a (a),2 the behavioral and per se subdivisions of the statute prohibiting the operation of a motor vehicle while under the influence of alcohol. The court accepted the plea, rendered a judgment of guilty and imposed sentence. The defendant claims that the trial court improperly denied (1) his motion to suppress his blood test results because the search warrant was not supported by probable cause and (2) his motion to [591]*591suppress the blood test results and his motion to dismiss the charges against him because, under § 14-227a (V), the results of a chemical analysis of a single hospital blood test are not admissible or competent evidence without expert extrapolation testimony.

On October 10, 1993, the defendant, while operating a motorcycle, was involved in a collision with an automobile. As a result of the accident, the defendant suffered injuries and was taken by ambulance to a hospital, where hospital personnel performed a test to determine the amount of alcohol in his blood. On October 18, 1993, the police submitted an affidavit and application for a search and seizure warrant to seize the results of the blood test indicating the defendant’s blood alcohol content (BAC). The court found probable cause and signed the search and seizure warrant. The defendant moved to suppress the hospital records, and the trial court denied the motion.

The court also denied the defendant’s accompanying motion to dismiss the charges based on a claim of insufficiency of the evidence. That claim is based on the defendant’s contention that the results of the blood test were inadmissible because a second blood sample was not taken and because the state stipulated that it would not present extrapolation testimony. After the trial court denied these motions, the defendant entered a conditional plea of nolo contendere to the charges under both subdivisions of § 14-227a (a). This appeal followed.

I

The defendant’s first claim is that the affidavit and application in support of the search and seizure warrant seeking the results of the toxicology screen performed on the blood sample taken from the defendant at the hospital did not establish probable cause. The defendant contends that the affidavit and application failed [592]*592to establish any evidence regarding the “quantity” of alcohol in the defendant’s body at the time of operation. The gravamen of his complaint is that the court could not have found probable cause on the facts relied on and, therefore, could not have issued a valid warrant. Without a valid warrant, he argues, the results of his blood test are not admissible against him.

“Probable cause, broadly defined, comprises such facts as would reasonably persuade an impartial and reasonable mind not merely to suspect or conjecture, but to believe that criminal activity has occurred. . . . Probable cause to search exists if: (1) there is probable cause to believe that the particular items sought to be seized are connected with criminal activity; and (2) there is probable cause to believe that the items named will be found in the place to be searched. . . . [State v. Barton, 219 Conn. 529, 547-48, 594 A.2d 917 (1991)]. The role of an appellate court reviewing the validity of a warrant is to determine whether the affidavit at issue presented a substantial factual basis for the magistrate’s conclusion that probable cause existed. State v. Johnson, 219 Conn. 557, 565, 594 A.2d 933 (1991). State v. Duntz, [223 Conn. 207, 215, 613 A.2d 224 (1992)].

“This court’s scope of review, in evaluating the existence of probable cause, is limited to the facts that appear on the four comers of the affidavit or facts that may be properly inferred from those facts. State v. Couture, 194 Conn. 530, 536, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985). In so doing, we must use common sense; State v. Castano, 25 Conn. App. 99, 101, 592 A.2d 977 (1991); and defer to the reasonable inferences drawn by the [issuing] magistrate. State v. Barton, supra, 219 Conn. 544-45. Our role is to determine whether the affidavit at issue presented a substantial factual basis for the magistrate’s conclusion that probable cause existed. State v. Johnson, supra, 219 Conn. 565. . . . [593]*593State v. Anziano, [26 Conn. App. 667, 672, 603 A.2d 415 (1992)].” (Citations omitted; internal quotation marks omitted.) State v. Marsala, 42 Conn. App. 1, 6-7, 679 A.2d 367 (1996).

The search and seizure warrant affidavit presented in this case contained the following information. Michelle Pike was headed south and had stopped to make a left turn into a parking lot. The defendant, who was operating a motorcycle traveling south on the same road, failed to see Pike’s vehicle until he was a short distance away. He applied his brakes and veered left at the same time that Pike began to turn left. The vehicles collided. The defendant was injured, taken to a hospital and a blood test was performed during the course of the treatment he received for his injuries. Pike’s vehicle’s lights were on, and the stretch of road where the collision occurred was straight, with no physical or sight obstructions. During the course of an interview with the defendant at the hospital, the affiant, a police officer, detected a strong odor of liquor on the defendant’s breath. When asked if he “had been consuming alcoholic beverage,” the defendant stated that he had been drinking at the Stone House Cafe prior to the accident. The warrant requested that the blood sample taken from the defendant at the hospital be seized as evidence to establish probable cause to arrest the defendant for operating a motor vehicle while under the influence of liquor and drugs.

The defendant argues that the facts contained in the affidavit do not establish with any certainty the quantity of alcohol in his body at the time of the accident. He contends that the affidavit merely establishes the possibility that his BAC was greater than the legal limit. Applying the information contained in the affidavit and application for the search and seizure warrant to the principles set forth in Barton and the cases cited therein, we conclude that probable cause existed to [594]*594issue the warrant. It was not unreasonable for the magistrate to believe that a criminal offense had taken place on the basis of the facts that the defendant was operating a motorcycle with an unobstructed view of the road, failed to observe a motor vehicle stopped in the road with its lights on in time to avoid the collision, had a strong odor of liquor on his breath and admitted to having been drinking alcohol shortly before the accident.

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Bluebook (online)
681 A.2d 348, 42 Conn. App. 589, 1996 Conn. App. LEXIS 422, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-barber-connappct-1996.