State v. Gonzalez

556 A.2d 137, 210 Conn. 446, 1989 Conn. LEXIS 77
CourtSupreme Court of Connecticut
DecidedMarch 21, 1989
Docket13442
StatusPublished
Cited by12 cases

This text of 556 A.2d 137 (State v. Gonzalez) is published on Counsel Stack Legal Research, covering Supreme Court of Connecticut primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Gonzalez, 556 A.2d 137, 210 Conn. 446, 1989 Conn. LEXIS 77 (Colo. 1989).

Opinion

Glass, J.

The dispositive issue in this case is whether, under General Statutes (Rev. to 1985) § 14-227a,1 a defendant charged with operating a motor vehicle while under the influence of alcohol or drugs is entitled to a jury instruction on the lesser offense of operating while impaired as set forth in General Statutes (Rev. to 1985) § 14-227a (b).2 The defendant, Enrique C. Gonzalez, was found guilty by a jury of operating a motor vehicle in violation of General Statutes (Rev. to [448]*4481985) § 14-227a (a).3 In State v. Gonzalez, 14 Conn. App. 216, 541 A.2d 115 (1988), the Appellate Court rejected the defendant’s claim that the trial court erred in denying his request for an instruction on the lesser offense of operating while impaired. We granted the defendant’s petition for certification limited to the following issues: “Did the Appellate Court erroneously conclude (1) that General Statutes § 14-227a (b) (Rev. to 1985) provides that one commits the offense of driving while impaired only when one’s blood alcohol ratio falls between .07 and .1 percent, and (2) that driving while impaired is not a lesser included offense of driving while under the influence?” We affirm the Appellate Court’s judgment.

The facts are fully set forth in State v. Gonzalez, supra. In brief, on the night of June 21,1985, the Connecticut state police were conducting a “spot check” for drunk drivers at the West Haven toll plaza on Interstate 95. At approximately 11 o’clock, the defendant pulled into the toll plaza in the eastbound lane. State police trooper Robert Peterson detected a strong odor of alcohol emanating from the defendant, and directed him to drive his car to an adjacent parking lot. At the trial, Peterson testifed that the defendant’s walk was unsteady, his speech slurred, his eyes glassy, and his face flushed. Peterson conducted four field sobriety tests, including a test requiring the defendant, who claimed he knew English, to recite the alphabet in English and Spanish. The defendant was unable to recite the alphabet in either language. Peterson con-[449]*449eluded from the defendant’s performance of the tests that he was intoxicated, and placed him under arrest for operating while under the influence in violation of General Statutes (Rev. to 1985) § 14-227a (a). After the defendant had been advised of his rights, he told Peterson that he had consumed six beers and one half pint of rum on his drive from New York City to the toll plaza. Peterson testified that he had observed several empty beer cans and an empty rum bottle on the front seat of the defendant’s car. There was no evidence of the defendant’s blood alcohol content admitted at the trial.

The defendant testified that he had driven his girlfriend from Wallingford to New York City and was returning home at the time he was stopped. He admitted that he had consumed some alcohol during the course of his trip down to New York, but claimed that he had not consumed any on the return trip and, further, that there were no empty alcohol containers in his car. He also testified that he had not told Peterson anything about having been drinking. He further stated that the alcohol he had consumed had not affected his driving and that he had walked without stumbling or swaying. The defendant’s sister testified that the defendant had called her between 11:00 and 11:30 p.m. and had asked her to come to the toll plaza parking lot. She testified that when she arrived there, between midnight and 12:30 a.m., the defendant did not appear to be under the influence of alcohol.

I

The defendant submitted a request to the trial court to charge the jury on the lesser offense of operating while impaired and on the meaning of “impaired by the consumption of intoxicating liquor.” General Statutes (Rev. to 1985) § 14-227a (b). The trial court declined to instruct the jury as requested. The defendant was convicted as charged and sentenced to ninety days of [450]*450imprisonment, execution suspended, two years of probation, and a $1000 fine, plus fees and costs.

The test for determining whether a defendant is entitled to an instruction on a lesser offense is well established. “A defendant is entitled to an instruction on a lesser offense if, and only if, the following conditions are met: (1) an appropriate instruction is requested by either the state or the defendant; (2) it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser; (3) the evidence, introduced by either the state or the defendant, or by a combination of their proofs, justifies conviction of the lesser offense; and (4) the proof on the element or elements which differentiate the lesser offense from the offense charged is sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense but guilty of the lesser. State v. Whistnant, 179 Conn. 576, 584, 427 A.2d 414 (1980).” State v. Tinsley, 181 Conn. 388, 396-97, 435 A.2d 1002 (1980), cert. denied, 449 U.S. 1086, 101 S. Ct. 874, 66 L. Ed. 2d 811 (1981).

In the present case, a majority of the Appellate Court concluded that the trial court did not err in denying the defendant’s request for a lesser offense instruction. It held that a prosecution for the offense of operating while impaired under § 14-227a (b) is only warranted when evidence exists that the defendant’s blood alcohol ratio at the time of the alleged offense was greater than .07 percent but less than .1 percent. State v. Gonzalez, supra, 222. It ruled, therefore, that the defendant’s claim failed the third prong of the Whistnant test since there was no evidence of the defendant’s blood alcohol to justify a conviction under § 14-227a (b). Id., 222-23.

[451]*451As a predicate to his claim that operating a motor vehicle while impaired under § 14-227a (b) is a lesser included offense of operating while under the influence under § 14-227a (a), the defendant argues that the Appellate Court erred in concluding that driving while impaired under subsection (b) can be proven only with evidence that the defendant’s blood alcohol ratio falls between .07 and .1 percent. He claims that the language of subsection (b), which prohibited a person from operating a motor vehicle “while his ability to operate such motor vehicle is impaired by the consumption of intoxicating liquor,” proscribed behavior, and, therefore, a violation of subsection (b) may be proven with behavioral evidence alone. As a corollary to this point, the defendant contends that, because subsection (b) did not require proof of a blood alcohol content within the proscribed range, a defendant could be convicted for violating this section upon proof that his driving was “impaired” in any degree. We disagree.

In analyzing the import of a statute, we first look to its plain language. Where that language is clear and unambiguous, there is no need for interpretation and, hence, no need to resort to extrinsic sources as an aid to interpretation. See, e.g., Nicotra Wieler Investment Management, Inc. v. Grower, 207 Conn. 441, 455,

Related

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285 F. Supp. 2d 213 (D. Connecticut, 2003)
State v. Pulaski
802 A.2d 233 (Connecticut Appellate Court, 2002)
In re Darnel S.
760 A.2d 1023 (Connecticut Appellate Court, 2000)
Milford Supervisor's Assoc. v. State, No. Cv98 0577451 (Mar. 25, 1998)
1998 Conn. Super. Ct. 3724 (Connecticut Superior Court, 1998)
Friends of Eccleston v. Town of Groton, No. 09 74 71 (May 4, 1992)
1992 Conn. Super. Ct. 4121 (Connecticut Superior Court, 1992)
State v. Stevens
603 A.2d 1203 (Connecticut Appellate Court, 1992)
State v. Sirimanochanh
602 A.2d 1029 (Connecticut Appellate Court, 1992)
State v. Falcon
600 A.2d 1364 (Connecticut Appellate Court, 1991)
In Re City of Bridgeport
128 B.R. 688 (D. Connecticut, 1991)
In re Sheldon G.
583 A.2d 112 (Supreme Court of Connecticut, 1990)
State v. Martin
559 A.2d 707 (Supreme Court of Connecticut, 1989)

Cite This Page — Counsel Stack

Bluebook (online)
556 A.2d 137, 210 Conn. 446, 1989 Conn. LEXIS 77, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-gonzalez-conn-1989.