Opinion
No. CV05-4003609-S
April 23, 2009
MEMORANDUM OF DECISION
The principal question in this case is whether, if "it looks like a duck and walks like a duck, is it a duck?" The "duck" in this matter is the defendant's conclusion that a second conviction for operating under the influence of liquor constitutes a felony. Defendant reaches that conclusion because the authorized sentence for such a conviction is greater than one year and thus a felony as defined in the penal code. Plaintiff resists that categorization, arguing that only an "offense" can constitute a felony and the legislature has specifically excluded from the definition of "offense" motor vehicle violations including operating while under the influence.
The parties in this matter have filed cross motions for summary judgment. The plaintiff Ricky A. McCoy alleges that the defendant, Leonard C. Boyle, Commissioner of Public Safety (commissioner) and the Connecticut Department of Public Safety (department) have: (1) unlawfully adopted a regulation by labeling a second conviction under General Statutes § 14-227a as a felony; and (2) wrongfully labeled him a felon in his criminal history record. The plaintiff requests "1. [a] declaratory judgment that the aforementioned regulation, enacted by the [department] without following the procedures required by the [Uniform Administrative Procedure Act (UAPA)], is illegal and invalid, 2. [a] permanent injunction ordering the defendant to refrain from designating any person a `CONVICTED FELON' merely because of a conviction under § 14-227a, 3. [a]n order to the [d]efendant to issue a new printed criminal history for [the plaintiff], minus the notation `CONVICTED FELON.'" The commissioner likewise moves for summary judgment. The court disagrees with the plaintiff's claim that the defendant illegally enacted a regulation, but agrees with his claim that the department incorrectly labeled him a convicted felon. Accordingly, both the plaintiff's and defendant's motions for summary judgment are granted, in part, and denied, in part.
General Statutes § 14-227a(a) provides in relevant part: "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 or any drug or both if such person operates a motor vehicle (1) while under the influence of intoxicating liquor or any drug or both, or (2) while such person has an elevated blood alcohol content . . ."
General Statutes § 14-227a(g) provides in relevant part: "Any person who violates any provision of subsection (a) of this section shall: . . . (2) for conviction of a second violation within ten years after a prior conviction for the same offense, (A) be fined not less than one thousand dollars or more than four thousand dollars, (B) be imprisoned not more than two years, one hundred twenty consecutive days of which may not be suspended or reduced in any manner, and sentenced to a period of probation requiring as a condition of such probation that such person perform one hundred hours of community service, as defined in section 14-227e, and (C)(I) have such person's motor vehicle operator's license or nonresident operating privilege suspended for three years or until the date of such person's twenty-first birthday, whichever is longer, or (ii) if such person has been convicted of a violation of subdivision (1) of subsection (a) of this section on account of being under the influence of intoxicating liquor or of subdivision (2) of subsection (a) of this section, have such person's motor vehicle operator's license or nonresident operating privilege suspended for one year and be prohibited for the two-year period following completion of such period of suspension from operating a motor vehicle unless such motor vehicle is equipped with a functioning, approved ignition interlock device, as defined in section 14-227j . . ."
I. PROCEDURAL HISTORY CT Page 7310
The following undisputed facts are relevant to the disposition of this motion. On December 30, 2004, the department prepared and provided the plaintiff with a copy of his criminal history record, at the plaintiff's request. (Plaintiff's Exhibit B.) The history states that in 2004, the plaintiff was convicted of violating General Statutes § 14-227a, which prohibits the operation of a motor vehicle while under the influence of drugs or alcohol. It is undisputed that the 2004 conviction was the plaintiff's second within ten years thereby subjecting him to a period of incarceration not to exceed two years. The plaintiff does not challenge the fact that he has been convicted twice of General Statutes § 14-227a but challenges the defendant's labeling him a "convicted felon" On May 31, 2005, pursuant to General Statutes § 4-174, the plaintiff sent a petition to the department, requesting the repeal of any regulation(s), written or unwritten, by which the department designated the plaintiff a "convicted felon" and requested the issuance of a new criminal history without such designation. (Plaintiff's Exhibit E.) On June 27, 2005, the department sent a written reply stating that "[a]fter careful review and evaluation by the Department of Public Safety, a decision was made effective January 1, 1998, to add serious motor vehicle violations such as DWI, to criminal records when such charges result in a conviction. The determination to add these types of offenses to the criminal record is within the rights of the Department of Public Safety statutory regulatory authority for maintaining criminal record information . . . Mr. McCoy [the plaintiff] has two DWI convictions within a ten-year period. Per CGS 14-227a(g), this event changes his conviction status from a Misdemeanor to a Felony. Consequently, the notation of Convicted Felon appropriately and correctly appears on his official criminal record." (Plaintiff's Exhibit F.) The department does not dispute that it did not follow the UAPA, but rather argues that the decision to designate the plaintiff a "convicted felon" does not fall within the requirements for adopting a regulation. The plaintiff has also submitted a letter from the department indicating that as a result of the designation of "convicted felon" he is ineligible to possess fire arms pursuant to General Statutes § 53a-217, which prohibits possession of a firearm by a felon. (Plaintiff's Exhibit I.)On July 18, 2005, the plaintiff commenced this action by service of process on the commissioner. On September 18, 2007, the plaintiff filed the present motion for summary judgment. On November 16, 2007, the defendant filed a cross motion for summary judgment. Both parties have agreed that there are no material issues of fact in dispute and that, in the interest of judicial economy, the most appropriate means of resolving this issue is through their motions for summary judgment.
II. STANDARD OF REVIEW
"A court shall render summary judgment if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Practice Book § 17-49." Blinkoff v. OG Industries, Inc., 113 Conn.App. 1, 7-8, 965 A.2d 556 (2009). "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Internal quotation marks omitted.) Martinelli v. Fusi, 290 Conn. 347, 355, 963 A.2d 640 (2009).
III. DISCUSSION
The two issues before the court are whether the department unlawfully adopted a regulation by labeling a second conviction under General Statutes § 14-227a within a ten-year period a felony and whether the department wrongfully labeled the plaintiff's criminal history record by indicating "convicted felon" for his second conviction under General Statutes § 14-227a(g)(2).
A. The Department's Interpretation of § 14-227a Is Not a Regulation
The plaintiff argues that the department illegally adopted a regulation, in violation of the UAPA, by designating the plaintiff as a convicted felon for a second conviction of § 14-227a within ten years. As stated earlier, the department does not dispute that it did not follow the UAPA procedures, but rather argues that the decision to designate the plaintiff a "convicted felon" does not fall within the requirements for adopting a regulation.
The UAPA, adopted in 1971, defines a "regulation" as "each agency statement of general applicability, without regard to its designation, that implements, interprets, or prescribes law or policy . . ." General Statutes § 4-166(13). Furthermore, the act prescribes a specific procedure for the adoption of a regulation, including a notice and comment period and approval by the attorney general and the standing legislative regulation committee. General Statutes § 4-168. "No regulation adopted after October 1, 1985, is valid unless adopted in substantial compliance with this section." General Statutes § 4-168(h).
Not all agency policies require compliance with the UAPA procedures, and courts have attempted to draw the line between decisions that may be made with or without UAPA compliance. "Where a rule has a substantial impact on the rights and obligations of parties who may appear before the agency in the future, it is a substantive rule, i.e., a `regulation' requiring compliance with the UAPA. See Texaco, Inc. v. Federal Power Commission, 412 F.2d 740, 744 (3d Cir. 1969); Lewis-Mota v. Secretary of Labor [ 469 F.2d 478, 481-82 (2d Cir. 1972)]." Salmon Brook Convalescent Home v. Commission on Hospitals and Health Care, 177 Conn. 356, 362, 417 A.2d 358 (1979). This "does not mean . . . that every administrative decision which may have precedential significance beyond the facts and party before it becomes ipso facto a regulation . . . Instead, administrative agencies must necessarily interpret statutes which are made for their guidance, and they may do so without reference to regulations." (Citation omitted; internal quotation marks omitted.) Sweetman v. State Elections Enforcement Commission, 249 Conn. 296, 317, 732 A.2d 144 (1999).
The plaintiff argues that a designation of "convicted felon" causes substantial interference with his rights and obligations, and, therefore, the department must comply with the UAPA before labeling him a felon. The defendant counters that it merely interpreted a statute made for its guidance in carrying out its legislatively mandated record keeping function when it designated the plaintiff a felon for a second conviction under § 14-227a. The court agrees with the defendant that it is not required to comply with the UAPA as a condition of specifying a conviction as a felony.
In Salmon Brook Convalescent Home v. Commission on Hospitals and Health Care, supra, 177 Conn. 356, the defendant commission attempted to apply improperly promulgated regulations in the form of "guidelines" governing the rates charged by the plaintiff convalescent home. The guidelines created specific limitations on salaries and other financial aspects of the regulated entities, including the plaintiff, and used these limitations to "[evaluate] applications of those subject to their regulatory powers." Id., 363. The application of the guidelines by the commission substantively altered the position of the plaintiff by requiring it to affirmatively follow the guidelines and face consequences for not doing so. By contrast, in Sweetman v. State Elections Enforcement Commission, supra, 249 Conn. 318, the defendant commission, in a memorandum of decision, interpreted a statute concerning elections to apply to a particular factual situation and then subsequently applied the reasoning of the opinion to the plaintiff's situation. The commission sent a memorandum to effected parties to notify them of the newly adopted statutory interpretation. Id., 315. The commission's application of the law did not create any new obligations or limitations on the plaintiff so the court determined that it was not necessary for the commission to have followed rule-making procedures. Id., 318-19.
In the present case, the department has a statutory duty to maintain conviction information. General Statutes § 29-11; see also General Statutes § 54-142g. The department may determine which convictions are felonies without resorting to formal rule-making because the label itself does not create any new rights or obligations. A status of "convicted felon" may, indeed, limit one's rights, but the criminal record provided by the department is not the source of those limitations, it is simply the reflection of the individual's conviction record.
As discussed in the text, infra, there are significant collateral consequences for those convicted of a felony.
The plaintiff's argument concerning the nature of the department's decision to label him a "convicted felon" is premised on the assumption that, in fact, it is erroneous for the defendant to denominate him a "convicted felon." That claim, however, begs the question. If the plaintiff had been convicted of murder, there would be no argument as to whether the label "convicted felon" applied and there would be no claim that such characterization was in the nature of a regulation. If, as a matter of statutory interpretation, a second conviction for violation of § 14-227a is a felony, the commissioner's designation of such status in the offender's criminal history would not have a "substantial impact on the rights and obligations of parties who may appear before the agency in the future . . ." and thus not necessitate the invocation of the commissioner's rule making authority. Salmon Brook Convalescent Home v. Commission on Hospitals and Health Care, supra, 177 Conn. 360. In short, the commissioner is both authorized and required to apply the designation of felony to those who are convicted of crimes denominated as felonies. The dispute as to whether a second conviction for operating while under the influence is, in fact, a felony, does not transmute that obligation into one involving the promulgation of a regulation subject to the requirements of the UAPA. Accordingly, the plaintiff's motion of summary judgment as to count one of his complaint is denied; the defendant's cross motion is hereby granted.
Since the department did not violate the requirements of the UAPA, the court must still consider whether the department has correctly interpreted the law when it determined to label the plaintiff a "convicted felon" for a second conviction of General Statutes § 14-227a within a ten-year period.
B. Plaintiff Incorrectly Labeled "Convicted Felon"
The plaintiff argues that a second conviction under General Statutes § 14-227a cannot be considered a felony because operating a motor vehicle while under the influence of intoxicating liquor or drugs is not a "criminal offense" but is a "motor vehicle violation" pursuant to the definitions set forth in General Statutes § 53a-24. The defendant, by contrast, insists that a second conviction for operation of a motor vehicle while under the influence of intoxicating liquors or drugs is a "criminal offense" punishable by greater than one year in prison and, therefore, is a felony. The court agrees with the plaintiff that the department has incorrectly interpreted the law that a second conviction under General Statutes § 14-227a within a ten-year period is a felony.
General Statutes § 53a-24 provides: "(a) The term `offense' means any crime or violation which constitutes a breach of any law of this state or any other state, federal law or local law or ordinance of a political subdivision of this state, for which a sentence to a term of imprisonment or to a fine, or both, may be imposed, except one that defines a motor vehicle violation or is deemed to be an infraction. The term `crime' comprises felonies and misdemeanors. Every offense which is not a `crime' is a `violation.' Conviction of a violation shall not give rise to any disability or legal disadvantage based on conviction of a criminal offense.
"(b) Notwithstanding the provisions of subsection (a) of this section, the provisions of sections 53a-28 to 53a-44, inclusive, shall apply to motor vehicle violations. Said provisions shall apply to convictions under section 21a-278 except that the execution of any mandatory minimum sentence imposed under the provisions of said section may not be suspended."
As discussed in the text, infra, this dispute arises because of ambiguity created by the inconsistent language in the relevant provisions of the General Statutes defining crimes, motor vehicle offenses and criminal penalties. See, e.g., General Statutes §§ 53a-24, 53a-25 and 14-227a. Indisputably the legislature is empowered to correct these inconsistencies and make clear its intent as to whether a second conviction within a ten year period of General Statutes § 14-227a is deemed to be a felony.
"Cases that present pure questions of law . . . invoke a broader standard of review than is ordinarily involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion . . . We have determined, therefore, that . . . deference accorded to an agency's interpretation of a statutory term is unwarranted when the construction of a statute . . . has not previously been subjected to judicial scrutiny [or to] . . . a governmental agency's time-tested interpretation . . ." (Internal quotation marks omitted.) Esposito v. Simkins Industries, Inc., 286 Conn. 319, 326, 943 A.2d 456 (2008).
"The [plaintiff's] claim raises an issue of statutory construction . . . [The] resolution of [this claim] is governed by well established principles. [I]t is axiomatic that the process of statutory interpretation involves a reasoned search for the intention of the legislature . . . In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter . . .
"When the statute in question is one of a criminal nature, we are guided by additional tenets of statutory construction. First . . . we must refrain from imposing criminal liability whe[n] the legislature has not expressly so intended . . . Second, [c]riminal statutes are not to be read more broadly than their language plainly requires and ambiguities are ordinarily to be resolved in favor of the defendant . . . Finally, unless a contrary interpretation would frustrate an evident legislative intent, criminal statutes are governed by the fundamental principle that such statutes are strictly construed against the state . . .
"The rule of strict construction, however, does not require that the most narrow, technical and exact meaning be given to the language of a statute in frustration of an obvious legislative intent . . . Common sense should be applied to the language of a penal statute, particularly if otherwise absurdity or frustration of the evident design of the legislature results . . . No rule of construction . . . requires that a penal statute be strained and distorted in order to exclude conduct clearly intended to be within its scope — nor does any rule require that the act be given the narrowest meaning. It is sufficient if the words are given their fair meaning in accord with the evident intent of [the legislature] . . . The rule that terms in a statute are to be assigned their ordinary meaning, unless context dictates otherwise; General Statutes § 1-1(a); State v. Mattioli, [210 Conn.573, 579, 556 A.2d 584 (1989)]; also guides our interpretive inquiry." (Citations omitted; internal quotation marks omitted.) State v. Reynolds, 264 Conn. 1, 69-70, 836 A.2d 224 (2003), cert. denied, 541 U.S. 908, 124 S.Ct. 1614, 158 L.Ed.2d 254 (2004).
The appropriate starting point is the relevant statutory language. The plaintiff has been convicted of General Statutes § 14-227a(a) which establishes "the offense of operating a motor vehicle while under the influence of intoxicating liquor . . ." (Emphasis added.) The term "felony" is defined in General Statutes § 14-1(30) to mean " any offense as defined in section 53a-25 and includes any offense designated as a felony under federal law . . ." (Emphasis added.) General Statues § 53a-25(a) defines "felony" as "[a]n offense for which a person may be sentenced to a term of imprisonment in excess of one year . . ." Furthermore, General Statutes § 53a-25(c) states that "[a]ny offense defined in any other section of the general statutes which, by virtue of an expressly specified sentence, is within the definition set forth in subsection (a) shall be deemed an unclassified felony."
General Statutes § 53a-25 provides: "(a) An offense for which a person may be sentenced to a term of imprisonment in excess of one year is a felony.
"(b) Felonies are classified for the purposes of sentence as follows: (1) class A, (2) class B, (3) class c, (4) class D, (5) unclassified and (6) capital felonies.
"(c) The particular classification of each felony defined in [chapter 952 of the General Statutes] is expressly designated in the section defining it. Any offense defined in any other section of the general statutes which, by virtue of an expressly specified sentence, is within the definition set forth in subsection (a) shall be deemed an unclassified felony."
At first, it appears as though the defendant is correct that a second conviction for operating a motor vehicle while under the influence of intoxicating liquor or drugs is a felony because it subjects the plaintiff to imprisonment for up to two years. See General Statutes § 14-227a(g)(2). But the plaintiff argues, and the court agrees, that the term "offense" as used in General Statues § 53a-25 specifically excludes motor vehicle violations. The term "offense" as used in General Statutes § 53a-25 is defined in General Statutes § 53a-24 as "any crime or violation which constitutes a breach of any law of this state or any other state, federal law or local law or ordinance of a political subdivision of this state, for which a sentence to a term of imprisonment or to a fine, or both, may be imposed, except one that defines a motor vehicle violation or is deemed to be an infraction. The term `crime' comprises felonies and misdemeanors. Every offense which is not a `crime' is a `violation.' Conviction of a violation shall not give rise to any disability or legal disadvantage based on conviction of a criminal offense." (Emphasis added.) Therefore, since motor vehicle violations are excluded from the definition of "offense" as the term is used in General Statutes § 53a-25 to define a felony, motor vehicle violations cannot be considered felonies, under the relevant statutory definitions, even though they may carry a period of imprisonment of more than one year.
Controlling appellate authority supports the conclusion that motor vehicle violations including operation of a vehicle while under the influence, are excluded from the definition of "offense" under General Statutes § 53a-24 and therefore are excluded from the definition of misdemeanors and felonies as set forth in §§ 53a-24 and 53a-25. In State v. Kluttz, 9 Conn.App. 686, 521 A.2d 178 (1987), the defendant argued on appeal "that negligent homicide with a motor vehicle, in violation of General Statutes § 14-222a, cannot be a lesser included offense of misconduct with a motor vehicle, in violation of General Statutes § 53a-57, because negligent homicide with a motor vehicle is not a `criminal offense' but is a `motor vehicle violation' pursuant to the definitions set forth in General Statutes § 53-24." Id., 689. In Kluttz, the court stated, "[i]t is clear from the language emphasized in the statutes defining `violation' and `misdemeanor' that, before the definitions apply, the statute violated must be an `offense.' It is equally clear, however, that by the express terms of General Statutes 53a-24(a) the term `offense' excludes `motor vehicle violation[s].' Thus, on the basis of the statutory scheme, it is our conclusion that negligent homicide with a motor vehicle is not a `crime' within the meaning of General Statutes 53a-24(a) because it is not an `offense,' but rather, it is a `motor vehicle violation' . . ."
"[Furthermore,] General Statutes § 53a-24(b) provides, inter alia, that `[n]otwithstanding the provisions of subsection (a) [which excepts motor vehicle violations from the definition of `offense'], the provisions of sections 53a-28 to 53a-44, inclusive, shall apply to motor vehicle violations.' General Statutes §§ 53a-28 through 53a-44 are the sections of the penal code which, inter alia, set out the authorized sentences for the classified and unclassified offenses (i.e., felonies, misdemeanors and violations) and provide for such sentencing mechanisms as probation, conditional discharge and unconditional discharge. This subsection would be rendered meaningless by the state's analysis, since `motor vehicle violations,' within the meaning of General Statutes § 53a-24(a), could only be transgressions carrying a fine. Yet, the purpose of this subsection is to make clear that `the sentencing principles enumerated in sections 53a-28 to 53a-44, inclusive, shall apply to motor vehicle violations.' Commission to Revise the Criminal Statutes, Penal Code Comments, Connecticut General Statutes, p. 8. There would be no purpose served by legislatively authorizing the application of sentencing provisions of the penal code, i.e., suspension of execution of sentences of imprisonment conditioned on terms of probation and conditional discharge, to a `motor vehicle violation' if a `motor vehicle violation' consisted only of statutes authorizing punishment by a fine. [I]n construing statutes, we presume that there is a purpose behind every sentence, clause, or phrase used in an act and that no part of a statute is superfluous . . . A legislative act must be read as a whole and construed to give effect and to harmonize all of its parts." (Citations omitted; internal quotation marks omitted.) Id., 692-94; see also State v. Goffe, 41 Conn.App. 454, 462-65, 676 A.2d 1377 (1996). Even though the court in Kluttz concluded that motor vehicle violations are not "offenses" under the penal code definitions, it found that negligent homicide is an offense for purposes of the lesser included offense doctrine. Id., 698-99. The court came to this conclusion based on the premise, "[w]hat may or may not be a criminal offense for purposes of a particular statutory categorization is not necessarily determinative of whether it is a criminal offense for purposes of the lesser included offense doctrine . . . Whether the lesser included offense doctrine should apply to include a transgression of the law which the legislature has categorized for certain purposes as noncriminal depends, not on that categorization, but on the function and purpose of the doctrine itself." (Citation omitted.) Id., 699.
The analysis of Kluttz has been subsequently affirmed by the appellate court in State v. Brown, 22 Conn.App. 108, 575 A.2d 699, cert. denied, 216 Conn. 811, 580 A.2d 61 (1990) and State v. Trahan, 45 Conn.App. 722, 697 A.2d 1153, cert. denied, 243 Conn. 924, 701 A.2d 660 (1997). In Brown, the issue was whether "the defendant's operation of a motor vehicle while under the influence of liquor in violation of General Statutes § 14-227a constituted a violation of that condition of his probation order forbidding him from violating `any criminal law' of this state." State v. Brown, supra, 22 Conn.App. 109. The court in Brown concluded that "for purposes of General Statutes § 53a-24(a), § 14-227a is a motor vehicle violation and not a `crime.'" Id., 111. Nevertheless, a violation of General Statues § 14-227a was, for purposes of the defendant's condition of probation, a violation of the criminal laws of this state based on the function and purpose of probation. Id., 112-14. Similarly, in Trahan, the issue was whether the defendant's subsequent conviction for operation of a motor vehicle while under the influence of intoxicating liquor or drugs constituted an unsuccessful completion of his accelerated rehabilitation because operation of a motor vehicle while under the influence of intoxicating liquors or drugs does not constitute an offense as defined in general Statutes § 53a-24. State v. Trahan, supra, 45 Conn.App. 733-34. The court in Trahan concluded that the defendant's subsequent conviction for operating a motor vehicle while under the influence constituted a violation of his accelerated rehabilitation based on the same analysis as Brown. Id., 734-37.
The reasoning in Kluttz, Brown, and Trahan is further supported by the opinion of the Supreme Court in State v. Harrison, 228 Conn. 758, 638 A.2d 601 (1994). In Harrison, the issue was whether "General Statutes § 14-227a is an `offense' within the meaning of General Statues § 54-1f, thus permitting an officer to pursue an offender outside his jurisdiction in order to make a stop at the first safe opportunity[.]" Id., 760. The defendant argued for "the court to follow the direction of General Statutes § 53a-2 and to apply the definition of offense contained in General Statutes § 53a-24(a)." Id., 762. The court stated, "`[w]hat may or may not be a criminal offense for purposes of a particular statutory categorization is not necessarily determinative of whether it is a criminal offense for [other] purposes . . .' (Citation omitted.) State v. Guckian, [ 226 Conn. 191, 198, 627 A.2d 407 (1993)]. We do not mechanistically apply penal code definitions to a statute but interpret the language in a manner that implements the statute's purpose. See, e.g., id., 202 (motor vehicle violation is a crime for purposes of qualifying for drug treatment program); State v. Dukes, 209 Conn. 98, 122, 547 A.2d 10 (1988) (motor vehicle violation is a crime for purposes of a reasonable search of occupant of stopped vehicle); see also State v. Brown, 22 Conn.App. 108, 112, 575 A.2d 699, cert. denied, 216 Conn. 811, 580 A.2d 61 (1990) (motor vehicle violation is a violation of criminal laws for purposes of determining whether condition of probation has been violated); State v. Kluttz, 9 Conn.App. 686, 698-700, 521 A.2d 178 (1987) (negligent homicide with a motor vehicle, a motor vehicle violation, is an offense for purposes of the lesser included offense statute); accord Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980) (traffic violation may be considered an offense for purposes of double jeopardy analysis)." State v. Harrison, supra, 228 Conn. 763. Therefore, the court analyzed the functions and purposes of General Statutes § 54-1f and concluded that "[t]he application of § 54-1f(a) has not been restricted to felonies or misdemeanors as defined in the penal code, and thus may be applied to motor vehicle violations." Id., 764.
General Statutes § 54-1f provides in relevant part: "Peace officers . . . shall arrest, without previous complaint and warrant, any person for any offense in their jurisdiction, when the person is taken or apprehended in the act or on the speedy information of others . . . Members of any local police department or the Office of State Capitol Police and constables and state marshals who are certified under the provisions of sections 7-294a to 7-294e, inclusive, and who perform criminal law enforcement duties, when in immediate pursuit of one who may be arrested under the provisions of this section, are authorized to pursue the offender outside of their respective precincts into any part of the state in order to effect the arrest. Such person may then be returned in the custody of such officer to the precinct in which the offense was committed."
General Statutes § 53a-2 provides in relevant part: "The provisions of this title shall apply to any offense defined in this title or the general statutes, unless otherwise expressly provided or unless the context otherwise requires . . ."
The appellate authority is clear that a violation of General Statutes § 14-227a is a "motor vehicle violation" and is excluded from the definition of "offense" under § 53a-24. Since the term "felony" in General Statutes § 14-1(30) makes explicit reference to the term "felony" as used in § 53a-25, a violation of General Statutes § 14-227a cannot be considered a felony. In short, under the legislature's formulation, a felony is established if, and only if it is an "offense." Because "motor vehicle violations" are explicitly excluded from the definition of "offense," a second conviction for violation of § 14-227a is not, as a matter of statutory definition, a felony. Unlike, Kluttz, Brown, Trahan, and Harrison, this court is constrained by the definition of "offense" as used in General Statutes § 53a-24 when interpreting the meaning of felony under General Statutes § 53a-25 and cannot look to the function and purpose of any other statute or doctrine to define "offense" in this context.
The defendant also argues that a violation of General Statutes § 14-227a can be considered a crime under the penal code because multiple motor vehicle violations are unquestionably crimes. The defendant specifically cites to General Statutes §§ 14-223, 14-213b and 14-227k. Each of the statutes cited by the defendant explicitly states that a violation of that statute is deemed a misdemeanor or felony. See footnote 10. The defendant's argument actually supports the plaintiff's position based on the "tenet of statutory construction known as expressio unius est exclusio alterius, translated as `the expression of one thing is the exclusion of another.' " Marrocco v. Giardino, 255 Conn. 617, 637, 767 A.2d 720 (2001). That is, "where express exceptions are made, the legal presumption is that the legislature did not intend to save other cases from the operation of the statute." (Internal quotation marks omitted.) Id. In this case, the express reference in these statutes as misdemeanors or felonies has created the presumption that the legislature did not intend for other sections in motor vehicle statutes to be misdemeanors or felonies under the penal code unless specifically denominated as such.
General Statutes § 14-223 provides in relevant part: "No person operating a motor vehicle, when signaled to stop by an officer in a police vehicle using an audible signal device or flashing or revolving lights, shall increase the speed of the motor vehicle in an attempt to escape or elude such police officer. Any person who violates this subsection shall be guilty of a class A misdemeanor, except that, if such violation causes the death or serious physical injury, as defined in section 53a-3, of another person, such person shall be guilty of a class D felony . . . For any subsequent offense such person shall be guilty of a class D felony, except that if any prior offense by such person under this subsection caused, and such subsequent offense causes, the death or serious physical injury, as defined in section 53a-3, of another person, such person shall be guilty of a class D felony for which one year of the sentence imposed may not be suspended or reduced by the court . . ." (Emphasis added.)
General Statute § 14-213b provides in relevant part: "(a) No owner of any private passenger motor vehicle or a vehicle with a combination or commercial registration, as defined in section 14-1, registered or required to be registered in this state may operate or permit the operation of such vehicle without the security required by section 38a-371 or with security insufficient to meet the minimum requirements of said section, or without any other security requirements imposed by law, as the case may be. Failure of the operator to produce an insurance identification card as required by section 14-217 shall constitute prima facie evidence that the owner has not maintained the security required by section 38a-371 and this section.
"(b) Any person convicted of violating any provision of subsection (a) of this section shall be fined not less than one hundred dollars or more than one thousand dollars, except that any owner of a motor vehicle with a commercial registration who knowingly violates the provisions of subsection (a) of this section with respect to such vehicle shall be guilty of a class D felony." (Emphasis added.)
General Statutes § 14-227k provides in relevant part: "(a) No person whose right to operate a motor vehicle has been restricted pursuant to an order of the court under subsection (b) of section 14-227j or by the commissioner of Motor Vehicles pursuant to subsection (I) of section 14-227a shall (1) request or solicit another person to blow into an ignition interlock device or to start a motor vehicle equipped with an ignition interlock device for the purpose of providing such person with an operable motor vehicle, or (2) operate any motor vehicle not equipped with a functioning ignition interlock device or any motor vehicle that a court has ordered such person not to operate.
"(b) No person shall tamper with, alter or bypass the operation of an ignition interlock device for the purpose of providing an operable motor vehicle to a person whose right to operate a motor vehicle has been restricted pursuant to an order of the court under subsection (b) of section 14-227j or by the commissioner of Motor Vehicles pursuant to subsection (I) of section 14-227a.
"(c) Any person who violates any provision of subsection (a) or (b) of this section shall be guilty of a class C misdemeanor." (Emphasis added.)
The defendant also argues that General Statutes § 14-227a is a crime and therefore a felony based on State v. Anonymous (1980-5), 36 Conn.Sup. 527, 416 A.2d 168 (1980). In Anonymous, the court found "that the term `motor vehicle violation,' not being otherwise defined, incorporates the definition of `violation' contained in 53a-27(a) as an offense punishable only by a fine . . . [Therefore,] [t]he exception of `motor vehicle violations' from the definition of `offense' is limited to breaches of statutes involving motor vehicles when the only penalty which can be imposed is a fine. Operating under the influence as prohibited by 14-227a does not fall within the exception because it is not punishable as a `violation' defined by 53a-27, but as an `unclassified misdemeanor' under 53a-26(c). Since it is a misdemeanor, it is also a `crime' as defined by 53a-24(a). Id., 530-31. This reasoning was explicitly rejected in State v. Kluttz, supra, 9 Conn.App. 694 n. 8. In Kluttz, the court stated, "[w]e recognize that this reasoning is at odds with that of the Appellate Session of the Superior Court in State v. Anonymous (1980-5) . . . on which the state relies. The court in that case read the phrase, `motor vehicle violation' to incorporate the definition of `violation,' and reasoned that `motor vehicle violation' meant an offense involving the use of a motor vehicle which was punishable only by a fine . . . We, as a constitutional intermediate appellate court . . . are not bound, of course, by the precedent of the statutory Appellate Session of the Superior Court . . . More importantly, however, we believe that its reasoning unduly disregards the statutory analysis which builds on the term `offense,' and unduly disregards the import of General Statutes § 53a-24(b). We, therefore, decline to follow it.
"We also recognize that the commentary to General Statutes § 53a-24(b) is less than a model of clarity and contributes to the confusion of whether a motor vehicle violation is an `offense.`See Commission to Revise the Criminal Statutes, Penal Code Comments, Connecticut General Statutes. The first three sentences of the commentary point toward the conclusion that a motor vehicle violation is not an `offense.' The fourth sentence lends some support to the contrary conclusion, namely, that it is an `offense.' In this instance, we hesitate to draw any firm inferences as to legislative intent from this Delphic commentary." (Citations omitted.) Id.
The defendant argues that the designation of felony on the plaintiff's criminal record for a second conviction of General Statutes § 14-227a within a ten year period is valid because it is considered a felony under General Statutes § 53a-25. As the case law indicates, the term "offense" as used in General Statutes § 53a-25 excludes motor vehicle violations and therefore excludes a conviction under General Statutes § 14-227a. The defendant has not provided any sound reason or legal authority to disregard the cases discussed above. Therefore, the designation of "convicted felon" by the defendant on the plaintiff's criminal history record for a second conviction of General Statutes § 14-227a within a ten year period is invalid.
In reaching this conclusion the court cannot ignore the significant collateral consequences for those convicted of a felony. See, e.g., Office of Legislative Research Report, March 28, 2003, 2003-R-0333, noting that a convicted felon:
1. Loses the right to become an elector and cannot vote, hold public office, or run for office;
2. Is disqualified from jury service for seven years;
3. Loses the ability to have firearms;
4. Could lose a profession license or permit; and
5. Faces significant employment limitations.
Under these circumstances, the court "must refrain from imposing criminal liability where the legislature has not expressly so intended . . . [C]riminal statutes are not to be read more broadly than their language plainly requires and ambiguities are ordinarily to be resolved in favor of the defendant . . . [U]nless a contrary interpretation would frustrate an evident legislative intent, criminal statutes are governed by the fundamental principle that such statutes are strictly construed against the state." (Citations omitted; internal quotation marks omitted.) State v. Davis, 255 Conn. 782, 788-89, 772 A.2d 559 (2001).
Based on the foregoing the plaintiff's motion for summary judgment is granted, in part, and denied, in part. A declaratory judgment is issued determining that the defendant has illegally placed on the plaintiff's criminal record the label "convicted felon." A temporary and permanent injunction is issued requiring that the defendant cease labeling any person twice convicted of § 14-227a within a ten year period as a convicted felon.