Opinion
No. MV 02 0210110
July 23, 2003
MEMORANDUM OF DECISION ON THE DEFENDANT'S MOTION IN LIMINE
Facts
The defendant Carol Audevart was arrested on July 31, 2002 by the Torrington Police Department and charged with one count of operating under the influence in violation of Conn. Gen. Stat. § 14-227a and one count of making an improper turn in violation of Conn. Gen. Stat. § 14-242. Initially, the police responded to a complaint of a driver operating erratically on Migeon Avenue in Torrington, Connecticut at 2245 hours on July 31, 2002. The police officer responded and stopped the vehicle. After administering field sobriety tests the police determined that the defendant was intoxicated and subsequently arrested the defendant at approximately 2305 hours. The defendant was advised of her Miranda rights. She placed a call to an attorney.
The police administered the first Breathalyzer test at 0021 hours. The defendant was unable, due to a lung problem, to provide a sample sufficient to test. She was allowed to use her inhaler. After waiting the requisite time, the police administered a second Breathalyzer test at 0049 hours. Again, the defendant was medically unable to provide a sufficient sample. The police then asked if the defendant was willing to submit to a urine or blood test. The defendant chose the blood test. The police transported the defendant to Charlotte Hungerford Hospital for testing. The hospital administered the first blood test on August 1, 2002 at 1:20 a.m. The result was a BAC of .09. The second test occurred at 1:52 a.m. with a result of .08. The defendant was then transported back to the Torrington Police Department and the blood samples were secured as evidence.
Argument
The defendant moves to preclude the State from using the results of the CT Page 8453-kg blood test as evidence against her at trial for the following reasons:
1. The police failed to comply with the statutory requirements of Conn. Gen. Stat. § 14-227 (a) (c) (5);
2. The tests were taken more than two (2) hours after the alleged operation of the motor vehicle thereby rendering them inadmissible pursuant to Conn. Gen. Stat. § 14-227a (c) (6); and
3. The tests were not obtained pursuant to the provisions of Conn. Gen. Stat. § 14-227 (a) (1).
Presently Conn. Gen. Stat. § 14-227 (a) (j).
The Court agrees with the defendant that under the facts of this case neither Conn. Gen. Stat. § 14-227 (a) (c) (5) nor Conn. Gen. Stat. § 14-227 (a) (1) apply. The police had not requested additional chemical tests to detect the presence of a drug or drugs other than alcohol nor were the blood tests administered as a result of an accident in which the individual had suffered a physical injury, was being transported to a hospital with blood drawn to aid in the diagnosis or treatment of such injured individual. As such the Court focuses on the defendant's second argument, specifically whether Conn. Gen. Stat. § 14-227 (a) (6) requires that any blood samples taken more than two hours after the operation be automatically precluded as evidence.
Law:
Conn. Gen. Stat. § 14-227 (b) concerns the admissibility of chemical analysis as admissible and competent evidence in the prosecution of a violation of Conn. Gen. Stat. § 14-227a. There are six provisions to this subsection, the sixth providing: "evidence is presented that the test was commenced within two hours of operation." The court could find no case law analyzing or defining this particular phrase. Nor could it find any specific cases precluding the admissibility of evidence for failure to comply with this time limitation.
Of particular importance to the facts of this case is the phrase "test was commenced." If one were to apply the plain language standard of statutory construction "commenced" would mean in ordinary usage "to start." "Test" would similarly and logically mean the test which rendered the chemical evidence offered to prove the blood alcohol content of the defendant. Applying such standard to the facts of this case, the test in question resulting in evidence of intoxification would be the test performed at Charlotte Hungerford Hospital. Clearly, such test was beyond the statutory two hours. The defendant interprets this phrase as mandatory citing State v. Nokes, 44 Conn. App. 40 (1996), and then CT Page 8453-kh concludes that failure to perform such test within the statutory time frame compels preclusion. This argument is flawed. It ignores the decision of State v. Courchesne, 262 Conn. 537 (2003), abrogating the plain language standard and similarly fails to note language in State v. Kirsch, 2003 Conn. Lexis 171, citing cases for the proposition that failure to strictly comply with various requirements of subsections under Conn. Gen. Stat. § 14-227a does not proscribe the admission of evidence. (Emphasis added.)
State v. Courchesne, 262 Conn. 537, 570 (2003) held:
We now make explicit in what we have already said: in performing the process of statutory interpretation, we do not follow the plain meaning rule in whatever formulation it may appear. We disagree with the plain meaning rule as a useful rubric for the process of statutory interpretation . . .
Courchesne, supra, at 570.
The Connecticut Supreme Court further stated that their approach to statutory interpretation is governed by the "Bender" formulation as further explicated herein. Courchesne, 262 Conn. at 564.
Bender v. Bender, 258 Conn. 741.
The first two sentences of that formulation set forth the fundamental task of the court in engaging in the process of statutory interpretation, namely, engaging in a "reasoned search for the intention of the legislature," which we further defined as a reasoned search for "the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply." (Internal quotation marks omitted.) Id. The rest of the formulation sets forth the range of sources that we will examine in order to determine that meaning. That formulation admonishes the court to consider all relevant sources of meaning of the language at issue — namely, the words of the statute, its legislative history and the circumstances surrounding its enactment, the legislative policy it was designed to implement and its relationship to existing legislation and to common-law principles governing the same general subject matter. Id. We also now make explicit that we ordinarily will consider all of those sources beyond the language itself, without first having to cross any threshold of ambiguity of the language.
We emphasize, moreover, that the language of the statute is the most important factor to be considered, for three very fundamental reasons. First, the language of the statute is what the legislature enacted and the governor signed. It is, therefore, the law. Second, the process of CT Page 8453-ki interpretation is, in essence, the search for the meaning of that language as applied to the facts of the case, including the question of whether it does apply to those facts. Third, all language has limits, in the sense that we are not free to attribute to legislative language a meaning that it simply will not bear in the usage of the English language.
Therefore — and we make this explicit as well — we always begin the process of interpretation with a searching examination of that language, attempting to determine the range of plausible meanings that it may have in the context in which it appears and, if possible, narrowing that range down to those that appear most plausible. Thus, the statutory language is always the starting point of the interpretive inquiry. A significant point of the Bender formulation, however, is that we do not end the process with the language.
The reason for this, as we stated in Frillici, is that "the legislative process is purposive, and . . . the meaning of legislative language (indeed, of any particular use of our language) is best understood by viewing not only the language at issue, but by its context and by the purpose of purposes behind its use.
(Citations and footnotes omitted.) Courchesne, 262 Conn. at 562-65.
In sum, the Court must start with the plain language and then proceed to other factors including but not limited to legislative history, the relation of the statute to existing legislation as well as to the purpose of the statute. The Court further states:
Indeed, in our view, the concept of the context of statutory language should be broadly understood. That is, the context of statutory language necessarily includes the other language used in the statute or statutory scheme at issue, the language used in other relevant statutes, the general subject matter of the legislation at issue, the history or genealogy of the statute, as well as the other, extratextual sources identified by the Bender formulation. All of these sources, textual as well as contextual, are to be considered, along with the purpose or purposes of the legislation, in determining the meaning of the language of the statute as applied to the facts of the case.
Courchesne, 262 Conn. at 566.
Pursuant to the directives above, the Court is compelled to examine the language used in other subsections of Conn. Gen. Stat. § 14-227 (a). Upon a review of such language, case law interpreting fellow subsections, CT Page 8453-kj as well as legislative purpose of the statute, the Court concludes that subsection (6) of Conn. Gen. Stat. § 14-227 (a) (b) 6 does not mandate preclusion of evidence for failure to follow statutory requirements of testing commenced within two hours of operation.
First, the Court examines the facts in this particular case. The State argues that the Torrington Police Department took reasonable efforts to comply with the testing. It commenced the test within the appropriate time. It allowed the defendant to use her inhaler in an effort to increase her lung capacity. After waiting an appropriate regulated time, the police readministered the Breathalyzer test. The defendant still could not produce a sample sufficient to test. The defendant then consented to an additional, albeit different, test to be conducted at the hospital. The State argues that the police and by extrapolation, the State, should not be penalized by the exclusion of evidence when the failure to comply with the two-hour statutory requirement was not due to the laxity of the police. The Court agrees.
The Court so concludes after applying the statutory analysis mandated in State v. Courchesne, 262 Conn. 537 (2003). The Court reviewed case law interpreting fellow subsections of Conn. Gen. Stat. § 14-227a. In State v. Stern, 65 Conn. App. 634 (2001), the court concluded that "a search warrant is not mandatory" under Conn. Gen. Stat. § 14-227 (a) (1). In that subsection identical language is used when discussing the admissibility of evidence . . ." and shall be admissible and competent (evidence) in any subsequent prosecution thereof if: . . ." The subsection of this statute then enumerates four conditions which should be met prior to allowing the evidence of medical records of the injured operator. In Stern, supra, at 635, the defendant moved to suppress her medical records on the grounds that such were obtained in the absence of a search warrant, the fourth condition of the statute. As previously noted, the Court concluded that such subsection was not mandatory.
Similarly in State v. Szepanski, 57 Conn. App. 484 (2000), the defendant moved to suppress his BAC result from an out-of-state hospital obtained without his consent and without a search warrant. The defendant argued that the BAC was in contravention of Conn. Gen. Stat. § 14-227a (1) thereby requiring suppression. Szepanski, supra, at 486. The Court concluded: "that 14-227a (1) is permissive, not restrictive in nature; BAC evidence is always admissible if obtained in conformity with these requirements, rather than inadmissible unless obtained in a manner satisfying all of its requirements." Szepanski, supra, at 487. See also State v. Kirsh, 2003 Conn. Lexis 171 (2003) p. 30.
If one section of the statute is deemed permissive, it is logical to CT Page 8453-kk conclude that, in the absence of specific restrictive language, the other section of the same statute is also permissive. This conclusion is supported by "redemptive" language in the subsection immediately preceeding Conn. Gen. Stat. § 14-227a (b) (6).
Conn. Gen. Stat. § 14-227a (b) 5 provides:
an additional chemical test of the same type was performed at least thirty minutes after the initial test was performed or, if requested by the police officer for reasonable cause, an additional chemical test of a different type was performed to detect the presence of a drug or drugs other than or in addition to alcohol, provided the results of the initial test shall not be inadmissible under this subsection if reasonable efforts were made to have such additional test performed in accordance with the conditions set forth in this subsection and such additional test was not performed or was not performed within a reasonable time.
(Emphasis added.)
The statute's use of the words "reasonable efforts" and "within a reasonable time" confirms the permissive nature of the statute. This language coupled with the public policy as evinced in legislative intent to protect the public from the dangers of operating under the influence; see State v. Lamme, 19 Conn. App. 594 (1989), aff'd., 216 Conn. 172 (1990); compels the conclusion that Conn. Gen. Stat. § 14-227a (b) (6) is permissive rather than mandatory. The defendant's motion to preclude is denied.
The Court,
Black, J.