State v. Colon

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State v. Colon

STATE OF CONNECTICUT v. LUIS E. COLON
(AC 46428)
Bright, C. J., and Cradle and Seeley, Js.*

Syllabus

Convicted, following a jury trial, of possession of a controlled substance
and operation of a motor vehicle while having an elevated blood alcohol
content, the defendant appealed. The defendant claimed, inter alia, for the
first time on appeal, that the state improperly joined the two offenses into
a single information because they were not offenses of the same character
and that the trial court’s failure to sever them, sua sponte, constituted plain
error. Held:

The trial court’s failure to sever the offenses, sua sponte, did not constitute
plain error, as the remedy to the purportedly improper joinder was available
to the defendant via a motion to sever pursuant to the rule of practice (§ 41-
18), and there was no obligation on the court to consider what might have
been a tactical choice by the defendant or his counsel not to pursue a motion
to sever.

The jury had ample evidence to conclude beyond a reasonable doubt that
the defendant operated his motor vehicle with an elevated blood alcohol
content in violation of statute (§ 14-227a (a) (2)), including the testimony
of the arresting officer, body camera footage of the defendant’s failed field
sobriety tests, the results of the defendant’s two breath tests, and expert
testimony thereon.

Argued October 21, 2024—officially released April 22, 2025

Procedural History

Substitute information charging the defendant, under
two docket numbers, with one count each of the crimes
of possession of a controlled substance and operating
a motor vehicle while having an elevated blood alcohol
content, brought to the Superior Court in the judicial
district of Tolland, geographical area number nineteen,
and tried to a jury before M. Murphy, J.; verdicts and
judgments of guilty, from which the defendant appealed
to this court. Affirmed.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
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State v. Colon

Vishal K. Garg, assigned counsel, for the appellant
(defendant).
Linda F. Rubertone, senior assistant state’s attorney,
with whom, on the brief, were Matthew Gedansky, state’s
attorney, and Katelyn E. MacKinnon, deputy assistant
state’s attorney, for the appellee (state).

Opinion

BRIGHT, C. J. The defendant, Luis E. Colon, appeals
from the judgments of conviction, rendered following
a jury trial, of possession of a controlled substance in
violation of General Statutes § 21a-279 (a) (1)1 (count
one) and operation of a motor vehicle while having an
elevated blood alcohol content in violation of General
Statutes § 14-227a (a) (2)2 (count two). The defendant
claims that (1) the trial court committed plain error in
failing, sua sponte, to sever the two offenses joined in
the same information and (2) the evidence was insuffi-
cient to support his conviction with respect to count
1
General Statutes § 21a-279 (a) (1) provides: ‘‘Any person who possesses
or has under such person’s control any quantity of any controlled substance,
except any quantity of cannabis, as defined in section 21a-420, and except
as authorized in this chapter or chapter 420f, shall be guilty of a class A
misdemeanor.’’
Although the legislature has amended § 21a-279 (a) (1) since the events
at issue; see Public Acts, Spec. Sess., June, 2021, No. 21-1, § 2; that amend-
ment has no bearing on the merits of this appeal. In the interest of simplicity,
we refer to the current revision of the statute.
2
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 . . . (2) while such person has an elevated
blood alcohol content. For the purposes of this section, ‘elevated blood
alcohol content’ means a ratio of alcohol in the blood of such person that
is eight-hundredths of one per cent or more of alcohol, by weight . . . .’’
Although the legislature has amended § 14-227a since the events at issue;
see Public Acts, Spec. Sess., June, 2021, No. 21-1, §§ 116 and 117; those
amendments have no bearing on the merits of this appeal. In the interest
of simplicity, we refer to the current revision of the statute.
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State v. Colon

two. We disagree and, accordingly, affirm the judgments
of the court.
The following facts, which the jury reasonably could
have found, and procedural history, are relevant to our
disposition of the defendant’s claims. On March 10,
2020, at approximately 5:30 p.m., the defendant was
driving east on I-84 in the Tolland area. The highway
in that area consists of three lanes and is considered
a limited access highway with on and off ramps. At that
time, the highway was experiencing medium to heavy
traffic. The defendant was driving ahead of Toby Rut-
kowski,3 a trooper with the Connecticut State Police,
who was patrolling the area in his police cruiser. The
defendant was traveling in the far left travel lane and
abruptly crossed into the center lane and then crossed
again into the right lane. The defendant then immedi-
ately exited the highway into the Willington rest area.
At no point did the defendant use a turn signal.
Rutkowski followed the defendant and initiated a
traffic stop by activating his overhead emergency lights
at the beginning of the exit ramp but the defendant
continued driving down the entire exit ramp and
entered the rest area before bringing the vehicle to a
complete stop. Immediately after the vehicle stopped,
the defendant opened the driver’s side door and
attempted to exit the vehicle. Rutkowski instructed the
defendant to stay inside the vehicle, and the defendant
returned to the driver’s seat. Rutkowski then
approached the driver’s side door, where the defendant
was seated. Rutkowski was able to observe the defen-
dant reaching underneath the driver’s seat and toward
the passenger area. When Rutkowski opened the driv-
er’s side door and requested that the defendant step
out of the car, he observed a beer can tucked under-
neath the driver’s seat. The defendant stepped out of
3
Throughout the trial court record, Rutkowski’s name is occasionally
spelled as Rudkowski, Ruszkowski, or Rykwoski.
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the car and, at Rutkowski’s instruction, walked behind
the vehicle and stood there.
While they were standing there, Rutkowski asked
the defendant, ‘‘What’s going on today?’’ The defendant
responded that he felt tired and indicated that he under-
stood why he had been pulled over. When Rutkowski
asked the defendant for his driver’s license, the defen-
dant explained that his driver’s license was expired but
stated that he did have another form of identification
in the glove compartment of his vehicle. The defendant
began to walk to the passenger side of his vehicle to
get his identification and opened the passenger side
door. Rutkowski informed the defendant that he would
retrieve the identification himself, told the defendant
not to go in the glove compartment, and guided him
back to stand behind the defendant’s vehicle. Rutkow-
ski asked the defendant if he could pat him down, to
which the defendant consented.
While engaging with the defendant, Rutkowski smelled
alcohol on the defendant’s breath and noticed that the
defendant was slurring his words and that his eyes were
bloodshot and glassy. Rutkowski asked the defendant
if he had anything to drink that day, prompting the
defendant to inform him that he had a beer earlier and
that he was on medication that was to be taken when
he was not drinking. Rutkowski asked the defendant if
he was okay to drive. The defendant stated, ‘‘matter of
fact, I was going to pull in here to call my wife so she
could come and pick me up because I can’t drive.’’ At
this point, Rutkowski went back to the open passenger
side door of the vehicle and picked up a wallet from
the passenger seat that the defendant said contained his
identification. While Rutkowski opened the defendant’s
wallet to find his identification, the defendant again
informed him that his license had expired. Rutkowski
asked the defendant if there was anything illegal in the
car and the defendant replied: ‘‘You will probably find
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State v. Colon

some [co]caine that the fucking guy left in the car.’’ The
defendant further claimed that the cocaine belonged to
his coworkers. When Rutkowski asked the defendant
again what was in the car, the defendant again stated:
‘‘Some cocaine and shit.’’ He told Rutkowski that the
cocaine was in the glove compartment. Rutkowski then
walked back to the open passenger side door, searched
through the passenger side area, and saw a small, plastic
container in the glove compartment, which was later
determined to contain 0.037 grams of cocaine.
Thereafter, Rutkowski administered three field sobri-
ety tests to determine whether the defendant’s ability
to operate a motor vehicle was impaired: the horizontal
gaze nystagmus test,4 the walk and turn test,5 and the
one leg stand test.6 Prior to commencing the tests, Rut-
kowski ascertained that the defendant was not wearing
contact lenses or glasses and was physically capable
of performing both the walk and turn test and the one
leg stand test. Before administering each test, Rutkow-
ski explained to the defendant what he was required
to do, and the defendant indicated that he understood.
The defendant did not perform any of the tests to
standard. Specifically, during the horizontal gaze nys-
tagmus test, Rutkowski observed that the defendant
‘‘The horizontal gaze nystagmus test measures the extent to which a
4

person’s eyes jerk as they follow an object moving from one side of the
person’s field of vision to the other. The test is premised on the understanding
that, whereas everyone’s eyes exhibit some jerking while turning to the side,
when the subject is intoxicated the onset of the jerking occurs after fewer
degrees of turning, and the jerking at more extreme angles becomes more
distinct.’’ (Internal quotation marks omitted.) State v. Weed, 118 Conn. App.
654, 658 n.1, 984 A.2d 1116 (2009).
5
‘‘The walk and turn test requires the subject to walk heel to toe along
a straight line for nine paces, pivot, and then walk back heel to toe along
the line for another nine paces. The subject is required to count each pace
aloud from one to nine.’’ (Internal quotation marks omitted.) State v. Weed,
118 Conn. App. 654, 658 n.2, 984 A.2d 1116 (2009).
6
‘‘The one leg stand test requires the subject to stand on one leg with
the other leg extended in the air for [a set time period], while counting
aloud . . . .’’ (Internal quotation marks omitted.) State v. Weed, 118 Conn.
App. 654, 658 n.3, 984 A.2d 1116 (2009).
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exhibited nystagmus, lack of smooth pursuit or jerki-
ness of the eyes, prior to ninety degrees. During the
walk and turn test, the defendant took an improper
number of steps, used his arms to balance, and failed
to make heel-to-toe contact on a few of the steps. During
the one leg stand test, the defendant used his arms to
balance, placed his foot down, and stopped prior to the
time elapsing.
On the basis of his observations during the field sobri-
ety tests, Rutkowski determined that the defendant had
been operating his motor vehicle while under the influ-
ence of alcohol and/or narcotics. Rutkowski then con-
ducted a search of the defendant’s vehicle on the basis
of the defendant’s previously mentioned statements
that there was cocaine in the car. During his search,
Rutkowski seized the small plastic container from the
vehicle. He also observed a cooler in the back seat
which contained several empty beer cans.
After determining that the defendant lacked the
capacity to operate his vehicle safely and possessed
narcotics, Rutkowski placed him under arrest and trans-
ported him to the police station. At the police station,
Rutkowski asked the defendant if he wanted to take
the breath test for alcohol, to which the defendant
replied, ‘‘I know I’m probably going to fail the breath
test.’’ Thereafter, the defendant agreed to take two
breath tests. Rutkowski used a Draeger Alcotest 9510
to conduct the breath tests. The first test was adminis-
tered at 6:16 p.m. and resulted in a reading of 0.1008
percent blood alcohol content. The second test was
administered at 6:36 p.m. and resulted in a reading of
0.0905 percent blood alcohol content. While he was
processing the defendant and administering the tests,
Rutkowski continued to engage with the defendant and
asked him when he had started drinking. The defendant
stated that he had one beer and a shot around 1 p.m.
but stopped drinking around 1:30 p.m. He further stated
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that he had smoked marijuana. Thereafter, in an amended
long form information, the defendant was charged with
possession of a controlled substance in violation of
§ 21a-279 (a) (1) and operation of a motor vehicle while
having an elevated blood alcohol content in violation
of § 14-227a (a) (2).7 A jury trial was held on March 6
and 7, 2023. At trial, the state presented various exhibits,
which were admitted into evidence, and testimony from
three witnesses: Rutkowski; Joanna Urban, a forensic
science examiner II for the Department of Emergency
Services and Public Protection; and Robert H. Powers,
an associate professor in the Department of Forensic
Sciences at the University of New Haven and former
director of the state toxicology laboratory. The defen-
dant did not admit any exhibits into evidence nor did
he present any testimony. On March 7, 2023, after the
state had rested its case, the defendant moved for a
judgment of acquittal, which was denied by the court.
Thereafter, the jury returned guilty verdicts on both
counts. On March 8, 2023, the court, M. Murphy, J.,
sentenced the defendant on both counts. On count one,
the court sentenced the defendant to 364 days of impris-
onment, execution suspended after sixty days, followed
by two years of probation. On count two, the court
sentenced him to six months of imprisonment, execu-
7
On March 11, 2020, the defendant was charged in an original information
with four offenses: (1) possession of a controlled substance in violation of
§ 21a-279 (a) (1); (2) operation of a motor vehicle while under the influence
of liquor or drug or while having an elevated blood alcohol content in
violation of § 14-227a; (3) operation of a motor vehicle without a license in
violation of General Statutes § 14-36 (a); and (4) failure to drive in proper
lane in violation of General Statutes § 14-236. The original information
reflected two docket numbers, one docket number was representative of a
criminal matter and the other docket number was representative of a motor
vehicle matter. Thereafter, on March 6, 2023, the state filed an amended
long form information, encompassing the two docket numbers, charging
the defendant with the following two counts: (1) possession of a controlled
substance in violation of § 21a-279 (a) (1) (docket number T19R-CR-20-
0181710-S); and (2) operating a motor vehicle while having an elevated blood
alcohol content in violation of § 14-227a (a) (2) (docket number T19R-MV-
XX-XXXXXXX-S).
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tion suspended after thirty days, with forty-eight hours
constituting a mandatory minimum, and one year of
probation. The court ordered the sentences to run con-
currently. This appeal followed. Additional facts and
procedural history will be set forth as necessary.

I
The defendant first claims that the two offenses, pos-
session of a controlled substance and operation of a
motor vehicle while having an elevated blood alcohol
content, constituted two separate cases and, under Gen-
eral Statutes § 54-57,8 were improperly joined in a single
information by the state because they were not offenses
‘‘of the same character.’’ In his appellate briefs, the
defendant concedes that he did not raise this issue
before the trial court and argues that it is nonetheless
reviewable as plain error. During oral argument before
this court, the defendant argued that the alleged
improper joinder by the state triggered the trial court’s
obligation, sua sponte, to sever the offenses, and that
its failure to do so constituted plain error.9 We disagree
and, accordingly, reject the defendant’s claim.
8
General Statutes § 54-57 provides: ‘‘Whenever two or more cases are
pending at the same time against the same party in the same court for
offenses of the same character, counts for such offenses may be joined in
one information unless the court orders otherwise.’’
9
The defendant also argues that this court may review this claim under
its inherent discretionary power and supervisory authority. In his appellate
briefs, however, the defendant fails to set forth the standard under which
this court may invoke its supervisory authority or engage in any analysis
of such a claim. Rather, the defendant’s brief on the merits focuses solely
on the application of the plain error standard of review. At oral argument, the
defendant’s counsel agreed with this court’s assessment of the defendant’s
supervisory authority argument as being inadequately briefed but contended
that the claim was not abandoned. We disagree. ‘‘We are not required to
review issues that have been improperly presented to this court through an
inadequate brief . . . . Analysis, rather than abstract assertion, is required
in order to avoid abandoning an issue by failure to brief the issue properly.
. . . Where a claim is asserted in the statement of issues but thereafter
receives only cursory attention in the brief without substantive discussion
or citation of authorities, it is deemed to be abandoned.’’ (Citation omitted;
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State v. Colon

As a preliminary matter, we set forth our standard
of review. A claim of plain error must, as its predicate,
identify an error by the trial court necessitating review.
Thereafter, ‘‘[t]wo elements must be satisfied in order
to support a conclusion that a judgment must be
reversed on the basis of plain error. An appellate court
addressing a claim of plain error first must determine
if the error is indeed plain in the sense that it is patent
[or] readily [discernible] on the face of a factually ade-
quate record, [and] also . . . obvious in the sense of
not debatable. . . . This determination clearly requires
a review of the plain error claim presented in light of
the record. Although a complete record and an obvious
error are prerequisites for plain error review, they are
not, of themselves, sufficient for its application. . . .
‘‘[T]he plain error doctrine is reserved for truly
extraordinary situations [in which] the existence of the
error is so obvious that it affects the fairness and integ-
rity of and public confidence in the judicial proceedings.
. . . In addition to examining the patent nature of the
error, the reviewing court must examine that error for
the grievousness of its consequences in order to deter-
mine whether reversal under the plain error doctrine
is appropriate. A party cannot prevail under plain error
unless it has demonstrated that the failure to grant relief
will result in manifest injustice. . . .
‘‘It is axiomatic that, [t]he plain error doctrine . . .
is not . . . a rule of reviewability. It is a rule of revers-
internal quotation marks omitted.) Lareau v. Burrows, 90 Conn. App. 779,
780, 881 A.2d 411 (2005). Accordingly, because the defendant’s claim as to
supervisory authority is inadequately briefed, we decline to review it.
We further observe that the defendant does not argue that his claim,
although unpreserved, is reviewable under State v. Golding, 213 Conn. 233,
239–40, 567 A.2d 823 (1989), as modified by In re Yasiel R., 317 Conn. 773,
781, 120 A.3d 1188 (2015), most likely because ‘‘ ‘[w]hether multiple charges
should be tried separately is within the court’s sound discretion and generally
is not of a constitutional nature.’ State v. Perez, 87 Conn. App. 113, 121, 864
A.2d 52 (200[5]); see also State v. Berube, 256 Conn. 742, 749 n.7, 775 A.2d
966 (2001); State v. Walton, 227 Conn. 32, 55 n.20, 630 A.2d 990 (1993).’’
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State v. Colon

ibility. That is, it is a doctrine that this court invokes
in order to rectify a trial court ruling that, although
either not properly preserved or never raised at all in
the trial court, nonetheless requires reversal of the trial
court’s judgment . . . for reasons of policy. . . . Put
another way, plain error review is reserved for only
the most egregious errors. When an error of such a
magnitude exists, it necessitates reversal.’’ (Citations
omitted; internal quotation marks omitted.) State v.
Blaine, 179 Conn. App. 499, 505–506, 180 A.3d 622
(2018), aff’d, 334 Conn. 298, 221 A.3d 798 (2019).
The fundamental problem with the defendant’s claim
is its presumption that the trial court had a sua sponte
obligation to sever the offenses. Although the defen-
dant’s appellate briefs identify the error for review as
the state’s improper joinder of the two offenses, as
stated previously, the plain error doctrine requires the
appellant to identify an error by the trial court for
review, rather than the alleged improper conduct of the
opposing party. During oral argument before this court,
the defendant’s counsel elaborated on the state’s pur-
ported obligations under § 54-57 and further argued
that, in the absence of the state filing a motion to join
the two cases, the trial court has a sua sponte obligation
to separate them.10 The defendant, however, has not
State v. Madore, 96 Conn. App. 235, 243, 899 A.2d 721, cert. denied, 280
Conn. 907, 907 A.2d 92 (2006).
10
Specifically, the defendant’s counsel asserted that the two offenses
‘‘shouldn’t be treated as one case without the state first at least going to
the court and . . . filing a motion to join them and having the court . . .
conduct the analysis in the first place.’’ When asked whether the trial court
has a sua sponte obligation to separate the cases in the absence of the state
filing such motion, counsel responded, ‘‘yes.’’ Counsel proposed that this
obligation would arise before trial and raised an exchange between the state
and the court during a February 27, 2023 hearing as an example. There, the
trial court, Klatt, J., noted that the offenses comprised a ‘‘dual file’’ and
were listed separately on the jury list and then confirmed with the state
that it was proceeding on both charges. The defendant’s counsel contended
that, in this situation, the court needed to ‘‘confirm that the state ha[d]
actually taken the steps to join the two [offenses] together, rather than just
treating them as a single case from the outset.’’
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State v. Colon

cited any authority for this proposition and we are
aware of none, and for good reason. The law is just the
opposite. In State v. Berube, 256 Conn. 742, 748, 775
A.2d 966 (2001), our Supreme Court declined to review
a defendant’s unpreserved claim as to severance. In
that case, the defendant was charged in two informa-
tions that were joined for trial, during which the defen-
dant did not raise the issue of severance. Id., 746, 747.
On appeal, the defendant claimed that the trial court
improperly failed to sever the two cases and that the
joinder prejudiced him. Id., 747. Our Supreme Court
concluded that it was not bound to review the defen-
dant’s claim on appeal because he failed to raise the
severance issue at trial. Id. The court was unpersuaded
by the defendant’s attempt to secure review pursuant
to State v. Golding, 213 Conn. 233, 239–40, 567 A.2d
823 (1989), or as plain error. State v. Berube, supra, 749
n.7. With respect to the latter claim, the court held that
‘‘the trial court did not commit plain error by failing to
sever, sua sponte, the cases for trial.’’ Id. The court’s
disinclination to consider the defendant’s claim arose
from the fact that the defendant may have strategically
chosen to have the offenses tried together and, thus,
waived any constitutional claims he may have had with
respect to joinder. Id., 748. The court reasoned that
‘‘[t]he defendant’s silence, when faced with the prospect
of a joint trial, may have been for tactical or other valid
reasons. See State v. Walton, 227 Conn. 32, 55 n.20, 630
A.2d 990 (1993). . . . See, e.g., United States v.
Romero, 54 F.3d 56, 59–60 (2d Cir. 1995), cert. denied,
517 U.S. 1149, 116 S. Ct. 1449, 134 L. Ed. 2d 568 (1996)
(counsel did not pursue severance for tactical reasons);
United States v. Jackson, 33 F.3d 866, 875–76 (7th
Cir.1994), cert. denied, 514 U.S. 1005, 115 S. Ct. 1316,
131 L. Ed. 2d 197 (1995) (court presumed that failure
to seek severance was tactical decision); United States
v. Cyprian, 23 F.3d 1189, 1194 (7th Cir.), cert. denied,
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0 Conn. App. 1 ,0 13
State v. Colon

513 U.S. 879, 115 S. Ct. 211, 130 L. Ed. 2d 139 (1994)
(counsel did not pursue severance for tactical reasons).
Thus, to consider the defendant’s claim on appeal would
be to impose an untenable burden on the trial court
and would amount to appeal by ambuscade.’’ (Footnote
omitted; internal quotation marks omitted.) State v.
Berube, supra, 747–48.11 The same is true in the present
case. We cannot conclude that the trial court committed
plain error simply because it did not question what may
have been a tactical choice by the defendant or his
counsel. This is especially true when a straightforward
remedy to the purportedly improper joinder—a motion
to sever pursuant to Practice Book § 41-18—was avail-
able to the defendant.12 Consequently, we cannot con-
clude that the court’s failure sua sponte to sever the
11
Our Supreme Court has similarly rejected claims that a trial court has
a sua sponte obligation to sever the trial of codefendants if ‘‘the facts
available to the court prior to trial and developed during the trial’’ lead the
court to believe that a joint trial will prejudice one of the defendants. See
State v. Varricchio, 176 Conn. 445, 447–48, 408 A.2d 239 (1975) (‘‘There is
no affirmative duty on the part of the court to move for separate trials. . . .
A motion to sever is addressed to the sound discretion of the court. . . .
The motion should be made prior to commencement of the trial . . . and
it is the party’s responsibility to present information to the court from which
it can determine whether the defenses are going to be antagonistic or the
evidence will unduly prejudice either or both defendants.’’ (Citations omit-
ted.)). As it did in Berube, the court in Varricchio recognized that a defen-
dant’s decision to forgo a motion to sever may be strategic in nature. Id., 449.
12
Although Practice Book § 41-18 provides in relevant part that, ‘‘[i]f it
appears that a defendant is prejudiced by a joinder of offenses, the judicial
authority may, upon its own motion . . . order separate trials,’’ it does not
create a sua sponte obligation on the court to raise the issue of severance.
(Emphasis added.) Furthermore, because § 41-18 permits the court to raise
the issue of severance ‘‘upon its own motion,’’ the parties would necessarily
have an opportunity to be heard in response to the court’s motion. See
Cameron v. Santiago, 223 Conn. App. 836, 843–44, 310 A.3d 391 (2024) (due
process requires that parties be given opportunity to address issues raised
sua sponte by court). The court cannot unilaterally order severance, as the
defendant seems to suggest.
Moreover, we note that neither in his appellate briefs nor during oral
argument before this court did the defendant argue that the trial court
abused its discretion by not making its own motion to sever the cases
pursuant to Practice Book § 41-18. Although the state seems to construe
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14 ,0 0 Conn. App. 1
State v. Colon

offenses for trial constituted error, let alone plain error.
See State v. Groomes, 232 Conn. 455, 467, 656 A.2d 646
(1995) (concluding that trial court did not commit plain
error by failing to sever, sua sponte, first three counts
of information).13
II
The defendant next claims that the evidence was
insufficient to prove beyond a reasonable doubt that
he operated a motor vehicle while having an elevated
blood alcohol content in violation of § 14-227a (a) (2).
Specifically, the defendant argues that the state was
required to prove beyond a reasonable doubt that the
defendant’s blood alcohol content was greater than 0.08
percent but ‘‘the evidence at trial showed that the
[breath test] would overstate the blood alcohol content
for roughly one quarter of the population.’’ The defen-
dant argues that, because he could be part of this
the defendant’s claim as such, because the defendant has not raised such
a claim, we do not consider whether the court’s failure to raise the possibility
of severance pursuant to § 41-18 was, in the present case, an abuse of its
discretion.
13
In his reply brief, the defendant disputes the state’s assertion on appeal
that the defendant had ‘‘the opportunity to challenge the state’s charging
document prior to trial.’’ The defendant argues that the state ‘‘ignores the
circumstances under which that charging document was presented. At the
time that the defendant’s trial counsel came into the case, there was already
a single information listing two offenses from different dockets, and the
case had been pending for over eight months. Counsel reasonably could
presume that the state had gone through the proper procedure to join those
offenses prior to his appearance. In other words, counsel had no notice
that the charges were improperly joined in the first place, because the joint
information was filed before the defendant’s counsel was assigned to the
case.’’ This argument requires little discussion. The transcripts of the trial
court proceedings reflect that the defendant was represented by counsel at
each court appearance and the original information charged the defendant
with both counts. A review of the trial court file also reflects no motion by
the state to join the offenses for trial. Furthermore, Practice Book § 41-18
does not limit the defendant’s ability to seek to sever the offenses for
trial. Consequently, new counsel could have sought severance if he could
demonstrate prejudice to the defendant, even if the court previously had
granted a motion by the state to join the offenses for trial.
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roughly 25 percent of the population, there was, as a
matter of law, a reasonable doubt as to his guilt. We
are not persuaded.
The following facts and procedural history are rele-
vant to our resolution of this claim. At trial, Rutkowski
testified as to his interaction with the defendant, includ-
ing his observations of the defendant’s statements, behav-
ior, and performance of the three field sobriety tests.
He described the defendant’s lane change as ‘‘abrupt’’
and stated that the defendant did not use a turn signal.
He testified that, during the traffic stop, he noticed that
the defendant’s breath smelled of alcohol, he slurred
his words when he spoke, and he had bloodshot and
glassy eyes. Rutkowski also recounted that he observed
several empty beer cans in the defendant’s vehicle and
that, during the traffic stop, the defendant stated that
he had pulled over to call his wife to ask her to pick him
up because he was unable to drive. Rutkowski testified
that the defendant did not perform any of the three
field sobriety tests to standard. He testified as to the
defendant’s statements at the police station, including
the defendant’s statements that he previously consumed
alcohol earlier in the day and the defendant’s prediction
that he would fail the breath test. Rutkowski also testi-
fied as to the breath test results, which expressed that
the defendant’s blood alcohol content was 0.1008 per-
cent at 6:16 p.m. and 0.0905 percent at 6:36 p.m. on the
date of his arrest. The jury also had the opportunity to
view the video footage from Rutkowski’s body camera,
which captured the incident from the initiation of the
traffic stop through the administration of the breath
tests and the booking of the defendant at the police sta-
tion.
Powers testified for the state as an expert witness
about the results of the breath tests and the effect of
alcohol on the body. Referencing the admitted breath
test results, Powers extrapolated back to the time when
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the defendant was operating his vehicle and opined that
defendant’s blood alcohol content would have been
approximately 0.12 percent.14 Powers further testified
as to the physical effects of a blood alcohol content of
0.08 percent or higher. He explained that a driver’s
ability to stay within lanes or track the road is affected
once their blood alcohol content reaches 0.08 or 0.1
percent. He further testified as to how a person’s perfor-
mance on the standardized field sobriety tests corre-
lates to blood alcohol content as follows:
‘‘[Powers]: Around the 0.08, 0.1 and higher, we start
to see the effects on physical abilities to perform the
standardized field sobriety tests. . . . [T]he standard-
ized field sobriety tests are kind of a blunt instrument.
The Draeger measures very exactly. The standardized
field sobriety tests are not quite as exact. So, at a 0.1,
0.08, around in there I expect to see some clues on the
standardized field sobriety tests. Below that, I really
only expect to see the horizontal gaze nystagmus test
show all three clues on an individual with greater than
about 0.05 grams per deciliter. The horizontal gaze nys-
tagmus test is much more sensitive than the other two.
So, the [horizontal gaze nystagmus] kicks in at about
0.05. The walk and turn and one leg stand test . . .
tend to start kicking in at about an 0.08 and higher. But
again, there’s kind of a broad range there so we don’t
try to narrow in too much on those.
‘‘[The Prosecutor]: And would it be your expert opin-
ion to a reasonable degree of scientific certainty that
the defendant was over a 0.08?
14
At trial, Powers described the defendant’s blood alcohol content while
operating the vehicle as 0.12 grams per deciliter, which is equal to 0.12
grams of alcohol per 100 milliliters of blood. Powers testified that the Draeger
test expresses blood alcohol content as ‘‘alcohol per 210 liters [of air], which
is equivalent to 100 milliliters of blood.’’ Powers explained that, although
the exact unit referred to can differ, they ‘‘all basically refer to the same
number,’’ i.e., grams of alcohol per 100 milliliters of blood as a weight to
volume percentage.
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State v. Colon

‘‘[Powers]: At the time of assessment, yes. Based on
all the factors I took into consideration, yes.’’
Powers also testified as to how to the Draeger
machine measures blood alcohol content. He explained
that the machine first measures the amount of alcohol
in a person’s breath and then expresses it in a blood
alcohol concentration through the use of a conversion
factor. On cross-examination, defense counsel ques-
tioned Powers as to the conversion factor in the follow-
ing exchange:
‘‘[Defense Counsel]: You mentioned a moment ago
[that] when we’re looking at [the results of the Draeger
test], that’s the result of a conversion factor. Right?
‘‘[Powers]: . . . There is a conversion factor
between alcohol in the blood and alcohol in the breath.
And that conversion factor is one to 2100 as used by
the state. That’s a little lower than the true average in
the general population, but that’s what’s used in the
state. So, the instrument expresses the result in terms
of . . . 210 liters [of air], which is what you would
expect in 100 milliliters of blood. So, using that conver-
sion factor the amount of air in—or the amount alcohol
in 210 liters [of air] is what’s expected in 100 milliliters
in blood. The Draeger . . . expresses that as alcohol
per 210 liters [of air] which is equivalent to 100 milliliters
of blood. So, the conversion factor is built into the
process.
‘‘[Defense Counsel]: . . . [T]he breath machine—it’s
working on an average, correct?
‘‘[Powers]: Not exactly. The average is about 2370
but it uses the factor of 1:2100 rather than 1:2370.
‘‘[Defense Counsel]: But regardless of what the aver-
age is that it’s using, it’s using an average, right?
‘‘[Powers]: Yes.
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State v. Colon

‘‘[Defense Counsel]: So, because it’s using the aver-
age, any person who submits to a chemical test that
person may not be this average that we’re talking about?
‘‘[Powers]: I wouldn’t expect them to be.
‘‘[Defense Counsel]: Of course. And because the
machine is operating on an average, in fact, it could
be overestimating someone’s [blood alcohol content],
correct?
‘‘[Powers]: . . . It’s actually underestimating for the
majority of the population. There’s only a small percent-
age that it is overestimating.
‘‘[Defense Counsel]: . . . [B]ut there is a percentage
of the population that it is overestimating?
‘‘[Powers]: Yes.
‘‘[Defense Counsel]: So, any specific person, their
[blood alcohol content] really could be lower than
what’s on that test strip?
‘‘[Powers]: Yes.
‘‘[Defense Counsel]: And is it the only way we would
really know if that test strip was accurate on March
10th, 2020, is if the person had submitted to a blood
test at the same time?
***
‘‘[Powers]: So, the concentration of alcohol in the air
as reflected in the Draeger strip is going to be accurate
or I would expect to be accurate. To the extent that
the conversion factor, the 1:2100, is incorrect or is not
an accurate reflection of the subject, that is—that’s
been pretty well explored . . . on a statistical basis.
. . . So, we know the ranges in which 95 and 99 percent
of the population would fall. So, I guess I would agree
with your premise that I would not expect any particular
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State v. Colon

individual to have an exact 1:2100 blood-breath parti-
tion coefficient but, as I say for about [three-fourths]
of the population, the Draeger is actually understating
the . . . blood alcohol concentration. . . . But there
are indeed individuals for whom it is overstating.’’
On redirect examination of Powers, the state further
inquired as to how the conversion factor affected his
opinion:
‘‘[The Prosecutor]: [Do] any of the factors that were
discussed . . . change your opinion?
‘‘[Powers]: No. I do take into account the uncertainty
associated with the process of breath—interpolating a
blood alcohol from a breath. So, I take that into account
in my considerations as a part of my responsibility and
due diligence.’’
The defendant’s sufficiency claim is based entirely
on Powers’ statement that the Draeger test understates
the blood alcohol concentration for ‘‘about three-
fourths of the population.’’ The defendant reasons that
this means that the test must overstate the blood alcohol
concentration for approximately one-fourth of the pop-
ulation, and because the jury did not know what per-
centage of the population the defendant was in, the
evidence was insufficient to convict him. We are not
persuaded.
We begin with our well settled standard of review
for sufficiency of the evidence claims. ‘‘In reviewing a
sufficiency of the evidence claim, we apply a two part
test. First, we construe the evidence in the light most
favorable to sustaining the verdict. Second, we deter-
mine whether upon the facts so construed and the infer-
ences reasonably drawn therefrom the [jury] reasonably
could have concluded that the cumulative force of the
evidence established guilt beyond a reasonable doubt
. . . . This court cannot substitute its own judgment
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20 ,0 0 Conn. App. 1
State v. Colon

for that of the jury if there is sufficient evidence to
support the jury’s verdict. . . .
‘‘While the jury must find every element proven
beyond a reasonable doubt in order to find the defen-
dant guilty of the charged offense, each of the basic
and inferred facts underlying those conclusions need
not be proved beyond a reasonable doubt. . . . If it is
reasonable and logical for the jury to conclude that a
basic fact or an inferred fact is true, the jury is permitted
to consider the fact proven and may consider it in com-
bination with other proven facts in determining whether
the cumulative effect of all the evidence proves the
defendant guilty of all the elements of the crime charged
beyond a reasonable doubt. . . .
‘‘On appeal, we do not ask whether there is a reason-
able view of the evidence that would support a reason-
able hypothesis of innocence. We ask, instead, whether
there is a reasonable view of the evidence that supports
the jury’s verdict of guilty.’’ (Internal quotation marks
omitted.) State v. Capasso, 203 Conn. App. 333, 338–39,
248 A.3d 58, cert. denied, 336 Conn. 939, 249 A.3d
352 (2021).
‘‘Section 14-227a (a) provides in relevant part that
‘[a] person commits the offense of operating a motor
vehicle while under the influence of intoxicating liquor
. . . if such person operates a motor vehicle . . . (2)
while such person has an elevated blood alcohol con-
tent. . . .’ ‘Elevated blood alcohol content’ is defined
as ‘a ratio of alcohol in the blood of such person that
is eight-hundredths of one per cent or more of alcohol,
by weight . . . .’ ’’ (Emphasis omitted.) State v. Mos-
back, 159 Conn. App. 137, 150, 121 A.3d 759 (2015).
The defendant argues that Powers’ testimony at trial
about the conversion factor established that ‘‘the
[breath test] would overstate the blood alcohol content
for roughly one-quarter of the population’’ and that,
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State v. Colon

without additional evidence of the defendant’s conver-
sion factor or the blood-breath partition coefficient,
the jury was forced to speculate about whether the
evidence at trial established the defendant’s guilt
beyond a reasonable doubt. With respect to the
remaining evidence of the defendant’s intoxication, the
defendant contends that it was ‘‘insufficient to support
the inference that the defendant had a blood alcohol
content of above 0.08 at the time he was driving,
because nothing was presented that would allow the
jury to correlate that evidence with a precise blood
alcohol level.’’
We conclude that, given the cumulative effect of the
evidence in the record, there was more than sufficient
evidence to support the jury’s finding that the defendant
had an elevated blood alcohol content as required by
§ 14-227a (a) (2). To establish that the defendant’s blood
alcohol content was greater than 0.08 percent, the state
admitted the results of the breath tests that showed
that the defendant had a blood alcohol content of 0.1008
percent at 6:16 p.m. and 0.0905 percent at 6:36 p.m.
The state also offered the testimony of Powers, who
estimated that the defendant’s blood alcohol content
was 0.12 percent at the time the defendant was
operating the vehicle. That blood alcohol content
clearly was greater than the legally permissible limit of
0.08 percent.
Although Powers testified on cross-examination that
the Draeger machine underestimates the blood alcohol
content for three-fourths of the population and that
‘‘there are indeed individuals for whom it is overstat-
ing,’’ he explained on redirect examination that the
uncertainties he was asked about on cross-examination
did not alter his opinion to reasonable degree of medical
certainty that the defendant’s blood alcohol content
was greater than 0.08 at the time he was operating his
vehicle. It was for the jury to assess the weight of
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State v. Colon

Powers’ entire testimony about the reliability of the
Draeger test and the conclusions he drew from it and
the other evidence. See State v. Kirsch, 263 Conn. 390,
409, 820 A.2d 236 (2003) (‘‘the defendant’s challenges
to the methodology [of an alcohol dehydrogenase based
blood test] affected the weight of the testimony and
not its reliability’’). It is well established that ‘‘a trier
of fact may accept or reject, in whole or in part, the
testimony of an expert offered by one party.’’ Menard
v. State, 346 Conn. 506, 521–22, 291 A.3d 1025 (2023).

Further, despite the defendant’s contentions to the
contrary, the evidence regarding the defendant’s inter-
actions with Rutkowski corroborated Powers’ opinion
that the Draeger test did not overestimate the defen-
dant’s level of intoxication while he was operating his
motor vehicle. Both Rutkowski’s testimony and the
body camera footage provided evidence of the defen-
dant’s level of intoxication, including his slurred words,
the presence of empty beer cans, and his failed field
sobriety tests. Furthermore, Powers’ testimony
explained how the defendant’s observed behavior and
performance on the field sobriety tests reflected an
elevated blood alcohol content of 0.08 percent or higher.
Powers testified that a driver’s ability to stay within
lanes or track the road is affected once blood alcohol
content reaches 0.08 or 0.1 percent. Rutkowski testified
regarding the defendant’s operation of his vehicle that
warranted the traffic stop, i.e., his abrupt crossing of
three lanes of highway without using a turn signal. Sig-
nificantly, Powers also testified as to the specific blood
alcohol content that correlates with substandard perfor-
mance on the field sobriety tests. He testified that, ‘‘the
[horizontal gaze nystagmus] kicks in at about 0.05. The
walk and turn and one-leg stand test . . . tend to start
kicking in at about an 0.08 and higher.’’ Between Rut-
kowski’s testimony, the corresponding body camera
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State v. Colon

footage demonstrating the defendant’s substandard per-
formance on the walk and turn test and the one leg
stand test, Powers’ testimony, and the results of the
defendant’s breath tests, the jury had ample evidence to
conclude beyond a reasonable doubt that the defendant
had a blood alcohol content of 0.08 percent or higher
when he operated his motor vehicle on the evening of
March 10, 2020 in violation of § 14-227a (a) (2).
The judgments are affirmed.
In this opinion the other judges concurred.