State v. Mosback

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STATE OF CONNECTICUT v. ROBERT J. MOSBACK
(AC 35173)
Beach, Alvord and Mullins, Js.
Argued February 4—officially released August 11, 2015

(Appeal from Superior Court, judicial district of New
Britain, geographical area number fifteen, Kahn, J.
[motions to suppress, dismiss]; Alander, J. [motion for
judgment of acquittal, judgment].)
David V. DeRosa, with whom, on the brief, was Aus-
tin B. Johns, for the appellant (defendant).
Michele C. Lukban, senior assistant state’s attorney,
with whom, on the brief, were Brian Preleski, state’s
attorney, and Mary Rose Palmese, supervisory assistant
state’s attorney, for the appellee (state).
Opinion

MULLINS, J. The defendant, Robert J. Mosback,
appeals from the judgment of conviction, rendered after
a jury trial, of operating a motor vehicle while having an
elevated blood alcohol content in violation of General
Statutes § 14-227a (a) (2) and reckless driving in viola-
tion of General Statutes § 14-222 (a). The defendant
claims that the trial court improperly denied his motions
(1) to suppress evidence of his medical records; (2) for
a judgment of acquittal that was based on the alleged
insufficiency of the blood test evidence; and (3) to dis-
miss the reckless driving count, and refused to allow
him to present his statute of limitations defense to the
jury and refused his request to charge the jury on that
issue. We disagree and, accordingly, affirm the judg-
ment of the trial court.
The following facts and procedural history are rele-
vant to this appeal. In the late afternoon and evening
of June 26, 2010, the defendant, a police officer with
the city of Bristol, consumed multiple alcoholic bever-
ages at two separate gatherings in his neighborhood
while off duty. The defendant went home from the sec-
ond gathering at approximately 8 p.m., and took a two
hour nap.
After waking from his nap, the defendant drove to
the Bristol Police Department headquarters and
reported for his shift. His shift ran from 10:45 p.m. until
6:45 a.m. Shortly after starting his shift, the defendant
left the department in his police cruiser and drove east-
bound on Riverside Avenue. At the same time, Tammy
Forrest was driving her vehicle in the opposite direc-
tion, westbound on Riverside Avenue.
As the vehicles were travelling toward one another,
the defendant was driving at a high rate of speed and
lost control of his cruiser at a bend in the road. He
crossed into Forrest’s lane and nearly hit her vehicle
head-on. After narrowly missing Forrest’s vehicle, the
defendant crashed his cruiser sideways into a utility
pole, causing the pole to break. The crash rendered
the defendant unconscious. A short time later, medical
personnel arrived and transported the defendant to
Saint Francis Hospital and Medical Center in Hartford
for treatment.
The defendant was admitted to the hospital at approx-
imately 11:56 p.m. Immediately upon his admission, the
medical staff ordered various tests, which was part
of the hospital’s protocol for trauma patients such as
the defendant.
Among the tests performed by the medical staff was
an ‘‘ETOH’’ test, which analyzed the defendant’s blood
alcohol content. At approximately 12:01 a.m., the medi-
cal staff drew a sample of the defendant’s blood, which
was sent to the laboratory for testing.
The blood test was conducted using a Vitros Fusion
5.1 machine. The Vitros machine measured the defen-
dant’s blood alcohol content by means of an enzymatic
reaction with alcohol dehydrogenase; it then expressed
the alcohol content results using a weight of alcohol
to volume of blood ratio. The test was completed at
approximately 12:45 a.m. The test revealed that the
defendant had a serum blood alcohol concentration of
151 milligrams per deciliter.1 The serum blood alcohol
content range for a patient with no alcohol in his system
is less than ten milligrams per deciliter. A serum result
of 151 milligrams per deciliter translated to a 0.13 per-
cent whole blood alcohol content, which is the measure
used to determine legal intoxication. As a result of the
defendant’s elevated blood alcohol content, the treating
physician initially was unable to make an accurate
assessment of the defendant’s condition, and the defen-
dant was kept at the hospital. The treating physician
wrote ‘‘alcohol intoxication’’ under the ‘‘clinical impres-
sion’’ section of the emergency physician record. The
next morning, the defendant’s blood alcohol content
fell closer to normal levels, and he was released from
the hospital. The defendant’s evaluation at the hospital,
including his blood test results, was recorded in his
medical records. The police later seized the medical
records pursuant to a search warrant issued on Novem-
ber 16, 2010.
On November 22, 2010, the state issued a warrant for
the defendant’s arrest and filed the original information
charging the defendant with operating a motor vehicle
while under the influence of alcohol in violation of
§ 14-227a.2 The arrest warrant affidavit incorporated
statements from the defendant’s neighbors, which indi-
cated that the defendant had consumed multiple alco-
holic beverages on the evening of the crash before
beginning his shift. The arrest warrant affidavit also
included statements from witnesses to the crash
describing the defendant’s erratic driving. Finally, the
affidavit contained the defendant’s hospital blood test
result, which showed that his ‘‘blood alcohol content
was 0.151’’ on the night of the crash.
The police arrested the defendant on December 2,
2010. On May 29, 2012, the state filed an amended infor-
mation. In the amended information, the state for the
first time clarified that it was charging the defendant
with operating his police cruiser while having an ele-
vated blood alcohol content in violation of § 14-227a
(a) (2). The state also added, inter alia,3 a new count
of reckless driving in violation of § 14-222 (a).4
In the course of the jury trial on these charges, the
defendant filed a motion for a judgment of acquittal
on the basis of alleged insufficiency of the blood test
evidence. The court denied that motion. The defendant
was convicted of operating a motor vehicle while having
an elevated blood alcohol content and reckless driving.
The court imposed a sentence of six months and thirty
days incarceration, execution suspended, followed by
two years of probation. This appeal followed. Additional
facts will be set forth as necessary.
I
MOTION TO SUPPRESS MEDICAL RECORDS
The defendant claims that the court improperly
denied his motion to suppress his medical records. Spe-
cifically, the defendant claims that his original attorney,
Theodore Wurz, provided ineffective assistance of
counsel, in violation of the sixth amendment to the
United States constitution, when he provided portions
of the defendant’s medical records to the police. In
particular, he argues that the court should have sup-
pressed his medical records because the disclosure of
those records ‘‘was premised on [Wurz’] failure to ade-
quately investigate and seek expert assistance in
reviewing the medical records before formulating a
deeply flawed theory of the criminal case.’’ We are
not persuaded.
We first set forth the standard of review for claims
relating to a motion to suppress. ‘‘Our standard of
review of a trial court’s findings and conclusions in
connection with a motion to suppress is well defined.
A finding of fact will not be disturbed unless it is clearly
erroneous in view of the evidence and pleadings in the
whole record . . . . [W]here the legal conclusions of
the court are challenged, we must determine whether
they are legally and logically correct and whether they
find support in the facts set out in the memorandum
of decision . . . . Additionally, we are mindful of our
authority to affirm a judgment of a trial court on a
dispositive alternate ground for which there is support
in the trial court record.’’ (Internal quotation marks
omitted.) State v. Pierce, 67 Conn. App. 634, 638–39,
789 A.2d 496, cert. denied, 260 Conn. 904, 795 A.2d
546 (2002).
The following facts and procedural history are rele-
vant to this claim. Following the accident, the city filed
a workers’ compensation claim on behalf of the defen-
dant.5 The city’s insurance carrier challenged the claim
to the Workers’ Compensation Commission on the basis
of the defendant’s wilful misconduct and intoxication.
Due to the challenge to the workers’ compensation
claim, the city and the department became aware that
the defendant’s medical records indicated he was intox-
icated on the night of June 26, 2010.
On September 29, 2010, after meeting with the chief
of the department, a representative from the city, and
the defendant’s union representative, the defendant
resigned from the department. Notwithstanding the
defendant’s resignation, on the basis of rumors that the
defendant had been drinking at neighborhood gather-
ings prior to his shift, the department suspected that
he had been intoxicated when he crashed his cruiser
and continued to investigate his alleged misconduct on
the night of June 26, 2010. In particular, the department,
the city, and the state’s attorney deputized James
McGlynn, a detective with the state police, to investigate
the accident.
After resigning from the department, the defendant
hired Wurz to assist him in rescinding his resignation
and to represent him in connection with the depart-
ment’s continued investigation into his alleged miscon-
duct. The defendant and Wurz decided that their
defense strategy would be to challenge the validity of
the blood test, the results of which they believed had
been released at 12:01 a.m., a mere five minutes after
the defendant was admitted to the hospital.6 Accord-
ingly, the defendant and Wurz agreed to cooperate with
any potential investigation and to challenge the validity
of the blood test.
On November 1, 2010, McGlynn, in furtherance of his
investigation, contacted Wurz by telephone and
requested an interview with the defendant. Wurz told
McGlynn that the defendant would not meet with him.
Instead, Wurz personally agreed to meet with McGlynn
that day without the defendant being present. Wurz also
told McGlynn that he possessed copies of the defen-
dant’s medical records, which he claimed contained
an error that invalidated the test results, namely, the
incorrect release time of the test results. At the meeting,
Wurz provided McGlynn a copy of portions of the medi-
cal records. During that meeting, McGlynn noticed that
sections of the medical records were missing and
requested that the defendant sign a full release of his
medical records. In accordance with McGlynn’s
requests, the defendant executed two signed authoriza-
tions releasing the medical records, one dated Novem-
ber 1, 2010, and another dated November 10, 2010.
Thereafter, McGlynn prepared a search and seizure
warrant to obtain a full copy of the defendant’s medical
records. The search warrant affidavit stated that the
defendant had consumed alcohol at neighborhood gath-
erings prior to his shift, that his reported blood alcohol
content at the hospital was 0.151, and that he had signed
authorizations to release his medical records. A judge
signed the search warrant on November 16, 2010. There-
after, the police arrested the defendant and charged
him with operating a motor vehicle while under the
influence of intoxicating liquor.
On May 11, 2012, the defendant obtained new coun-
sel. On May 16, 2012, the defendant filed a motion to
suppress his medical records on the ground that the
release of those records to the police amounted to a
‘‘breach of . . . [the defendant’s] attorney-client privi-
lege.’’7 After holding a hearing on the motion to sup-
press, the court, Kahn, J., issued a memorandum of
decision in which it denied the motion to suppress on
the grounds that ‘‘[i]t was only a matter of time before
the authorities would gain access to the medical records
in full’’ and that Wurz had not been ineffective in repre-
senting the defendant. The defendant’s medical records,
which included the blood test results, were entered into
evidence at trial.
On appeal, the defendant contends that his medical
records should have been suppressed because Wurz
‘‘rendered ineffective assistance of counsel by failing
to adequately investigate before disclosing privilege[d]
medical records to the state police, and doing so with-
out [getting] [the defendant’s] informed consent.’’ The
state contends, as an alternative ground for affirmance,
that ‘‘the defendant’s sixth amendment right to counsel
had not yet attached’’ when Wurz provided the defen-
dant’s medical records to the police. In his reply brief,
the defendant responds that his sixth amendment right
to counsel had attached when Wurz released his medi-
cal records because the police inquiry at that time ‘‘was
more than a mere investigation but an attempt to build
a case against a targeted defendant . . . .’’ We agree
with the state’s alternative ground for affirmance.8
It is well established that ‘‘[a] criminal defendant is
constitutionally entitled to adequate and effective assis-
tance of counsel at all critical stages of criminal pro-
ceedings. . . . This right arises under the sixth and
fourteenth amendments to the United States constitu-
tion and article first, § 8, of the Connecticut constitu-
tion. . . . It is axiomatic that the right to counsel is the
right to the effective assistance of counsel.’’ (Citations
omitted; internal quotation marks omitted.) Thiersaint
v. Commissioner of Correction, 316 Conn. 89, 100–101,
111 A.3d 829 (2015). ‘‘This right attaches only at or after
the initiation of adversary judicial criminal proceed-
ings—whether by way of formal charge, preliminary
hearing, indictment, information, or arraignment. . . .
The initiation of judicial criminal proceedings is far
from a mere formalism. It is the starting point of our
whole system of adversary criminal justice. For it is
only then that the government has committed itself to
prosecute, and only then that the adverse positions of
[the] government and [the] defendant have solidified.
It is then that a defendant finds himself faced with the
prosecutorial forces of organized society, and
immersed in the intricacies of substantive and proce-
dural criminal law. It is this point, therefore, that marks
the commencement of the criminal prosecutions to
which alone the explicit guarantees of the [s]ixth
[a]mendment are applicable. . . . We also have noted
that the time of the attachment of the right to counsel
under the federal constitution is no different under arti-
cle first, § 8, of the constitution of Connecticut.’’ (Cita-
tions omitted; internal quotation marks omitted.) State
v. Pierre, 277 Conn. 42, 92–93, 890 A.2d 474, cert. denied,
547 U.S. 1197, 126 S. Ct. 2873, 165 L. Ed. 2d 904 (2006).
In the present case, it is undisputed that the state
had not charged the defendant with any crime on
November 1, 2010, when Wurz provided the defendant’s
medical records to the police. Additionally, the state
had not charged the defendant with any crime at the
time he executed a second signed release of his medical
records on November 10, 2010. Indeed, the state did
not file the original information against the defendant
until November 22, 2010. Therefore, criminal proceed-
ings had not commenced, and the defendant’s sixth
amendment right to counsel had not been triggered
when Wurz provided the medical records to the police.
See, e.g., State v. Vitale, 190 Conn. 219, 233, 460 A.2d
961 (1983) (defendant’s sixth amendment right to coun-
sel did not attach in period between arrest and filing
of information or indictment); State v. Packard, 184
Conn. 258, 267, 439 A.2d 983 (1981) (‘‘[c]ounsel is
required at all lineups and showups held after the com-
mencement of criminal proceedings and is not required
at the prearraignment stage, including the period from
the initial detention to the formal arrest’’ [emphasis
added]). As a result, in the present case the alleged
constitutionally ineffective assistance of the defen-
dant’s original attorney provided no basis to suppress
the medical records. The court, thus, properly denied
the defendant’s motion to suppress.
II
SUFFICIENCY OF BLOOD TEST
Next, the defendant claims that the court improperly
denied his motion for a judgment of acquittal because
the evidence of his blood test results was ‘‘insufficient
to establish the element of ‘blood alcohol content’ in
the statutory definition of operating under the influence
in violation of General Statutes § 14-227a (a).’’ Specifi-
cally, the defendant argues that the state failed to dem-
onstrate that his blood alcohol content was elevated in
terms of the ratio of weight of alcohol to weight of
blood, as required by statute, and that evidence that he
had an elevated blood alcohol content expressed in
terms of weight of alcohol to volume of blood was
insufficient. We disagree and conclude that there was
sufficient evidence from which the jury reasonably
could have determined that the defendant was
operating a motor vehicle with a blood alcohol content
of 0.08 percent or more by weight, as required by statute.
We begin by setting forth our standard of review. ‘‘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 determine whether upon the facts so construed and
the inferences reasonably drawn therefrom the [trier
of fact] reasonably could have concluded that the cumu-
lative force of the evidence established guilt beyond a
reasonable doubt. . . . In evaluating evidence, the trier
of fact is not required to accept as dispositive those
inferences that are consistent with the defendant’s inno-
cence. . . . The trier may draw whatever inferences
from the evidence or facts established by the evidence it
deems to be reasonable and logical.’’ (Internal quotation
marks omitted.) State v. Jordan, 314 Conn. 89, 106–107,
101 A.3d 179 (2014). ‘‘Due process requires that the state
prove each element of an offense beyond a reasonable
doubt. . . . It follows that insufficiency of the evidence
to support a jury’s ultimate findings on each of these
elements requires acquittal.’’ (Citation omitted.) State
v. Crafts, 226 Conn. 237, 244, 627 A.2d 877 (1993).
The defendant claims that the blood test results were
insufficient for the jury to conclude that he had an
‘‘elevated blood alcohol content’’ as defined by § 14-
227a (a) (2). The defendant argues that, because the
Vitros machine measured his blood alcohol content
with a weight of alcohol to volume of blood basis, rather
than with a weight of alcohol to weight of blood basis,
the evidence was insufficient to support his conviction
under § 14-227a (a) (2). We disagree.
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 added.) General Statutes
§ 14-227a (a) (2).
Here, to establish that the defendant’s blood alcohol
content was greater than 0.08 percent, the state intro-
duced into evidence blood test results that expressed
the defendant’s blood alcohol content using a weight
of alcohol to volume of blood ratio, instead of a weight
of alcohol to weight of blood ratio. This court and our
Supreme Court have held, in the context of Breathalyzer
tests, that test results reporting blood alcohol content
by using a ratio of weight of alcohol to volume of breath
are sufficient to demonstrate that the defendant had an
‘‘elevated blood alcohol content’’ as defined by § 14-
227a (a) (2). See, e.g., Stash v. Commissioner of Motor
Vehicles, 297 Conn. 204, 211, 999 A.2d 696 (2010) (Intoxi-
lyzer test results expressed in weight of alcohol to vol-
ume of breath basis, rather than weight of alcohol to
weight of blood basis, sufficient to show operator had
elevated blood alcohol content as defined by General
Statutes § 14-227b [o] [1]);9 State v. Pilotti, 99 Conn.
App. 563, 571–79, 914 A.2d 1067 (sufficient evidence that
defendant operated motor vehicle with blood alcohol
greater than 0.08 percent by weight despite Breatha-
lyzer test result reporting amount of alcohol measured
by volume of breath rather than measured by weight
of breath), cert. denied, 282 Conn. 903, 919 A.2d 1037
(2007).
Thus, Stash and Pilotti instruct that the statutory
requirement regarding the amount of alcohol in one’s
blood being eight-hundredths of 1 percent or more of
alcohol, by weight, may be satisfied by a measuring
metric of weight to volume.10 We see no reason to
diverge from this principle in this case, where the state
introduced into evidence blood test results that
expressed the defendant’s blood alcohol content in
terms of weight of alcohol to volume of blood.
In the present case, the blood test results showed
that the defendant had a serum blood alcohol content
of 151 milligrams per deciliter when he was admitted
to the hospital. After the test results were introduced
into evidence, Robert H. Powers, the director of the
state toxicology laboratory, testified that the measure-
ment translated to a whole blood alcohol content of
approximately 0.13 percent.11 Powers then estimated
that, because the defendant metabolized some of the
alcohol that was in his system between the time of the
crash and when he arrived at the hospital, the defen-
dant’s blood alcohol content was 0.139 percent when
he crashed his cruiser into a utility pole. That blood
alcohol content clearly was greater than the legally
permissible limit of 0.08 percent. This was strong evi-
dence that the defendant had an elevated blood alcohol
content when he drove his police cruiser on the night
of this incident.
Although the defendant cross-examined the state’s
witnesses aggressively, offered his own expert to under-
mine the reliability of the test results, and criticized the
validity of the blood test results at closing argument,
once the blood test results were admitted into evidence,
it was within the province of the jury to assess the
weight of that evidence. See State v. Kirsch, 263 Conn.
390, 409, 820 A.2d 236 (2003) (‘‘the defendant’s chal-
lenges to the methodology [of an alcohol dehydroge-
nase based blood test] affected the weight of the
testimony and not its reliability’’). On the evidence pre-
sented here, the jury easily could have concluded that
the cumulative force of the evidence proved beyond a
reasonable doubt that the defendant had an elevated
blood alcohol content, as defined by § 14-227a (a) (2),
when he operated his police cruiser on the night of
June 26, 2010.
III
STATUTE OF LIMITATIONS
Finally, the defendant claims that the court improp-
erly (1) denied his motion to dismiss the reckless driving
count because the state brought this charge beyond the
statute of limitations and (2) refused to allow him to
present that ground to the jury. We disagree.
1
Motion to Dismiss
The defendant claims that the court, Kahn, J.,
improperly denied his motion to dismiss the reckless
driving count. The defendant argues that ‘‘[t]he statute
of limitations was not tolled by the state’s original
November 22, 2010 information, as the charge of reck-
less driving is insufficiently related to the original
charge of operating a motor vehicle [while] under the
influence of alcohol . . . .’’ We disagree.
The following facts and procedural history are rele-
vant to this claim. On June 4, 2012, the defendant moved
to dismiss the counts added in the amended information
on the ground that they were barred by the applicable
statute of limitations. On July 11, 2012, the court denied
the defendant’s motion to dismiss as to the reckless
driving charge.
In its memorandum of decision, the court stated that
the allegations underlying the reckless driving count
were ‘‘identical to the facts underlying the original infor-
mation charging the defendant with operating a motor
vehicle [while] under the influence.’’ The court specified
that the warrant affidavits included allegations about
the reckless manner that the defendant was driving on
the night of the crash and, therefore, ‘‘the defendant
was aware, from the date of his arrest, of the factual
allegations against which he would have to defend in
regard to the crash on June 26, 2010.’’ According to the
court, ‘‘[t]he factual allegations relating to the manner
in which the defendant was driving, speed and direction,
[were] also included in the affidavits. The affidavits
also contained statements from witnesses on the scene
relating to the alleged reckless manner in which the
defendant operated the vehicle prior to the crash.’’
Finally, the court acknowledged that ‘‘[w]hile the ele-
ments of the offenses are slightly different, the factual
allegations and evidence in support of those charges is
similar. While there is an additional exposure to the
defendant, that exposure is not impermissible or preju-
dicial under the circumstances of this case.’’ The record
supports the court’s conclusions.
‘‘The standard of review governing the defendant’s
claim that the trial court improperly failed to grant his
motion to dismiss a charge on the ground that the stat-
ute of limitations had passed is well settled. Our review
of the trial court’s legal conclusions and resulting denial
of the defendant’s motion to dismiss is de novo.’’ State
v. Golodner, 305 Conn. 330, 357, 46 A.3d 71 (2012).
Practice Book § 36-17 provides in relevant part: ‘‘If the
trial has not commenced, the prosecuting authority may
amend the information, or add additional counts, or file
a substitute information. . . .’’ ‘‘The general rule is that,
although the prosecution has broad authority to file an
amended or substitute information prior to trial . . .
[General Statutes § 54-193 (c)] provides that no person
may be prosecuted except within one year next after
the offense has been committed. . . . The issuance of
an arrest warrant tolls the running of the statute of
limitations, provided that it is executed without unrea-
sonable delay and with due diligence. . . . When the
state files an amended or substitute information after
the limitations period has passed, however, a timely
information will toll the statute of limitations only if the
amended or substitute information does not broaden or
substantially amend the charges made in the timely
information. . . . Although notice is the touchstone of
the analysis in determining whether an amended or
substitute information substantially broadens or
amends the timely charges . . . factors to assist in this
determination are whether the additional pleadings
allege violations of a different statute, contain different
elements, rely on different evidence, or expose the
defendant to a potentially greater sentence.’’ (Citations
omitted; internal quotation marks omitted.) State v.
Golodner, supra, 357–58.
Pursuant to § 54-193 (c),12 the charged violation of
§ 14-222 (a) was subject to a one year limitations period
because it was not punishable by a term of imprison-
ment of more than one year. Here, because the offense
occurred on June 26, 2010, and the state did not file
the amended information until May 29, 2012, there is
no dispute that the state failed to charge the defendant
with reckless driving within the applicable one year
statute of limitations. Consequently, we must address
whether the ‘‘arrest warrant and [original] information
. . . served to toll the running of the statute of limita-
tions’’ to permit the state to add the reckless driving
charge. State v. Jennings, 101 Conn. App. 810, 821, 928
A.2d 541 (2007).
In the present case, in the original information, the
state charged the defendant with violating § 14-227a.
There are two distinct ways in which a defendant could
violate § 14-227a. Indeed, this court has explained that
‘‘subdivisions (1) and (2) of . . . § 14-227a (a) . . . are
known, respectively, as the behavioral and per se subdi-
visions of that statute. . . . The behavioral subdivision
prohibits a person from operating a motor vehicle while
under the influence of intoxicating liquor. General Stat-
utes § 14-227a (a) (1). The per se subdivision prohibits
a person from operating a motor vehicle while he has
a blood alcohol content of 0.08 percent or greater. Gen-
eral Statutes § 14-227a (a) (2).’’ (Citation omitted.) State
v. Sunila, 98 Conn. App. 847, 849, 911 A.2d 773 (2006).
The original information in this case did not specify
the subdivision of § 14-227a (a) under which the state
would proceed with this prosecution. Thus, when the
state had filed the original information, it was possible
that the state would elect to prosecute the defendant
for violating § 14-227a (a) (1) for operating his police
cruiser while under the influence of an intoxicating
liquor.13 Indeed, ‘‘[i]n Connecticut, it is sufficient for
the state to set out in the information the statutory
name of the crime with which the defendant is charged,
leaving to the defendant the burden of requesting a bill
of particulars more precisely defining the manner in
which the defendant committed the offense.’’ (Internal
quotation marks omitted.) State v. Walton, 34 Conn.
App. 223, 227, 641 A.2d 391, cert. denied, 230 Conn. 902,
644 A.2d 916 (1994). Stated differently, the defendant
had to be prepared to defend against either or both
subdivisions until further clarification was obtained. In
this case, the defendant never asked the state to identify
the precise way in which he violated § 14-227a (a) and,
therefore, he was on notice that he was being charged
with both statutory alternative theories available under
that subsection.
In prosecutions for violations of § 14-227a (a) (1),
direct evidence that the driver had an elevated blood
alcohol content is not necessary or required for the
state to prove that a driver operated a motor vehicle
while under the influence of an intoxicating liquor. See
State v. Howell, 98 Conn. App. 369, 377, 908 A.2d 1145
(2006) (evidence that driver appeared impaired, spoke
with slurred speech, failed field sobriety tests, and
refused to submit to breath test sufficient for jury to
find driver violated § 14-227a [a] [1]). To demonstrate
that a defendant violated § 14-227a (a) (1), the state is
required to show that, as a result of the consumption
of intoxicating liquor, the defendant ‘‘had become so
affected in his mental, physical or nervous processes
that he lacked to an appreciable degree the ability to
function properly in relation to the operation of his
vehicle.’’ (Internal quotation marks omitted.) State v.
Morelli, 293 Conn. 147, 154, 976 A.2d 678 (2009).
This court consistently has held that evidence of
erratic driving supports a jury’s guilty verdict for viola-
tions of § 14-227a (a) (1). See, e.g., State v. Fontaine,
134 Conn. App. 224, 228, 40 A.3d 331 (conviction of
violation of § 14-227a [a] [1] supported by evidence that
defendant ‘‘drove in an erratic manner, crossing over
the white line on the right side of the roadway on three
occasions’’), cert. denied, 304 Conn. 926, 41 A.3d 1051
(2012); State v. Monahan, 125 Conn. App. 113, 120, 7
A.3d 404 (2010) (conviction of violation of § 14-227a [a]
[1] supported by evidence that driver ‘‘drove [vehicle]
onto the right curb five to seven times and into the
wrong lane three times, almost hitting four cars’’), cert.
denied, 299 Conn. 926, 11 A.3d 152 (2011); State v.
Coyne, 118 Conn. App. 818, 826–27, 985 A.2d 1091 (2010)
(‘‘testimony describing the defendant’s erratic driving,
including drifting between travel lanes, turning without
signaling, driving over a traffic cone, failing to maintain
a consistent speed and making a U-turn despite being
familiar with the area’’ supported conviction of violation
of § 14-227a [a] [1]).
Here, the arrest warrant included witness statements
indicating that, after consuming alcohol on the night
of June 26, 2010, the defendant drove his police cruiser
in an erratic manner and crashed into a utility pole.
The amended information charging the defendant with
reckless driving relied on those very facts pertaining
to the manner in which the defendant drove. Signifi-
cantly, the date, time, and place that the reckless driving
was alleged to have occurred were identical to the date,
time, and place that the defendant was alleged to have
operated his police cruiser while under the influence
of alcohol. See State v. Almeda, 211 Conn. 441, 447–48,
560 A.2d 389 (1989) (prosecution on substitute informa-
tion charging assault in first degree not time barred
where factual allegations were identical to those under-
lying original information charging attempt to com-
mit murder).
The factual allegations underlying the amended infor-
mation, thus, were ‘‘substantially similar to the facts
underlying’’ the original information; id., 446; and did
not ‘‘broaden or substantially amend the charges made
in the first information.’’ State v. Jennings, supra, 101
Conn. App. 818.14 The evidence in the record, thus, dem-
onstrates that the defendant had ‘‘timely notice . . .
of the factual allegations against which he [would] be
required to defend’’; (internal quotation marks omitted)
State v. Almeda, supra, 211 Conn. 446; and supports
the court’s conclusion that ‘‘the defendant was aware,
from the date of his arrest, of the factual allegations
against which he would have to defend in regard to the
crash on June 26, 2010.’’15 Therefore, the court properly
denied the defendant’s motion to dismiss the reckless
driving count.
2
Jury Charge
Next, the defendant claims that the court, Alander,
J., improperly denied his requests to raise his statute
of limitations defense at trial and to include an instruc-
tion on the statute of limitations in the jury charge. We
are not persuaded.
‘‘A challenge to the validity of jury instructions pre-
sents a question of law over which [we have] plenary
review.’’ (Internal quotation marks omitted.) State v.
Santiago, 305 Conn. 101, 191, 49 A.3d 566 (2012). It is
well established that ‘‘[c]entral to a defendant’s right
to a fair trial is the right to have issues of fact and
credibility decided by the jury.’’ (Emphasis added;
internal quotation marks omitted.) State v. Diaz, 86
Conn. App. 244, 253, 860 A.2d 791 (2004), cert. denied,
273 Conn. 908, 870 A.2d 1081 (2005). Nonetheless, ‘‘[t]he
court shall decide all issues of law and all questions of
law arising in the trial of criminal cases. . . .’’ General
Statutes § 54-89; see also State v. Marx, 78 Conn. 18,
28, 60 A. 690 (1905) (‘‘[i]n jury trials it is the province
of the court to decide questions of law, and of the jury
to decide questions of fact’’). Indeed, ‘‘[t]he principal
function of a jury charge is to assist the jury in applying
the law correctly to the facts which [it] might find to
be established . . . .’’ (Emphasis added; internal quota-
tion marks omitted.) State v. Wright, 149 Conn. App.
758, 772, 89 A.3d 458, cert. denied, 312 Conn. 917, 94
A.3d 641 (2014). Significantly, it is well established that
‘‘[t]he interpretation of pleadings is always a question
of law for the court . . . .’’ (Internal quotation marks
omitted.) Torres v. Carrese, 149 Conn. App. 596, 613, 90
A.3d 256, cert. denied, 312 Conn. 912, 93 A.3d 595 (2014).
In the present case, the court permitted the state to
charge the defendant with additional counts beyond
the statutorily permitted period because the new infor-
mation did not ‘‘broaden or substantially amend the
charges made in the timely information.’’ State v.
Golodner, supra, 305 Conn. 357. That determination
required a comparison between the facts underlying
the amended information and the facts underlying the
original information; see State v. Jennings, supra, 101
Conn. App. 821; which was a legal determination out-
side of the jury’s purview. See, e.g., Watts v. Chittenden,
301 Conn. 575, 582, 22 A.3d 1214 (2011) (in a civil action,
‘‘[t]he question of whether a party’s claim is barred by
the statute of limitations is a question of law’’ [internal
quotation marks omitted]).
Here, in denying the motion to dismiss, the court,
Kahn, J., determined that ‘‘the factual allegations under-
lying the [reckless driving count in the] substitute infor-
mation . . . are identical to the facts underlying the
original information charging the defendant with
operating a motor vehicle under the influence.’’ Such
a determination was a conclusion of law and, therefore,
inappropriate for the jury’s consideration. As a result,
under the circumstances of this case,16 the court,
Alander, J., properly denied both the defendant’s
request to raise the statute of limitations defense before
the jury and his request to instruct the jury on his statute
of limitations defense.
The judgment is affirmed.
In this opinion the other judges concurred.
1
‘‘ ‘Serum’ is the liquid portion of the blood separated from the solids
and a serum blood alcohol content is on average 16 percent higher than a
whole blood alcohol content. See 1 E. Fitzgerald, Intoxication Test Evidence
(2d Ed. 1995) § 19:3, p. 19-10, and § 19:16, fig. 29.’’ State v. Kirsch, 263 Conn.
390, 395 n.5, 820 A.2d 236 (2003). At trial, Robert H. Powers, the director
of the state toxicology laboratory, testified that a serum result of 151 milli-
grams per deciliter translates to a 0.13 percent whole blood alcohol level.
2
General Statutes § 14-227a provides in relevant part: ‘‘(a) Operation while
under the influence or while having an elevated blood alcohol content. 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. . . .’’
3
The amended information also included new charges of reckless endan-
germent in the first degree in violation of General Statutes § 53a-63, and
carrying a firearm while under the influence of intoxicating liquor in violation
of General Statutes § 53-206d (a). The court dismissed the carrying a firearm
while under the influence count, and the defendant was acquitted of reck-
less endangerment.
4
General Statutes § 14-222 (a) provides in relevant part: ‘‘No person shall
operate any motor vehicle upon any public highway of the state, or any
road of any specially chartered municipal association . . . recklessly, hav-
ing regard to the width, traffic and use of such highway [or] road . . . the
intersection of streets and the weather conditions. The operation of a motor
vehicle upon any such highway [or] road . . . at such a rate of speed as
to endanger the life of any person other than the operator of such motor
vehicle . . . shall constitute a violation of the provisions of this section.
. . .’’
5
Although ordinarily, employees file workers’ compensation claims on
their own behalf, in this case the record indicates that the city filed a
workers’ compensation claim on behalf of the defendant.
6
On appeal, the defendant does not challenge the validity of the blood
test on this basis.
7
On May 16, 2012, the defendant filed a separate motion to suppress in
which he claimed that the blood test results were inadmissible because they
lacked scientific reliability, the state was unable to demonstrate a proper
chain of custody, and the blood sample was obtained in a manner that failed
to comply with applicable regulations. The court denied that motion, and
the defendant does not challenge that ruling in this appeal.
8
It is appropriate for this court to consider the state’s claim as alternative
grounds for affirmance because it included ‘‘[a]ny other alternate ground
for affirmance’’ in its preliminary statement of issues and raised the claim
in its principal brief to this court, affording the defendant an adequate
opportunity to respond, which he did in his reply brief. See Gerardi v.
Bridgeport, 294 Conn. 461, 466, 985 A.2d 328 (2010).
9
‘‘Elevated blood alcohol content’’ is defined by § 14-227b (o) (1), which
governs the suspension of driver’s licenses, 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 . . . .’’ This definition is identical to the definition of
‘‘elevated blood alcohol content’’ set forth in § 14-227a (a) (2).
10
We do not suggest that a blood alcohol content measured with a weight
to volume ratio is the scientific equivalent of a measurement expressed with
a weight to weight ratio. Nonetheless, it is well established that a blood
alcohol content measured with a weight to volume ratio is admissible and
competent evidence to prove that a defendant had an elevated blood alcohol
content as defined by § 14-227a (a) (2). See, e.g., State v. Pilotti, supra, 99
Conn. App. 571–79.
11
Powers explained that serum blood alcohol levels tend to be higher by
a factor of 1.16 than the whole blood alcohol content, which is the measure-
ment required by § 14-227a (a) (2). Thus, for the purposes of trial and to
conform to the statutory requirements of § 14-227a, Powers converted the
defendant’s serum blood alcohol content to a whole blood alcohol content
of 0.13 percent. See footnote 1 of this opinion; see also State v. Kirsch, 263
Conn. 390, 403–409, 820 A.2d 236 (2003) (hospital blood test results initially
reported in serum blood alcohol content, and converted by expert at trial
to whole blood alcohol content equivalent, admissible to demonstrate that
defendant operated motor vehicle while under influence of intoxicating
liquor).
12
General Statutes § 54-193 (c) provides in relevant part: ‘‘No person may
be prosecuted for any offense, other than an offense set forth in subsection
(a) or (b) of this section, except within one year next after the offense has
been committed.’’
The reckless driving charge did not encompass either subsection (a) or
(b) of § 54-193; thus, the one year statute of limitations set forth in subsection
(c) was applicable.
13
In the amended information dated May 29, 2012, the state revised the
§ 14-227a charge to charge the defendant specifically with violating subsec-
tion (a) (2) of the statute for operating his police cruiser while having a
blood alcohol content higher than 0.08 percent. In this appeal, the defendant
has not made a constitutional notice challenge that the original information
charging him simply with § 14-227a, which identified no specific subsection,
was insufficiently precise such that he was unable to defend against it.
14
The defendant’s reliance on State v. Jennings, supra, 101 Conn. App.
810, is misplaced. In that case, the defendant originally was charged with
stalking ‘‘on or about September 24, 2004.’’ (Internal quotation marks omit-
ted.) Id., 820. After the statute of limitations had passed, the state added a
second stalking charge that was based on an incident that allegedly occurred
‘‘on or about September 20, 2004.’’ (Internal quotation marks omitted.) Id.
Thus, in that case, the defendant was called upon to answer for conduct
arising from a wholly separate incident. This court held that the second
charge was impermissible. We specified that because the second stalking
charge ‘‘would double the possible maximum penalty, the addition of second
count impermissibly would broaden the charges against the defendant by
exposing him to a potentially greater sentence.’’ Id.
In the present case, unlike in Jennings, the reckless driving charge arose
from the exact incident as the charged violation of § 14-227a. Thus, the
defendant here had notice, from the outset of the prosecution, that evidence
pertaining to the manner in which he drove his cruiser on the night of the
accident might be introduced at trial.
15
We are not persuaded by the defendant’s reliance on State v. Golodner,
supra, 305 Conn. 330. In that case, a driver allegedly drove his vehicle at
two individuals that were standing next to each other. Id., 336. The driver
originally was charged with one count of reckless endangerment, which
pertained to only one of the victims. More than one year later, after the
statute of limitations passed, the state filed a substitute information in which
it added a second reckless endangerment charge, which pertained to the
second victim. Id., 355.
In determining that the amended information impermissibly broadened
the charges set forth in the original information, the Supreme Court empha-
sized that the ‘‘substitute information was filed relating to a different vic-
tim.’’ (Emphasis in original.) Id., 358. As a result, the court in Golodner
concluded that ‘‘the defendant had no notice that he was accused of any
criminal conduct related to the new victim.’’ (Emphasis added.) Id., 359.
In the present case, however, there is no concern that the defendant was
charged in the amended information with conduct related to a new victim.
Golodner, thus, is inapposite to the present case.
16
We are cognizant that, under circumstances wholly different from this
case, factual issues are determinative of whether additional charges are
precluded by the statute of limitations. See, e.g., State v. Ali, 233 Conn. 403,
416, 660 A.2d 337 (1995) (‘‘the issue of whether the state executed the
warrant within a reasonable period of time was properly a question of fact
for the jury’’); State v. Parsons, 28 Conn. App. 91, 96, 612 A.2d 73 (tolling
of statute of limitations was based on factual determination as to when
offense occurred), cert. denied, 223 Conn. 920, 614 A.2d 829 (1992). In the
present case, however, the tolling of the statute of limitations was properly
determined by comparing the facts underlying the original and amended
informations, which was a question of law properly determined by the court.