8.3-1 Driving Under the Influence -- § 14-227a
Revised to April 23, 2010 (modified May 23, 2013)
The defendant is charged [in count __] with operating a motor vehicle while under the influence of (intoxicating liquor / any drug / or both).1 The statute defining this offense reads in pertinent part as follows:
no person shall operate a motor vehicle while under the influence of (intoxicating liquor / any drug / both). A person commits the offense of operating a motor vehicle while under the influence of (intoxicating liquor / any drug / both) if such person operates a motor vehicle <insert appropriate subsection:>
§ 14-227a (a) (1): while under the influence of (intoxicating liquor / any drug / both).
§ 14-227a (a) (2): while such person has an elevated blood alcohol content.
For you to find the defendant guilty of this charge, the state must prove beyond a reasonable doubt the following elements:
Element 1 - Operated a motor
The first element is that the defendant was operating a motor vehicle2 at the time and place alleged. A person "operates" a motor vehicle within the meaning of the statute when, while in the vehicle, such person intentionally does any act or makes use of any mechanical or electrical agency that alone, or in sequence, will set in motion the motive power of the vehicle. A person acts "intentionally" with respect to conduct when (his/her) conscious objective is to engage in such conduct. <See Intent: General, Instruction 2.3-1.>3
Element 2 - Under the influence
/ Elevated BAC
The second element is that at the time the defendant operated the motor vehicle, (he/she) <insert as appropriate:>
§ 14-227a (a) (1): was under the influence of (intoxicating liquor / any drug / or both). A person is under the influence of (intoxicating liquor / any drug / or both) when as a result of (drinking such beverage / ingesting such drug / or both) that person's mental, physical, or nervous processes have become so affected that (he/she) lacks to an appreciable degree the ability to function properly in relation to the operation of (his/her) motor vehicle.4
The person's physical or mental capabilities must have been impaired to such a degree that (he/she) no longer has the ability to drive a vehicle with the caution characteristic of a sober person of ordinary prudence, under the same or similar circumstances. [<If appropriate:> If you find that the defendant was operating a vehicle under the influence of an intoxicating liquor, it is no defense that there was some other cause that also tended to impair the defendant's ability to exercise the required caution.] Evidence of the manner in which a vehicle was operated is not determinative of whether the defendant was operating the vehicle under the influence of (an intoxicating beverage / a drug / or both). It is, however, a factor to be considered in light of all the proven surrounding circumstances in deciding whether the defendant was or was not under the influence.5
§ 14-227a (a) (2): had an elevated blood alcohol content. "Elevated blood alcohol content" "means a ratio of alcohol in the blood that is (eight-hundredths/ four hundredths) of one percent or more of alcohol, by weight."6 The chemical analysis of the defendant's (blood / breath / urine) that was presented as evidence may be used as evidence of the defendant's blood alcohol content at the time of the alleged offense. This means that you may find, but are not required to, that the defendant's blood alcohol content at the time of the alleged offense was the same as at the time the test was administered.7
[<If applicable:> Evidence of the defendant's refusal to submit to a blood, breath, or urine test has been introduced. If you find that the defendant did refuse to submit to such a test, you may make any reasonable inference that follows from that fact.]8
In summary, the state must prove beyond a reasonable doubt that 1) the defendant was operating a motor vehicle at the time and place alleged, and 2) (he/she) (was under the influence of (intoxicating liquor / any drug / or both) / had an elevated blood alcohol content).
If you unanimously find that the state
has proved beyond a reasonable doubt each of the elements of driving while under
the influence, then you shall find the defendant guilty. On the other hand, if
you unanimously find that the state has failed to prove beyond a reasonable
doubt any of the elements, you shall then find the defendant not guilty.
1 If the defendant is not charged with being under the influence of drugs, then that part of the statute should be omitted from the jury instruction. State v. Tryon, 145 Conn. 304, 306-307 (1958); see also State v. Coughlin, 61 Conn. App. 90, 94-96 (2000), cert. denied, 255 Conn. 934 (2001) (court properly gave limiting instruction to the jury that the case did not involve cocaine and that the jurors could not consider anything about the drug when deliberating in order to negate any potentially adverse effect of a report that was admitted and showed trace amounts of cocaine in the defendant's blood).
2 "Motor vehicle" includes a snowmobile and an all-terrain vehicle, as those terms are defined in § 14-379. General Statutes § 14-227a (a).
3 Operating a motor vehicle while under the influence of intoxicating liquor is a general intent crime. State v. Borrelli, 94 Conn. App. 849, 859 (2006) (defendant's involuntary intoxication insufficient to negate general intent requirement). In addition, there is no requirement that the defendant knew or should have known that he or she had ingested an intoxicant. Id., 860.
4 State v. Gordon, 84 Conn. App. 519, 527 (2004); State v. Sanko, 62 Conn. App. 34, 41, cert. denied, 256 Conn. 905 (2001); State v. Andrews, 108 Conn. 209, 216 (1928).
5 If there has been evidence of the defendant's performance on field sobriety tests, the court may wish to tailor this part of the instruction. See State v. Kelley, 95 Conn. App. 423, cert. denied, 279 Conn. 906 (2006).
6 Effective October 1, 2009, if a person is operating a commercial motor vehicle, "elevated blood alcohol content" means a ratio of alcohol in the blood that is four-hundredths of one percent or more of alcohol, by weight. See the definition of commercial motor vehicle in the Glossary and instruct on the relevant portions of it.
7 See General Statutes § 14-227a (b) (formerly (c)); State v. Gallichio, 71 Conn. App. 179, 183-89 (2002); State v. Nokes, 44 Conn. App. 40, 44-45 (1996); State v. Korhn, 41 Conn. App. 874, 880-81, cert. denied, 239 Conn. 910 (1996). The statute provides an exception to this rule: "if the results of the additional test indicate that the ratio of alcohol in the blood of such defendant is twelve-hundredths of one per cent or less of alcohol, by weight, and is higher than the results of the first test, evidence shall be presented that demonstrates that the test results and the analysis thereof accurately indicate the blood alcohol content at the time of the alleged offense." See also State v. Pilotti, 99 Conn. App. 563, cert. denied, 282 Conn. 903 (2007) (discussing evidentiary requirements involving breath tests).
8 General Statutes § 14-227a (e) requires that a jury be instructed as to any inference that may or may not be drawn in the event there is evidence that the defendant refused to submit to a blood, breath, or urine test and there has been compliance with § 14-227b (b). See State v. McCarthy, 63 Conn. App. 433, 437- 39, cert. denied, 258 Conn. 904 (2001) (instruction substantially complied with the statutory language of General Statutes § 14-227a (f), despite its failure to state that it "may or may not" draw a negative inference); State v. Corbeil, 41 Conn. App. 7, 19, appeal dismissed, 237 Conn. 919 (1996) ("refusing" to take a breath test may be accomplished by a failure to cooperate, as well as by an expressed refusal); State v. Barlow, 30 Conn. App. 36, 42-44 (1993) (whether the defendant refused to take the test is an issue of fact for the jury). In State v. Weed, 118 Conn. App. 654, 664-65 (2009), the Appellate Court concluded, as a matter of first impression, that evidence that the defendant refused to submit to a breath test provided a sufficient basis for a consciousness of guilt instruction.
There are two ways by which a defendant can be charged with violating General Statutes § 14-227a (a): subdivision (1) of subsection (a) describes the "behavioral" violation; subdivision (2) of subsection (a) describes the "per se" violation. State v. Gilbert, 30 Conn. App. 428, 437-38 (1993), aff'd, 229 Conn. 228 (1994). Because the two subsections provide alternative methods of proof for the same offense, it would be a double jeopardy violation to punish a defendant under both subsections. State v. Re, 111 Conn. App. 466, 473 (2008), cert. denied, 290 Conn. 908 (2009). If these two ways of committing the offense are charged in the same count, the committee recommends giving a unanimity instruction that the jury must unanimously agree as to the way the defendant committed the offense.
General Statutes § 14-227a (c) "provides that evidence of the amount of alcohol in the defendant's blood as shown by a chemical analysis of the defendant's breath is admissible with respect to the behavioral subdivision only at the request of the defendant." (Emphasis added.) State v. Cooper, 38 Conn. App. 661, 673, cert. denied, 235 Conn. 908 (1995), cert. denied, 517 U.S. 1214, 116 S. Ct. 1837, 134 L. Ed. 2d 940 (1996). "Substantial defective compliance with that statutory provision requires reversal even if no particular prejudice is shown and even if there is overwhelming evidence of guilt." (Internal quotation marks omitted.) Id., 673; see also State v. Gracia, 51 Conn. App. 4, 14-15 (1998) (trial court properly instructed jury regarding the use of chemical evidence when defendant charged under both subsections and issued appropriate limiting instruction).
General Statutes § 14-227a (g) provides for an enhanced sentence if the defendant has previously been convicted of one or more violations of § 14-227a within ten years of the current violation. Pursuant to Practice Book § 36-14, the prior conviction must be charged in a Part B information so that the jury is unaware of the prior conviction during the trial on the current charge. If a guilty verdict is returned, the jury must then be instructed on the second part of the information. See Subsequent Offenders, Instruction 2.12-2.
State v. Burns, 236 Conn. 18 (1996), the Supreme Court held that the
language of § 14-227a ("for conviction of a third violation within 5 years [now
10] after a prior conviction for the same offense") means the third violation
within the time period, not the third conviction.