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STATE v. ORTIZ1/5/1993
at it consists, in whole or in part, of evidence that is circumstantial rather than direct. State v. Marra, 215 Conn. 716, 726, 579 A.2d 9 (1990).
CRIMINAL NEGLIGENCE
General Statutes 53a-57(a) provides that " person is guilty of misconduct with a motor vehicle when, with criminal negligence in the operation of a motor vehicle, he causes the death of another person." General Statutes 53a-3(14) provides that " person acts with `criminal negligence' with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and
unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation." " onviction of misconduct with a motor vehicle requires proof of the mental state involved in criminal negligence . . . ." State v. Kristy, 11 Conn. App. 473, 482, 528 A.2d 390, cert. denied, 206 Conn. 801, 535 A.2d 1315 (1987). Proof of that mental state requires that "the failure to perceive [a substantial and unjustifiable risk that death will result] must be a gross deviation from the standard of a reasonable man; thus, it requires a greater degree of culpability than the civil standard of negligence." Connecticut General Statutes Annotated 53a-3 (West 1985), Commission Comment.
The defendant argues that his conduct in the operation of the car "constituted ordinary, garden variety negligence" and was not of the "egregious nature required by the statute, unless one adopts a rule that the act of getting behind the wheel while intoxicated is per se misconduct." Further, the defendant asserts that the legislative history of 53a-57 refutes the view that intoxication proves criminal negligence. While we agree with the defendant's statutory analysis, we do not believe it alters our conclusion that the jury could reasonably have concluded that the defendant was criminally negligent in the operation of a motor vehicle.
Prior to 1982, General Statutes (Rev. to 1981) 53a-57 provided that " person is guilty of misconduct with a motor vehicle when, with criminal negligence in the operation of a motor vehicle or in consequence of his intoxication while operating a motor vehicle, he causes the death of another person. . . ." (Emphasis added.) Thus, the statute provided two alternative bases for criminal liability. State v. Singleton,
174 Conn. 112, 117, 384 A.2d 334 (1977), cert. denied, 440 U.S. 947, 99 S.Ct. 1425, 59 L.Ed.2d 635 (1979).
In 1982, Public Acts No. 82-403 created two statutes where one had existed previously. All reference to intoxication was removed from 53a-57, a class D felony. The new statute, General Statutes (Rev. to 1983) 53a-56b(a), a class C felony, provided that " person is guilty of manslaughter in the second degree with a motor vehicle while intoxicated when, in consequence of his intoxication while operating a motor vehicle, he causes the death of another person. For the purposes of this section, `intoxication' shall include intoxication by alcohol or by drug or both." The differences between the two offenses are significant; the statutes do not stand in relation of greater and lesser included offenses. See State v. Kristy, supra. The essential questions for the trier of fact on a charge of manslaughter in the second degree with a motor vehicle
while under the influence of intoxicating liquor are "whether the defendant was [under the influence of intoxicating liquor] while operating a motor vehicle and whether the death of another person was
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