 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
STATE v. GEISLER5/11/1990
ee
also Fuenning v. Superior Court in and for City of Maricopa, supra, 598-99; State v. Knoll, supra, 682; People v. Kozar, supra, 508-509; Commonwealth v. Spreights, supra, 265-66.
Our legislature, as discussed at length above, has clearly indicated its intent that extrapolation testimony be required to prove a violation of our per se drunk driving statute. Our conclusion on this issue forces us to reexamine this court's decision in State v. Garrity, 17 Conn. App. 376, 552 A.2d 452, cert. denied, 210 Conn. 813, 556 A.2d 1024 (1989).
In State v. Garrity, supra, this court was presented with the same claim with which we are presented in this case, namely, that there was insufficient evidence to sustain the per se conviction because there was no evidence relating the BAC at the time of the test to the level at the time of the offense. In Garrity, we rejected this claim and held that corroborative behavioral evidence was sufficient to show that the test results accurately reflected the defendant's BAC at the time of the offense. Id., 383-84. The corroborative evidence that this court held to be sufficient was the evidence of the defendant's drinking, his "shaky and unsteady" behavior, the one hour and forty minute time lapse before the test, and the fact that he neither drank nor smoked during that period between his arrest and the administration of the tests. Id., 384.
In reaching this result, Garrity specifically relied on State v. Hancich, 200 Conn. 615, 623-24, 513 A.2d 638 (1986). Hancich involved the admissibility of the breathalyzer test results under General Statutes 14-227a (c)(6), the part of the admissibility provision that required "evidence . . . which demonstrates that the test results accurately reflect the blood alcohol content at the time of the alleged offense." The statute did not then have the "and the analysis thereof"
language in it. The Hancich court held sufficient to comply with subdivision (6), evidence that the test was administered forty-four minutes after the defendant's arrest, that he drank no alcohol in the interim, and that the testing equipment was accurate.
We must conclude that, in deciding Garrity, our reliance on Hancich was misplaced, and that the statute as amended in 1985 requires expert relation back testimony. First, when Hancich was decided, the test results raised only a rebuttable presumption of driving under the influence ; they did not establish a per se offense. Second, the language "and the analysis thereof" and the requirement of a second test were not in the statute under consideration in Hancich; they were added when the 1985 General Assembly created the per se offense. Third, the legislative debate concerning the 1985 amendments indicates a legislative concern over the reliability of the test as indicating the blood alcohol level at the time of the driving and an understanding that this reliability would be corroborated with expert relation back testimony. Although the amendments adding the second test requirement and "the analysis thereof" language were to the admissibility section of the statute, the legislative debate seems to go well beyond admissibility into the area of sufficiency of evidence.
In light of the legislative history of the public act amending our operating under the influence statute and the legislative intent expressed during the debate on the act, we are convinced that our reliance on Hancich was misplaced and that our result in Garrity should have been different.
B
ASSAULT IN THE SECOND DEGREE WITH A MOTOR VEHICLE
The defendant was also convicted of violating General Statutes 53a-60d, w
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 Connecticut DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|