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STATE v. GEISLER5/11/1990
hich provides that "
person is guilty of assault in the second degree with a motor vehicle when, while operating a motor vehicle under the influence of intoxicating liquor . . . he causes serious physical injury to another person as a consequence of the effect of such liquor." (Emphasis added.) The defendant claims that the same argument made for 14-227a (a)(2) applies equally to this section. We do not agree.
Our conclusion that extrapolation testimony is required in order to obtain a conviction under 14a-227a [14-227a] (a)(2), in no way impacts on our determination of this issue. Section 53a-60d is not a per se violation, and that statute contains no language analogous to the language of 14-227a(a)(2) that we interpreted as requiring extrapolation testimony. See State v. LeRoy, 16 Conn. App. 472, 477, 547 A.2d 940 (1988); State v. Shaw, 12 Conn. App. 294, 301, 530 A.2d 653 (1987). There is nothing in the language of 53a-60d that precludes the state from introducing evidence of the defendant's behavior.
Because, however, we conclude that the trial court should not have admitted the evidence obtained as a result of the illegal arrest, we must set this conviction aside and remand this case for a new trial on this count only. State v. Ostroski, 186 Conn. 287, 294-95, 440 A.2d 984, cert. denied, 459 U.S. 878, 103 S.Ct. 173, 74 L.Ed.2d (1982).
III
JURY INSTRUCTIONS
The defendant's final claim is that the trial court incorrectly instructed the jury on General Statutes 14-227a (a)(2) and 53a-60d. Because we have concluded that the conviction of 14-227a (a)(2) must be set aside, we need address this issue only as it relates to 53a-60d because it is likely to recur at retrial. State
v. Thurman, 10 Conn. App. 302, 317, 523 A.2d 891, cert. denied, 204 Conn. 805, 528 A.2d 115 (1987).
The defendant claims that the trial court incorrectly instructed the jury on 53a-60d during its instruction on the causation element and during its subsequent instruction on 14a-227a(a)(2) [14-227a(a)(2)]. Neither of these claims was preserved at trial. The defendant seeks review of both of these claims under the bypass doctrine of State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973). In order to determine whether these claims are reviewable under Evans, we must first determine whether they are of constitutional magnitude and whether they constitute violations of a fundamental right. State v. Golding, 213 Conn. 233, 240, 567 A.2d 823 (1989).
A
The defendant first challenges the trial court's instruction on causation. The state claimed that the cause of the accident was the defendant's failure to make a proper left turn, and the trial court included this allegation in its instruction. The defendant claims that the trial court should not have used General Statutes 14-242, the statute providing for the civil violation of making an improper left turn, to explain to the jury what would constitute an improper left turn in the case before them.
Causation is an essential element of this offense of assault in the second degree with a motor vehicle. Because this claim implicates the defendant's right to be properly charged on all essential elements of the crime charged, we will review this claim under Evans. See State v. Williams, 202 Conn. 349, 363, 521 A.2d 150 (1987); State v. Ostalaza, 20 Conn. App. 40, 47, 564 A.2d 324 (1989).
The defendant claims that the trial court was incorrect when, after instructing on 14-242 (e), it instructed
the jury as follows: "If you find that the vehicle of [the victim] was either in the intersection or so close thereto as to constitute
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