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STATE v. GEISLER5/11/1990
fect, excuse that entry altogether and allow the derivative evidence here. This we cannot do. Having characterized the officers' conduct here as falling outside of the emergency doctrine, and having found, accordingly, that the entry violated the fourth amendment and that there existed a continuum of police action from that entry until the development of the derived evidence, we cannot now logically excuse that conduct under a "good faith" analysis. We conclude that the derivative evidence in this case was the
tainted product of an illegal arrest. Accordingly, the trial court should have suppressed the challenged evidence.
II
INSUFFICIENCY OF THE EVIDENCE
Even if the evidence obtained as a result of the illegal arrest of the defendant were held to be admissible, the evidence of intoxication would still be insufficient to support a conviction under 14-227a and 53a-60d beyond a reasonable doubt. We will address each of these claims separately.
A
OPERATING WHILE UNDER THE INFLUENCE OF LIQUOR
The state charged the defendant with violating 14-227a (a)(2). The defendant claims that the state failed to meet its burden of proving that his blood alcohol content (BAC) was .10 or more at the time of his operation of a motor vehicle, as required by the statute. He claims that expert testimony was necessary to relate the results of the intoximeter (breathalyzer) tests back to the time of the offense in order to establish his guilt beyond a reasonable doubt. The defendant, while conceding that at the time the tests were administered his BAC exceeded .10, claims that the results of these tests were insufficient to prove that his BAC exceeded .10 at the time of the offense.
The accident occurred at 3 p.m. The defendant admitted to drinking before the accident, but also testified that he had been drinking at home after the accident prior to his arrest. The defendant also consented to a breathalyzer test so that his present BAC could be gauged. The first test, administered at 4:08 p.m., over an hour after the accident, indicated
that the defendant had a BAC of .269, and the second test, administered at 4:41 p.m., indicated a slightly decreasing BAC based on a .265 reading.
Sanders F. Hawkins, the chief toxicologist of the department of health services, testified on behalf of the state. The state asked him certain questions to satisfy some of the foundational elements for the admissibility of chemical analysis under General Statutes 14-227a (c), but it never asked him to extrapolate the defendant's blood alcohol content back to the time of the offense, that is, the time of the operation of the vehicle, based on the test results taken subsequent thereto.
The defendant claims that this evidence was insufficient to prove him guilty of operating while under the influence of liquor under our per se statute. On the basis of the legislative history of this statute, we agree.
In 1985, the Connecticut legislature amended General Statutes 14-227a, the state's criminal provision for driving under the influence and driving while impaired, to provide for a per se offense. Per se drunk driving legislation provides that it is an offense (1) to drive a vehicle on a public highway (2) while one's BAC content is .1 percent or more. Whether the defendant suffered any impairment of his physical or mental faculties is not an element of the offense. Compare General Statutes 14-227a (b).
There are two parts of the statutory scheme that appear to address this issue of whether expert extrapolation evidence is necessary. General Statutes 14-227a (c) sets out six preconditions
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