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STATE v. GONZALEZ3/21/1989
The dispositive issue in this case is whether, under General Statutes (Rev. to 1985) 14-227a, a defendant charged with operating a motor vehicle while under the influence of alcohol or drugs is entitled to a jury instruction on the lesser offense of operating while impaired as set forth in General Statutes (Rev. to 1985) 14-227a (b). The defendant, Enrique C. Gonzalez, was found guilty by a jury of operating a motor vehicle in violation of General Statutes (Rev. to
1985) 14-227a (a). In State v. Gonzalez, 14 Conn. App. 216, 541 A.2d 115 (1988), the Appellate Court rejected the defendant's claim that the trial court erred in denying his request for an instruction on the lesser offense of operating while impaired. We granted the defendant's petition for certification limited to the following issues: "Did the Appellate Court erroneously conclude (1) that General Statutes 14-227a (b) (Rev. to 1985) provides that one commits the offense of driving while impaired only when one's blood alcohol ratio falls between .07 and .1 percent, and (2) that driving while impaired is not a lesser included offense of driving while under the influence?" We affirm the Appellate Court's judgment.
The facts are fully set forth in State v. Gonzalez, supra. In brief, on the night of June 21, 1985, the Connecticut state police were conducting a "spot check" for drunk drivers at the West Haven toll plaza on Interstate 95. At approximately 11 o'clock, the defendant pulled into the toll plaza in the eastbound lane. State police trooper Robert Peterson detected a strong odor of alcohol emanating from the defendant, and directed him to drive his car to an adjacent parking lot. At the trial, Peterson testified that the defendant's walk was unsteady, his speech slurred, his eyes glassy, and his face flushed. Peterson conducted four field sobriety tests, including a test requiring the defendant, who claimed he knew English, to recite the alphabet in English and Spanish. The defendant was unable to recite the alphabet in either language. Peterson
concluded from the defendant's performance of the tests that he was intoxicated, and placed him under arrest for operating while under the influence in violation of General Statutes (Rev. to 1985) 14-227a (a). After the defendant had been advised of his rights, he told Peterson that he had consumed six beers and one half pint of rum on his drive from New York City to the toll plaza. Peterson testified that he had observed several empty beer cans and an empty rum bottle on the front seat of the defendant's car. There was no evidence of the defendant's blood alcohol content admitted at the trial.
The defendant testified that he had driven his girlfriend from Wallingford to New York City and was returning home at the time he was stopped. He admitted that he had consumed some alcohol during the course of his trip down to New York, but claimed that he had not consumed any on the return trip and, further, that there were no empty alcohol containers in his car. He also testified that he had not told Peterson anything about having been drinking. He further stated that the alcohol he had consumed had not affected his driving and that he had walked without stumbling or swaying. The defendant's sister testified that the defendant had called her between 11:00 and 11:30 p.m. and had asked her to come to the toll plaza parking lot. She testified that when she arrived there, between midnight and 12:30 a.m., the defendant did not appear to be under the influence of alcohol.
The defendant submitted a request to the trial court to charge the jury on the lesser offense of operating while impaired and on the meaning of "impaired by the consumption of intoxica
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