Opinion
No. MV09-56264-S
March 2, 2010
MEMORANDUM OF DECISION RE MOTION TO DISMISS
On June 27, 2009 the defendant, Thomas Connerton, was arrested by an officer of the Madison Police Department and charged with Operating a Motor Vehicle While Under the Influence of Intoxicating Liquor, in violation of Section 14-227a of the Connecticut General Statutes. Counsel for the defendant has filed a Motion to Dismiss a Part B information alleging that the defendant has a prior conviction for a similar offense and is therefore subject to the enhanced penalties provided for in Section 14-227a(g) of the Connecticut General Statutes. Counsel for the State and for the defendant have submitted written memoranda and a stipulation of facts. The stipulation provides as follows:
1. Thomas Connerton is the defendant in the above captioned action and is charged, inter alia, with violating Conn. Gen. Stat. Section 14-227a for an event in which allegedly [sic] occurred on June 27, 2009.
2. The defendant was convicted within the State of New Hampshire of violating NHRSA Section 265-A:2, that state's statute criminalizing driving with an elevated alcohol content.
3. On November 25, 2008, the defendant, through counsel representing him within New Hampshire, filed a Motion to Reduce the Defendant's New Hampshire Class B Misdemeanor Conviction to a Violation pursuant to RSA Section 265:82b(1)(a).
While the parties have identified the statute as Section 265:82b(1)(a) of the New Hampshire Revised Statutes, that section was repealed on January 1, 2007. The correct statutory citation is 265:A18(I)(a)(6).
4. That the defendant's motion was granted on January 16, 2009 by Justice Lawrence A. MacLeod, Jr., the State of New Hampshire, Laconia District Court.
5. This reduction occurred before the defendant's arrest in the present case.
In essence the defendant's Motion to Dismiss has been filed pursuant to section 41-8(5) of the Connecticut Practice Book. The claim is that since the defendant's record in New Hampshire now reflects that he was guilty of a violation rather than convicted of a Class B Misdemeanor, the State of Connecticut has insufficient evidence or cause to justify the bringing or the continuing of the Part B information. "A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the [state] cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction . . . In determining whether the evidence proffered by the state is adequate to avoid dismissal, such proof must be viewed in the light most favorable to the state . . ." State v. Howell, 98 Conn.App. 369, 377-78 (2006). "On a motion to dismiss an information, the proffered proof is to be viewed most favorably to the state. (Citations omitted.) State v. Morrill, 193 Conn. 602, 611 (1984). Accord State v. Kinchen, 243 Conn. 690, 702 (1998).
The pertinent section of the information in this matter alleges that Thomas Connerton did commit the offense of Illegal Operation of a Motor Vehicle While Under the Influence of Alcohol or Drugs in violation of Connecticut General Statutes Section 14-227a. The relevant provisions of that statute reads as follows:
No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. A person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor or any drug or both if such person operates a motor vehicle (1) while under the influence of intoxicating liquor or any drug or both, or (2) while such person has an elevated blood alcohol content. For purposes of this section, "elevated blood alcohol content" means a ratio of alcohol in the blood of such person that is eight-hundredths of one percent or more of alcohol, by weight . . .
The second part of the information in this case, the so called Part B information, alleges that, upon his conviction for Operating Under the Influence as charged in the first part of the information, the defendant is subject to enhanced penalty provisions since he was previously convicted on November 14, 2007 in the Laconia District Court of Driving Under the Influence in violation of Section 265-A:2 of the New Hampshire Revised Statutes. The relevant sections of that statute reads as follows:
I. No person shall drive or attempt to drive a vehicle upon any way . . . (a) while such person is under the influence of intoxicating liquor or any controlled drug or any combination or intoxicating liquor and controlled drug; or
(b) while such person has an alcohol concentration of 0.08 or more . . . The Connecticut statutory provisions regarding enhanced penalties for multiple convictions for Driving Under the Influence are contained in Section 14-227a(g) of the Connecticut General Statutes. In regard to out of state convictions that statute reads:
. . . for purposes of the imposition of penalties for a second of third and subsequent offense pursuant to this section . . . a conviction in any other state of any offense the essential elements of which are determined by the court to be substantially the same as subdivision (1) or (2) of subsection (a) of this section . . . shall constitute a prior conviction for the same offense.
An examination of the relevant statutes, Section 14-227a of the Connecticut General Statutes and Section 265-A:2 of the New Hampshire Revised Statutes, reveals, without question, that the essential elements of the offense describe in each statute are substantially the same. The defendant in the present case concedes as much.
As mentioned previously, the thrust of the defendant's argument is that the State cannot present evidence of a prior conviction since the defendant's record in New Hampshire now reflects that he was guilty of a violation. This argument places an inappropriate emphasis on the label given to the defendant's record in New Hampshire. The Connecticut Appellate Court when considering a related argument in State v. Klutz, 9 Conn.App. 686, 699 (1987), stated "[W]hether the lesser included offense doctrine should apply to include a transgression of law which the legislature has categorized for certain purposes as non-criminal depends, not on that categorization, but on the function and purpose of the doctrine itself." In State v. Brown, 22 Conn.App. 108, 112-14 (1990), the Appellate Court concluded that for purposes of Connecticut General Statutes Section 53a-24a, Section 14-227a is a motor vehicle violation and not a crime; however, for the purposes of the defendant's condition of probation, it was a violation of the criminal laws of this state based on the function and purpose of probation. Other cases where the court has considered the function and purpose of the statute in defining a crime or offense are State v. Trahan, 45 Conn.App. 722 (1997); State v. Harrison, 228 Conn. 758 (1994), and State v. Dukes, 209 Conn. 98 (1988).
The function and purpose of Connecticut statutes regarding Driving Under the Influence is the deterrence of that offense. Given that function and purpose, Section 14-227a(g) which calls for enhanced penalties when a defendant has a prior conviction, applies whether the record is labeled a conviction of a misdemeanor or a violation.
The Motion to Dismiss is denied.