Opinion
No. D03D-MV02-033 49 45 S
April 28, 2003
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO DISMISS
On December 5, 2002, the defendant, Joseph DiPaolo, a New York resident, was arrested in New Fairfield, Connecticut and charged with operating under the influence in violation of Connecticut General Statutes § 14-227a. Subsequently, the state filed a Part B information charging the defendant as a subsequent offender, alleging that he had a 1988 conviction for operating under the influence in New York State in violation of New York Penal Code § 1192.03.
The court notes that the defendant submitted into evidence a New York police report prepared at the time of his arrest. Although it is irrelevant to this court's ruling on the motion to dismiss, the court does find, in the interests of compiling a complete record, that the incident was not of the type that would have precluded the granting of the AE program if it had occurred in Connecticut.
Thereafter, the defendant filed a motion to dismiss the Part B information. The defendant does not contest the fact that he has a prior conviction under § 1192.03. The defendant raises three grounds for his motion to dismiss: (1) that the Connecticut legislature did not intend for the enhanced penalties of § 14-227a to apply to a defendant whose prior conviction was from a state that did not have the equivalent of Connecticut's Alcohol Education Program (hereinafter, AEP); (2) that the application of the enhanced penalty to a resident of a state that does not have the equivalent of Connecticut's AEP is a violation of the Equal Protection Clause and the Due Process Clause of the United States and Connecticut Constitutions; and (3) that the New York statute under which the defendant was convicted is not substantially similar to Connecticut General Statutes § 14-227a.
For the reasons that follow, this court rejects the defendant's arguments and denies the motion to dismiss.
The defendant first argues that the legislative history of § 14-227a demonstrates that the legislature did not intend to have the enhanced penalties apply to a defendant whose prior conviction was from a state that did not have an equivalent of Connecticut's AEP. The defendant bases his argument on State v. Courchesne, 262 Conn. 537 (2003), and transcripts of the 1999 legislative debate on an amendment to the statute.
After review of the language of the statute and the legislative history of the AE program, the court rejects the defendant's arguments. Section 54-56g states that a person charged with a violation of section 14-227a may obtain the benefit of the AE program if he or she states under oath "that such person has not been convicted in any other state at any time of an offense the essential elements of which are substantially the same as . . . subdivision (1) or (2) of subsection (a) of section 14-227a." The words of the statute preclude the granting of the AE program to the defendant. See e.g., State v. Wimpfeimer, 1999 Ct. Sup. 3786, 24 Conn.L.Rptr. 212 (prior North Carolina conviction for operating under the influence precludes granting of AEP). This court finds nothing in the legislative history that casts doubt upon the plain meaning of those words or creates an exception for anyone whose prior conviction is from a state that does not have a program similar to Connecticut's AE program. Further, nothing in the legislative history suggests that the application of the plain language of the statute would lead to an absurd or unworkable result. See State v. Courchesne, 262 Conn. at 575-76. Therefore the defendant's claim is rejected.
Indeed, taken to its logical conclusion, the defendant's theory would apply to not only prior first convictions from New York but all multiple convictions. The absence of any legislative discussion regarding such far flung complications further militates against the defendant's argument.
The defendant next claims that because New York does not have the equivalent of Connecticut's AEP, it is a violation of the Equal Protection Clause and the Due Process Clause of the United States and Connecticut Constitutions to charge someone with a prior New York operating under the influence conviction as a subsequent offender in Connecticut. Essentially identical claims have been rejected by our Appellate Court in Kostrzewski v. Commissioner of Motor Vehicles, 52 Conn. App. 326, 339-42, cert. denied, 249 Conn. 910 (1999).
Although the defendant raises the Connecticut Constitution, he does not assert how it affords any greater protections than the federal constitution nor does he engage in any separate state constitutional analysis. Therefore the court treats those provisions as embodying the same level of protection as the federal Constitution. See State v. Kostrzewski, 52 Conn. App. 326, 339, n. 8 (1999).
The defendant, with commendable candor, acknowledges Kostrzewski but claims it is distinguishable because it involved only the administrative suspension of the defendant's license in Connecticut due to a Florida conviction for operating under the influence, while this case involves the defendant's fundamental right to liberty. This court disagrees.
Florida, like New York, does not have a pretrial alcohol education program. See Kostrzewski, 52 Conn. App. at 342. The plaintiff's claim in Kostrzewski was that because this was the plaintiff's first arrest for operating under the influence, if she had been arrested in Connecticut she would have been eligible to apply for the AE program and would not have had a conviction and faced the penalty of a subsequent license suspension. The essence of the defendant's claim here is the same: If he had been arrested in Connecticut, he would have gotten the AE program and would not be facing the penalty of the statute.
In Kostrzewski, the Appellate Court applied a rational basis test and concluded that neither the Equal Protection Clause nor the Due Process Clause were violated. The defendant contends, however, that the strict scrutiny test should be applied here because it involves his fundamental right to liberty. The defendant's contention is refuted by State v. Wright, 246 Conn. 132, 140 (1998), which held that the proper test in criminal cases is rational basis. See also State v. Kostrzewski, 52 Conn. App. at 340-41.
Applying the rational basis test the court first notes that the fact that Florida does not have a pretrial alcohol education program is irrelevant. See State v. Kostrzewski, 52 Conn. App. at 342. Next, it is clear that § 14-227a is concerned only with previous convictions for operating under the influence and treats all defendants with such convictions in the same manner. Thus there is no unequal treatment. Finally, the legislature could have rationally concluded that any person who has a prior conviction for driving under the influence and then drives under the influence again is more culpable and should receive greater punishment than someone who does not have such a prior conviction. The statute easily passes the rational basis test and the defendant's claims are rejected.
The defendant next claims that the New York and Connecticut statutes are not substantially similar. The crux of the defendant's argument is that the court should compare the entire New York and Connecticut statutory schemes regarding driving under the influence. This court rejects such an approach because § 14-227a (h) provides: "a conviction under the provisions of either subdivision (1) or (2) of subsection (a) of this section . . . or 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." (Emphasis added.) Clearly, by its reference to the statutory elements, the statute directs the court to review the specific statutes under which the defendant was convicted, not the entire statutory schemes of Connecticut and the other state at issue. The defendant offers no authority to the contrary.
Applying such a review, this court finds that the essential elements of § 14-227a are (1) operation of a (2) motor vehicle (3) while under the influence of alcohol or drugs; See State v. Stuart, 11 Conn.L.Rptr. 436, 1994 Ct. Sup. 4760, 9 CSCR 531; or with "a ratio of alcohol in their blood that is ten-hundredths of one percent or more of alcohol." See also State v. Wimpfeimer, supra. The essential elements of New York Penal Code § 1192.03 are (1) operation of a (2) motor vehicle (3) while in an intoxicated condition or while such person "has .10 of one per centum or more by weight of alcohol in a person's blood." This court finds that the essential elements of the Connecticut and New York Statutes driving under the influence statutes are substantially the same. Accordingly, the defendant's claim is rejected.
For all the foregoing reasons the defendant's motion to dismiss is denied.
Jack W. Fischer, Judge