author: Norcott, J. Spallone, J.,

text:
    State of Connecticut v. Martin Geisler
    (6934)
    Dupont, C. J., Borden, Spallone, Daly, O’Connell, Noíícott, Foti and La very, Js.

      Argued February 14
    decision released May 11, 1990

      Richard Emanuel, for the appellant (defendant).

      Leon F. Dalbec, Jr., deputy assistant state’s attorney, with whom, on the brief, were Eugene Callahan, state’s attorney, and Warren Murray, assistant state’s attorney, for the appellee (state).
   Norcott, J.

The defendant was charged, by substitute information, with operating a motor vehicle while under the influence of liquor in violation of General Statutes § 14-227a (a) (2), assault in the second degree with a motor vehicle in violation of General Statutes § 53a-60d and evading responsibility in violation of General Statutes § 14-224 (a). The prosecution arose out of a motor vehicle accident involving the defendant’s automobile and a motorcycle. After a jury trial, the defendant was found guilty on all three counts. The defendant appeals only from the judgment of conviction of operating while under the influence of liquor and assault in the second degree with a motor vehicle; he does not appeal from the judgment of his conviction for evading responsibility.

The defendant claims (1) that the trial court should not have denied his motion to suppress evidence obtained after a warrantless arrest, (2) that the evidence was insufficient to establish the defendant’s guilt under General Statutes §§ 14-227a (a) (2) and 53a-60d, and (3) that the court erred in its instructions to the jury on General Statutes §§ 14-227a (a), 53a-60d and 14-242. We reverse the trial court’s judgment.

I

The Motion to Suppress

The narrow issue regarding the defendant’s first claim is whether the so called “emergency doctrine” justified the warrantless entry into the defendant’s home. The following evidence was adduced at the hearing on the motion to suppress. On July 24, 1986, at approximately 3 p.m., the victim, Mark Brunstad, was operating a motorcycle westbound on Long Lots Road in Westport. At the intersection of Long Lots Road and Bayberry Lane, the victim was involved in an accident with a red Peugeot station wagon that was travelling east on Long Lots Road; the victim was injured in the accident.

After the accident, the victim observed the red Peugeot leave the scene, heading north on Bayberry Lane. When the police arrived, the victim gave them a description of both the vehicle that hit him and the driver of that vehicle. The victim described the driver of the Peugeot as an older man with gray hair and glasses. He gave no indication that the driver was injured or appeared intoxicated. He stated only that the driver stopped, looked back at him, and then drove away.

When Officer Michael Barrett of the Westport police department arrived at the accident scene, he observed an overturned motorcycle and the victim being attended to by emergency personnel. He further observed glass debris, a piece of trim and the front grille of a Peugeot. Sergeant Leonard Rummo of the Westport police department told Barrett that the victim had been hit by a red Peugeot station wagon that had fled the scene of the accident.

After assisting in traffic control for approximately twenty minutes, Barrett was dispatched to check driveways on Bayberry Lane in an attempt to locate a vehicle matching the description given by the victim. Approximately one mile from the accident scene, in a driveway adjacent to a house on Bayberry Lane, Barrett observed a red Peugeot station wagon. He ran a check on the vehicle’s registration and was advised that the vehicle was registered under the name of Geisler at that address.

The Peugeot was parked in the driveway with its door ajar and the keys in the ignition. The left front fender of the vehicle was dented, it was missing a piece of trim, the left headlight was broken, the plastic front grille was missing and hair fibers were observed on the front fender.

Officer Gordon Hiltz of the Westport police department, who had also been dispatched to check driveways in the area, shortly thereafter, arrived at the Bayberry Lane home to assist Barrett. Upon his arrival, he noted that the Peugeot’s radiator was warm, consistent with its having been recently operated.

Observing no one in the area, the officers circled the house and then approached the front door of the residence. The inner front door was open, but the outer screen door was closed. The officers rang the doorbell, knocked on the door, and shouted through the screen door. They received no response from anyone in the house, and they again walked around the perimeter of the residence, knocking on the windows in an attempt to arouse someone, if someone should happen to be in the house. They still received no response. Thereafter, the officers returned to the front door and again knocked on the door and yelled into the house. Again, they received no response.

At this point, the officers discussed the possibility that the operator of the Peugeot may have been injured and might be in need of assistance. They subsequently made a warrantless entry into the defendant’s home.

At about 3:30 p.m., Barrett and Hiltz opened the closed screen door and entered the house “at the same time” and “for the same purported reason” — the possible injuries sustained by the operator of the Peugeot. They entered the kitchen, and yelled out “Anyone home?” but received no response. After walking into the house, from their vantage point in the kitchen, they could see across a hallway into a bedroom, where someone was lying on the bed. They again called out, but received no response. They then entered the bedroom, where they found the defendant, fully clothed, apparently either asleep or unconscious on the bed. There was an odor of alcohol in the bedroom.

The officers then shook the defendant to wake him up in order “to see if he was all right.” The defendant awoke, they asked him if he was all right, and he replied that he was. The defendant had no visible injuries, nor did he complain of any, and the officers determined that he was not injured from the accident.

While still in the bedroom, Barrett, who was in uniform, asked the defendant if he had been drinking, and the defendant responded “Yes.” In response to Barrett’s further questioning, the defendant conceded that the red Peugeot outside was his and that he had been operating it. Barrett then asked the defendant when he had operated the Peugeot, and the defendant answered “I got home about an hour ago.” All of these questions were asked in the bedroom, before the defendant had been advised of his Miranda rights.

Barrett and Hiltz then asked the defendant to accompany them outside, and the defendant complied. Once outside, Barrett asked the defendant if the red Peugeot was the car he had been driving, and the defendant answered in the affirmative. The defendant was then asked if he was involved in an accident, and if he was driving the car when the damage occurred. The defendant responded in the negative. At that point, Barrett placed the defendant under arrest, handcuffed him, placed him in a patrol car, and advised him of his rights.

A

THE TRIAL COURT’S RULING

Prior to the trial court’s ruling on the defendant’s motion to suppress, the parties, at the urging of the trial court, stipulated to the following: (1) probable cause existed for the defendant’s arrest at the time of the warrantless entry and (2) the defendant was arrested inside his home by police who entered without a warrant. The trial court found that “exigent circumstances” existed to justify the warrantless entry by the police. The exigent circumstances found by the court were the officers’ “reasonable belief” that the defendant’s “life was endangered,” that the defendant might attempt to flee, and the danger of destruction of evidence. The court further concluded that even if the police did not have exigent circumstances to enter the house, the blood alcohol results, the videotape of the defendant’s arrest, and the defendant’s statements to the police were not the “fruit of an illegal arrest” and were, therefore, admissible.

We first note that the state has conceded in its brief, and we agree, that there is no support for the court’s findings regarding the risks of destruction of evidence and the defendant’s flight, and that such findings cannot be justified on appeal. We, therefore, need address only the issue of whether the police officers reasonably believed that the defendant’s life was in danger. Although the court, in its ruling, relied on the case of State v. Harris, 19 Conn. App. 174, 561 A.2d 459, cert. denied, 212 Conn. 814, 565 A.2d 537 (1989), in which this court set forth the standards for “exigent circumstances,” we agree with the parties to this appeal that the court confused “exigent circumstances” with the “emergency doctrine” in concluding that the warrantless entry was justified.

B

THE EMERGENCY DOCTRINE

It is fundamental that “ ‘physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed . . . .’” Payton v. New York, 445 U.S. 573, 585, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980), quoting United States v. United States District Court, 407 U.S. 297, 313, 92 S. Ct. 2125, 32 L. Ed. 2d 752 (1972); see also State v. Gallagher, 191 Conn. 433, 443, 465 A.2d 323 (1983). Warrantless searches and seizures inside a home are presumptively unreasonable; see Payton v. New York, supra, 586; and the state bears the burden of showing that “exigent circumstances” exist to justify the entry into a private home for the purpose of conducting a search or effecting an arrest without a warrant. State v. Klauss, 19 Conn. App. 296, 300, 562 A.2d 558 (1989); State v. Enright, 17 Conn. App. 142, 147, 550 A.2d 1095 (1988).

The “emergency doctrine” is well established in the law of search and seizure. See Mincey v. Arizona, 437 U.S. 385, 98 S. Ct. 2408, 57 L. Ed. 2d 290 (1978); State v. Klauss, supra; 2 W. LaFave, Search and Seizure (2d Ed. 1974) § 6.6 (a), pp. 697-702. Pursuant to this doctrine, police may enter a home without a warrant only “when they reasonably believe that a person within is in need of immediate aid.” (Emphasis added.) State v. Klauss, supra, 301. “[GJiven the rationale for this very limited exception, the state actors making the search must have reason to believe that life or limb is in immediate jeopardy and that the intrusion is reasonably necessary to alleviate the threat.” Good v. Dauphin County Social Services, 891 F.2d 1087, 1094 (3d Cir. 1989). The reasonableness of a police officer’s determination that an emergency exists is evaluated on the basis of facts known at the time of entry. See W. LaFave, supra, 698. The test is an objective one. See State v. Guertin, 190 Conn. 440, 453, 461 A.2d 963 (1983).

This court recently described the test to be employed in “emergency doctrine” cases as “whether, under the totality of the circumstances, a well-trained police officer reasonably would have believed that a warrantless entry was necessary to assist a person inside in need of immediate aid.” (Emphasis added.) State v. Klauss, supra, 302. After a thorough review of this entire trial record, we conclude that the trial court’s finding of a justifiable warrantless entry into the defendant’s home cannot be supported by the “emergency doctrine.”

In support of our conclusion, we specifically note that Barrett and Hiltz conceded that, aside from the possibility of injury, there existed no other emergency circumstance for a warrantless entry. “[Tjhere is a significant difference between a police entry for the purpose of making an arrest or searching for evidence incident to a criminal investigation and an entry for purposes of rendering aid or saving human life.” Id., 301.

Hiltz testified that, on the basis of his eleven years’ experience of investigating motor vehicle accidents, he felt he would have been “negligent” if he did not go into the defendant’s home to determine whether the defendant was injured. In support of Hiltz’s belief that the defendant was possibly injured and, in accordance with the standards of the “emergency doctrine,” in need of immediate aid, Hiltz testified that he had seen many motor vehicle accidents “where people have sustained an injury without any physical evidence at the site of injury, at the mechanism of injury.” Hiltz’s belief, however, is not supported by the evidence and, accordingly, does not comport with the reasonable actions of a well trained officer under the totality of the circumstances of the present case.

“Since the [emergency] doctrine is an exception to the ordinary Fourth Amendment requirement of a warrant for entry into a home, the burden of proof is on the state to show that the warrantless entry fell within the exception.” W. LaFave, supra, § 6.6 (a), p. 698; see also Mincey v. Arizona, supra, 390-91. The present case requires us to question whether there was any evidence to support a reasonable belief that an emergency existed, or, more specifically, that the defendant was in need of immediate assistance.

This case is unique in that it differs factually from the great majority of the “emergency doctrine” cases that involve common emergency situations (e.g., gunfire, fumes, smoke, explosion, screams, or bloody trails leading into a home). See W. LaFave, supra, for a litany of such cases; see also Wayne v. United States, 318 F.2d 205, 212 (D.C. Cir. 1963) (Burger, J., concurring). The case of Lambert v. State, 745 P.2d 1185 (Okl. Crim. App. 1987), although coming as factually close to the present case as any, is illustrative of that difference. In Lambert, the Oklahoma Court of Criminal Appeals held that the entry by police officers into the residence of a suspected drunken driver known to have been injured and to have been the driver of a “severely damaged,” “wrecked” vehicle was not justified by the concern for that person’s injuries, as the person had responded to the officer’s inquiries made from without the home that he was all right. Lambert is silent as to whether, had the officer received no response, his warrantless entry would have been justified.

Here, however, we are faced with a fact situation that is an extension of Lambert. While the officers here received no response to their inquiries, there was neither evidence of a severely damaged vehicle nor of an injured driver. At the outset, the investigating officers were armed only with the description of the driver as an “older” man who had fled the scene of the accident after stopping for a moment to look back at the point of collision with the motorcyclist. The victim provided no information supporting the belief that the driver was injured and in need of assistance. Added to this knowledge were the observations of the police at the defendant’s home, namely, the car with the door ajar and the keys in the ignition and the inner door of the house open with the outer screen door shut on a July afternoon. Nothing from these facts could be reasonably said to provide a basis for believing that the driver was injured to the point of needing immediate aid.

There are no cases that directly guide us in the application of the “emergency doctrine” standards under circumstances such as those present here. Persuasive, however, are certain precepts regarding the “emergency doctrine” that are applicable to this case.

It is clear that the officers had no actual evidence to support their conclusion of serious injury to the defendant, whom the officers had never seen before their entry, but whom they assumed to be the driver of the red Peugeot, within the house and, according to their testimony, in need of immediate medical assistance. Compare Thompson v. McManus, 512 F.2d 769 (8th Cir.), cert. denied, 421 U.S. 1014, 95 S. Ct. 2421, 44 L. Ed. 2d 683 (1975) (police justified in entering home of woman assaulted in that home and who had struggled to the home of a neighbor, who called the police because there might be others injured inside); State v. Barone, 330 F.2d 543, 544 (2d Cir.), cert. denied, 377 U.S. 1004, 84 S. Ct. 1940, 12 L. Ed. 2d 1053 (1964) (entry justified where police heard screams in the middle of the night coming from within the home); People v. Kepi, 65 Ill. App. 3d 327, 382 N.E.2d 642 (1978) (apartment door wide open at 2 a.m. and blood stains on floor justified belief that someone might be in need of immediate aid); Duquette v. Godbout, 471 A.2d 1359 (1984) (entry proper when police found distraught mother screaming and banging on apartment door, saying she believed her daughter was inside and that she had heard screaming within); see also cases cited in W. LaFave, supra, n.23-33. The evidence in this case does not justify a reasonable belief that the defendant’s medical condition manifested itself in such a traumatic fashion (e.g., heart attack, stroke, serious internal injuries) as would require the officers’ immediate entry into the home.

The objective test that we formulated in State v. Klauss, supra, focuses on the belief of a reasonable, well trained police officer that, under the totality of the circumstances, the person inside the home is in need of immediate aid. Klauss provides a factual situation that clearly warrants application of the “emergency doctrine.” In Klauss, the police had received information from several sources, including the defendant’s girl friend, that the defendant was despondent, intoxicated, armed with either a shotgun or handgun, and possibly suicidal. They had information that a “gunshot had either been fired or that a shotgun had been activated by a pumping action.” Id., 303. The defendant’s housemates told the officers that they had seen the defendant leave the house but that “ ‘[h]e could have come back by the time we went to the police station and back.’ ” On the basis of all of this information, the police immediately set out in search of the defendant. On the basis of the totality of these circumstances, the trial court held, and this court affirmed, that the “emergency doctrine” justified entry because the police reasonably believed the defendant was in immediate need of aid, that the only purpose in entering the apartment was to protect the defendant and third parties, and that the defendant, believed to be armed and suicidal, had not yet been located and that it was reasonable to believe that he might be in the apartment. Id., 302-303.

The circumstances of the present case, however, do not justify a finding that such a reasonable belief existed. In employing an exception to a constitutional requirement such as the “emergency doctrine,” courts should not become mindless automatons that afford the judicial stamp of approval to each and every claim of emergency. “[T]he exception must not be permitted to swallow the rule: in the absence of a showing of true necessity—that is, an imminent and substantial threat to life, health or property—the constitutionally guaranteed right to privacy must prevail.” (Emphasis added.) People v. Smith, 7 Cal. 3d 282, 286, 101 Cal. Rptr. 393, 496 P.2d 1261 (1972); see also Good v. Dauphin County Social Services, supra, 1094. If we were to sanction the application of the emergency doctrine in this case, we would create a precedent that could be misinterpreted by law enforcement authorities as a more expansive ticket of entry into a person’s private home than the emergency doctrine, in fact, permits.

We do not adopt a “bright line” test for cases such as these, but here we conclude that this case does not provide sufficient factual circumstances meriting the application of the emergency doctrine. We acknowledge that “salutary and empirical doctrine of an emergency or exigency making reasonable a warrantless entry . . Root v. Gauper, 438 F.2d 361, 365 (8th Cir 1971); but the facts of this case do not warrant the application of that doctrine. Cf. id. We must be continually reminded that, while a limited intrusion into the home is constitutionally acceptable, under some circumstances, “physical entry of the home” is the principal concern of the fourth amendment. United States v. United States District Court, supra, 313. Under the limited circumstances of this case, we conclude that the trial court incorrectly found that exigent circumstances justified the warrantless entry of the police into the defendant’s home.

C

FRUIT OF THE POISONOUS TREE

The state also argues, however, that even if the trial court incorrectly found that the entry of the defendant’s home was justified under the emergency doctrine, such error was harmless because the evidence derived from the defendant was not obtained by the exploitation of an illegal seizure. The trial court concluded that even if the officer’s entrance into the defendant’s home was not justified by emergency circumstances, the blood alcohol test results and the statements subsequently made by the defendant while his arrest was being videotaped were nonetheless admissible because they were not the “fruit of an illegal arrest.” We disagree.

Whether the evidence derived from an unlawful warrantless entry and arrest is attenuated from the initial unlawfulness must be answered on the facts of each case. Brown v. Illinois, 422 U.S. 590, 603, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975). The determination of whether evidence has been obtained by exploitation of an illegal arrest generally includes, in addition to consideration of whether Miranda warnings have been given, the consideration of “[t]he temporal proximity of the arrest and the confession, the presence of intervening circumstances . . . and, particularly, the purpose and flagrancy of the officer’s misconduct.” Id., 603-604. The burden of showing the admissibility rests upon the state. Id., 604. Applying these criteria to the present case, we find that the derivative evidence, namely, the defendant’s statements, the intoximeter results, the videotape, and the photograph, must be suppressed.

We begin by noting that the state concedes in its brief that the time period between the arrest and the defendant’s station house statements and consent to take the intoximeter test was minimal. The state argues, however, that certain intervening circumstances establish that the defendant voluntarily gave these statements, and his consent thus assured that they were not obtained by exploitation of the illegal arrest.

This particular issue is very similar to that addressed in Brown v. Illinois, supra, where the defendant, Brown, was the subject of an illegal arrest, brought into the police station, advised of his Miranda rights, and subsequently questioned about the homicide for which he had been arrested. Brown later gave a second incriminatory statement. The United States Supreme Court in Brown overturned the Illinois Supreme Court’s admission of those statements into evidence and noted that “the State failed to sustain its burden of showing that the evidence in question was admissible under Wong Sun. Brown’s first statement was separated from his illegal arrest by less than two hours, and there was no intervening event of significance whatsoever.” (Footnote added.) Id., 604. The court went on to hold the second statement inadmissible as well, reasoning that “[t]he fact that Brown had made one statement, believed to him to be admissible, and his cooperation with the arresting and interrogating officers in the search for [the suspect], with his anticipation of leniency, bolstered the pressures for him to give the second, or at least vitiated any incentive on his part to avoid self-incrimination. Cf. Fahy v. Connecticut, 375 U.S. 85 [84 S. Ct. 229, 11 L. Ed. 2d 171] (1963).” Id., 605 n.12.

In this case, the intervening circumstances upon which the state relies are that the officers read the defendant his Miranda warnings twice prior to his consenting to take the intoximeter test, his consent was obtained away from the arrest scene, the defendant was given an opportunity to contact an attorney prior to consenting, and the defendant consented after the police advised him of the implied consent statute, General Statutes § 14-227b.

Our analysis of these postarrest events leads us to conclude that there was a continuum of police contact with the defendant that was insufficient to eradicate the taint from the derivative evidence. Cf. id., 604-605. Thus, the Miranda warnings that the police gave the defendant subsequent to the illegal arrest had little effect in breaking the connection between the defendant’s unlawful seizure and his statements and other derivative evidence. Miranda warnings are given to protect the defendant’s fifth amendment rights, but do not fully protect the rights under the fourth amendment. Therefore, even if statements are found to be voluntary under the fifth amendment, the fourth amendment issue remains. In order to break the continuum between the illegal arrest and any subsequent statements obtained, the statements must be “sufficiently an act of free will to purge the primary taint.” Wong Sun v. United States, 371 U.S. 471, 486, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963); see Brown v. Illinois, supra, 602-604; see also Dunaway v. New York, 442 U.S. 200, 216-18, 99 S. Ct. 2248, 60 L. Ed. 2d 824 (1979). “Arrests made without warrants or without probable cause . . . would be encouraged by the knowledge that evidence derived therefrom could well be made admissible at trial by the simple expedient of giving Miranda warnings. Any incentive to avoid Fourth Amendment violations would be eviscerated by making the warnings, in effect, a ‘cure-all,’ and the constitutional guarantee against unlawful searches and seizures could be said to be reduced to ‘a form of words.’ See Mapp v. Ohio, 367 U.S. [643, 648, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961)].” Brown v. Illinois, supra, 602-603.

Finally, the state would have us agree with the trial court’s conclusion that, because of the “good faith” intentions of the police in making the warrantless entry into the defendant’s house, their actions were not tantamount to the “flagrant police misconduct” that is the subject of the Brown analysis. The state argues that we should, in effect, 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 for admissibility of the chemical test. Subdivision (5) requires, with certain exceptions not relevant here, that “an additional chemical test of the same type [be] performed at least thirty minutes after the initial test was performed,” and sudivision (6) provides that “evidence is presented which demonstrates that the test results and the analysis thereof accurately reflect the blood alcohol content at the time of the alleged offense.” (Emphasis added.)

The requirement for the second test, and the insertion into the sixth condition of admissibility of the phrase “and the analysis thereof” were the result of an amendment to the per se drunk driving bill on the floor of the House, prior to its ultimate passage, presented by Representative Richard Blumenthal. The legislative debate on the second test requirement and on the “analysis thereof” language has convinced this court that the legislature, in enacting the per se legislation, contemplated that there would be expert testimony specifically relating the B AC at the time of the tests to the BAC at the time of operation of the motor vehicle.

As best we can ascertain, there is only one other state that requires expert extrapolation evidence; see State v. Dumont, 146 Vt. 252, 499 A;2d 787 (1985). We are well aware that in reaching our conclusion that this evidence is required, we are adopting the minority position. The majority of jurisdictions that have addressed this issue have held that expert testimony is not necessary to relate the breathalyzer tests to the time of the driving and that states can utilize behavioral evidence, such as erratic driving, to corroborate the test results. It is significant to note, however, that many of these states have legislatively mooted the requirement of expert extrapolation evidence by providing in their per se drunk driving statutes that if the test is administered within a certain time after the offense, those results constitute the per se violation; see, e.g., Erickson v. Municipality of Anchorage, 662 P.2d 963, 964-65 (Alaska App. 1983) (presumption of violation if administered within four hours); People v. Pritchard, 162 Cal. App. 3d Supp. 13, 16, 209 Cal. Rptr. 314 (1984) (rebut-table presumption of illegal BAC if within three hours); State v. Larson, 429 N.W.2d 674, 675 (Minn. App. 1988) (within two hours); People v. Mertz, 68 N.Y.2d 136, 139, 497 N.E.2d 657, 506 N.Y.S.2d 290 (1986) (prima facie case established if administered within two hours); State v. Ulrich, 17 Ohio App. 3d 182, 190, 478 N.E.2d 812 (1984) (within two hours). Further, those statutes that have not provided that the tests be administered within a certain time period, do not contain language that can be compared to the phrase “and the analysis thereof” contained in our statute or to the legislative discussion behind the amendment. See, e.g., Fuenning v. Superior Court in and for City of Maricopa, 139 Ariz. 590, 680 P.2d 121 (1930); State v. Miller, 555 So.2d 391, 393 (Fla. App. 3 Dist. 1989); State v. Knoll, 110 Idaho 678, 681, 718 P.2d 589 (Ct. App.), cert. denied, 116 Idaho 466, 776 P.2d 828 (1986); People v. Kozar, 54 Mich. App. 503, 221 N.W.2d 170 (1974); State v. Larson, supra, 676-77; Commonwealth v. Speights, 353 Pa. Super. 258, 509 A.2d 1263 (1986).

Those states in which the statute does not address the issue of requiring expert extrapolation testimony recognize, however, that if the legislature expressed a clear intent that such evidence be required, a different result would be necessary. See, e.g., State v. Ulrich, supra, 191 (conclusion that expert testimony is not necessary because of absence of “clear statutory language requiring the need for expert testimony”); see also Fuenning v. Superior Court in and for City of Maricopa, supra, 598—99; State v. Knoll, supra, 682; People v. Kozar, supra, 508-509; Commonwealth v. Spreights, supra, 265-66.

Our legislature, as discussed at length above, has clearly indicated its intent that extrapolation testimony be required to prove a violation of our per se drunk driving statute. Our conclusion on this issue forces us to reexamine this court’s decision in State v. Garrity, 17 Conn. App. 376, 552 A.2d 452, cert. denied, 210 Conn. 813, 556 A.2d 1024 (1989).

In State v. Garrity, supra, this court was presented with the same claim with which we are presented in this case, namely, that there was insufficient evidence to sustain the per se conviction because there was no evidence relating the BAC at the time of the test to the level at the time of the offense. In Garrity, we rejected this claim and held that corroborative behavioral evidence was sufficient to show that the test results accurately reflected the defendant’s BAC at the time of the offense. Id., 383-84. The corroborative evidence that this court held to be sufficient was the evidence of the defendant’s drinking, his “shaky and unsteady” behavior, the one hour and forty minute time lapse before the test, and the fact that he neither drank nor smoked during that period between his arrest and the administration of the tests. Id., 384.

In reaching this result, Garrity specifically relied on State v. Hancich, 200 Conn. 615, 623-24, 513 A.2d 638 (1986). Hancich involved the admissibility of the breathalyzer test results under General Statutes § 14-227a (c) (6), the part of the admissibility provision that required “evidence . . . which demonstrates that the test results accurately reflect the blood alcohol content at the time of the alleged offense.” The statute did not then have the “and the analysis thereof” language in it. The Hancich court held sufficient to comply with subdivision (6), evidence that the test was administered forty-four minutes after the defendant’s arrest, that he drank no alcohol in the interim, and that the testing equipment was accurate.

We must conclude that, in deciding Garrity, our reliance on Hancich was misplaced, and that the statute as amended in 1985 requires expert relation back testimony. First, when Hancich was decided, the test results raised only a rebuttable presumption of driving under the influence; they did not establish a per se offense. Second, the language “and the analysis thereof” and the requirement of a second test were not in the statute under consideration in Hancich; they were added when the 1985 General Assembly created the per se offense. Third, the legislative debate concerning the 1985 amendments indicates a legislative concern over the reliability of the test as indicating the blood alcohol level at the time of the driving and an understanding that this reliability would be corroborated with expert relation back testimony. Although the amendments adding the second test requirement and “the analysis thereof” language were to the admissibility. section of the statute, the legislative debate seems to go well beyond admissibility into the area of sufficiency of evidence.

In light of the legislative history of the public act amending our operating under the influence statute and the legislative intent expressed during the debate on the act, we are convinced that our reliance on Hancich was misplaced and that our result in Garrity should have been different.

B

ASSAULT IN THE SECOND DEGREE WITH A MOTOR VEHICLE

The defendant was also convicted of violating General Statutes § 53a-60d, which provides that “[a] 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 (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).

Ill

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). 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: ‘ Tf you find that the vehicle of [the victim] was either in the intersection or so close thereto as to constitute an immediate hazard, then the statute is applicable, to give the right-of-way to the approaching car coming from the opposite direction, namely the one that [the victim] was driving.”

The defendant claims first that the trial court should not have included any reference to § 14-242 in its charge because that statute was not. involved in this case, and that its inclusion either lowered the state’s burden of proof or confused the jury on the element of causation. A review of the charge as a whole reveals that this claim is without merit.

In reviewing a challenge to a jury instruction, we must look at the charge as a whole, without looking at any one portion in isolation. State v. Quintana, 209 Conn. 34, 51, 547 A.2d 534 (1988); State v. Ostalaza, supra, 48. Our review of the charge as a whole here reveals that, in its instruction on causation, the trial court instructed the jury that if it found that the defendant was the cause of the victim’s injuries, it must find that his operation of the vehicle was the “predominant producing cause of the accident.” The trial court then proceeded to instruct the jury that the state had to prove beyond a reasonable doubt that the defendant was driving while intoxicated and .that the injury caused by the defendant was a consequence of that intoxication.

The defendant alternatively claims that if the trial court was correct in including reference to § 14-242 in its jury instructions, then it improperly failed to give a “complete” instruction as that approved in Affinito v. Daniels, 179 Conn. 388, 389, 426 A.2d 782 (1979). He claims that the trial court failed to provide adequate guidance to the jury on his theory of defense by failing to give the second half of the Affinito instruction, that is, that if the jury found that the victim’s car was not so close to the intersection when the defendant’s car was about to turn left, a reasonably prudent person would believe that if the turn was made, no real immediate danger of collision existed, then the defendant had the right-of-way. See id.; Randazzo v. Pitcher, 17 Conn. App. 471, 474, 553 A.2d 1158 (1989). The second half of the Affinito charge was unnecessary here because the defendant at no time raised as a theory of defense that he had the right-of-way. Our review of the instructions as a whole reveals that the trial court adequately instructed the jury on the defendant’s theory of defense, which was that the victim was travel-ling at an excessive rate of speed and that he was inattentive.

B

The defendant next claims that the trial court should not have included in its subsequent instruction on § 14-227a (a) (2) that, where a person’s BAC is .10 or more, under the influence is conclusively established. He argues that the jurors could have misapplied this “conclusive” standard to their determination of the “under the influence” element of § 53a-60d.

A review of the record in this case reveals that it does not support this claim. State v. Golding, supra. The trial court clearly instructed the jury on the elements of § 53a-60d separately from its instructions on the elements of § 14-227a (a) (2). It further instructed them on the distinct meaning of “under the influence” as used in each section. Because the instructions in this case are clear, it is presumed that the jury followed those instructions. State v. Rodriguez, 210 Conn. 315, 333, 554 A.2d 1080 (1989); State v. Nelson, 17 Conn. App. 556, 568, 555 A.2d 426 (1989). There is no merit to the instructional claims.

The judgment is reversed as to the conviction of operating while under the influence of Jiquor under General Statutes § 14-227a (a) (2) and of assault in the second degree with a motor vehicle under General Statutes § 53a-60d and the case is remanded with direction to render a judgment of acquittal of operating while under the influence of liquor and for a new trial on the charge of assault in the second degree with a motor vehicle under § 53a-60d.

In this opinion Dupont, C. J., Borden, O’Connell and Lavery, Js., concurred.

Spallone, J.,

with whom Daly and Foti, Js., join, dissenting. The majority has concluded that the trial court could not have reasonably found that the warrantless entry into the defendant’s home was justified under the emergency doctrine. Although this conclusion is phrased as a question of law, it is apparent to me that this court has impermissibly reevaluated the facts and reweighed the credibility of the police officers’ testimony. However zealously we would champion a citizen’s right to be secure in his home, our power to upset the trial court’s findings on appeal is limited. State v. Zindros, 189 Conn. 228, 238, 456 A.2d 288 (1983), cert. denied, 465 U.S. 1012, 104 S. Ct. 1014, 79 L. Ed. 2d 244 (1984).

The well settled standard of review of fourth amendment issues on appeal is whether the trial court’s decision is clearly erroneous. Id.; State v. Hamilton, 17 Conn. App. 385, 388-89, 552 A.2d 834 (1989), aff'd, 214 Conn. 692, 573 A.2d 1197 (1990); State v. Enright, 17 Conn. App. 142, 146, 550 A.2d 1095 (1988). It is not our function to find facts or to draw conclusions from primary facts found, and it is error for us to do so. See State v. Reagan, 209 Conn. 1, 8, 546 A.2d 839 (1988). Our function is to determine, in light of the whole record, whether the trial court could reasonably have concluded as it did. State v. Hamilton, supra, 389.

The record here indicates that the trial court properly held the police officers to the stringent objective test we approved in State v. Klauss, 19 Conn. App. 296, 302, 562 A.2d 558 (1989). In denying the defendant’s motion to suppress, the trial court specifically found that, under all the circumstances, the police officers had an objectively reasonable belief that the defendant needed immediate aid justifying an emergency entry into the house. The facts as accepted by the trial court are concededly inconclusive as to whether the defendant needed immediate assistance. These facts are, however, no less a reasonable basis for action than those in State v. Klauss, supra. In Klauss, for example, we approved the warrantless police entry as an emergency although the police had no first hand knowledge of the emergency circumstances, had delayed before effecting entry, and had little expectation that the defendant was even on the premises. Id., 299.

Absent a trail of blood or cries for help, we must inevitably rely on trained officers to take prompt action to protect lives despite inconclusive evidence of necessity. We must, therefore, rely on the trial court’s decision as to the weight of the evidence and the credibility of the police testimony. See State v. Zindros, supra, 240. Whether this court believes the testimony of these officers is irrelevant. Our skepticism cannot justify an invasion of the trier’s province. See id., 254.

The trial court here reached a reasonable conclusion based on the record and I cannot agree with the majority that this decision was clearly erroneous. Because I cannot join in substituting our judgment for that of the trial court, I must respectfully dissent on this issue. I join the majority in the legal conclusions reached on issues II A and III. I cannot, however, join in the remand because my disagreement on the first issue would render a different result.

       It is significant to note that Officers Barrett and Hiltz testified that the factors that influenced their decision to enter the home were (1) the damage to the Peugeot which they thought was sufficient to cause injury to the driver, (2) the description of the driver as an “older” man, (3) their belief that the driver had been rendered unconscious or had suffered a heart attack as a result of the accident, and (4) their “collective experience” as police officers.

        Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       At the suppression hearing, Barrett conceded that the defendant would not have been allowed to leave the officers’ presence had he made such an attempt.

       The evidence, including the photographs entered as exhibits, fails to indicate that the damage was severe.

       We also note that the police officer’s documented report of the incident included no reference whatsoever to injuries or even possible injuries to the driver of the Peugeot. Further, the officers did not express concern that the driver might be injured and in need of immediate assistance until outside the defendant’s home.

        Wong Sun v. United States, 371 U.S. 471, 486, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963).

       We note that the state is not raising an argument that the actions of the police officers fall under the “good faith” exception to the warrant requirement enunciated in United States v. Leon, 468 U.S. 897, 104 S. Ct. 8405, 82 L. Ed. 2d 677 (1984), but rather, claims that the officers here “meant well.”

       See, e.g., the following: “Essentially what we are doing if we pass this amendment is to establish . . . two methods of proof. One method of proof is the conventional or traditional method which relies on evidence of behavior. The person couldn’t walk straight, couldn’t talk correctly, all the observational kind of evidence that would ordinarily be admitted at a trial. The second method of proof that we would establish is what is commonly and what would be essentially called today the per se method which is essentially to rely on blood alcohol content. What this amendment seeks to do is to make the measurement of blood alcohol content as reliable as possible by requiring two tests. The reason for the two tests is that in order to extrapolate back, in order to relate back to the time of the offense, that is the time the person was driving, it is necessary to establish a trend as to whether or not the blood alcohol content was going down or rising. . . . The imposition, the use of two tests, assures that blood alcohol content will be established as reliably as possible at the time of the offense.” (Emphasis added.) 28 H.R. Proc., Pt. 30, 1985 Sess., pp. 10853-54, remarks of Representative Richard Blumenthal. “[T]he reason for the second test is to assure the analysis show blood alcohol content at the time the person was driving. That earlier point in time .... So there are two objectives to this part of the amendment, not only to insure a second test for the sake of reliability as to the results of the first test, but also to be able to establish as precisely as possible what the blood alcohol content was at the time the person was driving.” Id., pp. 10865-66, remarks of Representative Richard Blumenthal. “I am informed by the State’s Chief Toxicologist, Dr. Stole-man, and by the Chief State’s Attorneys Office both of whom by the way have been involved in the drafting of this amendment, that it is possible to relate back to extrapolate back in this way. In fact, an expert testifying in court would very much prefer to have a second test because it would eliminate the need for other evidence by which he would testify as to what blood alcohol level was at an earlier point in time. ” (Emphasis added.) Id., pp. 10871-72, remarks of Representative Richard Blumenthal.

       See, e.g., the following: “[I]f the blood alcohol content had dropped during the intervening time period, it would be possible to extrapolate back much as you would establish a graph curve and show that at the time the person was driving, the blood alcohol content was above .10.” 28 H.R. Proc., Pt. 30,1985 Sess., p. 10857, remarks of Representative Richard Blumenthal. “[BJecause in most people, the blood alcohol content will be dropping following the time when the person is stopped, the trend can be established through expert testimony very simply, that at the time the person was driving, that is in advance of the first test, it was even higher than at the time of the first test. ” Id., 10858-59, remarks of Representative Richard Blumenthal. “[A]s long as the analysis of both tests would establish blood alcohol content above .1 at the time the person was driving, the second method of proof can be used, that is the per se method.” (Emphasis added.) Id., 10863, remarks of Representative Richard Blumenthal.

       In Smith v. State, 502 N.E.2d 122, 127 n.5 (Ind. Ct. App. 1986), the Indiana Court of Appeals agreed that, “[i]t would be necessary to show the blood alcohol content at the time of the offense by means of extrapolation or test results obtained at the time of the violation in order to support a conviction under [Indiana’s per se drunk driving law].” The Indiana legislature, however, subsequently amended the statute to provide that if the test is conducted within a prescribed time period, the blood alcohol content at the time of the administration of the test was the offense. Sullivan v. State, 517 N.E.2d 1251 (Ind. Ct. App. 1988).


source: Caselaw Access Project

author: Daly, J.

license: Public Domain

text:
    Morton J. Downey, Sr. v. Retirement Board of the City of Waterbury et al.
    (8130)
    Borden, Daly and Lavery, Js.
    Argued February 7
    decision released June 26, 1990

      Louise Allen Brown, with whom, on the brief, was John F. Phelan, assistant corporation counsel, for the appellants (defendants).

      Linda Selby Tableman, for the appellee (plaintiff).
   Daly, J.

The defendants, the Waterbury retirement board and the individual members of the board, appeal from the judgment of the trial court sustaining the plaintiffs appeal from the denial of his request to be rehired as a Waterbury firefighter and to be removed from the disability pension rolls of the board. The defendants challenge the following actions of the trial court: (1) its determination that the plaintiff was aggrieved, (2) its finding that § 2746 of the Waterbury city charter was not repealed by implication by the 1962 Home Rule Act referendum to the city charter (hereinafter 1962 civil service amendment), and (3) its conclusion that the board acted arbitrarily and in abuse of discretion. We affirm the trial court’s judgment.

The factual background is not in dispute. The plaintiff had been employed as a firefighter by the Waterbury fire department from 1953 to July, 1982. In July, 1982, the plaintiff applied for a voluntary disability pension on the basis of the medical diagnosis that he was suffering from heart disease. On September 29,1982, the board granted the plaintiffs application, awarding him a 76 percent disability pension in the amount of $16,028.83. In addition, the plaintiff received workers’ compensation benefits until January, 1988, for a 35 percent permanent partial disability of the heart.

In 1987, the plaintiff, as required by a life insurance policy provided by the city of Waterbury as a retirement benefit, was examined by a physician to determine his continuing disability status. The physician advised him that there was no medical evidence to indicate that he had heart disease that would restrict his activities or work status. This medical finding was later confirmed by a second physician in a letter indicating that the plaintiff was qualified to resume his duties as a firefighter for the city.

In March, 1987, the plaintiff applied to the board to be reinstated as a firefighter for the Waterbury fire department, and to be removed from the disability pension roll. The city requested that the plaintiff be examined by one of the physicians who originally diagnosed him as having severe heart disease that precluded him from working in his position. The plaintiff complied and this physician also concluded that the plaintiff was able to return to his former position.

A hearing before the board was held on April 11, 1988. The plaintiff presented the uncontroverted medical evidence from the three physicians. A letter was introduced from John F. Phelan, assistant corporation counsel for Waterbury, dated March 16, 1988, to the plaintiff’s attorney. In that letter, Phelan stated that he was advising the mayor and other city officials that the plaintiff should not be rehired as a firefighter and should remain on the pension rolls. He asserted that, although § 2746 of the Waterbury city charter would require the plaintiffs reinstatement on a finding by the board, based upon “competent medical evidence” that the plaintiff was no longer disabled, that section was superseded by subsequently enacted civil service legislation. In this letter, Phelan concluded that “there is no basis under Civil Service rules for rehiring a retired firefighter since there is no eligibility list for that category - type of person.” The board denied plaintiffs application.

Pursuant to § 2709 of the Waterbury city charter, the plaintiff appealed to the trial court. The court found that the plaintiff was aggrieved, based on the fact that, as a result of the board’s decision, he had lost his life insurance policy, was unable to obtain medical insurance, and had been deprived of his only “career” employment. In addition, the court concluded that the board acted arbitrarily and abused its discretion by failing to consider the competent uncontroverted medical evidence and the clear directive of § 2746 of the city charter when it voted that the plaintiff’s name not be removed from the disability pension rolls of the city. The court also specifically addressed the defendants’ special defense that § 2746 was superseded and repealed by the 1962 civil service amendment to the city charter, finding that the latter legislation was inapplicable. Finally, the court ordered the board to transfer the plaintiff’s name to the director of personnel for placement on the city’s preferred reemployment list for firefighters, and, when the plaintiff is offered reinstatement to his prior position, to discontinue his pension. This appeal followed.

I

The defendants first challenge the court’s finding that the plaintiff had established that he was aggrieved by the board’s decision. Specifically, the defendants assert that the court’s factual finding that the plaintiff was aggrieved because he was deprived of his only “career” employment was not supported by sufficient evidence. We do not agree.

“ ‘Pleading and proof of aggrievement [is] ... a prerequisite to a trial court’s jurisdiction over the subject matter of an appeal.’ ” Lewin v. United States Surgical Corporation, 21 Conn. App. 629, 631, 575 A.2d 262 (1990), quoting Beckish v. Manafort, 175 Conn. 415, 419, 399 A.2d 1274 (1978). The question of aggrievement is essentially one of standing; see Beckish v. Manafort, supra; unless the plaintiff established that he was aggrieved by the decision of the board, he had no standing to appeal. See id.

“Aggrievement, when not based upon a specific statute, is determined by way of a well-settled twofold test. First, the plaintiff must successfully demonstrate a specific, personal and legal interest in the subject matter of a decision. Second, [he] must successfully establish that this interest has been specially and injuriously affected by the decision. Mystic Marinelife Aquarium, Inc. v. Gill, 175 Conn. 483, 493, 300 A.2d 726 (1978). Further, an aggrieved party must have a claim that is distinguishable from the concerns of the community at large. Id.” Lewin v. United States Surgical Corporation, supra. It is well settled that the question of aggrievement is a question of fact for the trial court. Bakelaar v. West Haven, 193 Conn. 59, 65, 475 A.2d 283 (1984). “ ‘The scope of review of a trial court’s factual decision on appeal is limited to a determination of whether it is clearly erroneous in Anew of the evidence and pleadings.’ ” Feigenbaum v. Waterbury, 20 Conn. App. 148, 151, 565 A.2d 5 (1989), quoting Belle Camperland, Inc. v. Commission, 5 Conn. App. 678, 679, 501 A.2d 1226 (1985).

The record supports the court’s determination that the plaintiff was aggrieved by the board’s decision. He had lost a life insurance policy and his medical insurance. Furthermore, the evidence that the plaintiff had been employed as a Waterbury firefighter for twenty-nine years supports the trial court’s factual finding that firefighting was the plaintiff’s “career” employment. The court correctly found that the plaintiff was aggrieved.

II

In their second claim, the defendants reassert a claim they made to the trial court as a special defense, namely, that the 1962 civil service amendment, which established §§ 201 through 214 of the city charter pertaining to the Waterbury civil service system, repealed the “reinstatement in the same or comparable employment” language of § 2746. See footnote 1, supra.

We note at the outset that the defendants challenge only the board’s power to offer reinstatement. The effect of this argument would be that upon the board’s finding that an applicant has presented competent medical evidence that he is no longer disabled, as required by § 2746, the board would be required to discontinue that person’s pension without an offer of reinstatement in the same or comparable employment.

The defendants rely on the following rule of law: “When a later statute covers the whole subject to which it relates, it will be held to repeal by implication all prior statutes on the matter.” (Emphasis added.) McAdams v. Barbieri, 143 Conn. 405, 413, 123 A.2d 182 (1956).

There are two prerequisites that have to be met in order for us to find that the language at issue was repealed by implication: (1) that the 1962 civil service amendment was adopted after § 2746; and (2) that the whole subject of reinstatement is covered by the later enacted 1962 civil service amendment. The defendants cannot meet either of these two requirements and, therefore, their claim must fail.

First, the 1962 civil service amendment is not a later enactment. While it is true that § 2746 was originally enacted before the 1962 civil service amendment, that section was later reenacted and modified by a 1983 amendment to the Home Rule Act. See footnote 1, supra. The language at issue was kept intact and the modification that was enacted is not relevant to the case. What is relevant is the reenactment of § 2746 after the 1962 civil service amendment. “When the provisions of an original act are repeated in the body of amendments, either in the same or equivalent words, it is considered that the intent of the legislature is that the original law should continue.” Kimbro v. Manson, 30 Conn. Sup. 20, 26, 295 A.2d 569 (1972). Because it cannot be said that the 1962 civil service amendment was enacted after § 2746, the first prerequisite cannot be met and, thus, the defendant’s claim that the 1962 civil service amendment repealed by implication § 2746 must also fail.

Even if we accepted the defendants’ argument that only the modified language of § 2746 was adopted in 1983, we would still find that the 1962 civil service amendment does not cover the whole subject of pension plans.

In this vein, the defendants assert that the language at issue in § 2746 is necessarily repugnant to the 1962 civil service amendment, because the civil service commission, not the retirement board, is empowered to deal with hiring and reemployment of firefighters.

Section 205 of the 1962 civil service amendment provides for a civil service commission empowered to adopt rules and regulations that, in relevant part, provide for “(a) the preparation, maintenance and revision of a position classification plan for all positions in the classified service ... (b) a compensation plan for all employees in the classified service not covered by a collective bargaining agreement . . . (c) open competition examinations to test the relative fitness of applicants for appointment to the respective positions in the competitive division . . . (d) promotions . . . (e) the establishment of eligible lists for appointment and promotion . . . (k) . . . for reinstatment of persons who resign in good standing or who are laid off from their positions without fault or delinquency on their part . . . .” (Emphasis added.) Waterbury Charter and Related Laws § 205 (a) through (m); see also Waterbury Charter and Related Laws §§201 through 214.

While it is true that this civil service amendment was enacted to instill a broad range of powers in the civil service commission, we do not agree that either the language at issue in § 2746 is repugnant to this statute or that the entire subject of reinstatement has been subsumed by this statute. Indeed, the only language that creates the possibility of a conflict between the power of the retirement board and the power of the civil service commission in this regard is found in subsection (k) of § 205 of the 1962 civil service amendment. That subsection, however, provides that the civil service commission shall promulgate rules and regulations for reinstatment of persons who resign in good standing. On the other hand, the retirement board is responsible for reinstatement of firefighters or police officers who retire as a result of on the job disabilities.

We conclude that, even if the 1962 civil service amendment was a later enactment, its establishment of a civil service commission with certain powers is neither repugnant to the language at issue in § 2746 nor is it exclusive on the subject of reinstatement. The 1962 civil service amendment relates only to the formation of a merit system; it does not cover retirements.

“ ‘Repeals by implication are not favored and will never be presumed where the old and new statute may well stand together. . . . “[I]f courts can by any fair interpretation find a reasonable field of operation for both statutes without destroying or perverting their evident meaning and intent, it is the duty of the courts to do so, thus reconciling them and according to them concurrent effect.” ’ ” (Citations omitted.) State v. Carbone, 172 Conn. 242, 256, 374 A.2d 215, cert. denied, 431 U.S. 967, 97 S. Ct. 2925, 53 L. Ed. 2d 1063 (1977).

The provisions of § 2746 of the city charter and the 1962 civil service amendment to the charter as they bear upon the issues of this case, instead of being repugnant, fit together into a harmonious body of legislation, as the legislature presumably intended that they should. See Metropolitan District v. Barkhamsted, 199 Conn. 294, 306-307, 507 A.2d 92 (1986); see also Shanley v. Jankura, 144 Conn. 694, 704, 137 A.2d 536 (1957).

Ill

The defendants’ third claim is that the court should not have concluded that the board acted arbitrarily and in abuse of its discretion because the board followed the advice of the Waterbury assistant corporation counsel. We disagree.

“The court’s function is limited to the examination of the record to determine whether the ultimate decision was factually and legally supported to ensure that the board did not act illegally, arbitrarily or in abuse of its discretion.” Ferrier v. Personnel & Pension Appeals Board, 8 Conn. App. 165, 167, 510 A.2d 1385 (1986). “Without question agency action which is unconstitutional, contrary to law, illegal, or beyond the power granted to the agency is arbitrary, capricious, unreasonable, or an abuse of discretion; action which is condemned by such terms is not redeemed by the presence of good faith or even high purpose. ” (Emphasis added.) 2 Am. Jur. 2d, Administrative Law § 651. Contrary to the defendants’ argument, good faith in relying on the advice of its counsel cannot save its action when such action was affected by an error of law in that it ignored the directive of § 2746 of the Waterbury city charter. See id.; see also Wilson v. Freedom of Information Commission, 181 Conn. 324, 342-43, 435 A.2d 353 (1980).

The judgment is affirmed.

In this opinion the other judges concurred.

       Waterbury Charter and Related Laws § 2746 provides in pertinent part: “Any fire or police participant totally and permanently disabled during the performance of essential duties pertaining to his employment, [shall] be retired for disability .... The retirement board shall pay to each regular member employed in the fire . . . department who has been retired for disability ... a pension during the continuance of such disability. In the event that the board shall, upon competent medical evidence, conclude that the disability for which the employee is receiving a pension no longer exists, the board shall thereupon order a discontinuance of the pension payable to such employee, but not until such employee has been offered reinstatement in the same or comparable employment . . . .” We note that the legislative history of this section indicates that it derives from § 21 of Special Act No. 460 (1951) and Referenda of November 8, 1983.

       The defendant’s fourth claim is that the court confused the eligibility lists of the civil service rules and regulations with preferred reemployment list. It is unnecessary to consider this claim in light of our holding on the second issue, because the defendants conceded at oral argument that if § 2746 of the Waterbury city charter was not repealed by implication, the plaintiff would be entitled to reinstatement. We also note that because of this concession, we need not remand the case to the board to determine whether the plaintiff presented sufficient medical evidence to establish his lack of disability.

       Section 2709 provides in pertinent part: “Any person aggrieved by a decision of said retirement board may, within fifteen days from the date when such decision was rendered, take an appeal . . . .” Waterbury Charter and Related Laws § 2709.


text:
    Gary Fleischman v. Connecticut Board of Examiners in Podiatry et al.
    (8200)
    Spallone, Daly and Norcott, Js.

      Argued January 3
    decision released July 3, 1990

      John R. Williams, with whom, on the brief, was David M. Tilles, for the appellant (plaintiff).

      Thomas J. Ring, assistant attorney general, with whom, on the brief, were ClarineNardi Riddle, attorney general, Richard J. Lynch and Sharon A. Scully, assistant attorneys general, for the appellees (defendants).

      Andrew K. Dolan filed a brief for the Academy of Ambulatory Foot Surgery as amicus curiae.
   Daly, J.

This is an appeal from a decision of the Superior Court dismissing the plaintiff’s appeal from a decision of the state board of examiners in podiatry (board) suspending the plaintiff from the practice of podiatry for thirty days and fining him $3500. We affirm the trial court’s judgment.

Under General Statutes § 20-59 (4), the board may take disciplinary action against any practitioner who engages in illegal, incompetent or negligent conduct. In this case, the department of health services (department) presented the board with a statement of charges alleging that the plaintiff had violated General Statutes § 20-59 (4) in one or more of the following ways while performing foot surgery on a patient, Helen Lally, in January and February, 1986. The plaintiff (1) did not keep accurate or adequate medical records, (2) did not adequately record the postsurgery condition of a patient, (3) failed to preserve adequately articular cartilage during a joint reconstructive procedure, (4) left large spikes of bone over a phalangeal joint, (5) caused traumatic arthritis to the phalangeal joint, (6) caused nerve entrapment, (7) performed an unauthorized sesamoidectomy, (8) performed an unauthorized partial sesamoidectomy, (9) did not document adequate preoperative care, (10) did not document adequate postoperative care, and (11) did not ensure sterile conditions prior to surgery.

The board commenced hearings on the charges on January 13, 1988, and issued a memorandum of decision on September 9, 1988. The board dismissed sections (3) through (6) of the above statement of charges on the basis of insufficient evidence. The board found that the plaintiff was negligent in failing to take an axial view X ray of the patient’s foot. In his brief to this court, the plaintiff contends that the failure to take the X ray was not included in the statement of charges.

The plaintiff unsuccessfully appealed to the Superior Court. In his brief before this court, the plaintiff states that he wants to raise the same six claims that he made before the Superior Court and that he “will discuss the claims and the trial court’s view in series.” The plaintiff’s brief covers only the first four claims, however. “ ‘ “Assignments of error which are merely mentioned but not briefed beyond a statement of the claim will be deemed abandoned and will not be reviewed by this court.” ’ ” State v. Ramsundar, 204 Conn. 4, 16, 526 A.2d 1311, cert. denied, 484 U.S. 955, 108 S. Ct. 348, 98 L. Ed. 2d 374 (1987).

What we will consider in this appeal are the plaintiffs claims that the board (1) lacked jurisdiction because it was improperly constituted, (2) deprived the plaintiff of due process by applying standards of care that had not been promulgated in agency regulations or established on the record through expert testimony, (3) erroneously admitted the expert testimony of a member of the board, and (4) erroneously found him negligent on a specification not contained in the statement of charges.

The board is an agency within the meaning of General Statutes § 4-166 (1) and is subject to the provisions of the Uniform Administrative Procedure Act (UAPA), General Statutes § 4-166 et seq. See Donis v. Board of Examiners in Podiatry, 207 Conn. 674, 682, 542 A.2d 726 (1988). The scope of review of administrative appeals is well settled. We do not retry the facts or substitute our judgment for that of the board. Griffin Hospital v. Commission on Hospitals & Health Care, 200 Conn. 489, 496, 512 A.2d 199, appeal dismissed, 479 U.S. 1023, 107 S. Ct. 781, 93 L. Ed. 2d 819 (1986). Also, judicial review of administrative conclusions of law is limited to a determination of whether, in light of the evidence, those conclusions are unreasonable, arbitrary, illegal or an abuse of discretion. Id.

I

The plaintiff’s first claim is that the board lacked subject matter jurisdiction to adjudicate the statement of charges brought by the department because the board was not duly constituted as required by law. General Statutes § 20-51 provides that the board shall consist of five members: three resident practicing podiatrists of good standing and two public members. General Statutes § 4-9a (b) provides in part: “Public members shall constitute not less than one third of the members of each board and commission within the executive department . . . .” Also, General Statutes §§ 19a-8 and 19a-14 (b) (14) require that public members comprise not less than one third of the board. Public members are electors of the state who are not affiliated with the profession licensed by the board. General Statutes § 4-9a (b).

The board that heard the charges against the plaintiff consisted of two practicing podiatrists and one public member. According to a stipulation that the parties filed in the Superior Court on March 17,1989, the board consisted of five podiatrists and no public members from 1977 to 1979. In 1980, however, the membership was changed to consist of three podiatrists and two lay persons. The board retained that composition through 1983. From 1984 through 1986 the two public members’ slots were vacant. In 1987 the board consisted of three podiatrists and one public member. In early 1988 the board consisted of two podiatrists and one public member. The Superior Court found that Martin M. Pressman, a podiatrist, was appointed to the board in February, 1988, but was disqualified from the plaintiff’s case.

The Superior Court, in its memorandum of decision, correctly explained why the plaintiff’s contention that the board was illegally constituted must be rejected. We reiterate those reasons here. As our Supreme Court stated in an analogous context: “ ‘The almost universally accepted common-law rule is . . . [that] a majority of a quorum constituted of a simple majority of a collective body is empowered to act for the body.’ FTC v. Flotill Products, Inc., 389 U.S, 179, 183, 88 S. Ct. 401, 19 L. Ed. 2d 398 (1967). ‘In the absence of legislative restriction, the general rule is that a committee or commission performing such functions as those exercised by the zoning commission in this case can take valid action at a meeting of which all members have proper notice and at which a majority are present.’ Strain v. Mims, 123 Conn. 275, 281, 193 A. 754 (1937), and cases therein cited. There is no provision in chapter 372 of the General Statutes, which creates the board of chiropractic examiners, that abrogates the common law rule. Further, ‘[w]ords purporting to give a joint authority to several persons shall be construed as giving authority to a majority of them’; General Statutes § 1-1 (h); and ‘[t]he rule is that all bodies charged with the performance of public duties continue to function though a vacancy exists.’ Brein v. Connecticut Eclectic Examining Board, 103 Conn. 65, 87, 130 A. 289 (1925). A board may act as long as there exists a quorum equal to a majority of all the actual members of the board. Lee v. Board of Education, 181 Conn. 69, 83-84, 434 A.2d 333 (1980); U.S. Vision, Inc. v. Board of Examiners for Opticians, 15 Conn. App. 205, 213, 545 A.2d 565 (1988) (‘[t]wo members of the board constitute a majority and have all of the authority that is granted to a three member board’). The failure of the governor to appoint lay members to the state optometry board did not deprive the board of the power to act where a quorum equal to a majority of members of the board existed during the transaction of the business involved. Serian v. State, 297 S.E.2d 889, 893 (W.Va. 1982).” Levinson v. Board of Chiropractic Examiners, 211 Conn. 508, 539-40, 560 A.2d 403 (1989).

The plaintiff relies on Dubaldo v. Department of Consumer Protection, 209 Conn. 719, 552 A.2d 813 (1989), in support of his claim that the board was illegally constituted. In Dubaldo, the court held that the state electrical work examining board was without authority to suspend the license of an electrical contractor because the two members of the board who were required by General Statutes § 20-331 to be engaged in the electrical contracting business were, in reality, union employees. Contrary to the assertion in the plaintiffs brief, this case does not involve the improper constitution of an executive board as did Dubaldo because there is no dispute in the present case that two members of the board really are practicing podiatrists, as required by General Statutes § 20-51. This is a case involving a vacancy on an executive board, and it is controlled by Levinson v. Board of Chiropractic Examiners, supra, and U.S. Vision, Inc. v. Board of Examiners for Opticians, supra.

In his brief, the plaintiff states that the Superior Court wrongfully held that, “the board could . . . function with a majority of its three podiatrists.” This is an inaccurate characterization. The trial court found that at the time of the hearing, the board consisted of two podiatrists and one lay person, and that the third podiatrist, Pressman, who was appointed to the board in February, 1988, after hearings in the plaintiff’s case had already started in January, was disqualified from sitting on the board for the remainder of the hearings. We are confident that the plaintiff’s mischaracterization was inadvertent for it does not benefit his cause. Even if the board in this case consisted of three podiatrists and one lay person, so that the ratio of one in three required by General Statutes § 19a-8 was destroyed, our Supreme Court has held that an executive board lacking a one in three ratio due to a vacant public member position still has jurisdiction to conduct disciplinary hearings. Levinson v. Board of Chiropractic Examiners, supra, 539.

There is no merit to the plaintiffs first claim.

II

The plaintiffs second claim is contrary to the rule of law as enunciated in Jaffe v. State Department of Health, 135 Conn. 339, 348-50, 64 A.2d 330 (1949). The plaintiff claims that he was deprived of due process because the board did not promulgate, pursuant to the UAPA, regulations governing the standard of care to be employed in the practice of podiatry, and because standards of care in podiatry were not established through expert testimony at his hearing.

Jajfe held that medical examining boards have expertise in the standards of care in their professions because they are comprised of practicing members of the profession. Id. “It is to be presumed that the members of the defendant board, as composed under the statute, are qualified to pass upon questions of professional conduct and competence.” Leib v. Board of Examiners for Nursing, 177 Conn. 78, 89, 411 A.2d 42 (1979).

The passage of Public Acts 1977, No. 77-614, which changed the composition of medical examining boards to include public members, did not vitiate the rule of Jaffe and Leib. Levinson v. Board of Chiropractic Examiners, supra, 522-33.1n Levinson, the court held that expert testimony on standards of care is not required in disciplinary hearings before medical examining boards. Id., 533.

If medical examining boards can rely on their own expertise on standards of care in disciplinary hearings, then they need not promulgate administrative regulations governing the standard of care. The UAPA provides that any agency may use its experience, technical competence and specialized knowledge in the evaluation of evidence in contested cases. See General Statutes § 4-178 (6).

The plaintiff admits that there was expert testimony at the hearing on the standards of care in podiatry. Pressman offered such testimony. The plaintiff argues that Pressman’s testimony was so general as to be “virtually irrelevant.” The probative value of the evidence was for the board to determine in the first instance, and that determination will not be disturbed on appeal unless it was arbitrary or an abuse of discretion. See Griffin Hospital v. Commission on Hospitals & Health Care, supra. Moreover, even supposing that Pressman’s testimony was completely irrelevant, the board was not required to hear expert testimony on standards of care in the first place. Levinson v. Board of Chiropractic Examiners, supra.

Ill

The plaintiff’s third claim is that he was deprived of due process in that Pressman’s testimony should not have been permitted because he was a member of the board when he testified, which created a risk of bias or undue influence on the board. The Superior Court made the following relevant findings of fact. The department selected Pressman to testify as an expert witness in the case. At the second hearing, the board announced that Pressman had been appointed to the board but would not participate in the board’s consideration of the plaintiff’s case. Each board member indicated on the record that he had no involvement with the selection of Pressman and that each would not be unduly influenced by Pressman’s appointment in weighing his testimony. Pressman did not participate in the decision of the board. On the basis of these facts, the Superior Court concluded that the plaintiff had made no showing of bias or undue influence. The record supports this conclusion.

We agree with the Superior Court that the plaintiff has failed to show that he was denied due process because of Pressman’s testimony. Even if Pressman had sat as a member of the board in this case, the plaintiff would not have been deprived of due process. “ ‘The [UAPA] does not and probably should not forbid the combination with judging of instituting proceedings, negotiating settlements, or testifying.’ ” Withrow v. Larkin, 421 U.S. 35, 56 n.24, 95 S. Ct. 1456, 43 L. Ed. 2d 712 (1975), quoting 2 K. Davis, Administrative Law Treatise § 13.11, p. 249 (1958). In Withrow v. Larkin, the court held that it is not a violation of due process for an agency to investigate and bring charges against a person, and then to adjudicate those charges. Id., 58; see also Annot.: Suspension or Revocation of Medical or Legal Professional License as Violating Due Process—Federal Cases, 98 L. Ed. 851, 864 (1954). Likewise, there would seem to be no inherent unfairness in allowing a member of a medical examining board to testify as to standards of care and also to take part in adjudicating the claim. Although the plaintiff asks us to resolve this question today, based on his claim that Pressman sat as a member of the board, the question is in fact entirely irrelevant to this appeal because Pressman did not participate in the board’s adjudication. There is no merit to this due process claim.

IV

Finally, the plaintiff claims that he had inadequate notice of one of the charges against him. In section (9) of the statement of charges, the plaintiff was charged with “failure to document adequate pre-operative care.” The board found that the plaintiff’s negligent failure to take a preoperative axial view X ray of the patient’s foot violated General Statutes § 20-59 (4), as alleged in section (9) of the statement of charges. The board ordered the plaintiff to pay a $500 fine for the violation contained in section (9).

The plaintiff had a due process right to notice of the charges against him. Morgan v. United States, 304 U.S. 1, 18, 58 S. Ct. 773, 82 L. Ed. 1129, reh, denied, 304 U.S. 23, 58 S. Ct. 999, 82 L. Ed. 1135 (1938). “The procedures required by the UAPA exceed the minimal procedural safeguards mandated by the due process clause.” Adamchek v. Board of Education, 174 Conn. 366, 369, 387 A.2d 556 (1978). General Statutes § 4-177 (b) provides that “notice shall include: (1) A statement of the time, place, and nature of the hearing; (2) a statement of the legal authority and jurisdiction under which the hearing is to be held; (3) a reference to the particular sections of the statutes and regulations involved; (4) a short and plain statement of the matters asserted. If the agency or other party is unable to state the matters in detail at the time the notice is served, the initial notice may be limited to a statement of the issues involved. Thereafter upon application a more definite and detailed statement shall be furnished.”

If the notice of charges does not fairly apprise the person of the nature of the offense with which he is charged, the court may set aside the order of an agency for deficiency of notice. Murphy v. Berlin Board of Education, 167 Conn. 368, 374-75, 355 A.2d 265 (1974). “[T]he test of whether one is given adequate notice is whether it apprises him of the claims to be defended against, and on the basis of the notice given, whether plaintiff could anticipate the possible effects of the proceeding.” Goranson v. Department of Registration, 92 Ill. App. 3d 496, 500, 415 N.E.2d 1249 (1980).

The Superior Court found that section (9) of the statement of charges adequately apprised the plaintiff of “the nature of the negligence the board found with respect to his failure to take an X ray of the patient’s foot before operating.” The plaintiff argues that he was deprived of due process because he was charged with the offense of failure to document preoperative care, but was found to have committed the offense of failure to take a necessary X ray. We reject this argument because the plaintiff was in fact charged in section (9) with “failure to document adequate pre-operative care.” The board found that an axial view X ray of the patient’s foot was an essential part of adequate preoperative care in this case. Gf course, the plaintiff could not document or otherwise keep records of an X ray he never took. The plaintiff was not charged, however, in section (9) with failure to document adequately preoperative care. He was charged with failure to document adequate preoperative care. Because the plaintiff did not provide adequate preoperative care, he could not document adequate preoperative care. Thus, he committed the violation alleged in section (9) of the statement of charges. There is no doubt that the plaintiff had adequate notice of the charge in section (9).

The judgment is affirmed.

In this opinion the other judges concurred.

       The Academy of Ambulatory Foot Surgery has filed an amicus brief for the plaintiff. Only two pages of the amicus brief address the issues raised in this appeal. The remainder consists of allegations that practitioners within the mainstream of podiatry are organized in an attempt to suppress the practice of minimal incision surgery. The petitioner in this case has been a minimal incision surgeon. We simply note that the petitioner and the amicus curiae have failed to show any hint of abuse of prosecutorial discretion on the part of the department of health services in this case.

       Section (1) of the statement of charges alleged that he did not keep accurate or adequate medical records.