State v. Tietjen

¶1Opinion

¶2The defendant, Keith Tietjen,1 appeals from the judgment of conviction rendered by the trial court following the denial of his motion to dismiss and entry of a nolo contendere plea2 to operating a motor vehicle while under the influence of intoxicating liquor or drugs in violation of General Statutes (Rev. to 2003) § 14-227a (a) (2).3 On appeal, the defendant claims that the results of the Intoxilyzer 5000 should have been suppressed because its use does not comply with department of public safety regulations. We affirm the judgment of the trial court.

¶3The essential facts relevant to our disposition of the defendant’s appeal are undisputed.4 Between midnight and 12:15 a.m. on July 10, 2004, a 2003 Hummer H-2 *61was being driven on the Merritt Parkway eastbound in the area of exit thirty-eight. When that vehicle was in the deceleration lane for exit thirty-eight, it went off the exit ramp, hit a small tree and continued through the exit thirty-eight on ramp before striking another tree and coming to rest. Sergeant James Walsh of the Norwalk police department was the first to arrive on the scene. The defendant, who was standing outside the car, stated that he had not been driving the vehicle. Walsh smelled the odor of alcohol on the defendant’s person and observed some heavy front end damage to the vehicle.

¶4Trooper Brian Rogawlski of the state police was the next to arrive on the scene. The defendant refused to answer any questions. Rogawlski also smelled alcohol coming from the defendant’s person and observed that he had red, glassy eyes and that there was a cut on his hand and lip. From these observations and examination of the interior and exterior of the vehicle, Rogawlski concluded that the defendant had been operating the vehicle. He proceeded to administer field sobriety tests on the defendant, which the defendant failed. The defendant was taken to the state police Troop G barracks in Bridgeport at about 1 a.m. where he was asked what time he had started drinking, and he responded by stating that he had begun drinking at 10 p.m. on July 9, 2004. The defendant also was asked what time he had stopped drinking, and he stated that he had stopped at 1 a.m. on July 10, 2004. The defendant stated that he had four beers at the Crabshell in Stamford and that he had not eaten since breakfast.

¶5The defendant was asked to perform a breath test on the Intoxilyzer 5000.5 His first test was taken at 1:24 *62a.m. on July 10, 2004, and reported a result of 0.225 percent. The defendant took a second breath test at 2:03 a.m., with a result of 0.209 percent. Thereafter, the state charged the defendant with operating a motor vehicle while under the influence of intoxicating liquor or drugs with an elevated blood alcohol content in violation of § 14-227a (a) (2).

¶6Prior to trial, the defendant filed several motions in limine to preclude the results of the breath tests. On October 11, 2005, the parties argued the motions, which the court denied. In the defendant’s motion to preclude the results of the breath tests, he argued for preclusion because the tests did not comply with state regulations in force at the time of the incident.6 The court denied this motion, interpreting § 14-227a (b) and § 14-227a-la of the Regulations of Connecticut State Agencies to not require that the breath test results be recorded as described by the regulations, meaning as a weight per weight percent,7 only that the tests be performed in *63accordance with the regulations, because of explicit statutory requirements. The court further ruled that the test performed in this case complied with the regulations.8

¶7On October 21, 2005, the defendant entered a plea of nolo contendere to the charge of operating a motor vehicle while under the influence of intoxicating liquor or drugs in violation of § 14-227a. On December 21, 2005, the court sentenced the defendant to six months incarceration, execution suspended after two days, the mandatory minimum, and two years of probation and also ordered him to pay a $500 fine. This appeal followed.

¶8The defendant claims that the court improperly denied his motion in limine to preclude the results of the breath tests. He specifically argues that the results of the Intoxilyzer 5000 do not comply with the department of public safety regulations because the apparatus reports blood alcohol content in terms of a weight per volume percent and not a weight per weight percent.9 The state argues that the court properly denied the motion and that the issue presented already has been decided by this court in State v. Pilotti, 99 Conn. App. 563, 914 A.2d 1067, cert. denied, 282 Conn. 903, 919 A.2d 1037 (2007).10 We agree with the state.

¶9InPilotti, the defendant argued that the court improperly admitted the breath test results because the test failed to comply with the statutes and regulations. Id. The only difference in the case at bar is that this claim *64was argued in terms of a motion in limine. This is a distinction without a difference. In Pilotti, this court cited § 14-227a (d), which provides in relevant part: “The Commissioner of Public Safety shall ascertain the reliability of each method and type of device offered for chemical testing and analysis purposes of blood, of breath and of urine and certify those methods and types which said commissioner finds suitable for use in testing and analysis of blood, breath and urine, respectively, in this state. The Commissioner of Public Safety shall adopt regulations . . . governing . . . the operation and use of chemical test devices ... as said commissioner finds necessary ... to insure reasonable accuracy in testing results.” (Internal quotation marks omitted.) State v. Pilotti, supra,99 Conn. App. 568. The court held that “under [the] plain language of § 14-227a (d), chemical testing is not limited to blood testing. The statute also clearly contemplates the testing of breath.” Id. Further, “General Statutes § 14-227a (b) requires the state to establish as a foundation for the admissibility of chemical analysis evidence that the test was performed with the equipment approved by the department of public safety. It does not require . . . that the device satisfy the criteria set forth in the regulations.” State v. Pilotti, supra, 570. This is because, although the “testing that complies with the regulatory requirements is deemed to be competent evidence . . . [i]t does not, however, proscribe the admission of evidence that fails to satisfy those requirements.” (Internal quotation marks omitted.) Id., quoting State v. Kirsch, 263 Conn. 390, 408, 820 A.2d 236 (2003).

¶10As this court ruled in Pilotti, and we hold in this case, the statutoiy requirement was met through the use of the Intoxilyzer 5000 results. State v. Pilotti, supra,99 Conn. App. 570.

¶11The judgment is affirmed.

¶12In this opinion the other judges concurred.