State v. Swain

¶1Opinion

¶2The dispositive issue in this appeal is whether knowledge that one’s license has been suspended is an essential element of the crime of operating a motor vehicle with a suspended license in violation of General Statutes § 14-215.1 We conclude that it is not.

¶3*444The following facts are relevant to this appeal. On June 7, 1995, the defendant, Amelia F. Swain, was driving on Route 1 in Old Saybrook when she was stopped by patrol officer Charles Bellarocco because one of the headlights on her vehicle was out. After the defendant was unable to produce her operator’s license, Bellarocco learned, based on her name and birth date, that her license had been suspended. 2 Bellarocco gave the defendant a warning for the inoperable headlight and a summons for driving with a suspended license, and he informed the defendant that she could not drive her vehicle. The defendant was subsequently charged with operating a motor vehicle while her license was under suspension in violation of § 14-215 (a).3

¶4During the jury portion of the defendant’s bifurcated trial,4 testimony revealed that prior to May 11, *4451995,5 the defendant had been stopped while operating a motor vehicle and had failed a subsequent chemical alcohol test that had been administered pursuant to General Statutes § 14-227b.6 On or about May 11, 1995, the department of motor vehicles (department) mailed *446a license suspension notice to the defendant. The notice informed the defendant, inter alia, that: (1) she had failed a chemical alcohol test; (2) she was entitled to a hearing, which she must request within seven days;7 (3) her Connecticut driver’s license would be suspended as of June 5, 1995; (4) the suspension would last for ninety days; and (5) if she operated a motor vehicle during the term of her suspension, she would *447be “subject to a minimum mandatory jail sentence of thirty days.”

¶5The notice was mailed by “bulk certified mail to the address of the [defendant] ... as shown by the records of the commissioner” of motor vehicles in accordance with General Statutes § 14-111 (a), which provides the method for notifying an operator of a license suspension.8 A representative from the department testified at trial that bulk certified mailing “acknowledges that the [department] sent an item to the United States Postal Service.” A “bulk certified mailing list is sent with a bulk of mail to the post office which in turn acknowledges, signs the receipt and turns it over to our department to acknowledge that they have received that mail.” It does not acknowledge, however, that a particular individual on that list received *448his or her mail. The department does not know whether each notice sent by bulk certified mail actually was received, but if a notice was returned to the department, it would be placed in the department’s files. The notice sent to the defendant was not found in the department’s files.

¶6The defendant testified at trial that she had not received the notice and was not aware that her license had been suspended. She also testified that her mail delivery was unreliable because her mailbox was one of fifteen mailboxes grouped together and that “you sometimes don’t get certain things that should be coming in and many, many times, at least a couple of times a week, I’m getting things that belong to somebody else.”

¶7Following the close of testimony, the defendant requested that the trial court instruct the jury that knowledge of the suspension of her license is an essential element of § 14-215 (a).9 The trial court, Miano, J., relying on State v. Torma, 21 Conn. App. 496, 574 A.2d 828 (1990), denied the defendant’s request and, instead, instructed the jury that knowledge of the suspension is not required. Specifically, the trial court instructed the jury that the elements of § 14-215 (a) are: “One, that the defendant was operating a motor vehicle at the time and place alleged, two, that she was operating this *449motor vehicle on a public highway of this state and, three, that the defendant was operating the motor vehicle at this location while her license was under suspension. . . .

¶8“The third element is that the operation occurred while her license was under suspension by the commissioner of motor vehicles. The third element of operating while under suspension requires proof of compliance with [§ 14-111 (a)].

¶9“[Section 14-111 (a)] does not require personal service of a notice of suspension but provides that if . . . a notice is forwarded by bulk certified mail to the address of the person registered as owner or operator of any motor vehicle as shown by the records of the commissioner shall be sufficient notice to such person ....

¶10“The statute does not require that a defendant actually receive notice or that the [department] receive a return receipt. Constructive notice by the [department] is all that is required.

¶11“Constructive notice is information or knowledge of a fact imputed by law to a person although she may not . . . actually have it because she could have discovered the fact by proper diligence. That’s what the definition of constructive notice is.”

¶12The defendant took exception to the trial court’s instructions, arguing that § 14-215 (a) requires that she possess actual knowledge that her license was under suspension. The jury found the defendant guilty of operating a motor vehicle with a suspended license in violation of § 14-215 (a).

¶13Thereafter, a court trial was held to determine whether the underlying reason for the defendant’s license suspension was her failure of a chemical alcohol *450test administered pursuant to § 14-227b.10 A defendant convicted for driving with a suspended license is subject to enhanced penalties if the underlying reason for the license suspension is a violation of § 14-227b. These penalties are “[a fine of] not less than five hundred dollars nor more than one thousand dollars and [imprisonment of] not more than one year, thirty consecutive days of which may not be suspended or reduced in any manner.”* 11 General Statutes § 14-215 (c). Following the court’s denial of the defendant’s motions for acquittal and for a new trial, the court found that on June 7, 1995, the defendant’s license was under suspension for having failed a chemical alcohol test pursuant to § 14-227b. On September 19, 1995, pursuant to § 14-215 (c), the trial court sentenced the defendant to one year imprisonment, execution suspended after forty-five days, a $500 mandatory minimum fine, court costs and one year probation. This appeal followed.12

¶14The dispositive issue is whether § 14-215 (a) requires proof beyond a reasonable doubt of actual knowledge *451of the suspension, or if proof of delivery by bulk certified mail is sufficient.13 The defendant argues that the trial court improperly failed to instruct the jury that a violation of § 14-215 (a) requires actual knowledge of a license suspension. The state on the other hand maintains that neither the statutory scheme nor the legislative history evinces an intent by the legislature to include actual knowledge of suspension as an element of the crime of operating under suspension. We agree with the state and affirm the judgment of the trial court.

¶15It is undisputed that the defendant properly preserved her claim for appellate review.14 Because the defendant’s claim that the trial court failed to instruct on an essential element of the crime charged raises a question of law requiring our construction of § 14-215, our review is plenary. State v. Dash, 242 Conn. 143, 146-47, 698 A.2d 297 (1997).

¶16“The process of statutory interpretation involves a reasoned search for the intention of the legislature. Frillici v. Westport, 231 Conn. 418, 431, 650 A.2d 557 (1994). In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of this case .... In seeking to determine that meaning, ‘we look to the words of the *452statute itself, to the legislative history and circumstances surrounding its enactment, [and] to the legislative policy it was designed to implement . . . United Eluminating Co. v. New Haven, 240 Conn. 422, 431, 692 A.2d 742 (1997). Based on the language of § 14-215, its legislative history and the circumstances surrounding its enactment, and the policy it was designed to implement, we conclude that actual knowledge of a license suspension is not an essential element of the crime of operating a motor vehicle with a suspended license.15

¶17*453We begin with the language of the statute itself. Federal Deposit Ins. Corp. v. Peabody, N.E., Inc., 239 Conn. 93, 102, 680 A.2d 1321 (1996). Section 14-215 (a) provides that “[n]o person . . . whose operator’s license . . . has been suspended . . . shall operate any motor vehicle during the period of such . . . suspension . . . .” Section 14-111 (a) provides that a suspension notice will be sent “by bulk certified mail to the address of the person registered as owner or operator of any motor vehicle as shown by the records of the commissioner . . . .” The language of § 14-111 (a) plainly provides that this method “shall be sufficient notice to such person that the . . . operator’s license is .. . under suspension.” (Emphasis added.) Nowhere in §§ 14-215 or 14-111 do the words “knowledge” or “actual notice” appear, which the defendant wishes to find. Although the statute does not expressly require knowledge, the absence of the term is not dispositive, however, because we previously have reasoned that “[t]he omission of the word ‘knowingly’ is not conclusive upon the question whether, to secure a conviction, the prosecution must prove that the accused knew that [her license was suspended]. Many statutes defining crimes do not contain the word ‘knowingly’ or its equivalent. . . . Whether knowledge is a necessary element in proving that a prohibited act is a crime is a matter of legislative intention.” (Citations omitted.) State v. Sul, 146 Conn. 78, 86, 147 A.2d 686 (1958). The absence of any specific language regarding knowledge, coupled *454with the presence of language tending to equate bulk mailing with notice, strongly suggests that knowledge of suspension is not an essential element of the offense.

¶18We next turn to legislative history and policy. “While the general rule at common law was that the scienter was a necessary element in the indictment and proof of every crime,16 and this was followed in regard to statutory crimes, even where the statutory definition did not in terms include it . . . [t]he legislature may, if it so chooses, ignore the common-law concept that criminal acts require the coupling of the evil-meaning mind with the evil-doing hand and may define crimes which depend on no mental element, but consist only of forbidden acts or omissions. State v. Husser, 161 Conn. 513, 515, 290 A.2d 336 (1971). Whether or not a statutory crime requires mens rea or scienter as an element of the offense is largely a question of legislative intent to be determined from the general scope of the act and from the nature of the evils to be avoided. [Id.]; State v. Gaetano, 96 Conn. 306, 316, 114 A. 82 (1921).” (Citation omitted; internal quotation marks omitted.) State v. Kreminski, 178 Conn. 145, 148-49, 422 A.2d 294 (1979).

¶19“[T]here are many instances where the requirement of criminal intent has been omitted from police regulatory or public welfare statutes.” Id., 149. “There are many statutes in the nature of police regulations for *455the protection of the morals of the community . . . under which, either because it is impracticable to . . . prove knowledge, or because it is regarded as reasonable under the circumstances that the doer of the act should take the risk of knowing the facts, it is generally held that the prohibited act is criminal, notwithstanding the ignorance of the accused.” (Internal quotation marks omitted.) State v. Gaetano, supra,96 Conn. 316; see State v. Kreminski, supra,178 Conn. 149 (“there is a growing recognition that regulatory legislation may exclude the conventional requirement of awareness of wrongdoing for criminal conduct by placing the burden of acting at hazard upon a person otherwise innocent but standing in responsible relation to a public danger” [internal quotation marks omitted]). “Intent to do the prohibited act, not intent to violate the criminal law, is the only intent requisite for conviction in the case of many crimes constituting violations of statutes in the nature of police regulations. State v. Gaetano, [supra, 316], and cases cited; State v. Sul, [supra,146 Conn. 86].” (Internal quotation marks omitted.) State v. Hus-ser, supra, 161 Conn. 516.

¶20“The touchstone is not the reprehensibility of the offender but the nature of the evils to be avoided, and the extent of the probable frustration of the regulatory scheme which a requirement of scienter would create. . . . Personal blame on the part of the actor, except in the general sense that he should have known better or exercised a greater degree of care, is not a necessary element of many offenses where protection of the public against the harm which would result in the absence of regulation is the principal legislative concern. . . . [P]ublic policy may require that in the prohibition or punishment of particular acts it may be provided that he who shall do them shall do them at his peril, and will not be heard to plead in defense good faith or ignorance.” (Citations omitted; internal quotation *456marks omitted.) State v. Kreminski, supra,178 Conn. 150-51.

¶21“There is a suggestion in some of the early cases dealing with police regulatory legislation not requiring any criminal intent that the penalties must be ‘petty’ and not involve imprisonment. . . . The question left undecided in those cases, whether a provision for imprisonment necessarily implied a requirement of mens rea, has long been resolved in favor of the view that the abandonment of the element of intent depends upon the ‘peculiar nature and quality of the offense’ and whether the penalty serves as an effective means of regulation.” (Citations omitted.) Id., 152.

¶22In Connecticut, the legislature has promulgated “an unambiguous policy aimed at ensuring that our highways are safe from the carnage associated with drunken drivers.” State v. Stevens, 224 Conn. 730, 739, 620 A.2d 789 (1993); see State v. Hickam, 235 Conn. 614, 624-25, 668 A.2d 1321 (1995), cert. denied, 517 U.S. 1221, 116 S. Ct. 1851, 134 L. Ed. 2d 951 (1996); State v. Boisvert, 40 Conn. App. 420, 428, 671 A.2d 834, cert. denied, 237 Conn. 903, 674 A.2d 1332 (1996). “The legislature enacted the statutes governing the operation of motor vehicles, including § 14-111, for the protection of the lives and property of the citizens of this state. In matters concerning public safety, the legislative department in the use of its police power is the judge, within reasonable limits, of what the public welfare requires.” (Internal quotation marks omitted.) Hickey v. Commissioner of Motor Vehicles, 170 Conn. 136, 139, 365 A.2d 403 (1976).

¶23It is clear that, when enacting § 14-215, the legislature was concerned with “the amount of casualties, fatalities, and injuries that are occurring repeatedly in the State. Many of these [drivers], when they are under the influence, are nothing but killers, legalized killers.” 26 *457H.R. Proc., Pt. 19,1983 Sess., p. 6685, remarks of Representative Eugene A. Migliaro, Jr.17 The medical community shared similar concerns. “They voted unanimously to support effective legislation aimed at control of drivers operating vehicles while intoxicated. They are urging this Legislature to view such behavior as a serious threat to public health and safety and in so doing to take decisive steps to control and eradicate it.” Id., p. 6688, remarks of Representative Martha D. Rothman. Representative Robert C. Sorensen indicated a need “to counteract the carnage that we’re seeing on the highways caused by drunk driving. ... I think it’s time that we take a very strong stand in that area.” Conn. Joint Standing Committee Hearings, Judiciary, Pt. 1, 1983 Sess., pp. 194-95.

¶24In discussing an amendment to § 14-215 to institute a five day mandatory minimum term of imprisonment, Senator James J. Murphy stated that “[o]ne of the problems that we have had through the years in addressing the drunk driving statute is that every time we kind of toughen it out, toughen it up or do something that’s necessary, we find that there are people who continue to drive with impunity and, in fact, go into the courtrooms, they drive while they’re under suspension, pay a hundred and a hundred and fifty dollar fine and keep going back out. ... So that we have these drivers who are charged, convicted of serious motor vehicle offenses, i.e., driving while intoxicated, manslaughter in the second degree or with underlying circumstances of drunk driving convictions or involved with the excessive use of alcohol that has resulted in the death of another, they take the suspension and just continue on out driving with impunity . . . .” 26 S. Proc., Pt. 13, *4581983 Sess., p. 4421. In 1985, during a proposed amendment to increase the mandatory minimum term of imprisonment for driving with a suspended license to thirty days, Representative Thomas Dudchik stated that this bill “[gets] the message out that this legislature means business when it comes to drunk driving. . . . It is clear that drank driving is one of the most serious hazards of our age, and it is largely preventable. This legislation . . . will make the punishment fit the crime of jeopardizing the lives of others . . . .” 28 H.R. Proc., Pt. 19, 1985 Sess., pp. 7030-31.

¶25A principal purpose for the enactment of § 14-215 was to protect the safety of the public by eliminating the threat of drunk drivers. The legislature was gravely concerned with enforcing license suspensions in order to prevent those individuals who have had their licenses suspended from “driving with impunity.” The legislature has constructed two levels of sanctions that correspond to the severity of the underlying reason for a license suspension. Those reasons that are more threatening to the safety of the public, such as failing a chemical alcohol test,18 result in more severe sanctions, namely, a mandatory minimum of thirty days imprisonment and a $500 fine. It is axiomatic that driving while intoxicated is a dangerous activity and is harmful to the welfare of the public. Because this is a public welfare statute aimed at regulating drunk drivers and protecting the safety of the public, it is reasonable to impose upon a driver who has previously failed a chemical alcohol test the burden of knowing the facts and limitations associated wdth that failure. See State v. Gaetano, supra,96 Conn. 316. Such a driver bears the risk of acting in a responsible manner. See State v. Kreminski, supra,178 Conn. 149.

¶26*459In 1979, § 14-111 (a) was amended to change the notice requirement for license suspensions from registered or certified mail to bulk certified mail.19 There is no indication in the legislative history that, following this amendment, actual knowledge of a license suspension would be required. When asked “how important is it to your department to have knowledge that these are actually received,” the commissioner of the department of motor vehicles, Benjamin Muzio, responded, “[i]f it’s a suspension notice, we indicate that they will be suspended within a certain period of time if they failed to file an accident report. Normally we send out one letter and then we send out a second letter of suspension. It’s important to that individual that he receive it, but based on the number of refusals to pick up certified mail, I don’t think it’s going to make a great deal of difference.” Conn. Joint Standing Committee Hearings, Transportation, Pt. 1, 1979 Sess., p. 99. We do not find Muzio’s comment that it is important to an individual that he or she receive a letter of suspension tantamount to a requirement of actual knowledge. We do not dispute that it is important to have notice. We conclude, however, that the defendant bears the burden of knowing the limitations associated with having failed a chemical alcohol test, and that, once the bulk mailing requirement has been satisfied, it is therefore reasonable to presume that the defendant had notice of her license suspension. See State v. Kreminski, supra,178 Conn. 150-51.

¶27The defendant argues that a violation of § 14-215 (a) requires actual knowledge of the suspension because of the severe penalties imposed. She cites as support *460the concurring opinion in Yanni v. DelPonte, 31 Conn. App. 350, 357-58, 624 A.2d 1175 (1993), wherein Judge Lavery stated that “the notice requirement of General Statutes § 14-227b (g) could be crucial in a criminal procedure context. . . . Whether and when a person received notice of suspension would be crucial to that person’s defense were that person to face the severe sanctions provided by § 14-215.” (Citations omitted; internal quotation marks omitted.) We conclude that the penalty for a violation of § 14-215 (a), where the underlying reason for the suspension was a violation of § 14-227b, is not unreasonable. See State v. Kreminski, supra,178 Conn. 153 (sentence imposed of 150 days imprisonment with execution suspended, probation for one year and fine of $5000 was not disproportionate to crime involved). We view this penalty of a mandatory minimum period of thirty days imprisonment as an effective method to shield the public from individuals who continue to drive, possibly while intoxicated or impaired, in spite of license suspensions and fines, and to deter those individuals from driving. See id., 152.

¶28There are other instances in which a criminal conviction does not require proof of actual knowledge.20 In State v. Gaetano, supra,96 Conn. 306, we reasoned that actual knowledge is not an essential element of the offense of keeping a house of ill fame in violation of General Statutes (1918 Rev.) § 6384. Id., 316. We concluded that because this act was “a police regulation *461for the protection of the morals of the community . . . it [was] reasonable to require that whoever . . . keeps a house which is a house of ill fame should take the risk of knowing the facts.” Id., 316-17. Similarly, we determine that § 14-215 is a statute in the nature of a police regulation whose purpose is to protect the safety of the public. It is therefore reasonable to require that whoever chooses to drive after an arrest for driving under the influence and failure of a chemical alcohol test, and who has been sent notice of suspension by bulk certified mail, should take the risk of knowing the facts and circumstances of his or her driving status.

¶29In State v. Kreminski, supra,178 Conn. 148, we concluded that scienter or knowledge of a licensing requirement is not required in a conviction for violating General Statutes (Rev. to 1977) § 36-334, which prohibits the sale of securities by unlicensed persons. We reasoned that “[although protection of the financial interest of the public may not be as paramount as safeguarding its health and morals by suppressing activities which endanger those interests, nevertheless, it is a matter of serious concern and the legislature might reasonably have concluded that strict criminal liability was appropriate.” Id., 151-52. The present case entails those paramount public health and safety interests that call for omitting proof of actual knowledge for conviction.

¶30In State v. Denby, 235 Conn. 477, 482, 668 A.2d 682 (1995), we concluded that specific intent to sell narcotics at a location within 1000 feet of a school is an essential element of the crime of possession of narcotics with intent to sell within 1000 feet of a school in violation of General Statutes (Rev. to 1991) § 21a-278a (b),21 but that knowledge that the particular location is *462within 1000 feet of a school is not required. We reasoned that “[§] 21a-278a (b) specifically requires a mental state of ‘intent,’ which must be applied to every element of that statute. The mental state of knowledge that the location is within the 1000 foot zone is not set forth in § 21a-278a (b). An ‘intent’ element is not synonymous with a ‘knowledge’ element, each of which is specifically defined in the penal code. The absence of any statutory requirement that the defendant knowingly sell within the prohibited school zone demonstrates that the legislature did not intend to make knowledge an element of the crime. If the legislature had wanted to make actual knowledge as to location of a school an element of the offense, it would have done so by specifically stating that the defendant possessed the narcotics with the intent to sell or dispense at a location that the defendant knew was in, or on, or within 1000 feet of a school.” (Emphasis added.) Id., 482-83. Similarly, if the legislature had wanted to make actual knowledge of a license suspension an element of the offense of driving with a suspended license, it clearly could have done so.22

¶31We conclude that the language of the statute, the legislative history and the legislative purpose evince a *463legislative intent not to require actual knowledge of a license suspension for a violation of § 14-215 (a). Proof of mailing in accordance with § 14-111 (a),23 along with proof that the defendant was operating a motor vehicle on a public highway in Connecticut while her operator’s license was suspended, is sufficient for a conviction under § 14-215 (a).

¶32The judgment is affirmed.

¶33In this opinion BORDEN, KATZ and MCDONALD, Js., concurred.