The CT Supreme Court Gets It Right

The Connecticut Supreme Court got it right in overturning an Appellate Court opinion that held that applying for Accelerated Rehabilitation is the same thing as saying your guilty. Or at least it is the same thing in a labor and employment context. In other words, a public sector employer could regard an emoloyee's application for AR as an admission of guilty to criminal conduct and use that as a basis for disclipine, per the Appellate Court's decision.

The Supreme Court's decision reverses that logic. The point of AR, after all, is to give a first time defendant with little chance of offending again a chance to get a fresh start. This can't be so if you can lose your job merely be applying for it.

Great job by the lawyers involved, including my collegues at the Connecticut Criminal Defense Lawyers Association.

Summary of DWI Laws in CT

The General Assembly's Office of Legislative Research did a great summary of Connecticut's DWI laws.

While it is still highly technical, it is a great marshaling of the state of the law. Also, unlike a lot of legal summary, it includes the law not only in court, but also with the Department of Motor Vehicles.

The summary can be found here.

West Virginia Adopts Erasure for DWI arrests

Much like Connecticut has, West Virginia has adopted a program that results in the erasure of a DWI from a motorists record. While their program requires the use of an ignition interlock device and their suspension is shorter, it still results in the erasure of the arrest. A news story about it is here.

If it was a routine traffic stop, there was no accident, no prior offenses and the motorist didn't flee from police, then the defendant is eligible. This is similar to Connecticut Alcohol Education Program, a discretionary program for first-time offenders that requires the completion of classes to earn the dismissal.

Supremes Quickly Affirm License Suspensions

In a quick and decisive opinion, the Connecticut Supreme Court found that there was sufficient evidence to suspended the licenses of two separate drivers. Remember in Connecticut that a license suspension results from a conviction in criminal court. But also, the DMV suspends your license unless you ask for and win a hearing before that agency.

Both Stash and Marsh lost their respective DMV hearings and appealed to court. Their argument, in essence, was that since both drivers underwent blood alcohol tests, and the statute is designed for breath tests, there was no evidence to show they were driving with an elevated blood alcohol content.

Since blood test results need to be mathematically converted so they can be compared to breath results, and no evidence was before the DMV as to how this was done, the DMV had no factual basis to suspend their licenses.

The Supreme Court did not make much of a statement about the facts and merely endorsed the trial court's recitation of them. Regardless, we are without the benefit of much analysis by the Supreme Court about this case. The statute is intended to be used with breath tests. It would have been nice to have the Supreme Court's view on how it squared this fact with the inherent inaccuracies of blood tests.

100s of DWI Convictions Tossed

An amazing story in a recent Washington Post shows that the law is enforced against the prosecution in a fair way. At least sometimes, it is.

The head prosecutor in Washington, DC said that since police officer improperly adjusted the various breathalyzer machines. The led to higher readings that would otherwise be obtained had the machine been properly calibrated.

Of course, this will lead to a torrent of lawsuits, as it should.

Despite that, though, Peter Nickles deserves a lot of credit for doing the right thing. It is never easy for a prosecutor to use any discretion in DWI cases. Doing so here was not only the right thing, but a courageous one as well.

How Does Blood Serum Compare To BAC?

In Connecticut, police officers can pick a test of your blood, breath or urine if they suspect you were driving while intoxicated. Most of my clients underwent breath tests. Blood tests occur most often when my client was taken to the hospital due to injuries in an accident. Non-accident blood tests are rare, in my experience.

Breath tests measure alcohol by volume (sort of, since it approximates).

Blood tests measure the weight of the alcohol. It generates a plasma or serum level, which needs to be converted to blood alcohol content ("BAC"). In Connecticut, like most states, a BAC over 0.08 is illegal.

Statutes like Connecticut's are based on "whole blood" levels, which coincide with breath tests, the most common used. A blood sample contains red blood cells, most of which are "spun out" of the sample, leaving a clear fluid on top. This is known as "serum." This happens when the blood sample sits without any kind of anti-coagulant.

If an anti-coagulant is added, due to the weight of the liquids, "plasma" is left on the top of the sample. The red blood cells are also "spun out" of the sample.

Since there is considerably less volume in both of these "spun out" samples, they do not equate to breath tests. And, since the red blood cells are not present, there is a much higher concentration of alcohol present in the serum or plasma than in the entire blood sample.

So, what we do is reduce the blood alcohol content (it usually is labeled "ETOH" in hospital records) by 17% to get the approximate result that would have occurred if a breath test were administered.

Is it exactly accurate?

No. But neither are breath test readings, since they use a complex algorithm to equate those results to what is actually in your blood at the time of operation.

Think of it like this: your body is metabolizing alcohol while you drink it and then as time passes. Netting all these times out, trying to equal the breath versus blood results and getting the times right is a best guess that the law, at least in Connecticut, appears to allow.

CT's Tougher DWI laws?

Gov. Jodi Rell signed a law today requiring ignition interlock devices on cars operated by people who are convicted twice within 10 years of a DWI offense. The Hartford Court story, though short, hits the high points.

What does this mean?

If you are convicted twice of DWI within ten years, you will face at least 120 days in jail, probation, fines, court costs and fees, a substantial increase in insurance premiums, a one-year license suspension and, now, a requirement that you only operate cars with ignition interlock devices.

Basically, the car won't start unless you breath into a tube that makes certain no alcohol is emanating from your breath.