You asked who prepared the attached court notice that was sent to a person charged with speeding. You also asked whether a determination had been made or questions had been raised about its constitutionality.

SUMMARY

Larry D'Orsi, Deputy Director of Criminal Court Operations for the Judicial Department informed me that the notice was prepared around seven years ago at the suggestion of the Connecticut Magistrate's Association. Apparently, the association felt the form was needed to warn defendants what could happen if they chose to appear in court to contest the charges. D'Orsi told us that the association came up with the language and the legal services unit of the department approved it. D'Oris is unaware of any challenges that have been raised to the accuracy or constitutionality of the notice.

The court notice advises the defendant that he has the right to ask for a trial. It also warns that at trial, the prosecutor may ask the magistrate to consider a higher fine or more serious charge and the magistrate will decide whether to allow or disallow the new charge and fine.

No statute or court rule explicitly requires or authorizes the creation of a form with this disclosure and warning. But the portion advising the defendant of the prosecutor's authority appears to accurately reflect the

power prosecutors have to bring whatever changes they deem appropriate. In other words, prosecutors are not limited to the charges the police officer selects.

The portion of the notice indicating that the prosecutor may recommend a higher fine also reflects what may happen in court. Anyone who is found guilty of an infraction may be fined not less than $ 35 or more than $ 90. Anyone who is found guilty of a violation may be fined up to the statutory amount for that offense. Thus, if a defendant goes to trial he can be fined more (or less) than the schedule of fines the judges establish for fines that are paid by mail.

PROSECUTORIAL DISCRETION

Prosecutors have enormous discretion in deciding who should be prosecuted and for what charges they will be held accountable, and whether to offer certain pleas or dispositions (Massameno v. Statewide Grievance Committee, 234 Conn. 539 (1995); State v. Chetcuti, 173 Conn. 165 (1977); State v. Darden 171 Conn. 677 (1976); State v. Russell, 58 Conn. App. 275 (2000)). As long as the state does not discriminate against any class of people, it may choose to prosecute a defendant under either of two applicable laws (State v. Erzen, 29 Conn. App. 591(1992)).

The Superior Court Rules for Criminal Matters recognize this broad authority. Section 36-17 specifies that the prosecutor may add additional counts or amend the charges at any time before the trial begins.

Thus, if the information available to a prosecutor indicates that the defendant committed a more serious violation or infraction, it would appear that he has the authority to charge him with the more serious offense.

We spoke with Jack Fischer, Senior Assistant State's Attorney in the Waterbury Judicial District. He has worked in that JD since 1996 and has had extensive experience with infractions and motor vehicle violation cases. Fischer believes the statement about more serious charges is appropriate and reflects the power and responsibility prosecutors have. For example, in preparation for a trial, a prosecutor might discover that the defendant was operating without a valid license or that a speeding offense should actually be raised to reckless driving.

FINES

The law directs the Superior Court judges to establish and maintain a schedule of fines for infractions. It also directs them to maintain a separate sliding scale of fines for speeding infractions committed under CGS § 14-219 with a minimum fine of $ 35 and increasing based on the severity of the violation. Pursuant to the rules adopted by the judges effective October 1, 2002 the fine (plus fees) for speeding varies depending on the speed and the location. For example, for going between 71 and 75 miles per hour on a multi-lane, limited access highway the penalty is $ 198. But if the violation occurred in a construction or utility zone the penalty is $ 298.

The law directs the Centralized Infraction Bureau of the Superior Court to handle the payment or pleas of not guilty for infractions and certain violations specified by law (CGS § 51-164n). According to this statute, anyone may plead not guilty or pay the established fine and any additional fee or cost for such infraction or violation.

But these fines do not necessarily apply if the defendant goes to court to contest the charge. Anyone who is found guilty of an infraction at trial is subject to a fine of $ 35 to $ 90. Anyone found guilty of a violation at trial is subject to a fine of up to the statutory maximum that applies to that offense (CGS §§ 51-164n (g) and (f)).

GC: ro