Topic:
DRUNK DRIVING;
Location:
DRUNK DRIVING;
Scope:
Connecticut laws/regulations;

OLR Research Report


Connecticut General Assembly




OFFICE OF LEGISLATIVE RESEARCH

August 26, 1998 98-R-0960

FROM: George Coppolo, Chief Attorney

RE: Drunk Driving—Connecticut Law

You asked for a brief summary of Connecticut's drunk driving (DWI) laws.

SUMMARY

Connecticut's DWI law consists primarily of two statutes, CGS 14-227a and 227b. The former prohibits a person from driving with a blood alcohol content (BAC) of .10% or more or while under the influence of alcohol or drugs. A person is “under the influence” if his ability to drive is affected to an appreciable degree. It specifies evidence admissibility criteria for alcohol and drug tests. It establishes criminal and driver's license suspension penalties for violations. It also specifies that driving with a BAC between .07% and .10% is an infraction.

CGS 14-227b provides that a person who drives a vehicle has implicitly given his consent to submit to drug or alcohol testing. It establishes administrative license suspension procedures for drivers who refuse to submit to a test or whose test results indicate a BAC of .10% or more. (These provisions are called implied consent and administrative per se, respectively.)

Connecticut imposes harsh criminal penalties if someone is seriously injured or killed. In addition, people found to be “persistent felony offenders” are subject to an increased criminal penalty and the motor vehicles of certain offenders must be impounded for 48 hours. Connecticut also has a special, more stringent law for drivers under 21 years of age, which allows the motor vehicles commissioner to suspend the license if the driver's BAC is over .02.

CONNECTICUT'S DWI LAW

CGS 14-227a

This law prohibits driving while under the influence of alcohol or drugs or with a BAC of .10% or more. The prosecutor cannot dismiss, nolle, or reduce this charge without stating his reasons in court. It also makes driving with a BAC between .07% and .10% (driving while impaired) an infraction.

The BAC can be measured by testing the driver's blood, breath, or urine, with the police officer having the discretion to determine which test to use. This law establishes a rebuttable presumption that a driver's BAC at the time it is tested is the same as the BAC at the time he was stopped. But if the result of the second test is .12% or less and higher than the first test, the prosecution must demonstrate that the BAC at the time of the test accurately reflects the BAC at the time of the offense.

Admissibility of Evidence. In order for the test results to be admissible:

1. the driver must be given a chance to call an attorney before starting the test;

2. a copy of the test results must mailed to the driver within 24 hours or at the end of the next business day after the results are known;

3. the test must be administered by a police officer or at his direction;

4. the test must be administered using methods and equipment approved by the Department of Public Health and Addiction Services (DPHAS);

5. the test must be administered by a person qualified by DPHAS (for blood samples, the law also specifies who can take a blood sample);

6. a second test of the same type must be administered at least 30 minutes after the first test is conducted (unless the second test is to detect the presence of drugs in which case it can be of a different type and does not have to be administered within that time frame); and

7. the test must begin within two hours of operation (presumably the time of the alleged offense).

Evidence that a driver refused to submit to a test is admissible if the procedural requirements of CGS 14-227b (described below) are followed. At trial, the court must instruct the jury as to what inferences can and cannot be drawn from the refusal. A different set of admissibility standards applies to blood samples taken from an injured driver.

Penalties. A person convicted of DWI is subject to the penalties listed in Table 1.

Table 1: DWI Penalties

Conviction

Jail Sentence

Fine

License Suspension

First

(a) Up to six months with mandatory minimum of two days or (b) 100 hours of community service

$500-$1,000

One year

Second

Up to one year, with mandatory minimum of 10 consecutive days

$500-$2,000

Two years

Third

Up to two years, with mandatory minimum of 120 consecutive days

$1,000-$4,000

Three years

Fourth

Up to three years, with mandatory minimum of one year

$2,000-$8,000

Life

The license suspension under this law is stayed while the case is being appealed. For a driver under age 18, the suspension period is until he turns 18 or the period listed above, whichever is longer. For drivers driving under a work only license (described below) suspension periods are doubled. In addition to these penalties, the court can order a driver to participate in an alcohol education and treatment program.

PERSISTENT DRUNKEN DRIVING OFFENDERS

A person is considered a “persistent operating under the influence felony offender” if he (1) is convicted of manslaughter or assault in the second degree with a motor vehicle and (2) within the 10 years has been convicted of either of these offenses or of driving under the influence of alcohol or drugs, or of substantially similar offenses in other states (PA 97-291).

Enhanced Penalty

The court may impose the prison sentence for the next higher degree of felony for a persistent operating under the influence felony offender if it believes that his history and character and the nature and circumstances of the criminal conduct indicate that the extended incarceration will best serve the public interest. Thus, it increases, from 10 to 20 years, the maximum possible prison term for a persistent offender convicted of manslaughter in the first degree with a motor vehicle and, from five to 10 years, the maximum possible sentence for a persistent offender convicted of assault in the first degree with a motor vehicle.

48-HOUR IMPOUNDMENT

An officer must impound for 48 hours the motor vehicle of anyone he arrests for operating under the influence whose right to drive in Connecticut is under suspension or revocation. The owner may reclaim the vehicle after paying all towing and storage costs (PA 97-291).

OPERATING WHILE LICENSE SUSPENDED FOR DWI

Anyone who operates a motor vehicle during the period his license is under suspension or revocation for driving under the influence or for refusing to submit to a BAC test is subject to a fine of up to $1,000 and imprisonment of up to one year. The offense also carries a 30-day mandatory prison sentence unless the court specifies in writing mitigating circumstances (CGS 14-215(c) as amended by PA 97-291).

CGS 14-227b

Implied Consent

Under this section, anyone who drives has implicitly permitted the testing of his blood, breath, or urine. If the driver is a minor, his parents or guardians are considered to have given their consent.

Before administering the test, the police officer must:

1. inform the driver of his constitutional rights,

2. give him a chance to call an attorney,

3. inform him that his license will be suspended if he refuses to take the test or if his BAC is .10% or more, and

4. inform him that evidence of a refusal may be used against him in a criminal prosecution

Administrative Per Se

This section also contains an administrative license suspension process for drivers who refuse to submit to the test or whose test results indicate a BAC of .10% or more. In such cases, the police officer must revoke the driver's license for 24 hours and issue the driver a temporary license that is valid for the following 29 days. The officer must submit a report to the Department of Motor Vehicles (DMV), which among other things must contain any test results and the grounds the officer had for arresting the person. In cases of test refusals, a third party who witnessed the refusal must sign the report.

The driver is entitled to a hearing before DMV to contest the suspension. The hearing must be held before the temporary license expires. The hearing is limited to whether: (1) the police officer had probable cause to arrest the person, (2) he was arrested, (3) he was driving, and (4) he refused the test or had a BAC of .10% or more. If the answer to any of these questions is no, the driver gets his license back.

If the answer to all of the questions is yes, the driver's license is suspended for six months if he refused to submit to the test and for 90 days if his BAC was .10% or higher. The suspension period is one year if his license has previously been suspended under this section, and two years for a third offense. The penalties also apply to someone who takes the initial test but refuses to take the second test. These provisions do not apply to someone whose condition makes such tests medically inadvisable. These license suspension penalties are in addition to any suspension penalties imposed by the criminal court for operating under the influence of alcohol or drugs (see Table 1 above).

ADMINISTRATIVE LICENSE SUSPENSION OF DRIVERS UNDER AGE 21

A police officer may administer a blood, breath, or urine test to a driver under age 21 if (1) the officer takes the driver into custody, (2) he reasonably believes that the driver has consumed alcohol, and (3) the driver exhibits some indication of impairment from alcohol consumption. If the test results show a blood-alcohol concentration of more than .02% but less than .10%, the officer must report the person's name and address to the DMV commissioner within three business days (CGS 14-227g). A young driver who refuses to take the test does not appear to be subject to automatic suspension as is the case under the per se suspension provisions. It is not clear what relationship these new requirements have to the implied consent law, specifically with respect to the warning an officer must give before administering the test.

The mere fact that a driver appears to be under age 21 does not provide reasonable and articulable suspicion that an offense has been committed that justifies the officer making an investigatory stop of the vehicle.

Administrative Hearing

The commissioner must give the person notice and opportunity for a hearing within 45 days of receiving the police report. The hearing is limited to determining whether (1) the officer had probable cause to arrest the driver; (2) the person was placed under custodial arrest; (3) if the driver submitted to the test, it was commenced within two hours of operation and the results showed a BAC over .02% and less than .10%; and (4) the young person was driving the vehicle.

If the driver fails to appear for the hearing or if the commissioner finds the answer to all four questions is yes, he must suspend the driver's license for 90 days. But suspension is not allowed if the driver can prove by a preponderance of evidence that his BAC resulted from consuming alcohol provided to him (1) on order of a practicing physician or (2) by a parent, guardian, or spouse who is at least age 21 and who was accompanying the young driver.

If the commissioner fails to render a decision within 45 days from the date he received the police report, he cannot suspend the license. Notice of suspension must be sent by bulk certified mail within 45 days after the date the department receives the police officer's report. Suspension must be in addition to any other applicable penalties.

REPEAT OFFENDER TREATMENT REQUIREMENT

The law requires a driver to participate in a treatment program approved by the DMV commissioner if his license or nonresident operating privilege is suspended for a second or subsequent drunk driving violation or for a second per se violation or test refusal. His license or driving privilege cannot be reinstated until he submits proof that he has satisfactorily completed the program (CGS 14-227a).

The commissioner must design the program. He may request the advice and assistance of the Motor Vehicle Operator's License Medical Advisory Board, any state agency, or any public or private entity that provides responsible services for alcohol and drug addiction treatment. The program must provide intensive treatment and continuing individual aftercare supervision and monitoring. The commissioner can approve one or more private organizations that meet his qualifications to provide the program, but the entire cost of the program must be paid from user fees. The fees are subject to the commissioner's approval.

Once notified that he must participate in the program, a person has 30 days to petition the commissioner for a waiver. Grounds for granting a waiver are: (1) that the person is presently undergoing a substantial addiction treatment program or has completed such a program subsequent to his most recent arrest, either because of a court order or voluntarily and (2) a licensed physician who personally examines him determines that he does not have a current addiction problem that affects his ability to drive safely or poses a significant safety risk in the foreseeable future. When reviewing a waiver petition, the commissioner must request and consider the medical advisory board's advice.

The person may appeal the commissioner's waiver decision under the provisions of the Uniform Administrative Procedure Act. The commissioner must adopt implementing regulations.

TESTING AFTER FATAL ACCIDENTS

The chief medical examiner and other specified officials must include in any investigation of a fatal motor vehicle accident a blood sample from any driver or pedestrian who dies in the accident. These samples must be examined for the presence and concentration of alcohol by the chief medical examiner or the toxicological lab of DPHAS. To the extent the law allows, blood or breath samples may also be obtained from any surviving driver involved in the accident (CGS 14-227c).

The testing of any such samples must be performed at the direction of a police officer and according to methods and with equipment approved by DPHAS. The person performing the test must be certified or recertified for this purpose by DPHAS or recertified by someone certified as an instructor by DPHAS.

Test equipment must be checked immediately before and after the test by someone who is DPHAS-certified. If a blood test is performed, the sample must be taken by someone licensed to practice medicine and surgery, a qualified laboratory technician, an emergency medical technician II, a registered nurse, or a phlebotomist. These provisions currently apply to tests in connection with drunk driving arrests.

WORK-ONLY DRIVERS' PERMITS

By law, anyone who has had a driver's license suspended, except a person (1) with a previous suspension, (2) who operated a vehicle while under suspension, (3) who failed to appear for trial, or (4) under suspension for refusing to submit to a DWI blood, breath, or urine test until at least 90 days of his mandatory six-month suspension has run, may apply for a special driving permit that allows certain work-related driving.

OTHER STATUTES

CGS 14-44a et seq., imposes a .04% BAC limit for drivers operating buses, large trucks, and vehicles carrying hazardous material under a commercial driver's license. CGS 14-227c requires medical examiners to take blood samples from any driver or pedestrian killed in a motor vehicle accident to be tested for BAC. CGS 53a-56b establishes the crime of manslaughter in the second degree with a motor vehicle. A person commits this offense when while operating a motor vehicle under the influence of alcohol or any drug, he causes the death of another person as a consequence of the effect of the alcohol or drugs. The penalty is a prison term of up to 10 years, or a fine of up to $10,000, or both. CGS 53a-60d establishes the crime of assault in the second degree with a motor vehicle. A person commits the offense when while operating a motor vehicle under the influence of alcohol or drugs, he causes serious physical injury to another person as a consequence of the effect of the alcohol or drugs. The penalty is a prison term of up to five years, or a fine of up to $5,000, or both. The law defines a “serious physical injury” as one that creates a substantial risk of death, or causes serious disfigurement, serious impairment of health or serious loss or impairment of the function of any bodily organ.

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