Id. See also State v. Marquis, 24 Conn. App. 467 (1991).
In State of Connecticut v. Andrew C. Haight (see citation below) the facts are as follows: At or around 12:30 a.m. on October 20, 2001, Kevin Dowling, a New Canaan police officer, was driving along Elm Street when he observed the defendant’s Lexus RX300 parked in a parking space with its headlamps illuminated. He did not observe anyone in or around the motor vehicle and drove around the block. Dowling returned to the vehicle and observed the defendant inside of the vehicle, asleep. Dowling looked inside the vehicle and saw that the keys were in the ignition in the off position. The vehicle was not running. Dowling attempted to rouse the defendant, to no avail. Dowling then opened the driver’s door and a warning chime in the vehicle sounded, indicating that the keys were in the ignition and that the door was open. The defendant was placed under arrest and subsequently submitted to breath tests, which he failed.
In State of Connecticut v. Andrew C. Haight (AC 24335), which was argued October 26, 2004 and officially released March 29, 2005, the court tells us that when a defendant files a motion to dismiss under Connecticut General Statute Sec. 54-56 for insufficient cause to justify the prosecution of the case, the court is required to “weigh all the competing factors and considerations of fundamental fairness to both sides—the defendant, the state and society, and presumably the victim ... This difficult and delicate process necessarily involves a careful consideration by the court of such factors as the strength of the state’s case, the likelihood of conviction, the severity of the crime, its effect on the victim, the strength of the defendant’s defense, the defendant’s personal situation, and all the other myriad factors that underlie a judgment regarding fundamental fairness. State v. Dills, 19 Conn. App. 495, 503-504, 563 A.2d 733 (1989)” This means that where you have a DUI case in which probable cause has not be found by the issuance of a warrant you can file this motion to dismiss under Section 54-56 without a trial having first occurred.
In Haight the case of State v. Gordon, 84 Conn. App. 519, 527, 854 A.2d 74, cert. denied, 271 Conn. 941, 861 A.2d 516 (2004) is cited along with State v. Ducatt, 22 Conn. App. 88, 93, 575 A.2d 708, cert. denied, 217 Conn. 804, 584 A.2d 472 (1990) with regard to the “sequence that will set in motion the motive power of the vehicle” and how “engaging the ignition affects movement” of the vehicle and how you must factually support this with evidence. The Court then cites DeCoster relative to the ignition key being in the “off” position and that there must be a “critical nexus between intoxication and operation. There must be evidence of how much time had transpired between the moment the defendant last operated his motor vehicle and the moment he was discovered sitting in the motor vehicle. State v. DeCoster, 147 Conn. 505 (1960).
In Haight the Court concludes as follows: “As in DeCoster, there is no evidence in the present case demonstrating when the defendant operated his motor vehicle in relation to his intoxication. The evidence does not demonstrate that the defendant was operating his motor vehicle when Dowling discovered him. Apart from evidence concerning the defendant’s physical condition and position in the vehicle, there is only evidence of a key in the motor vehicle’s ignition and the motor vehicle’s headlamps having been turned on. Taken individually or together, this evidence is not sufficient to demonstrate that the defendant had engaged the mechanical or electrical equipment of his motor vehicle so as to activate the motive power of the vehicle. In the present case, the evidence of operation as required by Connecticut General Statute Sec. 14-227a is lacking.” The judgment was reversed.
Recently, the Appellate Court heard the case of Indy Sengchanthong v. Commissioner of Motor Vehicles, 92 Conn. App. 365 argued September 23, 2005 and officially released November 22, 2005. With regard to the Sengchanthong case the relevant facts are as follows: On May 30, 2004, at approximately 3:20 a.m., Officer Mark J. Comeau of the East Lyme police department, while traveling southbound on Interstate 95 in his police cruiser, observed a motor vehicle parked on the shoulder of Interstate 95 northbound between exits 72 and 73. While investigating the motor vehicle, Comeau made the following observations. The vehicle’s left turn signal was flashing. Although rain was not falling, the windshield wipers were operating. Sengchanthong was reclined in the driver’s seat. Comeau flashed a spotlight at both the front and rear of the vehicle, but Sengchanthong did not respond. Comeau drove his police cruiser behind the vehicle. Sengchanthong at page 367.
As Comeau approached the vehicle, he could hear the heater blower motor running. Comeau also observed that “the [car] key ... was in the ignition and was turned to the ‘on’ position. Comeau knocked on the driver’s window and did not get an immediate response. After knocking very hard on the driver’s window, Comeau roused Sengchanthong. While speaking with him, Comeau smelled a strong odor of alcohol inside the vehicle and on his breath. He also had glassy, bloodshot eyes. He was the sole occupant of the vehicle and appeared to be disoriented, as well as intoxicated. He also admitted to drinking earlier around 9:00 p.m. He was then asked to exit his vehicle and administered a standard battery of field sobriety tests. Due to his poor performance of the tests, Comeau placed him under arrest on a charge of operating a motor vehicle while under the influence of intoxicating liquor. Supra at pages 367-368.
Comeau transported Sengchanthong to police headquarters, apprised him of the mandatory alcohol testing requirements of the implied consent law and offered him an opportunity to contact an attorney. Sengchanthong agreed to take a Breathalyzer test. The first test was administered at 4:16 a.m., and the result showed a blood alcohol content of 0.168 percent. The second test was administered at 4:54 a.m., and the result showed a blood alcohol content of 0.144 percent. Supra at 368-369.
On July 7, 2004, a hearing was held before James Quinn, a DMV hearing officer who suspended Sengchanthong’s driver’s license. Supra at 369.
On July 13, 2004, Sengchanthong appealed the Quinn decision to the Superior Court. The Superior Court reinstated the license of Sengchanthong and the Attorney General of Connecticut appealed that decision to the Appellate Court. Supra at 370.
“The Substance of the State’s argument in the Appellate Court is that the Superior Court improperly held that the hearing officer’s finding that the plaintiff [Sengchanthong] had operated the motor vehicle is not supported by the record. In his brief and at oral argument, the AG contended that the fact that Sengchanthong was reclined backward in the driver’s seat of a motor vehicle, which was parked on the shoulder of Interstate 95 with the left turn signal flashing, windshield wipers operating, heater blower motor on and car key in the ‘on’ position of the ignition, established operation at the moment Comeau approached the vehicle. We disagree.” Supra at 372.
In coming to its decision in Sengchanthong the Court focused on “what constitutes operation within the meaning of C.G.S. Sec. 14-227b. Nothing in the statute clarifies the meaning of ‘operate.’ The use of the term is ambiguous and makes no clear distinction between ‘driving’ and ‘operating’ a motor vehicle.”
In Sengthanthong the Appellate Court focused on virtually all of the relevant case law interpreting operation, which are criminal cases.
Initially the Sengthanthong case reviewed the “Connecticut Supreme Court Case of State v. Swift, 125 Conn. 399, 402-403, 6 A.2d 359 (1939). The statute ‘refers to persons who shall operate a motor vehicle, and is not confined to persons who shall drive a motor vehicle. A person operates a motor vehicle within the meaning of this statute, when in the vehicle he intentionally does any act or makes use of any mechanical or electrical agency which alone or in sequence will set in motion the motive power of the vehicle.” Supra at 373-374.
In Swift, a criminal case, the Connecticut Supreme Court gives its seminal interpretation of “operation” and this definition appears to have withstood the test of time as it is usually referred to in almost every case with regard to the issue of “operation” and forms the basis of the charge to the jury on the issue of “operation” in criminal matters wherein a person is charged under CGS 14-227a.
Then the Sengchanthong Court cites several more criminal cases with regard to operation from the Connecticut Appellate Court. The Court writes as follows: “In State v. Ducatt, 22 Conn. App. 88, 575 A.2d 708 cert. denied, 217 Conn. 804, 584 A2d 472 (1990), this court had the opportunity to further elucidate the definition of operation from Swift. This court explained: ‘An accused operates a motor vehicle within the meaning of [the statute] when, while under the influence of alcohol or any drug and while in the vehicle and in a position to control its movements, he manipulates for any purpose, the machinery of the motor or any other machinery manipulable from the driver’s position that affects or could affect the vehicle’s movement, whether the accused moves the vehicle or not.’ Id., 93. In State v. Wiggs, 60 Conn. App. 551, 760 A.2d 148 (2000), this court [Connecticut Appellate Court], again, explained that ‘[m]erely engaging the ignition or manipulating the gearshift or releasing the parking brake would satisfy the requisite intent’; id., 554; to set in motion the motive power of the vehicle.” Supra at 373.
In Sengchanthong, he was not doing any act, manipulating any machinery or making use of any mechanical or electrical agency that alone or in sequence would set in motion the motive power of the vehicle. Supra at 374.
In fact, in deciding the Sengchanthong case the Court of Appeals in reaching its decision with regard to operation refers to and cites the leading criminal case decision with regard to operation breaking these decisions down into two (2) categories: First, when an alleged operator is found in a position to control the movements of a motor vehicle and the vehicle’s engine is running; and Second, when the alleged operators were found in vehicles without the engine running wherein the courts have found operation only where the alleged operator was engaged in some action, manipulating, for any purpose, the machinery of the motor or any other machinery manipulable from the driver’s position that affects of could affect the vehicle’s movement, whether the accused moves the vehicle or not. Supra at 375-377.
In Haight, the officer located the defendant in the car. The car’s engine was not running and the keys were not in the on position in the ignition. The Court held that there was no way to establish operation. More specifically, the State could not demonstrate that operation occurred while the defendant was intoxicated. Furthermore, in Sengchanthong v. Comm’r of Motor Vehicles, 92 Conn. App. 365 (2005), the defendant was found in the vehicle a sleep with the keys in the ignition in the on position. The defendant’s vehicle was parked along side Interstate 95 with a right hand turn signal activated. Even on these facts, the court found that the State could not prove operation. In Mr. Deeb’s case, he was not found in the car, the car was not running, there were no keys in the ignition and there are no witnesses that can demonstrate that Mr. Deeb was operating the vehicle. In Haight and Sengchanthong, the defendants were found in the vehicles with the keys in the ignition.
The Attorney General of the State of Connecticut appealed the Haight decision to the Connecticut Supreme Court. The State Supremes on August22, 2006 released their 9 page decision, which states that based on their 1939 decision in State vs. Swift, “the insertion of a key into the ignition is an action, which, alone or in sequence, sets into motion the motive power of the vehicle. The defendant operated a motor vehicle, pursuant to C.G.S. Sec. 14-227a(a).” State vs. Haight, 12 Conn. Ops. 859 (August 21, 2006), Connecticut Supreme Court (SC 17435). The Court remanded with directions to affirm the trial court’s judgment.
The Sengchanthong case is on appeal by the State of Connecticut to the Connecticut Supreme Court and the case is about to be scheduled for oral argument.
Connecticut DWI Laws 