STATE v. BURNELL, No. MV06 479034-S (Jan. 18, 2007)

HOWARD SCHEINBLUM, JUDGE.

The defendant was observed operating a motor vehicle on North Colony Road, a public street in Wallingford at about 10:00 p.m. The headlights of the car were not on. A Wallingford police officer stopped the vehicle. It is alleged that the defendant had a difficult time removing his wallet and had to get out of the car to do so. According to the officer, the defendant had a hard time standing and had to place his hand on the car to balance himself. The defendant told the officer that he was coming from Colony Pizza. He said he had consumed a few beers. The officer detected an odor of alcohol on the defendant's breath and he alleged that the defendant was swaying and slurring his words.

The defendant agreed to perform field sobriety tests. He failed the HGN, but refused to continue on to the walk-and-turn and one-leg stand tests because he is alleged to have stated, "I'm too drunk."

At 10:14 p.m. he was placed in the cruiser. At 10:23 p.m. he was read his rights and signed the notice form. At 10:31 p.m. he was afford the opportunity to call a lawyer, but he declined. The results of the chemical test were .198 and .173 respectively. The defendant had an administrative hearing at the motor vehicle department. The result of that hearing was an administrative suspension of his operator's license.

1. Should the information be dismissed because it violates the defendant's right not to be subject to double jeopardy?

2. Is the defendant entitled to inspect, copy and potentially use at trial the operator's manuals, maintenance manuals, schematics, computer source code and the computer program of the Intoxilyzer 5000 that was used to test him?

3. Should the officer's findings and administration of the field CT Page 1087 sobriety tests be suppressed because:

a. their relevancy is minimal, but the prejudicial effects are substantial?

b. the police officer failed to comply with the standards and requirements of the National Highway Safety Administration and the requirements of his course training?

c. the manner in which the tests were performed as well as the tests themselves are neither sufficiently nor scientifically reliable?

The defendant relies on Reynolds v. Sims, 377 U.S. 533, 575, in support of his position that the State of Connecticut Superior Court and the CT Department of Motor Vehicles are one sovereign. In Reynolds supra, the Court stated:

Political subdivisions of States — counties, cities, or whatever — never were and never have been considered as sovereign entities. Rather, they have been traditionally regarded as subordinate governmental instrumentalities created by the State to assist in the carrying out of State governmental functions.

Defendant avers that the State's Superior Court's power to try him springs from the same organic law that created the Department of Motor Vehicle as a result of which both entities are the arms of the same sovereign.

In State of Connecticut v. Wendy R. Hickam, 235 Conn. 614, the Connecticut Supreme Court addressed whether a criminal prosecution following an administrative license suspension presented an impediment to her prosecution under C.G.S. 14-227A. The court recognized that the double jeopardy clause protects against (1) a second prosecution for the same offense after acquittal, (2) a second prosecution after conviction, and (3) multiple punishments for the same alleged offense. Id., at 618. In deciding whether the administrative license suspension constituted punishment, the court emphasized that the third of the three protections CT Page 1088 was at issue there. The Court went on to decide that the defendant was not being punished twice by the state because her administrative license suspension was remedial in nature and not punishment.

This court determines that Hickam is dispositive of the issue and finds no double jeopardy attaches.

a. Is the defendant entitled to inspect, copy and potentially use at trial or hearing the operator's manuals, maintenance manuals, schematics, the computer source code and computer program of the Intoxilyzer 5000 that was used to test the defendant when the results of the test are intended for use at trial by the State to affect the driving privileges or assess penalties against the defendant?

b. If yes, is the appropriate remedy exclusion of the breath test for the State's failure to disclose such information when the defendant is otherwise unable to obtain the same information from the manufacturer of the Intoxilyzer 5000?

The state is not in possession of the items sought by the defense. In fact, CMI, Inc., manufacturer of the Intoxilyzer 5000, through its counsel, has declined to produce the items, claiming they constitute trade secrets and that they are not material insofar as being favorable to the defense. (See Exhibit A.) One cannot give what one does not have: Nemo dat quod non habet. Furthermore, there is no affirmative duty upon the state to produce the maker of the record relied upon. State v. King, 187 Conn. 292, 312 (1982).

As for the defendant's claims that the tests should be suppressed because prejudice to the defendant outweighs any probative value and his claim that they were not administered in accordance with the standards of the National Highway Safety Administration, both require witness testimony and must be claimed and addressed at the time of trial. If the tests had been administered properly, the police officer may testify CT Page 1089 about his observations, including the field sobriety test, and those observations may be used as the basis of an opinion as to whether or not the defendant was intoxicated. State v. Lamme, 19 Conn.App. 594, 603-04 (1989).

Regarding the defendant's claim that the tests are not scientifically reliable, so long as the state lays a proper foundation about the individual administering the test and that the test was administered in accordance with generally accepted standards such as those enunciated by the National Highway Traffic Administration, they are admissible. See State v. Balbi, 89 Conn.App. 567-77 (2005). Citing State v. Merritt, 36 Conn.App. at p. 91 (1995).

The defendant's motions are denied.

January 5, 2007 VIA-FACSIMILE REGULAR MAIL 203-235-6655 Jeffery D. Brownstein, Esq. Attorney at Law 71 Catlin Street #200A Meriden, CT 06450 Re: CMI, Inc.

Dear Mr. Brownstein:

This firm represents CMI, Inc., of Owensboro, Kentucky. Your letter of December 28, 2006 has been forwarded to me for a response.

CMI is not a party to your Connecticut case. CMI is, therefore, obviously not required to provide you discovery in any case in which it is neither a party nor a witness nor, for that matter, a resident. CMI has neither offices nor employees in Connecticut, but is a vendor for the Intoxilyzer 5000 which CMI manufactures here in Owensboro, Kentucky.

CMI further contends that the only manner in which it may be compelled to attend, or to produce documents, in a court proceeding in Connecticut is pursuant to the Uniform Act, CGSA § 54-82i(c). Kentucky is also a CT Page 1090 signatory to this Act.

The Act would require you to file a motion, in the trial court, and make a showing that a CMI witness or documents are somehow "material" to a claim or defense in your case. Based upon your letter, it is obvious you are seeking information as "discovery," not as some claim or defense.

I have not been able to find any Connecticut cases interpreting the "material witness" language in your statute. However, in Hickey v. Commissioner of Correction, 842 A.2d 606, 615 (Ct.App. 2004), the Court reviewed the Uniform Act and stated that decisions from other states were "valuable aids for interpreting the provisions of uniform laws." Other jurisdictions have interpreted the same language of "material" as meaning favorable to the defendant. See: State v. Smith, 208 A.2d 171, 174 (N.J. 1965) (defendant had burden of showing that witness testimony would be not only material but also favorable to the defendant); State v. Wimbish, 995 P.2d 626, 630 (Wash.App. 2000) (proponent must show "specific facts" to which a witness would testify, and a mere expectation of favorable testimony to the defense did not establish materiality requirement); and Sanchez v. State, 691 S.W.2d 795, 796 (Tx.App. 1985) (burden on applicant to show "the expected testimony of the witnesses will be material, favorable, and necessary," and a "bare assertion" is insufficient.)

Were a Connecticut court to somehow issue a "certificate" to a Kentucky court, here in Daviess County, then CMI would be entitled to an independent determination, at a hearing, of both the materiality of your request and the necessity for it as well. CMI would vigorously dispute any such "certificate," and would otherwise argue that it should not be compelled to appear, or produce documents, in your case in Connecticut for any number of reasons, including trade secrets.

In order that I may insure that the State Attorney is aware of your "discovery" request to CMI, and CMI's response to it, I would greatly appreciate it if you could provide me the name, address, and direct dial phone number of that State Attorney. I would also appreciate it if you would provide me the style of your case, including the case number, division, and all other identifying information.

Sincerely yours, Allen W. Holbrook AWH/bcs

cc: CMI, Inc. CT Page 1091 CT Page 1092