State v. Cyr, No. 17975.

967 A.2d 32

291 Conn. 49

STATE of Connecticut v. Michael CYR.

No. 17975.

Supreme Court of Connecticut.

Argued December 3, 2008.

Decided March 31, 2009.

Sarah Hanna, deputy assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Lisa Herskowitz, assistant state's attorney, for the appellee (state).

Steven A. Tomeo, with whom was Lawrence W. Bates, Jr., for the appellee (defendant).

ROGERS, C.J., and NORCOTT, KATZ, PALMER and VERTEFEUILLE, Js.

ROGERS, C.J.

This matter is the latest in a line of cases raising the question of what acts constitute operation of a motor vehicle for purposes of Connecticut's statutory prohibition against operating a motor vehicle while intoxicated. The defendant, Michael Cyr, appealed from the judgment of conviction, following his conditional plea of nolo contendere¹ to the charge of operating a motor vehicle while under the influence of intoxicating liquor or drugs in violation of General Statutes (Rev. to 2005) § 14-227a(a),² and the Appellate Court reversed that judgment after concluding that there was insufficient evidence that the defendant was operating his vehicle at the time of his arrest. State v. Cyr, 101 Conn. App. 701, 706-709, 923 A.2d 772 (2007). The state now appeals from the Appellate Court's judgment upon our grant of certification.³ We conclude that the evidence in the record afforded probable cause to support the charge of operating a motor vehicle while under the influence of intoxicating liquor or drugs and, therefore, that the trial court properly declined to dismiss that charge. Accordingly, we reverse the judgment of the Appellate Court.

The following undisputed facts and procedural history are relevant to the appeal. On February 28, 2005, the defendant was charged with operating a motor vehicle while under the influence of intoxicating liquor or drugs in violation of § 14-227a(a). The charge arose from an incident that occurred in the early morning hours of February 28, in which the defendant and a friend were sitting in the defendant's car with the engine running, in a parking lot near the bar where the defendant worked. A patrolling police officer noticed the car, approached its driver's side window and spoke with the defendant, at which point the officer detected the odor of alcohol. The defendant was placed under arrest after he failed various sobriety tests.

The defendant pleaded not guilty to the charge of operating a motor vehicle while under the influence of intoxicating liquor or drugs. On June 23, 2005, the defendant filed a motion to dismiss that charge, claiming that he had not been operating his motor vehicle on February 28, 2005. Attached to an accompanying memorandum of law was the transcript of a hearing that had been held before a department of motor vehicles hearing officer to determine whether the charges against the defendant warranted a suspension of his driver's license. That transcript reflected the sworn testimony of the defendant, two police officers who were present for the defendant's arrest and an expert witness who explained that a car that has been started with a remote starter cannot be driven until its ignition key is inserted and turned. After a hearing held on October 7, 2005, the trial court, Cofield, J., denied the defendant's motion to dismiss the information. The court reasoned that from the evidence presented, viewed in the state's favor, it was possible that the defendant had started his motor vehicle with the ignition key and that fact, under existing jurisprudence, would constitute operation for purposes of § 14-227a(a).

Thereafter, the defendant was charged in part B of the information with previously having been convicted of operating a motor vehicle while under the influence of intoxicating liquor or drugs, stemming from incidents that occurred in 1997 and 1998. On October 24, 2005, the defendant filed a second motion to dismiss the first part of the information. This motion was accompanied by a joint stipulation as to facts that, the defendant claimed, established that he had not "operate[d]" his motor vehicle within the meaning of § 14-227a(a). The stipulation provided in relevant part as follows: "1. The [d]efendant ... started his [motor vehicle] ... on February 28, 2005 at approximately 2:20 [a.m.] in a private parking lot at 319 Main Street, Manchester, Connecticut with his remote starter from outside the vehicle. 2. [The defendant] opened the driver's side door and sat in the driver's seat while the motor was running. 3. At no time while in the vehicle did [the defendant] put the keys in the ignition or make use of any mechanical or electrical agency ... [and] 4. [The defendant] was arrested for [operating a motor vehicle while under the influence of intoxicating liquor or drugs in violation of § 14-227a(a)]." In short, the stipulation eliminated any factual dispute over how the defendant had started the vehicle or whether his ignition key had been inserted⁴ and narrowed the question presented to whether starting a car with a remote starter, then sitting behind the wheel of that car with the motor running, constituted operation of a motor vehicle pursuant to § 14-227a(a). On October 24, 2005, the trial court denied the defendant's second motion to dismiss. Thereafter, the defendant entered a plea of nolo contendere, and the court rendered a judgment of conviction.⁵ The defendant's appeal to the Appellate Court followed.⁶

The Appellate Court, relying solely on the joint stipulation of facts,⁷ agreed with the defendant that those facts did not establish probable cause that he was operating a motor vehicle within the meaning of § 14-227a(a) and, accordingly, reversed the judgment of conviction. State v. Cyr, supra, 101 Conn.App. at 706-709, 923 A.2d 772. Citing to decisions of this court establishing a definition of operation, the Appellate Court concluded that the stipulated facts did not meet that definition, in particular because the defendant, having used a remote starter, was outside the vehicle when he started its engine. Id., at 708, 923 A.2d 772. The Appellate Court further reasoned that the state had not alleged, or produced any evidence to indicate, that the defendant had the ignition key in his possession⁸ or that the vehicle was capable of motion without the key. Id. Consequently, the Appellate Court determined that the state had not shown that the defendant had undertaken an act that "alone or in sequence [with other acts would] set in motion the motive power of the vehicle." Id. The state then appealed to this court.

The state argues that the Appellate Court improperly concluded that the allegations and evidence were insufficient to show that the defendant was operating a motor vehicle. The state claims that the definition of operation established by this court's precedent is broad enough to encompass the acts undertaken by the defendant and further, that the Appellate Court failed to consider the entire record considered by the trial court when it denied the second motion to dismiss. According to the state, Connecticut's broad definition of operation and strong public policy aimed at minimizing the hazards associated with operating under the influence compel a conclusion that the defendant, by sitting in his vehicle after he started the engine with a remote starter, was operating that vehicle within the meaning of § 14-227a(a). The defendant argues in response that he was not operating his motor vehicle as contemplated by the statute because he had started its engine while he was outside of the vehicle and because his key was not in the ignition, a necessary precursor to setting in motion a vehicle that has been started with a remote starter. According to the defendant, "the fact that the engine is running does not also mean that the vehicle is capable of motive power. Where more steps are necessary to engage the motive power of a vehicle that has been started through remote control than to engage the motive power of a vehicle not remotely started, remote starting of a vehicle does not mean that one is `operating' the vehicle [for purposes of § 14-227a]." We agree with the state.

The trial court rejected the defendant's contention that dismissal of the charges pursuant to General Statutes § 54-56 was warranted. Under the authority of § 54-56, trial courts overseeing criminal prosecutions "may, at any time, upon motion by the defendant, dismiss any information and order such defendant discharged if, in the opinion of the court, there is not sufficient evidence ... to justify the bringing or continuing of such information or the placing of the person accused therein on trial." When assessing whether the state has sufficient evidence to show probable cause to support continuing prosecution, the court must view the proffered proof and draw reasonable inferences from that proof, in the light most favorable to the state. State v. Kinchen, 243 Conn. 690, 702, 707 A.2d 1255 (1998); State v. Morrill, 193 Conn. 602, 611, 478 A.2d 994 (1984). "The quantum of evidence necessary to establish probable cause ... is less than the quantum necessary to establish proof beyond a reasonable doubt at trial.... In [ruling on the defendant's motions to dismiss], the court [must] determine whether the [state's] evidence would warrant a person of reasonable caution to believe that the [defendant had] committed the crime." (Citations omitted; internal quotation marks omitted.) State v. Patterson, 213 Conn. 708, 720, 570 A.2d 174 (1990).

"A motion to dismiss ... properly attacks the jurisdiction of the court, essentially asserting that the [state] cannot as a matter of law and fact state a cause of action that should be heard by the court...." (Internal quotation marks omitted.) State v. Haight, 279 Conn. 546, 550, 903 A.2d 217 (2006). Accordingly, "[o]ur review of the trial court's ultimate legal conclusion and resulting [decision to deny] ... the motion to...