State v. Ferrazzano-Mazza

202 Conn.App. 411

245 A.3d 884

STATE of Connecticut

v.Julie A. FERRAZZANO-MAZZA

AC 42481

Appellate Court of Connecticut.

Argued October 19, 2020

Officially released January 26, 2021

Vishal K. Garg, West Hartford, for the appellant (defendant).

Timothy F. Costello, senior assistant state's attorney, with whom, on the brief, were Anne F. Mahoney, state's attorney, and Bonnie R. Bentley and Brenda L. Hans, senior assistant state's attorneys, for the appellee (state).

Bright, C. J., and Moll and Suarez, Js.

BRIGHT, C. J.

The defendant, Julie A. Ferrazzano-Mazza, appeals from the judgment of conviction of operating a motor vehicle while under the influence

of intoxicating liquor or drugs in violation of General Statutes § 14-227a (a), which was tried to a jury, and operating a motor vehicle without a license in violation of General Statutes § 14-36 (a), which was tried to the court. The defendant also pleaded nolo contendere to being a third time offender in violation of § 14-227a (g) (3). On appeal, the defendant claims that the court improperly (1) excluded evidence that she had offered to take a blood test in lieu of a Breathalyzer test and delivered to the jury a limiting instruction on the use of such evidence, and (2) denied her request to instruct the jury that field sobriety tests are not based on science. We affirm the judgment of the trial court.

The jury reasonably could have found the following relevant facts. On December 22, 2016, after leaving work in Vernon at approximately 7 p.m., a motorist, John LaBossiere, came upon the defendant's pickup truck, a 2014 silver Dodge Ram (truck), stopped in the middle of the road on Route 44 in or near Willington. As LaBossiere approached the truck, it sped off. LaBossiere continued behind the truck, driving through a few towns before reaching Pomfret. He witnessed the truck swerving from side to side, repeatedly going over the yellow line and across the white fog line, seemingly overcompensating for its movements. He also observed that the defendant, who was alone in the truck, was having difficulty maintaining the truck at a consistent speed. LaBossiere became concerned and telephoned 911 as he followed behind the truck. He provided the 911 dispatcher with a description of the truck, including the license plate number, as he followed behind it for several more miles. LaBossiere, thereafter, lost sight of the truck as it sped away.

Shortly thereafter, LaBossiere entered Killingly and, as he came upon the intersection of Route 101 and Maple Street, where the Four G's restaurant is located, he saw the truck in the parking lot of the restaurant,

positioned at an odd angle rather than in a designated parking space. He noticed that the driver's side door of the truck was open, that the defendant was outside of the truck, and that she was staggering. LaBossiere proceeded to turn right onto Maple Street, and he went about his business.

Just after 8 p.m., Bruce Taylor, a sergeant with the state police, who had received a certificate from the police academy for having completed a forty hour course on identifying and addressing driving while intoxicated offenses, observed the defendant's truck, which then was stopped facing the median between Route 6 and South Main Street in Brooklyn, approximately three and one-quarter miles from the Four G's restaurant. The truck was blocking the connector in such a way that no vehicles could get by it, and neither its emergency flashers nor its headlights were illuminated. Initially, Taylor thought that the truck might have been involved in a motor vehicle accident. He activated the emergency lights of his police vehicle, and he approached the driver's side of the truck. The defendant exited the truck, and Taylor thought that she appeared to be unsteady on her feet. When Taylor approached her, he could smell alcohol on her breath, which was more pronounced when she spoke to him. Her "mannerisms ... [were] sluggish ... she was very slouched over, she spoke in ... a thick tongue manner, [and] her eyes were glassy ...." She kept rambling and told Taylor that she had run out of gas and that a good Samaritan had gone to get some for her.¹

Taylor requested the defendant's license, registration, and insurance card, which the defendant was unable to produce at that time,² and he removed the keys from

the ignition of the truck. Taylor then called in the license plate number of the truck. He also requested backup from Trooper Jason Deojay, who, at that time, was working pursuant to a grant investigating driving while intoxicated cases, so that Deojay could perform the necessary testing of the defendant. Trooper Matthew Siart also arrived on the scene. Taylor asked Siart to stand near the truck because he did not want the defendant, who was then seated in the truck, to exit the truck and fall into traffic. When Deojay arrived, Taylor relayed relevant information to him, including his suspicion that the defendant was "under the influence."

Deojay, who was aware of LaBossiere's 911 call, noticed the defendant's truck parked "somewhat diagonal with the driver's side rear tire partially flat, nearly flat, some minor damage to the driver's side, and then the driver's side door was open with a female seated in the driver's seat." When he approached the defendant, he noticed that "she had glassy eyes, slightly ... slurred speech, and the odor of the alcoholic beverage coming from her breath as she spoke." Deojay acknowledged that these were indicators of an impaired driver. Deojay asked the defendant from where she was coming and to where she was going, and she responded that she was coming from a restaurant and going to a gas station. He asked her if she had consumed any alcoholic beverages, and she said no. Deojay then asked the defendant to step away from the truck in order to perform some field sobriety tests. Deojay administered the horizontal gaze nystagmus test, the walk and turn test, and the one leg stand test.

As he administered each test, Deojay asked the defendant whether she had any medical conditions that could interfere with her performance, to which she responded in the negative.³ When he administered the horizontal

gaze nystagmus test, Deojay noticed nystagmus, which is an involuntary movement of the eye, at three positions in each eye. Out of the six possible clues that indicate intoxication in this test, the defendant had all six. When administering the walk and turn test, the defendant swayed, did not follow directions, and had to stop in order to steady herself. Out of eight possible clues that indicate intoxication in this test, the defendant had five. Finally, when Deojay administered the one leg stand test, the defendant swayed and raised her arms in an attempt to maintain her balance. She also put down her foot more than three times in fewer than ten seconds. Deojay saw three out of a possible four clues of intoxication during that test. On the basis of the totality of the circumstances, including the defendant's performance on all three tests, her "glassy eyes, the slightly slurred speech, [and] the odor of the alcoholic beverage on her breath," Deojay determined that the defendant was intoxicated, and he placed her under arrest.

After arriving at the state police barracks, Deojay took the defendant to the processing room, where Trooper Donna Bimonte⁴ searched her. A silent video recorded the events that took place in the processing room. At 8:40 p.m., Deojay, in the presence of Bimonte, advised the defendant of her rights by reading her a preprinted notice of rights form, which Deojay and the defendant then signed. Deojay then prepared a postarrest interview form, documenting the defendant's responses to various questions. In response to a question asking whether she was ill, the defendant stated that she had undergone surgery three days earlier, but she did not elaborate.⁵ She also stated that she was not taking any

medication. Deojay also read the implied consent advisory contained on the postarrest interview form and notified the defendant that he would be requesting that she submit to either a blood, Breathalyzer, or urine test, as determined by him, and that, if he requested that she take a blood test, she could refuse to submit to that test and, instead, could opt to take a Breathalyzer or urine test. Deojay afforded the defendant an opportunity to telephone an attorney or a family member, but the defendant did not attempt to contact anyone at that time. Deojay thereafter told the defendant that he wanted her to take a Breathalyzer test. The defendant refused. When he testified before the jury, Deojay had no recollection of whether the defendant had requested to take a blood test, and he stated that he had reviewed the video from the processing room and that the defendant had held up her arms. He was certain, however, that she had refused to take a Breathalyzer test.

Trooper Bimonte had remained in the processing room and was present when the defendant refused to take a Breathalyzer test, and Bimonte acknowledged this refusal on a computerized form. Bimonte also observed that the defendant had a strong smell of alcohol coming from her person as she spoke and that she "was somewhat disheveled with makeup on her face and very fidgety as she sat talking, moved her legs a lot, used her hands a lot, just—and very, very talkative during the whole process ... [exhibiting a] flight of ideas, rambling on about different subjects." In Bimonte's opinion, after "thirteen years of nursing ... three years being a state trooper, working at detox programs, [and] working in the prison system," the defendant was "impaired." As Deojay was bringing the defendant to the lockup, the defendant changed her mind about making a telephone call, and Deojay brought her back into the processing room and, as the defendant held the receiver, he "dialed" the telephone numbers

given to him by the defendant, but she was unsuccessful in reaching anyone.

The...