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State v. Fetscher

Appellate Court of Connecticut

December 29, 2015

STATE OF CONNECTICUT
v.
ARIK FETSCHER

         Argued October 14, 2015.

          Substitute information charging the defendant with the crime of operating a motor vehicle while under the influence of intoxicating liquor or drugs, and with the infractions of traveling unreasonably fast and failure to drive in the proper lane, brought to the Superior Court in the judicial district of Stamford-Norwalk, geographical area number one, where the court, Truglia, J., denied the defendant's application to participate in the alcohol education program; thereafter, the court denied the defendant's motion to dismiss; subsequently, the defendant was presented to the court on a conditional plea of nolo contendere to the charge of operating a motor vehicle while under the influence of intoxicating liquor or drugs; thereafter, the state entered a nolle prosequi as to the charges of traveling unreasonably fast and failure to drive in the proper lane; judgment of guilty, from which the defendant appealed to this court.

          SYLLABUS

         Convicted, on a conditional plea of nolo contendere, of the crime of operating a motor vehicle while under the influence of intoxicating liquor, the defendant appealed to this court, challenging the trial court's denial of his motion to dismiss. The defendant was arrested in 2012 and charged with operating a motor vehicle while under the influence of intoxicating liquor in violation of statute (§ 14-227a), and he applied, pursuant to statute (§ 54-56g), for admission into the pretrial alcohol education program. Because he had been convicted in 1997 in New York of operating a motor vehicle while under the influence of intoxicating liquor, the trial court determined that he was ineligible for the program and denied his application. Thereafter, the defendant moved for a dismissal of the charge against him, claiming that he was suffering unequal application of the laws because he was being denied access to a diversionary disposition. The trial court denied the motion to dismiss and found that its ruling was dispositive of the case. Subsequently, the court accepted the defendant's conditional plea of nolo contendere, and this appeal followed. The defendant claimed that the trial court improperly construed § 54-56g (a) (1) (D), which provides that an applicant must state under oath that he or she has not been convicted in " any other state at any time" of an offense, the essential elements of which are substantially similar as § 14-227a (a) (1) or (2). Specifically, the defendant claimed that the plain meaning of the statue was unworkable because of the disparate treatment for individuals who are equally culpable, and that a ten year rule similar to that contained in § 54-56g (a) (1) (A) should apply for persons who have been convicted of operating a motor vehicle while under the influence of intoxicating liquor in another state. Held that the trial court properly denied the defendant's motion to dismiss: the language of § 54-56g (a) (1) (D) was plain and unambiguous, and provides that to be eligible for the program, an applicant must not have had, at any time, a conviction for an offense similar to § 14-227a in any other state, the defendant did not dispute the fact that his New York conviction involved an offense that was substantially similar to § 14-227a, the legislature did not indicate its intent to use a ten year period for out of state convictions and to distinguish among those states with and without diversionary programs for first time offenders, the statutory language did not yield an absurd or unworkable result, and this court could not read into the statute provisions that were not clearly stated therein; moreover, the defendant's claims that his constitutional rights to due process and against double jeopardy were violated were inadequately briefed and, therefore, were not reviewable.

         Arik B. Fetscher, self-represented, the appellant (defendant).

         Ronald G. Weller, senior assistant state's attorney, with whom, on the brief, were David I. Cohen, state's attorney, and Steven G. Weiss, supervisory assistant state's attorney, for the appellee (state).

         DiPentima, C. J., and Beach and Bear, Js. DiPENTIMA, C. J. In this opinion the other judges concurred.

          OPINION

Page 893

         [162 Conn.App. 146] DiPENTIMA, C. J.

         The self-represented defendant, Arik Fetscher, appeals from the judgment of conviction, [162 Conn.App. 147] rendered after his conditional plea of nolo contendere,[1] of the crime of

Page 894

operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a.[2] On appeal, the defendant challenges the trial court's denial of his motion to dismiss and its interpretation of the pretrial alcohol education program statute, General Statutes § 54-56g (a) (1) (D),[3] and claims that the court improperly denied his application for entry into the program. The defendant also raises several constitutional claims. We affirm the judgment of the trial court.

         In connection with the defendant's conditional plea of nolo contendere, the state recited the following facts. On December 6, 2012, the defendant was operating a [162 Conn.App. 148] motor vehicle at a high rate of speed in Greenwich. A police officer stopped the defendant's vehicle. Upon speaking with the defendant, the officer noticed an odor of alcohol on the defendant's breath and that his eyes were glassy and bloodshot. The defendant consented to Breathalyzer testing and the results were a blood alcohol level of 0.167 percent and 0.174 percent. The defendant was arrested and charged, inter alia, with violating § 14-227a.

         On April 8, 2013, the defendant applied for the pretrial alcohol education program (program) pursuant to § 54-56g. On May 23, 2013, the defendant filed a memorandum in support of his eligibility. He acknowledged that the bail commissioner had determined that he was ineligible as a result of his conviction for operating a vehicle while intoxicated in the state of New York on March 6, 1997.[4] The defendant argued that the New York conviction did not constitute an offense with substantially similar elements of § 14-227a (a). He also contended that his ineligibility amounted to an unequal application of the law and yielded an absurd and unworkable result.

         The state filed a responsive memorandum of law in on May 30, 2013, arguing that the Connecticut and New York statutes substantially were the same, and therefore the defendant ...


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