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State v. Gilligan

Appellate Court of Connecticut

April 5, 2016

STATE OF CONNECTICUT
v.
ERYN GILLIGAN

         Argued December 3, 2015

          Two part substitute information charging the defendant, in the first part, with the crime of operating a motor vehicle while under the influence of intoxicating liquor or drugs and, in the second part, with previously having been convicted of operating a motor vehicle while under the influence of intoxicating liquor or drugs, brought to the Superior Court in the judicial district of Tolland, geographical area number nineteen, where the first part of the information was tried to the jury before Graham, J.; verdict of guilty; thereafter, the defendant was tried to the court on the second part of the information; judgment of guilty, from which the defendant appealed to this court.

          SYLLABUS

         Convicted of the crime of operating a motor vehicle while under the influence of intoxicating liquor or drugs in violation of statute (§ 14-227a [a]) and, under a part B information, of previously having been convicted of operating a motor vehicle while under the influence of intoxicating liquor or drugs in violation of § 14-227a (g), the defendant appealed to this court. She claimed, inter alia, that the trial court improperly admitted certain expert testimony from P regarding a chemical analysis concerning the presence of cocaine in her urine. Specifically, the defendant claimed that P's testimony regarding the ratio of cocaine in her urine in relation to its metabolite, which concerned the timing of when the cocaine was ingested, was inadmissible because a copy of the report was not mailed to or personally delivered to her within twenty-four hours of the testing or by the end of the next regular business day after such result was known, in violation of § 14-227a (b) (2), and because a second chemical test of the same type was not performed on the urine sample at least ten minutes after the first test, in violation of § 14-227a (b) (5). The trial court had admitted P's testimony, concluding that the language of the statute precluded evidence respecting the amount of drug in the defendant's urine and that P did not quantify the amount of the drug, but rather testified concerning the ratio of cocaine to its metabolite, which indicated a relatively recent ingestion of cocaine by the defendant.

         Held :

         1. The trial court improperly admitted P's testimony in light of the unambiguous language of § 14-227a (b), as the evidence respecting the amount of alcohol or drug in the defendant's blood or urine at the time of the alleged offense was inadmissible because certain of the statutory requirements had not been satisfied; nevertheless, the trial court's error was harmless, as the import of P's testimony regarding the ratio of cocaine was that the defendant had recently ingested cocaine, which was cumulative of other evidence at trial, the admission of which was not contested on appeal, there was also substantial evidence of her intoxication, and P's testimony as to the ratio of cocaine was itself only mildly inculpatory.

         2. The defendant could not prevail on her claim that the state did not present sufficient evidence as to her identity to support her conviction as a second time offender pursuant to § 14-227a (g); the state presented overwhelming evidence during the trial on the part B information as to the identity of the defendant as the perpetrator of the first offense of operating a motor vehicle while under the influence of intoxicating liquor or drugs, and the defendant's identity as the perpetrator of the second offense was established during the trial on the part A information, as the trial court, having presided over the immediately preceding jury trial on the first part of the proceeding, was fully entitled to conclude that the person sitting in court in the part B trial was the person who had just been convicted.

         Pamala J. Favreau, for the appellant (defendant).

         Timothy F. Costello, assistant state's attorney, with whom, on the brief, were Matthew C. Gedansky, state's attorney, and Andrew Reed Durham, assistant state's attorney, for the appellee (state).

         Beach, Sheldon and Pellegrino, Js. BEACH, J. In this opinion the other judges concurred.

          OPINION

          BEACH, J.

          [164 Conn.App. 408] The defendant, Eryn Gilligan, appeals from the judgment of conviction, rendered following a jury trial, of operating a motor vehicle while under the influence of alcohol or drugs or both in violation of General Statutes § 14-227a (a) (1). The defendant claims that the trial court erred by (1) admitting into evidence expert testimony regarding the quantitative results of her urine test and (2) finding that she was a second offender pursuant to General Statutes § 14-227a (g). We affirm the judgment of the trial court.

         The following facts, as reasonably could have been found by the jury, and procedural history are relevant. At approximately 8:25 p.m. on December 29, 2011, while Timothy Begley, a sergeant with the state police, was patrolling Route 32 in Stafford, he noticed a vehicle [164 Conn.App. 409] swerving back and forth within a lane of travel and crossing the double yellow line. Begley stopped the vehicle, which the defendant was driving. The defendant was talking rapidly, her eyes were red and watery, and her pupils were " very dilated." Upon moving his flashlight toward her eyes, Begley noticed that the defendant's pupils were " very slow to constrict" and did so " only very slightly," which indicated to Begley that the defendant was possibly under the influence of a central nervous system stimulant. Begley detected the odor of alcohol on the defendant's breath and asked the defendant if she had been drinking. The defendant responded that she had consumed one drink prior to operating the vehicle. Begley asked the defendant if she would submit to field sobriety tests, and he noticed that the defendant was not very stable when exiting her car. Begley performed three field sobriety tests on the defendant: the horizontal gaze nystagmus test; the one leg stand test; and the walk and turn test. The defendant was not able to perform any of the three tests to standard.[1] Begley placed the defendant under arrest.

         While at the state police barracks in Tolland, the defendant completed an implied consent form. When Begley asked the defendant if she had been drinking, she stated that she started drinking around 7 p.m. and stopped drinking around 8:25 p.m., and during that time, she drank two beers. When asked if she had taken any drugs, she further stated that she had used one line of cocaine at approximately 7:30 p.m. Beyer asked the defendant if she would consent to chemical testing ...


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