State v. King ( 2023 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
STATE OF CONNECTICUT v. WAYNE A. KING
(SC 20588)
Robinson, C. J., and McDonald, D’Auria, Mullins,
Ecker and Keller, Js.
Syllabus
Pursuant to statute (§ 14-227a (a)), ‘‘[a] person commits the offense of
operating a motor vehicle while under the influence of intoxicating
liquor or any drug or both if such person operates a motor vehicle (1)
while under the influence of intoxicating liquor or any drug or both, or
(2) while such person has an elevated blood alcohol content.’’
Pursuant further to statute (§ 14-227a (g)), any person who violates any
provision of § 14-227a (a) shall be subject to sentence enhancement ‘‘for
conviction of a third and subsequent violation within ten years after
a prior conviction for the same offense,’’ and, ‘‘[f]or purposes of the
imposition of penalties for a . . . third and subsequent offense . . . a
conviction in any other state of any offense the essential elements of
which are determined by the court to be substantially the same as [those
in § 14-227a (a) (1) or (2)] . . . shall constitute a prior conviction for
the same offense.’’
Convicted of operating a motor vehicle while under the influence of intox-
icating liquor or drugs in Connecticut, the defendant appealed. After
the jury found the defendant guilty of operating a motor vehicle under
the influence, the trial court found the defendant guilty of being a
third time offender and enhanced his sentence under § 14-227a (g). The
enhancement was based on the defendant’s two prior Florida convictions
under that state’s driving under the influence statute (§ 316.193 (1)). In
enhancing the sentence, the trial court determined that the elements of
the Florida statute were ‘‘substantially the same’’ as the elements of
§ 14-227a (a) for purposes of § 14-227a (g). The Appellate Court upheld
the judgment of conviction, and the defendant, on the granting of certifi-
cation, appealed to this court, claiming that the Appellate Court incor-
rectly had concluded that the elements of § 316.193 (1) were
‘‘substantially the same’’ as the elements of § 14-227a (a) for enhance-
ment purposes because the phrase ‘‘actual physical control’’ of a vehicle
in § 316.193 (1) criminalizes broader conduct than the term ‘‘operating’’
a motor vehicle in § 14-227a (a).
Held that the Appellate Court correctly concluded that the trial court prop-
erly had enhanced the defendant’s sentence as a third time offender
under § 14-227a (g), this court having concluded that the element of
‘‘actual physical control’’ in Fla. Stat. Ann. § 316.193 (1) is substantially
the same as the ‘‘operating’’ element in § 14-227a (a):
1. This court defined the term ‘‘essential elements,’’ as used in § 14-227a
(g), and identified the essential elements of the Connecticut and Flor-
ida statutes:
Because the statutory scheme did not define either the word ‘‘essential’’
or ‘‘elements,’’ this court looked to dictionary definitions of those terms
and concluded that, to determine whether a conviction in another state
satisfies the requirements of § 14-227a (g), a court first must determine
the basic and necessary parts of the crime, including the actus reus,
mens rea, and causation, under both Connecticut law and the law of the
state of the prior conviction.
The plain language of § 14-227a (a) provides that the essential elements
of that statute are that the defendant (1) operate (2) a motor vehicle (3)
while under the influence of intoxicating liquor or drugs, or both, and
this court clarified that the ‘‘under the influence’’ element could be
established either by the subjective standards described in § 14-227a (a)
(1) or by the objective measure of blood alcohol content described in
§ 14-227a (a) (2), those subdivisions having created alternative means of
establishing the ‘‘under the influence’’ element but not having constituted
essential elements themselves.
Florida courts have explained that the essential elements of Fla. Stat.
Ann. § 316.193 (1) are (1) a person driving or in actual physical control
of (2) a vehicle while (3) such person was under the influence of alco-
holic beverages.
2. This court determined that the phrase ‘‘substantially the same,’’ as used
in § 14-227a (g), clearly and unambiguously means that the essential
elements of the statutes at issue must be the same to a considerable
degree:
This court disagreed with the defendant’s proposed construction of ‘‘sub-
stantially the same’’ as meaning the essential elements must be the same
‘‘in substance’’ and, instead, concluded that a court must consider the
degree of similarity between the statutory elements, as the defendant’s
construction would render the use of the word ‘‘substantially’’ superflu-
ous, whereas a construction requiring that the basic and necessary parts
of the crime be the same to a considerable degree does not render any
term superfluous and, thus, was consistent with the statute as a whole.
Moreover, even if there were an ambiguity, the legislative history of § 14-
227a (g) supported this court’s construction of the phrase ‘‘substantially
the same,’’ as the legislature’s purpose in adding that language was
to address the problem of repeat offenders and to prevent individuals
convicted of driving under the influence in other states from being treated
as mere first time offenders in Connecticut.
Because there was no bright-line test for courts to apply in determining
whether the elements of the statutes are the same to a considerable
degree, this court clarified that courts must consider the extent to which
two essential elements differ from each other on a case-by-case basis,
that minor differences do not render § 14-227a (g) inapplicable if the
Connecticut statute and the other state’s statute criminalize conduct that
is the same to a considerable degree, regardless of the facts underlying
the specific out-of-state conviction, and that the elements of two statutes
are substantially the same if the elements of the other state’s statute are
either the same or narrower than the elements of the Connecticut statute,
or the elements of the other state’s statute vary from the elements of
the Connecticut statute but the elements, based on their definition under
the statute or case law, criminalize conduct that is the same to a consider-
able degree.
3. This court applied the foregoing definition of ‘‘substantially the same’’ to
the essential elements of §§ 14-227a (a) and Fla. Stat. Ann. § 316.193 (1)
and concluded that, although the Connecticut and Florida statutes use
different terminology, a comparison of the definitions of ‘‘operating’’ in
§ 14-227a (a) and ‘‘actual physical control’’ in § 316.193 (1), as interpreted
by the relevant case law, supported the conclusion that those elements
were substantially the same for purposes of § 14-227a (g):
Connecticut case law defines ‘‘operation’’ as any act that, alone or in
sequence, will set in motion the motive power of a vehicle, even if there
remains a temporary obstacle or impediment, and even if the engine is
not running and the vehicle is not moving, so long as the defendant is
in the vehicle, whereas Florida case law defines ‘‘actual physical control’’
as being physically in the vehicle and having the capability to operate
the vehicle, which, in turn, is defined as taking an action to control the
vehicle, even if there remains a temporary obstacle or impediment, and
even if the engine is not running and the vehicle is not moving.
Under neither Connecticut nor Florida case law does an individual violate
the statute at issue by merely sitting or sleeping in the driver’s seat of
a vehicle while intoxicated, and, under both statutes, the presence of a
key in the ignition supports a finding of operation or actual physical
control but is not a necessary requirement if other indicia of operation
under § 14-227a (a) or actual physical control under Fla. Stat. Ann.
§ 316.193 (1) are present; rather, under both statutes, a court is required
to look at all the relevant facts to determine if the fact finder reasonably
could infer that the defendant was in a position to overcome a temporary
obstacle to make the vehicle operative.
Argued September 9, 2022—officially released February 28, 2023
Procedural History
Two part substitute information charging the defen-
dant, in the first part, with the crimes of operating a
motor vehicle while under the influence of intoxicating
liquor or drugs and operating a motor vehicle while
having an elevated blood alcohol content, 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 Waterbury, geographical
area number four, where the first part of the information
was tried to the jury before Crawford, J.; verdict of
guilty; thereafter, the defendant was tried to the court,
Crawford, J., on the second part of the information;
finding of guilty; judgment of guilty in accordance with
the verdict and enhancing the defendant’s sentence in
accordance with the finding, from which the defendant
appealed to the Appellate Court, Bright, C. J., and Lav-
ine and Alexander, Js., which affirmed the trial court’s
judgment, and the defendant, on the granting of certifi-
cation, appealed to this court. Affirmed.
Joshua R. Goodbaum, assigned counsel, for the
appellant (defendant).
Nathan J. Buchok, deputy assistant state’s attorney,
with whom, on the brief, was Maureen Platt, state’s
attorney, for the appellee (state).
Opinion
D’AURIA, J. As one feature of Connecticut’s public
policy aimed at deterring drunken driving and punishing
intoxicated drivers, General Statutes § 14-227a (g)1 pro-
vides enhanced sentences for those convicted multiple
times of operating a motor vehicle while under the
influence of intoxicating liquor or drugs or both. When
a defendant’s convictions all occur in Connecticut,
applying this enhancement is straightforward. Applying
the enhancement when a prior conviction occurred in
a different state can present a greater challenge if that
state’s statutes define the crime of driving while intoxi-
cated differently than Connecticut does under § 14-227a
(a). The General Assembly has determined that a sen-
tence enhancement under § 14-227a (g) should apply
when the out-of-state conviction’s ‘‘essential elements
. . . are . . . substantially the same as subdivision (1)
or (2) of ’’ § 14-227a (a), which criminalizes ‘‘the offense
of operating a motor vehicle while under the influence
of intoxicating liquor or any drug or both if such person
operates a motor vehicle (1) while under the influence
of intoxicating liquor or any drug or both, or (2) while
such person has an elevated blood alcohol content.’’
General Statutes § 14-227a (a).
This certified appeal requires that we determine
whether, upon his conviction in this state for operating a
motor vehicle while under the influence of intoxicating
liquor or drugs, in violation of § 14-227a (a), the trial
court properly enhanced the sentence of the defendant,
Wayne A. King, based on his two prior convictions in
Florida for driving under the influence in violation of
Fla. Stat. Ann. § 316.193. The defendant appeals from
the judgment of the Appellate Court, which upheld the
trial court’s judgment of conviction, rendered after a
jury trial, of one count of violating § 14-227a (a). On
appeal before this court, the defendant claims that the
Appellate Court incorrectly concluded that the ele-
ments of Florida’s driving under the influence statute,
Fla. Stat. Ann. § 316.193, which he previously had been
convicted of violating twice, were substantially the
same as the elements of § 14-227a (a) for enhancement
purposes under § 14-227a (g) because, he contends, the
phrase ‘‘actual physical control’’ under § 316.193 (1)
criminalizes a broader range of conduct than does the
term ‘‘operating’’ under § 14-227a (a). To decide this
question, we first must address an issue we have not
confronted before: the meaning of the phrase in § 14-
227a (g) that provides an enhancement for ‘‘any offense
the essential elements of which are determined by the
court to be substantially the same as subdivision (1)
or (2) of subsection (a) of this section . . . .’’ We con-
clude that this phrase means that the basic and neces-
sary parts of the out-of-state statute, including the actus
reus, mens rea, and causation, must be the same as
the elements of § 14-227a (a) to a considerable degree.
Applying this definition to the claim at issue, we con-
clude that the essential elements of § 14-227a (a) and
§ 316.193 are substantially the same. Accordingly, we
affirm the Appellate Court’s judgment.
I
The Appellate Court’s opinion contains an accurate
statement of the facts that the jury reasonably could
have found, along with the relevant procedural history
that informs our review of the defendant’s claim. We
summarize both briefly. ‘‘On April 1, 2016, the Nauga-
tuck police pulled over the defendant’s vehicle. The
defendant smelled of alcohol, so the police transported
him to the police station where [he] agreed to take a
Breathalyzer test. The defendant’s blood alcohol con-
tent registered at 0.1801 percent and then at 0.1785
percent, both of which [are] above the legal limit [of
0.08 percent]. The defendant thereafter was charged
with a violation of § 14-227a (a) (1) and (2). Following
a guilty verdict returned by the jury, the state proceeded
on a part B information, which the defendant elected
to have tried to the court, charging the defendant with
being a third time offender, pursuant to § 14-227a (g),
[based on] two prior convictions in the state of Florida.
Despite the defendant’s objections on various grounds,
the court found that the state had established, beyond
a reasonable doubt, that the defendant twice had been
convicted of driving under the influence in Florida and
that the essential elements of the Florida statute . . .
were substantially the same as the essential elements
of § 14-227a (a). Accordingly, the court sentenced the
defendant to three years of imprisonment, execution
suspended after eighteen months, twelve months of
which [were] mandatory, followed by three years of
probation.’’ (Citation omitted; footnotes omitted.) State
v. King, 204 Conn. App. 1, 4–5, 251 A.3d 79 (2021).
The defendant appealed to the Appellate Court,
claiming that the trial court should not have sentenced
him as a third time offender because the essential ele-
ments of operating under the influence in Connecticut
are not substantially the same as in Florida.2 Id., 3–4.
The Appellate Court held that the two statutes were
substantially the same and affirmed the defendant’s
conviction. Id., 13–24, 25. The defendant then petitioned
for certification to appeal to this court, which we
granted, limited to the issue of whether ‘‘the elements
of the Florida offenses of which the defendant pre-
viously had been convicted were substantially the same
as the elements of . . . § 14-227a (a) for enhancement
purposes under § 14-227a (g) (3)?’’ State v. King, 336
Conn. 947, 947, 251 A.3d 78 (2021).
As he did in the Appellate Court, the defendant claims
before this court that the elements of Fla. Stat. Ann.
§ 316.193 are not substantially the same as the elements
of § 14-227a (a) because the use of the phrase ‘‘actual
physical control’’ under § 316.193 (1) criminalizes broader
conduct than the term ‘‘operating’’ under § 14-227a (a).
See footnote 8 of this opinion. He therefore argues that
the trial court could not use his Florida convictions under
§ 316.193 to enhance his Connecticut sentence pursuant
to § 14-227a (g) (3).
In support of this claim, the defendant argues that,
for the essential elements of both statutes to be substan-
tially the same, they must be ‘‘the same in substance’’
and that, under this definition, the element of ‘‘actual
physical control’’ in Fla. Stat. Ann. § 316.193 (1) does not
satisfy the requirements of § 14-227a (g). Specifically,
he claims that, unlike the element of ‘‘operating’’ under
§ 14-227a (a), § 316.193 criminalizes the mere possibility
of operation, including merely being seated in the vehi-
cle’s driver’s seat while intoxicated. The state counters
that the phrase ‘‘substantially the same’’ refers to the
degree of similarity between the essential elements and
that, under this definition, the elements of ‘‘actual physi-
cal control’’ in Florida and ‘‘operating’’ in Connecticut
are substantially the same based on how our relevant
case law has defined those phrases. We agree with the
state.
The defendant’s claim is premised on the proper
meaning of the phrase contained in § 14-227a (g), ‘‘the
essential elements of which are determined by the court
to be substantially the same as subdivision (1) or (2)
of subsection (a) . . . .’’ As the phrase ‘‘determined
by the court’’ in § 14-227a (g) suggests, ‘‘[t]he issue of
whether the elements of the [Florida] and Connecticut
statutes under which the defendant was convicted [are]
substantially the same [under § 14-227a (g)] calls for
the comparison and interpretation of those statutes,
which [also] is a question of law [subject to plenary
review].’’ State v. Commins, 276 Conn. 503, 513, 886
A.2d 824 (2005), overruled in part on other grounds by
State v. Elson, 311 Conn. 726, 91 A.3d 862 (2014). Gen-
eral Statutes § 1-2z guides our construction of § 14-227a
(g), directing ‘‘us first to consider the text of the statute
itself and its relationship to other statutes. If, after
examining such text and considering such relationship,
the meaning of such text is plain and unambiguous and
does not yield absurd or unworkable results, extratex-
tual evidence of the meaning of the statute shall not
be considered. . . . The test to determine ambiguity is
whether the statute, when read in context, is susceptible
to more than one reasonable interpretation.’’ (Internal
quotation marks omitted.) McCoy v. Commissioner of
Public Safety, 300 Conn. 144, 150, 12 A.3d 948 (2011).
We conclude that the phrase in § 14-227a (g), ‘‘the
essential elements of which are determined by the court
to be substantially the same as subdivision (1) or (2)
of subsection (a),’’ means that the basic and necessary
parts of the crime, including the actus reus, mens rea,
and causation, must be the same to a considerable
degree. Applying this definition to the elements of § 14-
227a (a) and Fla. Stat. Ann. § 316.193, we determine
that the essential elements of these statutes are, in fact,
substantially the same.
II
Pursuant to § 14-227a (a), a ‘‘person commits the
offense of operating a motor vehicle while under the
influence of intoxicating liquor or any drug or both’’
by ‘‘operat[ing] a motor vehicle (1) while under the
influence of intoxicating liquor or any drug or both, or
(2) while such person has an elevated blood alcohol
content. For the purposes of [§ 14-227a], ‘elevated blood
alcohol content’ means a ratio of alcohol in the blood
of such person that is eight-hundredths of one per cent
or more of alcohol, by weight . . . .’’ Subsection (g)
of § 14-227a provides penalties for a first offense as
well as for a second, third, and subsequent offense
within ten years after a prior conviction for the same
offense. The final sentence of subsection (g) provides
in relevant part: ‘‘For purposes of the imposition of
penalties for a second or third and subsequent offense
pursuant to this subsection . . . a conviction in any
other state of any offense the essential elements of
which are determined by the court to be substantially
the same as subdivision (1) or (2) of subsection (a)
of this section . . . shall constitute a prior conviction
for the same offense.’’3 (Emphasis added.) General Stat-
utes § 14-227a (g).
A
‘‘Essential Elements’’ Defined
It is notable and important to our analysis that the
legislature did not use only the word ‘‘elements’’ but
modified it through the use of the adjective ‘‘essential.’’
The statutory scheme does not, however, define either
the word ‘‘essential’’ or the word ‘‘elements.’’ Black’s
Law Dictionary defines ‘‘essential’’ as ‘‘[o]f, relating to,
or involving the essence or intrinsic nature of something
. . . [o]f the utmost importance; basic and necessary.’’
Black’s Law Dictionary (11th Ed. 2019) p. 687; see also
Webster’s New World Dictionary of the American Lan-
guage (2d College Ed. 1972) pp. 478–79 (‘‘[e]ssential’’ is
defined as ‘‘of or constituting the intrinsic, fundamental
nature of something; basic, inherent’’). Additionally,
Black’s Law Dictionary defines ‘‘elements of crime’’ as
‘‘[t]he constituent parts of a crime . . . consisting of
the actus reus, mens rea, and causation—that the prose-
cution must prove to sustain a conviction.’’ Black’s Law
Dictionary, supra, p. 657. Thus, to determine whether
a conviction in another state satisfies the requirements
of § 14-227a (g), we first must determine the basic and
necessary parts of the crime, including the actus reus,
mens rea, and causation, under both Connecticut law
and the law of the state of the prior conviction, in this
case, Florida.
B
Essential Elements of § 14-227a (a)
The plain language of the first sentence of § 14-227a
(a) makes clear that, to establish a violation of this
statute, the state must prove that the defendant (1)
operated (2) a motor vehicle, (3) while under the influ-
ence of intoxicating liquor or drugs or both. See Con-
necticut Criminal Jury Instructions 8.3-1, available at
https://www.jud.ct.gov/JI/Criminal/Criminal.pdf (last
visited February 24, 2023). The second sentence of sub-
section (a), however, complicates the analysis of what
constitutes the essential elements of this offense, listing
two ways by which the state may prove a violation
of the statute: (1) that the defendant was ‘‘under the
influence of intoxicating liquor or any drug or both,’’
or (2) that the defendant had ‘‘an elevated blood alcohol
content . . . .’’ Arguably, these two subdivisions create
additional, separate and essential elements, and thus
two different crimes. The Appellate Court, however,
consistently has interpreted these subdivisions as creat-
ing alternative ways of establishing the single element
of ‘‘while under the influence of intoxicating liquor or
any drug or both . . . .’’ ‘‘In other words, the two subdi-
visions provide for different methods of proof of the
same offense . . . .’’ State v. Re, 111 Conn. App. 466,
473, 959 A.2d 1044 (2008), cert. denied, 290 Conn. 908,
964 A.2d 543 (2009); see State v. Marcus H., 190 Conn.
App. 332, 334–35 n.1, 210 A.3d 607, cert. denied, 332
Conn. 910, 211 A.3d 71, cert. denied, U.S. , 140
S. Ct. 540, 205 L. Ed. 2d 343 (2019); State v. Lopez, 177
Conn. App. 651, 668–69, 173 A.3d 485, cert. denied, 327
Conn. 989, 175 A.3d 563 (2017).
In reaching these holdings, the Appellate Court relied
in large part on the relevant legislative history. See State
v. Re, supra, 111 Conn. App. 472–73. We agree with
the Appellate Court that the legislature intended these
subdivisions to constitute alternative means of commit-
ting the element of ‘‘under the influence,’’ and not sepa-
rate, additional elements. Specifically, subdivisions (1)
and (2) of subsection (a) were added to the statute
in 1985. See Public Acts 1985, No. 85-596, § 1. Then
Representative Richard Blumenthal explained that the
purpose of creating the two subdivisions was ‘‘to estab-
lish two methods of proof. One method of proof is
the conventional or traditional method which relies on
evidence of behavior. The person couldn’t walk straight,
couldn’t talk correctly, all the observational kind of
evidence that would ordinarily be admitted at a trial.
The second method of proof that we would establish
is what is commonly and what would be called today
the per se method which is essentially to rely on blood
alcohol content.’’ 28 H.R. Proc., Pt. 30, 1985 Sess., pp.
10,853–54. He further explained that, because the
amendment created two ways of proving intoxication,
a defendant could not be convicted under both subdivi-
sions for the same conduct. Id., pp. 10,878–79, 10,882.
In other words, these subdivisions did not create two
separate elements, and thus two separate crimes, but
alternative means of establishing a single element of a
single crime.
As a result, it is clear that subdivisions (1) and (2)
of subsection (a) do not themselves constitute essential
elements but, rather, are alternative means of establish-
ing the essential element of ‘‘under the influence of
intoxicating liquor or any drug or both . . . .’’ General
Statutes § 14-227a (a). ‘‘[U]nder the influence’’ may be
established either by the subjective standards of subdi-
vision (1), or by the objective measure of blood alcohol
content described in subdivision (2). Thus, we conclude
that the essential elements of § 14-227a are that the
defendant (1) operated (2) a motor vehicle, (3) while
under the influence of intoxicating liquor or drugs or
both.
C
Essential Elements of Fla. Stat. Ann. § 316.193Fla. Stat. Ann. § 316.193 (1) provides: ‘‘A person is
guilty of the offense of driving under the influence and
is subject to punishment as provided in subsection (2)
if the person is driving or in actual physical control of
a vehicle within this state and: (a) [t]he person is under
the influence of alcoholic beverages, any chemical sub-
stance set forth in s. 877.111, or any substance con-
trolled under chapter 893, when affected to the extent
that the person’s normal faculties are impaired; (b) [t]he
person has a blood-alcohol level of 0.08 or more grams
of alcohol per 100 milliliters of blood; or (c) [t]he person
has a breath-alcohol level of 0.08 or more grams of
alcohol per 210 liters of breath.’’ Florida courts have
explained that the essential elements of § 316.193 are
(1) a person driving or in actual physical control of (2)
a vehicle, and (3) such person was under the influence
of alcoholic beverages. See, e.g., State v. Fitzgerald, 63
So. 3d 75, 77 (Fla. App. 2011); Tyner v. State, 805 So.
2d 862, 865–66 (Fla. App. 2001), review denied, 817
So. 2d 852 (Fla. 2002); see also In re Standard Jury
Instructions in Criminal Cases—Report No. 2015-07,
192 So. 3d 1190, 1192 (Fla. 2016) (appendix). Florida
courts have explained that subdivisions (a), (b) and (c)
of subsection (1) of § 316.193 create alternative means
of establishing the element of ‘‘under the influence of
alcoholic beverages’’—(1) the person’s normal faculties
are impaired, or (2) the person has a blood or breath
alcohol level of 0.08 or more. See Tyner v. State, supra,
865–66; see also Fla. Stat. Ann. § 316.193 (1); Fla. Stan-
dard Jury Instructions (Criminal) 28.3, available at
https:/www.Floridabar.org/rules/florida-standard-jury-
instructions/criminal-jury-instructions-home/criminal-
jury-instructions/sji-criminal-chapter-28/ (last visited
February 24, 2023). Thus, we conclude that the essential
elements of § 316.193 are that the defendant (1) drove
or actually physically controlled (2) a motor vehicle (3)
while under the influence of alcoholic beverages or
chemical substances.
III
Having identified the essential elements at issue, we
must determine whether they are ‘‘substantially the
same . . . .’’ General Statutes § 14-227a (g). Both par-
ties agree that, by directing the court to determine
whether the ‘‘essential elements’’ are ‘‘substantially the
same,’’ the legislature requires that the court look only
at the elements of the offenses at issue, not the prior
misconduct that led to the defendant’s out-of-state con-
victions. The plain language of § 14-227a (g) (3) sup-
ports this reading. Specifically, subsection (g) is clear
that the phrase ‘‘substantially the same’’ modifies the
phrase ‘‘essential elements . . . .’’ General Statutes
§ 14-227a (g); see Indian Spring Land Co. v. Inland
Wetlands & Watercourses Agency, 322 Conn. 1, 16, 145
A.3d 851 (2016) (court may discern ‘‘plain meaning of
statute on basis of ‘grammatical structure of the stat-
ute’ ’’). Specifically, the phrases ‘‘essential elements’’
and ‘‘substantially the same’’ are connected by the
dependent, modifying phrase, ‘‘of which are determined
by the court to be . . . .’’ General Statutes § 14-227a
(g); see Connecticut Ins. Guaranty Assn. v. Drown,
314 Conn. 161, 189, 101 A.3d 200 (2014) (in interpreting
phrase ‘‘for whom,’’ court noted that this kind of qualify-
ing phrase, ‘‘absent a contrary intention, refer[s] solely
to the last antecedent in a sentence’’ (internal quotation
marks omitted)).
Additionally, both parties agree that § 14-227a (g)
does not require the essential elements to be entirely
the same. By modifying the term ‘‘same’’ with the word
‘‘substantially,’’ the legislature could not have intended
for the essential elements to be exactly the same. See
State v. B.B., 300 Conn. 748, 757, 17 A.3d 30 (2011) (‘‘no
clause, sentence or word shall be superfluous, void
or insignificant’’ (internal quotation marks omitted)).
Thus, the critical inquiry is not whether a driving under
the influence statute from another state contains
exactly the same essential elements as § 14-227a.
Rather, the relevant inquiry is whether the offense for
which a defendant previously was convicted and sen-
tenced includes substantially the same essential ele-
ments as an offense punishable under § 14-227a. To
conduct this analysis, we first must determine the mean-
ing of the phrase ‘‘substantially the same.’’
A
‘‘Substantially the Same’’ Defined
The parties disagree about how similar the legislature
intended the essential elements of another state’s stat-
ute must be to those of § 14-227a (a) to qualify a convic-
tion under that out-of-state statute as a prior offense
that makes a defendant eligible for enhanced punish-
ment in this state. The defendant argues that the phrase
‘‘substantially the same’’ means that the essential ele-
ments must be the same ‘‘in substance.’’ In other words,
he claims, the statutory language of the essential ele-
ments may vary between offenses, but the meaning of
those elements must be the same. According to the
defendant, the fact that the legislature did not use the
term ‘‘similar’’ shows that it required more than mere
similarity. The state counters that this phrase refers to
the degree of similarity between the essential elements.
Although we agree with the defendant that § 14-227a
(g) requires more than mere similarity, we disagree that
the legislature intended that the elements of a statute
leading to a defendant’s out-of-state conviction must
be the same ‘‘in substance’’ to qualify the defendant for
sentence enhancement. Rather, we agree with the state
that this phrase refers to the degree of similarity between
the statutes and requires that the statutory elements
must be the same to a considerable degree. We note,
though, that our rejection of the defendant’s interpreta-
tion of this phrase does not mean that, in applying the
proper definition, courts do not consider the ‘‘substance’’
of the elements. As we will explain, in determining if a
sentencing enhancement applies, a court must consider
the degree of similarity between the substantive
elements.
The statutory scheme does not define the phrase
‘‘substantially the same,’’ and, thus, we first turn to
the ordinary meaning of these words, as evidenced in
dictionaries and case law at the time the legislature
added this language in 1999. See, e.g., 777 Residential,
LLC v. Metropolitan District Commission, 336 Conn.
819, 831, 251 A.3d 56 (2020); Kuchta v. Arisian, 329
Conn. 530, 537, 187 A.3d 408 (2018). Dictionary defini-
tions of the terms ‘‘substantially’’ and ‘‘same’’ do not
provide the necessary clarity.4 Rather, based on com-
mon dictionary definitions of these words, the phrase
‘‘substantially the same’’ is subject to two possible inter-
pretations: (1) the same in substance or (2) the same
to a considerable degree.
Similarly, our case law does not provide clarity on
this issue because Connecticut appellate courts never
have defined the phrase ‘‘substantially the same’’ even
though numerous statutes in this state contain the
phrase, ‘‘the essential elements of which are substan-
tially the same,’’ or similar language. See, e.g., General
Statutes § 17b-750 (‘‘[n]o child care subsidy shall be paid
to an unlicensed child care provider . . . convicted of
any crime involving sexual assault of a minor or serious
physical injury to a minor or any crime committed in
any other state or jurisdiction the essential elements
of which are substantially the same as such crimes’’
(emphasis added)); General Statutes § 38a-660 (n)
(insurer or agent must notify Commissioner of Insur-
ance upon learning that ‘‘surety bail bond agent has
been arrested for, pleaded guilty or nolo contendere
to, or been found guilty of, a disqualifying offense in
this state or an offense in any other state for which
the essential elements are substantially the same as a
disqualifying offense’’ (emphasis added)); General Stat-
utes § 46b-59b (court shall not order visitation to parent
convicted of murder under Connecticut statutes ‘‘or
in any other jurisdiction, of any crime the essential
elements of which are substantially the same as any
of such crimes’’ (emphasis added)); General Statutes
§ 53a-40 (a) (‘‘persistent dangerous felony offender’’ is
defined as individual convicted of certain crimes and
previously convicted of crimes enumerated in specific
provisions of General Statutes, or ‘‘in any other state,
any crimes the essential elements of which are substan-
tially the same as any of the crimes’’ enumerated in
General Statutes (emphasis added)); General Statutes
§ 54-56g (a) (1) (individuals ineligible for pretrial alco-
hol education program include persons convicted of
certain violations of Connecticut statutes and persons
‘‘convicted in any other state at any time of an offense
the essential elements of which are substantially the
same as [those enumerated in Connecticut statutes]’’
(emphasis added)).
It is instructive, however, that this state’s appellate
courts never have interpreted the term ‘‘substantially’’
to mean ‘‘in substance,’’ as that term is defined by the
defendant in the present case. Rather, in other contexts,
appellate courts consistently have defined ‘‘substan-
tially’’ to mean to a considerable extent or degree. See,
e.g., State v. Salamon, 287 Conn. 509, 571 n.52, 949
A.2d 1092 (2008) (‘‘[a] substantial risk of physical injury
means considerable risk of physical injury’’ (internal
quotation marks omitted)); Hartford Electric Supply
Co. v. Allen-Bradley Co., 250 Conn. 334, 358, 736 A.2d
824 (1999) (regarding phrase ‘‘substantially associated,’’
‘‘the word ‘substantially’ depicts the level of association
required in order to create a franchise’’ (emphasis omit-
ted)); Mingachos v. CBS, Inc., 196 Conn. 91, 101 n.12,
491 A.2d 368 (1985) (regarding phrase ‘‘substantially
certain,’’ term ‘‘substantially’’ means ‘‘about, practically,
nearly, almost, essentially’’ (internal quotation marks
omitted)); State v. Dubose, 75 Conn. App. 163, 174–75,
815 A.2d 213 (noting that, in variety of circumstances,
courts often define ‘‘substantial’’ to mean ‘‘consider-
able’’ (internal quotation marks omitted)), cert. denied,
263 Conn. 909, 819 A.2d 841 (2003); Fisette v. DiPietro,
28 Conn. App. 379, 384, 611 A.2d 417 (1992) (‘‘the term
‘substantial circulation’ is relative’’ with term ‘‘substan-
tial’’ meaning ‘‘ ‘considerable’ or ‘ample’ ’’).
The Appellate Court’s prior application of § 14-227a
(g) is consistent with our previous definition of ‘‘sub-
stantially’’ in other contexts to mean ‘‘to a considerable
or large degree.’’ Although the Appellate Court never
has explicitly defined the phrase ‘‘substantially the
same,’’ its application of the phrase has referred to the
degree of similarity between the elements. Appellate
Court case law does not support a construction of the
phrase ‘‘substantially the same’’ as meaning the ‘‘same
in substance.’’
Specifically, in State v. Young, 186 Conn. App. 770,
201 A.3d 439, cert. denied, 330 Conn. 972, 200 A.3d 1151(2019), in determining whether the essential elements
of § 14-227a and those of Rhode Island’s driving under
the influence statute, R.I. Gen. Laws § 31-27-2 (2010),
were substantially the same, the court first focused on
the language of the statutes at issue, then on the case
law interpreting that language. Id., 791–93. The court
ultimately held that the essential elements of the stat-
utes were substantially the same despite the differences
in the language of the statutes. Id., 794 (considering
whether out-of-state conduct would result in conviction
in Connecticut). For example, the court noted that both
statutes require as an element of proof that the defen-
dant operated a ‘‘motor vehicle’’ but that each statute
exempted different vehicles from its definition of the
term. Id., 794–95. Despite this, the court held that, based
on the similarities between the two states’ definitions
of the term ‘‘motor vehicle,’’ these elements, overall,
were substantially the same under both the Connecticut
and Rhode Island statutes. Id., 795.
Nevertheless, in support of his interpretation of this
language as meaning ‘‘same in substance,’’ the defen-
dant in the present case contends that the phrase ‘‘sub-
stantially the same’’ is a term of art in the double
jeopardy context that the legislature was aware of when
it added this language to § 14-227a in 1999. See Public
Acts 1999, No. 99-255, § 1. According to the defendant,
under our case law, a defendant’s right against double
jeopardy is violated if the elements of two crimes are
‘‘substantially the same,’’ requiring the court to compare
the elements of the two crimes at issue. He contends
that, in the double jeopardy context, the ‘‘substantially
the same’’ standard requires the elements to be the
same in substance for the two charged crimes to consti-
tute the same offense.
We disagree that double jeopardy case law is relevant
to our interpretation of § 14-227a (g). Unlike § 14-227a
(g), the double jeopardy clause of the fifth amendment
to the federal constitution prohibits the conviction of
a defendant twice ‘‘for the same offense,’’ not substan-
tially the same offense. See U.S. Const., amend. V. The
well established test contained in Blockburger v. United
States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306(1932), applies when analyzing double jeopardy claims.
See, e.g., State v. Tinsley, 340 Conn. 425, 432, 264 A.3d
560 (2021). Although it is true that this court has used
the phrase ‘‘substantially the same’’ in relation to the
applicable double jeopardy test, we did so for the first
time in State v. Goldson, 178 Conn. 422, 425, 423 A.2d
114 (1979), with no citation indicating from where this
language derived. The court in Blockburger, for exam-
ple, never used the phrase ‘‘substantially the same.’’ See
Blockburger v. United States, supra, 299. Importantly,
neither has this court used this phrase in relation to a
double jeopardy claim since its decision in State v.
Martin, 187 Conn. 216, 223 n.6, 445 A.2d 585 (1982).
In our most recent double jeopardy decision, State
v. Tinsley, supra, 340 Conn. 425, we did not use the
phrase ‘‘substantially the same’’ but, rather, explained
that the right against double jeopardy prohibits ‘‘multi-
ple punishments for the same offense in a single trial.’’
(Internal quotation marks omitted.) Id., 431. Our ‘‘[d]ou-
ble jeopardy analysis in the context of a single trial is
a [two step] process . . . . First, the charges must
arise out of the same act or transaction [step one].
Second, it must be determined whether the charged
crimes are the same offense [step two]. . . . At step
two, we [t]raditionally . . . have applied the
Blockburger test to determine whether two statutes
criminalize the same offense . . . [and] the test to be
applied to determine whether there are two offenses
or only one . . . is whether each provision requires
proof of a fact which the other does not.’’ (Internal
quotation marks omitted.) Id., 432. In other words, we
look at whether the statutes have the same elements
or whether each statute contains an element that the
other does not. Id., 434, 445. Thus, although this court
may have long ago in our double jeopardy case law
used the phrase ‘‘substantially the same,’’ the Blockburger
test requires complete equivalency between the ele-
ments of the two statutes at issue, as our more recent
case law has made clear. Section 14-227a (g) does not
require such complete equivalency, as the defendant
admits.
Moreover, although we have noted previously in this
opinion that the dictionary definition of the phrase ‘‘sub-
stantially the same’’ has two possible definitions, only
one is reasonable based on this statutory context. See,
e.g., Wilton Campus 1691, LLC v. Wilton, 339 Conn.
157, 171, 260 A.3d 464 (2021). If the term ‘‘substantially’’
means ‘‘in substance,’’ the statute would require that
the essential elements be the same in substance, which
is another way of requiring the essential elements to
be exactly the same, rendering the term ‘‘substantially’’
superfluous. The legislature, however, purposefully
modified the term ‘‘same’’ by the term ‘‘substantially,’’
and, thus, the defendant’s interpretation of this phrase is
not consistent with the statute as a whole. By contrast,
if the term ‘‘substantially’’ is construed to mean ‘‘to a
considerable degree,’’ the statute would require that the
basic and necessary parts of the crime—the actus reus,
mens rea, and causation—be the same to a considerable
degree. This definition of ‘‘substantially the same’’ does
not render any term superfluous and, thus, is consistent
with the statute as a whole. See, e.g., State v. B.B.,
supra, 300 Conn. 757 (we read statute as whole ‘‘so as
to reconcile all parts as far as possible’’ and ‘‘must
construe [the statute] if possible, such that no clause,
sentence or word shall be superfluous, void or insignifi-
cant’’ (internal quotation marks omitted)). Thus, the
phrase ‘‘substantially the same’’ clearly and unambigu-
ously means that the essential elements—the actus
reus, mens rea, and causation—must be the same to a
considerable degree.
Even if there were ambiguity, the legislative history
supports our interpretation of this phrase. Although this
history contains no specific discussion of the definition
of the phrase ‘‘substantially the same,’’ there is exten-
sive discussion about the purpose of the 1999 amend-
ment adding this language to the statute. The purpose
of this language was twofold: (1) to address the problem
of repeat offenders, and (2) to eliminate a preexisting
‘‘loophole’’ permitting individuals convicted of driving
under the influence in other states to be treated as first
time offenders in Connecticut.5 Although this history
does not refer explicitly to the degree of similarity
required by the term ‘‘substantially,’’ legislators’ con-
cerns about closing the loophole to more accurately
reflect a driver’s history and to prevent those with con-
victions in other states from moving to Connecticut and
receiving first time offender treatment when convicted
here for operating under the influence support a
broader interpretation of the phrase ‘‘substantially the
same’’ than ‘‘the same in substance.’’ This latter defini-
tion would significantly narrow the kind of out-of-state
convictions that a court could consider in enhancing
punishment for a later Connecticut conviction.
We recognize, however, that this definition does not
provide ideal guidance to trial courts. Clearly, to be the
same to a considerable degree requires more than mere
similarity, but to what extent may essential elements
differ but remain the same to a considerable degree?
We believe New York case law is instructive on this
issue. See, e.g., McCoy v. Commissioner of Public
Safety, supra, 300 Conn. 171 (when meaning of statute
is in doubt, reference to legislation in other jurisdictions
pertaining to same subject matter may be helpful source
of interpretative guidance).
Although not exactly on point, we find the court’s
analysis in In re Johnston, 75 N.Y.2d 403, 553 N.E.2d
566, 554 N.Y.S.2d 88 (1990), instructive regarding the
proper analysis to undertake in determining if the essen-
tial elements are substantially the same. In re Johnston
required that the court interpret N.Y. Judiciary Law § 90(4) (a) (1983), providing for the automatic disbarment
of an attorney convicted of a ‘‘felony,’’ which, at that
time, New York defined as any criminal offense classi-
fied as a felony under New York law or ‘‘any criminal
offense committed in any other state, district, or terri-
tory of the United States and classified as a felony
therein which if committed within [New York], would
constitute a felony in [New York].’’ N.Y. Judiciary Law
§ 90 (4) (e) (1983). Although the statute at issue did
not use the phrase ‘‘substantially the same,’’ as § 14-
227a (g) (3) does, the New York Court of Appeals contin-
uously has interpreted the statute as not requiring an
out-of-state felony to be exactly the same as its New
York counterpart but, rather, as requiring the two stat-
utes to have ‘‘substantially the same elements.’’ (Inter-
nal quotation marks omitted.) In re Johnston, supra,
405. Applying this standard, the court looked to the
degree of similarity between the two statutes at issue.
Id., 406–10. Specifically, the court analyzed the elements
of vehicular manslaughter under New York law and
involuntary manslaughter under Texas law, ultimately
holding that the two statutes were not substantially the
same. See id., 410. In reaching this conclusion, the court
first recited the elements of both statutes, then consid-
ered relevant case law defining those elements. See id.,406–10. The court noted that ‘‘the New York standard
for determining ‘intoxication’ is significantly higher
than the standard in Texas’’ and that ‘‘[t]he Texas and
New York felonies also differ significantly as to the
culpable mental state required.’’ Id., 409. The court rea-
soned that ‘‘the Texas statute focuse[d] entirely [on]
the subjective tolerance of the individual in determining
intoxication. The New York test, by contrast, is objec-
tive and measures the actor’s ability to employ physical
and mental faculties against that of a reasonable pru-
dent driver.’’ Id. Because of these differences, the court
concluded that ‘‘conduct [that] would not be a felony
in New York—causing a death by operating a motor
vehicle while ‘impaired’ by the consumption of alco-
hol—would constitute a felony under the [relevant]
Texas statute . . . .’’ Id. The court further noted that
the fact that ‘‘both the Texas and the New York statutes
are directed at the evil of drunken driving’’ did not
render the statutes substantially the same. Id., 410.
Rather, the analysis focused on the degree of similarity
between the elements.
This standard is similar to the Appellate Court’s appli-
cation of the ‘‘substantially the same’’ standard in State
v. Young, supra, 186 Conn. App. 770. Although the
Appellate Court never explicitly defined the phrase at
issue, in Young, it sought to explain the extent to which
the essential elements must be the same to satisfy § 14-
227a (g). Specifically, in Young, in determining whether
the essential elements of § 14-227a and Rhode Island’s
driving under the influence statute, R.I. Gen. Laws § 31-
27-2 (2010), were substantially the same, the court rec-
ognized that the statutory language varied regarding
intent but held that these dissimilarities did not prevent
the statutes from being substantially the same because
§ 31-27-2 ‘‘does not criminalize conduct that is less
active or dangerous if performed while under the influ-
ence than that which Connecticut defines as operation.’’
Id., 794. In other words, if the other state’s statute is
narrower than the Connecticut statute, the Appellate
Court held, the essential elements of both statutes
would be substantially the same because the out-of-
state conduct would constitute a conviction in Connect-
icut, even though Connecticut might criminalize a
greater scope of conduct. For example, if another state’s
statute defines the element of ‘‘under the influence’’ as
having a blood alcohol content of 0.10 percent or higher,
then that state’s statute would differ from how this state
has defined this element. However, because this state
criminalizes the operation of a motor vehicle with a
blood alcohol content of 0.08 percent or higher, a con-
viction in that other state would fall within the scope
of § 14-227a (a), even though that statute contains a
broader definition of ‘‘under the influence.’’
The court in Young also recognized that the statutes
at issue in that case varied in their definitions of ‘‘motor
vehicle,’’ with each statute exempting different kinds
of vehicles,6 but held that the definitions were substan-
tially the same because ‘‘[b]oth statutes require that the
motor vehicle be propelled by some force other than
human power and . . . the overall effect of the defini-
tions is to criminalize the operation of [motor] vehicles
that could pose a danger to the public if operated while
under the influence of liquor or drugs.’’ State v. Young,
supra, 186 Conn. App. 795. Thus, under Young, the
elements of two statutes are substantially the same if
(1) the elements of the other state’s statute are either the
same or narrower than the elements of the Connecticut
statute, or (2) the elements of the other state’s statute
vary from the elements of the Connecticut statute but
the elements, based on their definition under the statute
or our case law, criminalize conduct that is the same
to a considerable degree. The fact that the general pur-
poses of the statutes are the same, however, is not
sufficient to establish that the essential elements are
substantially the same. Whether two essential elements
are substantially the same must be determined on a
case-by-case basis. Although there is no bright-line test,
courts must determine the extent to which the elements
differ from each other. Minor differences do not render
§ 14-227a (g) inapplicable if the statutes criminalize con-
duct that is the same to a considerable degree, regard-
less of the facts underlying the specific out-of-state
conviction, which we are not allowed to consider under
the statute’s plain language.
B
Applying Definition of ‘‘Substantially the Same’’
to ‘‘Essential Elements’’
Applying this standard to § 14-227a, we note that the
essential elements are that the defendant (1) operated
(2) a motor vehicle7 (3) while under the influence of
intoxicating liquor or drugs or both.8 The essential ele-
ments of the Florida statute, Fla. Stat. Ann. § 316.193(1), are (1) a person driving9 or in actual physical control
of (2) a vehicle (3) and such person was under the
influence of alcoholic beverages. Although it is true that
the wording of the first element of both of these statutes
varies, as explained, it is not the wording of the statute
alone that we consider but how the statute’s elements
have been interpreted under relevant case law. Thus,
we must compare how this court has defined the term
‘‘operation’’ in relation to how Florida courts have
defined the phrase ‘‘actual physical control.’’ Cf. State
v. Moreno-Hernandez, 317 Conn. 292, 299–300, 118 A.3d
26 (2015) (in interpreting statutory language under § 1-
2z, ‘‘[we] are bound by our previous judicial interpreta-
tions of the language and the purpose of the statute’’
and thus look to prior case law in determining clear
and unambiguous meaning of statute (internal quota-
tion marks omitted)). We ultimately conclude that the
Appellate Court correctly determined that ‘‘the manner
in which Florida courts have interpreted [the phrase]
actual physical control is substantially the same as the
manner in which [this court] has defined operation
. . . .’’ State v. King, supra, 204 Conn. App. 18.
1
As the Appellate Court noted, this court consistently
has defined ‘‘operation’’ as occurring ‘‘when in the vehi-
cle [a person] intentionally does any act or makes use
of any mechanical or electrical agency [that] alone or
in sequence will set in motion the motive power of the
vehicle.’’ (Emphasis added; internal quotation marks
omitted.) Id., 15; accord State v. Cyr, 291 Conn. 49, 57,
967 A.2d 32 (2009); see also State v. Swift, 125 Conn.
399, 403, 6 A.2d 359 (1939) (‘‘[s]o if you find that the
accused . . . manipulated the machinery of the motor
for the purpose of putting the automobile into motion,
the accused being in the car and in a position to control
its movements, the accused would be guilty of operating
a car under the influence of intoxicating liquor, whether
the automobile moved or not’’ (internal quotation marks
omitted)). In applying this definition, we have explained
that ‘‘the term operating encompasses a broader range
of conduct than does [the term] driving.’’ (Internal quo-
tation marks omitted.) State v. Cyr, supra, 57. For exam-
ple, in State v. Haight, 279 Conn. 546, 903 A.2d 217(2006), we held that the element of operation could be
satisfied even ‘‘when a defendant had been seated in a
vehicle that neither was in motion nor had its motor
running.’’ State v. Cyr, supra, 57, citing State v. Haight,
supra, 552. Specifically, we held that the evidence was
sufficient to sustain a prosecution under § 14-227a (a)
when the defendant was found sleeping in the driver’s
seat of his parked vehicle, with the key in the ignition
in either the ‘‘off ’’ or the ‘‘accessory’’ position, and the
headlights illuminated, but without the motor running.
State v. Haight, supra, 547–48. We explained in Haight:
‘‘The act of inserting the key into the ignition and the
act of turning the key within the ignition are preliminary
to starting the vehicle’s motor. Each act, in sequence
with other steps, will set in motion the motive power
of the vehicle.’’ (Internal quotation marks omitted.) Id.,
553. Although inserting the key into the ignition does
not turn the motor on, ‘‘[n]othing in our definition of
‘operation’ requires the vehicle to be in motion or its
motor to be running.’’ Id., 552. Thus, our case law clearly
holds that a defendant’s conduct constitutes operation
if he or she places the key in the ignition.
We have never held, however, that inserting a key
into the ignition is a prerequisite for a conviction under
§ 14-227a (a). In State v. Cyr, supra, 291 Conn. 49, the
defendant had started his vehicle remotely while it was
parked in a lot. Id., 52–53. The defendant then sat in
the driver’s seat but did not place the key in the ignition,
which was necessary for him to drive the vehicle
involved in that case. Id. At that point, a police officer
approached and arrested him. Id., 51–52. The defendant
appealed his conviction under § 14-227a (a) to the
Appellate Court, which reversed the trial court’s judg-
ment, concluding that those facts did not establish prob-
able cause to believe that he had been operating the
vehicle within the meaning of § 14-227a (a). Id., 54. The
state then appealed to this court, in which the defendant
claimed that there was insufficient evidence that he
had operated the vehicle. Id., 54–55. We disagreed, hold-
ing that he had ‘‘operat[ed]’’ his vehicle, as that term
is defined under relevant case law, because, when he
‘‘start[ed] the engine of his vehicle remotely then [got]
behind the steering wheel,’’ he ‘‘clearly undertook the
first act in a sequence of steps necessary to set in motion
the motive power of a vehicle,’’ even though he never
inserted his key into the ignition. Id., 58. The fact that
‘‘more steps are necessary to engage the motive power
of a vehicle that has been started by remote control than
to engage the motive power of a vehicle not remotely
started’’ did not mean that the defendant did not take
the first step in the process of starting his motor vehicle.
(Emphasis omitted.) Id., 59 n.12. Thus, we reversed the
Appellate Court’s judgment and ordered the trial court
to affirm the conviction. Id., 62. In doing so, we explained
that ‘‘the existence of a temporary obstacle or impedi-
ment will not preclude a finding of operation.’’ Id., 60.
Traditional examples of temporary obstacles or impedi-
ments include ‘‘vehicles that are stuck in ditches, snow
or loose dirt, or hung up on some physical object . . . .’’
Id., 61. The court explained that a key that had not yet
been inserted into the ignition is analogous to these
situations because, ‘‘[l]ike a slippery surface or trapped
wheels, the lack of an inserted ignition key is but a
temporary impediment to the movement of a remotely
started vehicle.’’ Id. Thus, although the presence of a
key in the ignition by itself is sufficient to constitute
operation under § 14-227a (a), insertion of the key is
not necessary for a defendant’s conduct to constitute
operation. Rather, the court must look to all the facts
from which the fact finder reasonably could infer that
the defendant undertook any act or made use of any
mechanical or electrical agency that, alone or in
sequence with other steps, would have set in motion
the motive power of the vehicle.
Our holdings in Haight and Cyr find support in the
purpose of § 14-227a (a) as a ‘‘preventive [measure to]
. . . deter individuals who have been drinking intox-
icating liquor from getting into their vehicles, except
as passengers . . . and [enabling] the drunken driver
to be apprehended before he strikes . . . .’’ (Emphasis
omitted; internal quotation marks omitted.) Id. Thus,
‘‘the threat targeted by statutes disallowing not just
driving, but also operating a motor vehicle while intoxi-
cated—that is, the danger that a parked vehicle will be
put in motion by an intoxicated occupant and thereby
pose a risk to the safety of the occupant and others—
remains present when the condition rendering the vehi-
cle inoperable is a temporary one that quickly can be
remedied. . . . Consequently, the existence of a tem-
porary obstacle or impediment will not preclude a find-
ing of operation.’’ (Citation omitted; internal quotation
marks omitted.) Id., 60. ‘‘By deterring intoxicated indi-
viduals from taking even the most preliminary steps
toward driving their vehicles, our holding[s] [in these
prior cases] further[ed] Connecticut’s unambiguous pol-
icy . . . [of] ensuring that our highways are safe from
the carnage associated with drunken drivers.’’10 (Inter-
nal quotation marks omitted.) Id., 62.
In sum, Connecticut case law defines the term ‘‘opera-
tion’’ under § 14-227a (a) as any act that, alone or in
sequence, will set in motion the motive power of the
vehicle, even if there remains a temporary obstacle or
impediment, and even if the engine is not running, while
the defendant is in the vehicle. Under this definition,
merely sitting in the driver’s seat of a vehicle is insuffi-
cient to establish operation. However, although the
insertion of a key in the ignition constitutes operation,
this fact is not required to establish operation.
2
Florida courts define ‘‘actual physical control’’ pursu-
ant to Fla. Stat. Ann. § 316.193 (1) to mean that ‘‘the
defendant must be physically in [or on] the vehicle and
have the capability to operate the vehicle, regardless
of whether [he or she] is actually operating the vehicle
at the time.’’11 In re Standard Jury Instructions in
Criminal Cases—Report No. 2016-08, 211 So. 3d 995,
998 (Fla. 2017) (appendix); see also Hughes v. State,
943 So. 2d 176, 195 (Fla. App. 2006) (‘‘[a]ctual physical
control is the present ability to operate, move, park, or
direct whatever use or [nonuse] is to be made of the
motor vehicle at the moment’’ (internal quotation marks
omitted)), review denied, 959 So. 2d 716 (Fla. 2007). In
determining whether the state has met ‘‘the capability
to operate the vehicle’’ element of § 316.193 (1), Florida
courts use a ‘‘reasonably capable of being rendered
operable’’ standard. See, e.g., Hughes v. State, supra,
194. Florida case law applying this standard clarifies
that, for a defendant to be capable of operating a vehi-
cle, there must be evidence that the defendant took
some action from which the fact finder reasonably
could infer that he or she placed himself or herself in
a position of control of the motor vehicle at the moment
of that action and thus could have started the motor
at any time. See Fieselman v. State, 537 So. 2d 603,
606–607 (Fla. App. 1988) (‘‘whether, from the evidence
[of the defendant’s actions] . . . a reasonable infer-
ence can be drawn that [the defendant], while intoxi-
cated, [acted in a way that] placed [him] . . . at least
at that moment in actual physical control of the vehicle
while intoxicated’’), aff’d, 566 So. 2d 768 (Fla. 1990);
see id., 606 (there must be evidence from which ‘‘a
legitimate inference [may] be drawn that [the] defen-
dant had of his own choice placed himself behind the
wheel’’ and either ‘‘started the motor’’ or did something
to place himself in physical control of vehicle (internal
quotation marks omitted)). Applying this standard, a
court must consider the totality of the circumstances.
See, e.g., State v. Fitzgerald, supra, 63 So. 3d 77. More-
over, like Connecticut’s definition of ‘‘operation,’’ Flori-
da’s standard is satisfied even if there remains a
temporary obstacle or impediment to operability, and
even if the engine is not running and the vehicle is not
moving. See Hughes v. State, supra, 196; Fieselman
v. State, supra, 607. As a result, Florida courts have
explained that ‘‘physical control is meant to include
situations [in which] an intoxicated individual is found
in a parked car under circumstances [in which] the car,
without too much difficulty, might again be started and
become a source of danger to the driver, to others,
or to property.’’12 (Internal quotation marks omitted.)
Hughes v. State, supra, 196.
It is clear under Florida case law, as in Connecticut,
that an unconscious individual in the driver’s seat, who
has placed the key in the ignition, has placed himself
in actual physical control of the vehicle. By placing the
key in the ignition, he has taken some action to control
the vehicle, and thus at any moment may take action
to operate it. See Fieselman v. State, supra, 537 So. 2d
606–607 (trial court erred by dismissing charge that
defendant was in actual physical control of vehicle
while under influence when defendant was found lying
down, asleep in front seat of automobile, with engine
off but keys in ignition, and keys in ignition permitted
inference that defendant could have started automobile
and driven away at any time); Griffin v. State, 457 So.
2d 1070, 1071 (Fla. App. 1984) (defendant was in actual
physical control of vehicle when he was found uncon-
scious, slumped over steering wheel, key was in ignition
and lights on, parked in traffic lane facing direction
opposite from which traffic was to flow, but motor was
not running); see also Hughes v. State, supra, 943 So. 2d
196 (defendants were in actual physical control when,
‘‘acting as pilot and copilot of [a] commercial aircraft
with over 100 passengers onboard, [and] while sitting
in the cockpit of the aircraft and thus in actual physical
control of the aircraft, performed extensive preflight
duties for the purpose of flying the aircraft,’’ including
activating and checking systems prior to departure).
The defendant contends, however, that, because Fla.
Stat. Ann. § 316.193, unlike § 14-227a (a), criminalizes
the mere possibility of operation, a person may be found
guilty of violating § 316.193 not only if he or she is found
passed out behind the steering wheel of a vehicle with
the keys in the ignition but also if he or she is found
merely sitting or sleeping behind the steering wheel
with the keys on the floor of the vehicle or in his or
her hands. The defendant’s argument ignores the Flor-
ida case law we have discussed, which requires that
there be some evidence that the defendant had taken
some action to place himself in control of the vehicle.
Although it is true that, in a few Florida cases, courts
have upheld convictions under § 316.193 even though
the defendant never placed the keys in the vehicle’s
ignition, in these cases, the jury reasonably could have
inferred from other evidence that the defendant had
driven or been in actual physical control of the vehicle
while intoxicated. See State, Dept. of Highway Safety &
Motor Vehicles v. Prue, 701 So. 2d 637, 637–38 (Fla.
App. 1997) (although court noted that keys were in
position ‘‘near enough for [the defendant] to use them
to start the vehicle and drive away,’’ court first and
foremost relied on fact that defendant was passed out
in vehicle at 1:45 a.m. on shoulder of two lane highway
with vehicle protruding approximately one foot into
roadway and no other people or vehicles in area); Bal-
trus v. State, 571 So. 2d 75, 76 (Fla. App. 1990) (although
fact that defendant was sitting behind steering wheel
of motor vehicle may not be dispositive in determining
actual physical control, this fact is one factor for court
to consider); see also State v. Fitzgerald, supra, 63 So.
3d 76 (reversing dismissal of charge under § 316.193
when defendant was discovered sitting in driver’s seat
of vehicle, which was parked with engine off in intersec-
tion with headlights on and keys in her hand). Thus,
the court in these cases did not hold that the defendant
had violated § 316.193 by merely being asleep behind
the steering wheel while intoxicated. Rather, the court
looked at the totality of the circumstances to determine
if the defendant had placed himself or herself in a posi-
tion of control of the vehicle.
Importantly, in Fieselman v. State, supra, 537 So. 2d
606, the Florida court addressed whether a defendant
may be deemed to be in actual physical control based
solely on the fact that he was asleep in the vehicle
without the engine on. Specifically, in Fieselman, the
police discovered the defendant asleep in the front seat
of his automobile, parked in a parking lot. Id., 604. The
car’s automatic gearshift was in the park position, the
key in the ignition was in the off position, the lights
were on, and the engine was not running. Id., 604–605.
Assessing these facts, the court explained that ‘‘sleeping
in a prone position in the front seat of a vehicle parked
in a parking lot, the engine of which is not running, is
not itself sufficient to establish actual physical control
of the vehicle’’; id., 606; but that those facts combined
with the presence of the key in the ignition allowed
for the reasonable inference that the defendant was in
actual physical control of the vehicle. Id., 607. By plac-
ing the key in the ignition, the defendant had placed
himself in a position of control of the vehicle and could
have, at any moment, started the vehicle and driven
away. Id. The court noted, however, that, if the key had
not been in the ignition, the case might have turned out
differently. See id., 606. For example, if the defendant’s
vehicle had not been parked in a parking lot but instead
had been parked in the travel portion of a public road-
way, the fact finder could have reasonably inferred that
the defendant had placed himself in actual physical
control of the vehicle. Id. Nevertheless, the court
explained at the end of its decision that the presence
of a key in the ignition is not necessary to establish
actual physical control but, rather, is one factor to con-
sider. Id., 607. Thus, contrary to the defendant’s argu-
ment, under Florida law, an individual is not in actual
physical control of a vehicle by merely sitting or being
asleep in the driver’s seat of a vehicle while intoxicated.
Rather, there must be evidence of some action that
placed the defendant in control of the vehicle.
3
Although the Connecticut and Florida statutes use
slightly different terminology, our comparison of the
definitions of ‘‘operation’’ under § 14-227a (a) and
‘‘actual physical control’’ under Fla. Stat. Ann. § 316.193leads us to conclude that the Appellate Court correctly
determined that these elements are substantially the
same. Specifically, Connecticut defines ‘‘operation’’ as
an act that, alone or in sequence, will set in motion the
motive power of the vehicle, even if there remains a
temporary obstacle or impediment and even if the
engine is not running and the vehicle is not moving.
Florida defines ‘‘actual physical control’’ as being physi-
cally in the vehicle and having the capability to operate
the vehicle, which, in turn, is defined as taking an action
to control the vehicle, even if there remains a temporary
obstacle or impediment and even if the engine is not
running and the vehicle is not moving. It is clear under
Florida’s case law that taking an action to control the
vehicle is equivalent, under Connecticut’s case law, to
taking an act that, alone or in sequence, will set in
motion the motive power of the vehicle. Under neither
Connecticut case law nor Florida case law does a defen-
dant violate the statute at issue by merely sitting or
sleeping in the driver’s seat of a vehicle while intoxi-
cated. Moreover, under both states’ statutes, the pres-
ence of a key in the ignition supports a finding of
operation or actual physical control. However, under
both statutes, as made clear by Cyr and Fieselman, the
presence of a key in the ignition is not a necessary
requirement if other indicia of operation under § 14-
227a (a) or actual physical control under § 316.193 are
present. Rather, under both states’ statutes, the fact
finder is required to consider all of the relevant facts to
determine if it reasonably could infer that the defendant
was in a position to overcome a temporary obstacle to
make the vehicle operative. Accordingly, we hold that
the element of ‘‘actual physical control’’ in § 316.193 is
substantially the same as the element of ‘‘operation’’ in
§ 14-227a (a) and that the Appellate Court correctly
concluded that the trial court had properly sentenced
the defendant as a third time offender under § 14-
227a (g).
The judgment of the Appellate Court is affirmed.
In this opinion the other justices concurred.
1
Although the legislature amended § 14-227a since the events at issue;
see Public Acts, Spec. Sess., June, 2021, No. 21-1, §§ 116 and 117; Public
Acts 2016, No. 16-126, § 3; those amendments have no bearing on this appeal.
In the interest of simplicity, we refer to the current revision of the statute
unless otherwise noted.
2
Before the Appellate Court, the defendant generally claimed that his
prior Florida convictions did not fall within the scope of § 14-227a (g)
because the essential elements of those convictions were not substantially
the same as the essential elements of § 14-227a (a), as that statute existed
at the time of his arrests in Florida in 1999 and 2005. See State v. King,
supra, 204 Conn. App. 5–6.
Under the version of § 14-227a (a) in effect at the time of the defendant’s
conduct in 1999, the legislature had limited the statute’s scope by requiring
that the operation of a motor vehicle occur ‘‘on a public highway’’ and
defined intoxication to mean a blood alcohol content of 0.10 percent or
higher. In 2002, prior to the defendant’s conduct in 2005, the General Assem-
bly reduced the required blood alcohol content from 0.10 percent to 0.08
percent. See Public Acts, Spec. Sess., May, 2002, No. 02-1, § 108. Thereafter,
in 2006, the legislature eliminated the requirement in § 14-227a (a) that the
operation of a motor vehicle occur ‘‘on a public highway . . . .’’ See Public
Acts 2006, No. 06-147, § 1.
Based on the language of the Florida and Connecticut statutes in effect
at the time of the defendant’s conduct in 1999 and 2005, in addition to the
arguments the defendant raised before this court, the defendant also claimed
that the essential elements of the Florida and Connecticut statutes were
not substantially the same in that (1) the ‘‘vehicle’’ element of the Florida
statute was not substantially the same as the ‘‘motor vehicle’’ element in
§ 14-227a (a) because Florida did not require the vehicle at issue to be
motorized whereas Connecticut did; State v. King, supra, 204 Conn. App.
20–21; (2) the element of Fla. Stat. Ann. § 316.193 (1) requiring that the
conduct occur ‘‘within the state’’ was broader than the element in § 14-227a
(a) requiring that the conduct occur ‘‘ ‘on a public highway’ ’’; id., 23; and
(3) the element of intoxication in the Florida statute was not substantially
the same as the element of intoxication in § 14-227a (a) because Florida
defined intoxication to mean a blood alcohol content of 0.08 percent or
higher, whereas § 14-227a (a) defined intoxication to mean a blood alcohol
content of 0.10 percent or higher. See id., 24. The defendant, however, made
no claim that the essential elements of the current versions of § 14-227a (a)
and § 316.193 are not substantially the same.
Additionally, the defendant claimed that State v. Burns, 236 Conn. 18,
670 A.2d 851 (1996), and State v. Mattioli, 210 Conn. 573, 556 A.2d 584 (1989),
‘‘should be overruled because those cases contravene the plain language of
§ 14-227a (g), which requires that a defendant’s prior convictions, on which
the enhanced penalty relies, occur less than ten years before the current
Connecticut conviction.’’ State v. King, supra, 204 Conn. App. 4. The Appel-
late Court, of course, was unable to overrule this court’s decisions; id.; and
the defendant did not seek certification to appeal to this court on that
ground. Thus, we do not address this argument.
3
Regarding the increased penalties, under § 14-227a (g) (3), a third time
offender shall ‘‘(A) be fined not less than two thousand dollars or more
than eight thousand dollars, (B) be imprisoned not more than three years,
one year of which may not be suspended or reduced in any manner, and
sentenced to a period of probation . . . (C) have such person’s motor vehi-
cle operator’s license or nonresident operating privilege permanently
revoked upon such third offense . . . .’’
4
‘‘Substantially’’ is defined as ‘‘in a substantial manner’’; Webster’s Third
New International Dictionary (2002) p. 2280; or ‘‘[e]ssentially; without mate-
rial qualification; in the main . . . in a substantial manner.’’ Black’s Law
Dictionary (6th Ed. 1990) pp. 1428–29; see also Sutton v. United Air Lines,
Inc., 527 U.S. 471, 491, 119 S. Ct. 2139, 144 L. Ed. 2d 450 (1999) (regarding
phrase ‘‘substantially limits’’ in Americans with Disabilities Act of 1990,
42 U.S.C. § 12101 et seq., based on dictionary definitions, ‘‘ ‘substantially’
suggests ‘considerable’ or ‘specified to a large degree’ ’’). ‘‘Substantial’’ is
defined as ‘‘consisting of, relating to, sharing the nature of, or constituting
substance’’ or ‘‘being of moment . . . important, essential . . . .’’ Webster’s
Third New International Dictionary, supra, p. 2280. Similarly, Black’s Law
Dictionary defines ‘‘substantial’’ as ‘‘1. Of, relating to, or involving substance;
material . . . . 2. Real and not imaginary; having actual, not fictitious, exis-
tence . . . . 3. Important, essential, and material; of real worth and impor-
tance . . . . 8. Containing the essence of a thing; conveying the right idea
even if not the exact details . . . .’’ Black’s Law Dictionary (11th Ed. 2019)
p. 1728.
5
See 42 H.R. Proc., Pt. 19, 1999 Sess., p. 6718, remarks of Representative
Paul R. Doyle (‘‘we are, basically incorporating out of state convictions
under our law to more properly reflect the driver’s history’’); id., pp. 6719–20,
remarks of Representative William A. Hamzy (‘‘[R]epeat offenders cause
the second number, second highest number of accidents on our state’s
roads. . . . So what we try to do in this legislation is to address that problem
and treat those people differently. . . . So I think the combination of the
provisions that are included in this amendment address the problems that
exist currently and I would urge the members of this [c]hamber to support
it accordingly.’’); see also 42 S. Proc., Pt. 9, 1999 Sess., pp. 2928–29, remarks
of Senator Catherine W. Cook (‘‘[T]he problem with Connecticut’s drunk[en]
driving laws, has always been the loopholes. This amendment shuts the
door tight on those loopholes that have been the bane of Connecticut’s so-
called strict drunk[en] driving laws. . . . This legislation sends that mes-
sage, and imposes severe and appropriate penalties on those individuals
who insist on endangering innocent people by drinking and driving.’’); Conn.
Joint Standing Committee Hearings, Transportation, Pt. 2, 1999 Sess., p. 475,
testimony of Deputy Commissioner Michael O’Connor of the Department
of Motor Vehicles (‘‘Another common sense or loophole that we looked at,
was to take into consideration [Driving Under the Influence (DUI)] convic-
tions in other states. Quite frankly, it doesn’t make sense that if I have a
DUI conviction in the state of New York, and now one in Connecticut, then
I’m treated as having one conviction as opposed to an individual who has
two in Connecticut is now treated as having two convictions.’’); Conn. Joint
Standing Committee Hearings, supra, p. 566, testimony of Officer Mark
Margolis of the North Haven Police Department (‘‘Another problem we’re
finding in law enforcement is, we’re finding people that have been arrested
in other states. There’s no tracking system, which again, the recommenda-
tions are looking to cover. We’re having people on the street [who] are
arrested in three or four different states. They just keep moving along.
They just keep hurting people. They keep killing people. They move on to
Connecticut and again, we get them and they just sit and they laugh in our
face[s] because they know they’re going to be offered the program. These
recommendations, I think, will shore up some of those problems and correct
them, and again, take people off the road that don’t belong on the road.’’).
6
Specifically, the court in State v. Young, supra, 186 Conn. App. 794–95,
recognized that General Statutes (Rev. to 2019) § 14-1 (58) exempts ‘‘aircraft,
motor boats, road rollers, baggage trucks used about railroad stations or
other mass transit facilities, electric battery-operated wheel chairs when
operated by persons with physical disabilities at speeds not exceeding fifteen
miles per hour, golf carts operated on highways solely for the purpose of
crossing from one part of the golf course to another, golf-cart-type vehicles
operated on roads or highways on the grounds of state institutions by state
employees, agricultural tractors, farm implements, such vehicles as run
only on rails or tracks, self-propelled snow plows, snow blowers and lawn
mowers, when used for the purposes for which they were designed and
operated at speeds not exceeding four miles per hour, whether or not the
operator rides on or walks behind such equipment, motor-driven cycles as
defined in section 14-286, special mobile equipment as defined in section
14-165, mini-motorcycles, as defined in section 14-289j, electric bicycles and
any other vehicle not suitable for operation on a highway . . . .’’
By contrast, Rhode Island law exempts ‘‘vehicles moved exclusively by
human power, an [electric personal assistive mobility device] and electric
motorized bicycles as defined in subsection (g) of this section, and motorized
wheelchairs.’’ R.I. Gen. Laws § 31-1-3 (s) (Supp. 2020); see State v. Young,
supra, 186 Conn. App. 795. Thus, Connecticut’s statute expressly excludes
certain types of vehicles that Rhode Island’s statute does not.
7
The defendant also claims that the essential elements of the two statutes
are not substantially the same because Connecticut’s definition of ‘‘motor
vehicle’’ is not the same as Florida’s definition of ‘‘vehicle.’’ Specifically, he
argues that the phrase ‘‘motor vehicle’’ in § 14-227a (a) is defined as a vehicle
operated on a public highway and thus includes vehicles only when they
are used on a public highway. In contrast, he argues, the term ‘‘vehicle’’ in
Fla. Stat. Ann. § 316.193 (1) is defined as a vehicle operated anywhere in
the state of Florida and thus includes vehicles when they are not used on
a public highway. In other words, he claims that the statutes’ ‘‘motor vehicle’’
element differs regarding where the offense must occur—on a highway
or not.
The defendant, however, not only did not raise this claim before the trial
court or the Appellate Court, but he also explicitly conceded this claim at
trial. Specifically, before both the trial court and the Appellate Court, the
defendant claimed that the applicable version of § 14-227a (a) was the version
in effect at the time of his Florida arrests and that, under this version, the
essential elements were not substantially the same because Connecticut
criminalized operating under the influence only on a public highway whereas
Florida criminalized driving under the influence anywhere in the state of
Florida. The Appellate Court rejected this claim on the ground that the
applicable version of § 14-227a (a) was the current version, which no longer
contains the limiting language, ‘‘on a public highway.’’ State v. King, supra,
204 Conn. App. 24. The defendant never claimed, however, that, under the
current version of § 14-227a (a), the essential elements are not substantially
the same on the basis of where the conduct occurred. Rather, defense
counsel stated on the record before the trial court that the current version
of § 14-227a and Fla. Stat. Ann. § 316.193 are ‘‘essentially the same’’ regarding
the location of the conduct.
Although, at times, we have reviewed unpreserved statutory interpretation
claims because they involve pure issues of law; see, e.g., Maturo v. State
Employees Retirement Commission, 326 Conn. 160, 167 n.4, 162 A.3d 706(2017); the defendant not only failed to preserve this claim but also explicitly
conceded the issue before the trial court. Under these circumstances, we
see no reason to depart from our ordinary practice of declining to review
such claims.
8
The defendant does not argue that the element of ‘‘under the influence’’
is substantially different in the two statutes. Indeed, this element is not only
substantially the same, but it is identical—each defines ‘‘under the influence’’
as an elevated blood alcohol content of 0.08 percent or higher.
Nevertheless, we note that the defendant argued in the Appellate Court
that this element was not substantially the same. His argument, however,
was premised on a prior version of § 14-227a (a), which had defined ‘‘under
the influence’’ as an elevated blood alcohol content of 0.10 percent or higher.
See General Statutes (Rev. to 1999) § 14-227a (a). The Appellate Court held
that the proper statutory language to consider was the language of the
current version of § 14-227a (a), and thus both statutes defined this element
exactly the same. See State v. King, supra, 204 Conn. App. 24. On appeal
before this court, the defendant does not seek review of this portion of the
Appellate Court’s holding. Thus, we need not determine whether, if the
previous version of the statute applied, the element of ‘‘under the influence’’
would be substantially similar based on the different definitions of ‘‘under
the influence.’’
9
The defendant concedes that operating under § 14-227a includes driving,
and thus that portion of Fla. Stat. Ann. § 316.193 (1) is the same.
10
For these policy reasons, the Appellate Court has held that § 14-227a
(a) does not require the defendant to have intended to move the motor
vehicle. See, e.g., State v. King, supra, 204 Conn. App. 16. As that court has
explained, to interpret the statute as containing an intent element would
frustrate the purpose of § 14-277a (a)—‘‘to prevent the operation of motor
vehicles by persons who, because of alcohol or drug intoxication, are deemed
incapable of operating a vehicle responsibly’’—because the fact ‘‘[t]hat a
severely intoxicated person does not intend to move a motor vehicle the
engine of which he has started provides no assurance that the vehicle will
in fact remain stationary.’’ (Emphasis omitted.) State v. Ducatt, 22 Conn.
App. 88, 92, 575 A.2d 708, cert. denied, 217 Conn. 804, 584 A.2d 472 (1990).
Thus, in State v. Marquis, 24 Conn. App. 467, 589 A.2d 376 (1991), the
Appellate Court determined that the defendant had been operating a motor
vehicle when a police officer discovered him asleep in the front seat of his
truck with his head resting on the steering wheel, the key in the ignition,
and the engine running. See id., 468–69. The defendant argued that ‘‘he went
to his truck to sleep and turned the key in the ignition solely for the purpose
of running the heater to keep the cab warm. He [argued] that he did not
intend to drive the truck and [was] not, therefore, culpable under the statute.’’
Id., 468. The court explained that, consistent with the statute’s purpose of
criminalizing conduct that places a defendant in a ‘‘position that affects or
could affect the vehicle’s movement,’’ intent was not an element of the
statute. (Internal quotation marks omitted.) Id., 469.
11
The use of the word ‘‘on’’ in the Florida Standard Jury Instructions 28.3,
relating to violations under Fla. Stat. Ann. § 316.193, does not proscribe a
broader range of conduct than does Connecticut by criminalizing an individ-
ual sitting on top of a motor vehicle—for instance, sitting on the roof or
hood of the vehicle—while intoxicated. Rather, the use of the term ‘‘on’’
‘‘pertains to vehicles such as motorcycles and bicycles.’’ (Emphasis omitted.)
In re Standard Jury Instructions in Criminal Cases—Report No. 2015-
07, supra, 192 So. 3d 1192 (appendix). Thus, for cars, under both statutes,
the defendant must have been physically inside the vehicle at issue.
12
‘‘The rationale for applying the reasonably capable of being rendered
operable standard is due to the recognition that the law in this area is
preventive in nature. Its purpose is to deter intoxicated individuals from
getting into their vehicles, except as passengers, and enables law enforce-
ment to apprehend an intoxicated driver before he strikes. In general, laws
prohibiting driving while intoxicated are deemed remedial statutes, to be
liberally interpreted in favor of the public interest and against the private
interests of the drivers involved. . . . It is for these reasons that the courts
in our state and in the states which have similar driving under the influence
statutes . . . have held that physical control is meant to include situations
[in which] an intoxicated individual is found in a parked car under circum-
stances [in which] the car, without too much difficulty, might again be
started and become a source of danger to the driver, to others, or to prop-
erty.’’ (Citations omitted; internal quotation marks omitted.) Hughes v. State,
supra, 943 So. 2d 196.