State v. Lopez ( 2017 )

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STATE OF CONNECTICUT v. JUAN C. LOPEZ
(AC 37912)
Lavine, Prescott and Harper, Js.
Syllabus
Convicted of the crimes of operating a motor vehicle while under the influ-
ence of alcohol in violation of statute (§ 14-227a [a] [1]) and operating
a motor vehicle while his license was suspended, the defendant, who
also was found guilty of being a third time offender, appealed to this
court. The defendant had failed three field sobriety tests that were
administered to him by a state police trooper, who had stopped the
defendant’s vehicle after observing it swerve on an interstate highway
and estimating that the defendant was driving above the speed limit.
The defendant was charged under subdivision (1) of § 14-227a (a), the
behavioral subdivision, pursuant to which blood alcohol levels are gener-
ally excluded from evidence without a defendant’s consent. On direct
examination, the state’s expert witness, a forensic toxicologist, testified
in response to a set of hypothetical facts that an individual who per-
formed in a certain way on the three sobriety tests must have had a
blood alcohol concentration higher than the legal limit under § 14-227a
and, thus, must have been intoxicated. On cross-examination, the defen-
dant sought make the point that the expert’s opinion was based on a
hypothetical, and that the expert had not and could not express an
opinion on the ultimate issue of whether the defendant was intoxicated
and to what extent, but the court sustained the state’s objections to
those questions. On appeal, the defendant claimed, inter alia, that the
trial court improperly restricted his cross-examination of the state’s
expert. Held:
1. The trial court abused its discretion in sustaining the state’s objections
to the defendant’s attempts on cross-examination to question the state’s
expert witness regarding his lack of knowledge as to the defendant’s
blood alcohol content level: that court’s ruling, which permitted the
expert to testify on direct examination that an individual who performed
in a certain way similar to that of the defendant on each of the field
sobriety tests must have been under the influence of a central nervous
system depressant such as alcohol and must have had a blood alcohol
concentration higher than the legal limit, but precluded the defendant
from questioning the expert to clarify that his opinion did not apply to
this specific defendant, improperly allowed the state to open the door
unfairly to the jury’s consideration of blood alcohol levels when the
defendant was charged solely under the behavioral subdivision of § 14-
227a, without allowing the defendant an opportunity to defend against
that critical evidence by explaining to the jury that the witness had not
and could not express an opinion regarding the defendant’s level of
intoxication or whether he was intoxicated at all, and it was clear from
the context of the expert’s full testimony that the defendant did not
ask him to opine on the ultimate issue of whether the defendant was
intoxicated during the traffic stop; moreover, the defendant met his
burden of demonstrating that the court’s undue restriction on his cross-
examination of the state’s expert was harmful, as the jury may have
misused the expert’s opinion testimony on the topic of blood alcohol
level to find the defendant guilty of operating a motor vehicle while
under the influence of alcohol when he was charged only under the
behavioral subdivision of § 14-227a (a), which precluded evidence of
the defendant’s blood alcohol content without his consent, of which
there was no evidence in the record, and there was a substantial question
regarding the scientific reliability of the expert’s opinion evidence.
2. The defendant could not prevail on his claim that the trial court abused
its discretion by admitting into evidence a DVD that contained video of
the traffic stop, taken from the trooper’s patrol car, which the defendant
asserted was not sufficiently authenticated and was incomplete and
altered: the defendant failed to preserve any claim that the admission
of the DVD was improper on the ground that it was incomplete or
potentially altered, and his unpreserved claim, which was evidentiary
and not constitutional in nature, was not reviewable pursuant to State
v. Golding (213 Conn. 233), as no due process violation resulted from
the admission of the DVD because that claim was abandoned when the
defendant expressly disavowed, in his reply brief to this court, any
claim for failure to preserve evidence, and the defendant’s right to
confrontation was not violated because he cross-examined the expert
as to the segment of the video that was admitted, as well as about that
portion of the traffic stop that was not captured on the DVD; moreover,
the trooper’s testimony that the video was a fair and accurate representa-
tion of the events was sufficient to authenticate the DVD, and the admis-
sion of the DVD did not constitute plain error, as the defendant presented
no evidence that the video was anything other than an exact copy of
the original footage and the issue of whether the DVD depicted the
entire event concerned the weight of the evidence, not its admissibility.
(One judge dissenting in part and concurring in part)
Argued May 31—officially released October 31, 2017
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 and operating a motor vehicle with a suspended
license, and, in the second part, with having previously
been convicted of operating a motor vehicle while under
the influence of intoxicating liquor, brought to the Supe-
rior Court in the judicial district of Fairfield, geographi-
cal area number two, where the first part of the
information was tried to the jury before Dennis, J.;
verdict of guilty; thereafter, the defendant was pre-
sented to the court on a plea of guilty to the second
part of the information; judgment of guilty in accor-
dance with the verdict and plea, from which the defen-
dant appealed to this court. Reversed; new trial.
James B. Streeto, senior assistant public defender,
with whom, on the brief, was Ani A. Desilets, certified
legal intern, for the appellant (defendant).
Ronald G. Weller, senior assistant state’s attorney,
with whom, on the brief, were John C. Smriga, state’s
attorney, and Mark R. Durso, senior assistant state’s
attorney, for the appellee (state).
Opinion
PRESCOTT, J. The defendant, Juan C. Lopez, appeals
from the judgment of conviction, rendered after a jury
trial, of operating a motor vehicle while under the influ-
ence of alcohol in violation of General Statutes § 14-
227a (a) (1) and operating a motor vehicle while his
license was suspended in violation of General Statutes
§ 14-215. On appeal, the defendant claims, among other
things, that the trial court improperly (1) restricted his
cross-examination of the state’s expert witness and (2)
admitted an ‘‘incomplete and altered’’ dashboard cam-
era video taken from the arresting officer’s patrol car.
With respect to the first claim, we agree with the defen-
dant that the court improperly restricted his cross-
examination of the expert witness and that that impro-
priety was harmful.1 We thus reverse the judgment and
remand the case for a new trial.
The following facts, which the jury reasonably could
have found, and procedural history are relevant to this
appeal. In the early morning of March 3, 2013, state
police Trooper Colin Richter was driving northbound
on Interstate 95 in Fairfield at a rate of speed of seventy-
five miles per hour, patrolling a portion of the highway
for motor vehicle violations. At approximately 1:50 a.m.,
he observed the defendant’s vehicle in his rearview
mirror ‘‘coming up on [him] very quick.’’ The defen-
dant’s vehicle passed Richter and ‘‘began to swerve
from the left lane to the center lane.’’ At that point,
having estimated that the defendant was driving above
the speed limit, Richter activated his vehicle’s red lights
and conducted a motor vehicle stop. The defendant
pulled over onto the right shoulder of the highway.
Richter approached the defendant’s vehicle and,
upon speaking with him, noticed that the defendant
was slurring his speech and had glassy, bloodshot eyes.
Richter also detected the odor of alcohol on the defen-
dant’s breath. When asked for his license and registra-
tion, the defendant could not produce a license. At that
point, Richter asked the defendant where he had come
from and whether he had been drinking beforehand.
The defendant replied that he was coming from Stam-
ford and had not been drinking.
After his initial contact with the defendant, Richter
went back to his cruiser and looked up the defendant
by his name and date of birth. Upon running the defen-
dant’s information in the Department of Motor Vehicles
(department) database, Richter learned that the defen-
dant’s license had been suspended. Richter then called
into dispatch, stating that he would be performing tests
on the defendant to determine whether the defendant
was intoxicated. He then administered the following
three field sobriety tests:2 (1) the horizontal gaze nystag-
mus test,3 (2) the walk and turn test,4 and (3) the one
leg stand test.5
The defendant failed all three tests. On the basis of
these results, Richter determined that the defendant
could not safely operate a motor vehicle and placed him
under arrest. Richter then transported the defendant to
the police barracks, where he read the defendant his
constitutional rights and asked if the defendant was
injured or suffered from any medical conditions, to
which the defendant replied in the negative.6 Richter
also asked the defendant, for a second time, whether
he had had anything to drink the night of March 2, 2013,
into the early morning of March 3, 2013. The defendant
responded that he had had two mojitos between 7:30
and 9:30 p.m. at a restaurant in New York City, and
then had stopped at his grandmother’s residence in
Stamford on his way home to Bridgeport. After this
admission, Richter asked the defendant to submit to a
Breathalyzer test to measure his blood alcohol content,
but he refused.
On November 17, 2014, a jury trial commenced
against the defendant. The state called three witnesses
to testify on its behalf: Richter; Dr. Robert H. Powers,
a forensic toxicologist; and department analyst Brian
Clarke. After the state rested, the defendant did not
present any additional evidence. Subsequently, the
defendant was found guilty of operating a motor vehicle
while under the influence of alcohol in violation of § 14-
227a (a) (1) and operating a motor vehicle while his
license was suspended in violation of § 14-215. There-
after, he pleaded guilty to a part B information charging
him as a third time offender pursuant to § 14-227a
(g) (3).7
The court sentenced the defendant to three years
of incarceration, execution suspended after two years,
followed by three years of probation. This appeal fol-
lowed. Additional facts and procedural history will be
set forth as necessary.
I
The defendant claims on appeal that the trial court
unduly restricted his cross-examination of Dr. Powers
on the subject of his opinion testimony regarding the
blood alcohol level of a person exhibiting the same
behaviors as the state alleged the defendant exhibited
in this case. More specifically, the defendant argues
that once Dr. Powers testified on direct examination
that an individual who performed in a certain way on
each of the field sobriety tests had an extrapolated
blood alcohol content of 0.12 or higher, the court should
not have foreclosed the defendant from later cross-
examining him about this central, relevant issue. We
agree with the defendant that the court’s ruling was an
abuse of discretion and conclude that the impropriety
was not harmless.
The following facts are relevant to the defendant’s
claim. At trial, the state’s witness, Dr. Powers, was
permitted to testify as an expert in the field of forensic
toxicology without objection. He testified that nystag-
mus exhibited during a horizontal gaze nystagmus test
is caused by the presence of a central nervous system
depressant, such as alcohol, in the operator’s system.
The state then asked Dr. Powers several hypothetical
questions comprised of facts mirroring those present
in the case.
In its first hypothetical, the state described a man who
exhibited an odor of alcohol on his breath, bloodshot/
glassy eyes, and who failed the horizontal gaze nystag-
mus test by exhibiting the same signs the defendant
had—a lack of smooth pursuit in each eye, a distinct
and sustained nystagmus at maximum deviation, and
the onset of nystagmus prior to forty-five degrees. The
second hypothetical went on to posit that the man
described in the first hypothetical had also failed the
walk and turn test in the same way the defendant had.
The third hypothetical described the same man failing
the one leg stand test in the way the defendant had.
After each hypothetical, the state asked Dr. Powers
whether he could opine to a reasonable degree of scien-
tific certainty as to whether the man described was
under the influence of a central nervous system depres-
sant such as alcohol. In each instance, Dr. Powers
responded that he could and answered in the affirmative
that he would expect the individual in question to have
been affected by a central nervous system active agent.
The state then asked Dr. Powers what he would
expect the hypothetical man’s blood alcohol level to
be on the basis of the behavior he exhibited and his
performance on each of the three field sobriety tests.
The defendant objected to the question on the ground
that there was not an appropriate foundation laid as to
‘‘how much alcohol’’ was ingested. The court overruled
his objection. Dr. Powers then responded that he would
be looking for ‘‘blood alcohol concentration of a 0.12
or higher. How much higher, that’s very hard to say.
But I’d be looking for at least a 0.12. Below a 0.12, we
tend not to see complete failures on the standardized
field sobriety tests. . . . [O]ur research actually [that]
we’ve done recently shows that when basically all the
clues in the . . . standardized field sobriety tests are
being generated, that individuals tend to have a concen-
tration above 0.12 or 0.15 or even higher. . . . [T]he
ability to operate motor vehicles diminishes with
increased blood alcohol concentration, or with an
increase in the concentration of any central nervous
system depressant.’’
Subsequently, during cross-examination, the follow-
ing colloquy took place between Dr. Powers, defense
counsel, the prosecutor, and the court:
‘‘[Defense Counsel]: So, if you recall the question that
[the prosecutor] had asked you regarding a—let me
withdraw that question. If a person has driven from
Stamford, Connecticut, to Fairfield, Connecticut, was
not involved in any accidents, was pulled over by a
trooper, the trooper only saw the car swerve once, the
operator then pulled over three lanes from the left lane
to the middle lane to the right lane to the shoulder,
parked the car properly, did not hit any other objects,
did not hit a guardrail; and would those set of facts
change your opinion as to the level of intoxication some-
body may have?
‘‘[Dr. Powers]: Probably not; but I recognize that that
level of control and behavior seems inconsistent with
the level of alcohol that I opined on earlier, assuming
this is all referring to the same individual.
‘‘[Defense Counsel]: Okay. So, it is—so, assume that
it’s the same individual and—but you just testified that
it doesn’t —it doesn’t indicate the person that you just
opined to. So, would that—so, would that level of intoxi-
cation be lower, then, if they had that much control
over a vehicle?
‘‘[Dr. Powers]: I’m just saying that—that the—that
the behavior you described seems inconsistent to me
with the behavior described in the performance of the
standardized field sobriety tests. And I heard it as weav-
ing. But nevertheless, I was responding to your
question.
‘‘[Defense Counsel]: Okay. And would that change
your answer as to the level of intoxication if the person
was able to do that much?
‘‘[Dr. Powers]: No, I don’t think so. It does make me
think about it, but I don’t—I think I would stick with
what I’ve said so far based on the descriptions of the
performance on the field testing as described.
‘‘[Defense Counsel]: But it could possibly change
your opinion?
‘‘[Dr. Powers]: I think I just said it would not.
‘‘[Defense Counsel]: Right. But you don’t want—
‘‘[Dr. Powers]: It certainly is—
‘‘[Defense Counsel]: —you don’t want to change
your opinion.
‘‘[Dr. Powers]: I’m sorry?
‘‘[Defense Counsel]: You don’t want to change your
opinion.
‘‘[The Prosecutor]: Objection; that’s argumentative.
‘‘The Court: The objection is sustained. You may dis-
regard the question.
‘‘[Defense Counsel]: Okay. . . . And were you on
[Interstate] 95 on March 3, 2013, at 1:52 a.m.?
‘‘[Dr. Powers]: I can say no.
‘‘[Defense Counsel]: And so you were not present
when any field sobriety tests were administered to
[the defendant]?
‘‘[Dr. Powers]: Correct. I was not.
‘‘[Defense Counsel]: And with any level—with any
degree of certainty with you not being there, do you—
‘‘[Dr. Powers]: I’m sorry?
‘‘[Defense Counsel]: Without—with any degree of
medical certainty with you not being present at this
scene on [Interstate] 95 on March 3, 2013, at 1:52 a.m.,
you—you do not know what [the defendant’s] level of
intoxication was.
‘‘[The Prosecutor]: I’m going to object. That calls for
a legal conclusion or a conclusion at this point. That’s
the jury’s responsibility.
‘‘The Court: The objection is sustained.
‘‘[Defense Counsel]: Okay. . . . As you sit here
today, do you know if [the defendant] was intoxicated
that day?
‘‘[The Prosecutor]: Objection.
‘‘The Court: The objection is sustained.
‘‘[Defense Counsel]: I have no further questions.’’
(Emphasis added.)
Turning now to the governing legal principles and
the standard of review, we note that ‘‘[t]he sixth amend-
ment to the [United States] constitution guarantees the
right of an accused in a criminal prosecution to confront
the witnesses against him. . . . The primary interest
secured by confrontation is the right to cross-examina-
tion . . . . Compliance with the constitutionally guar-
anteed right to cross-examination requires that the
defendant be allowed to present the jury with facts from
which it could appropriately draw inferences relating
to the witness’ reliability. . . . However, [t]he [c]on-
frontation [c]lause guarantees only an opportunity for
effective cross-examination, not cross-examination that
is effective in whatever way, and to whatever extent,
the defense might wish. . . . Thus, [t]he confrontation
clause does not . . . suspend the rules of evidence to
give the defendant the right to engage in unrestricted
cross-examination. . . .
‘‘Although [t]he general rule is that restrictions on
the scope of cross-examination are within the sound
discretion of the trial [court] . . . this discretion
comes into play only after the defendant has been per-
mitted cross-examination sufficient to satisfy the sixth
amendment.’’ (Internal quotation marks omitted.) State
v. Leconte, 320 Conn. 500, 510–11, 131 A.3d 1132 (2016).
If that constitutional standard has been satisfied, then
‘‘[t]he trial court’s ruling on evidentiary matters will be
overturned only upon a showing of a clear abuse of the
court’s discretion. . . . [That is to say] [t]he court’s
decision is not to be disturbed unless [its] discretion
has been abused, or the error is clear and involves a
misconception of the law.’’ (Internal quotation marks
omitted.) State v. Favoccia, 306 Conn. 770, 785–86, 51
A.3d 1002 (2012).
With these principles in mind, we turn to the present
case. First, we note that ‘‘[i]t is well established that
this court has a basic judicial duty to avoid deciding a
constitutional issue if a nonconstitutional ground exists
that will dispose of the case.’’ (Internal quotation marks
omitted.) State v. Brown, 309 Conn. 469, 478–79 n.11,
72 A.3d 48 (2013). Because the present appeal properly
may be resolved on evidentiary grounds, we need not
address the defendant’s argument that the restrictions
that the court placed on defense counsel’s cross-exami-
nation of Dr. Powers did not comply with the minimum
constitutional standards required by the sixth
amendment.
We thus consider whether the court abused its discre-
tion in sustaining the state’s objection to defense coun-
sel’s question to Dr. Powers regarding his lack of
knowledge as to the defendant’s blood alcohol level on
the ground that it sought to elicit his opinion on a
legal conclusion belonging to the jury. The defendant
contends that it was an abuse of discretion, arguing
that once the state improperly asked Dr. Powers on
direct examination to draw a legal conclusion for the
jury, i.e., that the defendant was ‘‘per se’’ intoxicated
with an elevated blood alcohol content on the basis of
his performance on the field sobriety tests,8 the defen-
dant should not have been foreclosed from then ques-
tioning Dr. Powers to make clear that his opinion
regarding the individual’s extrapolated blood alcohol
content did not, in fact, apply to this specific defendant.
We agree.
Our Supreme Court has held that ‘‘[g]enerally, a party
who delves into a particular subject during the examina-
tion of a witness cannot object if the opposing party
later questions the witness on the same subject. . . .
The party who initiates discussion on the issue is said
to have opened the door to rebuttal by the opposing
party. Even though the rebuttal evidence would ordi-
narily be inadmissible on other grounds, the court may,
in its discretion, allow it where the party initiating
inquiry has made unfair use of the evidence. . . . The
doctrine of opening the door cannot, of course, be sub-
verted into a rule for injection of prejudice. . . . The
trial court must carefully consider whether the circum-
stances of the case warrant further inquiry into the
subject matter, and should permit it only to the extent
necessary to remove any unfair prejudice which might
otherwise have ensued from the original evidence.’’
(Internal quotation marks omitted.) State v. Brown,
supra, 309 Conn. 479. In addition, § 7-3 (a) of the Con-
necticut Code of Evidence provides in relevant part that
‘‘[t]estimony in the form of an opinion is inadmissible
if it embraces an ultimate issue to be decided by the
trier of fact . . . .’’
In reviewing the transcript of Dr. Powers’ cross-
examination in the present case, we note that the defen-
dant did not ask the witness to opine on an ultimate
issue in the case when he asked, ‘‘you do not know
what [the defendant’s] level of intoxication was . . . .’’
Although the state argues on appeal that the defendant
was asking Dr. Powers ‘‘to opine on whether the defen-
dant himself specifically was intoxicated that evening’’
in violation of § 7-3 (a) of the Connecticut Code of
Evidence, if viewed in the context of Dr. Powers’ full
testimony, it is clear that that was not the intent of the
question posed.
Although defense counsel subsequently attempted to
rephrase this question by asking, ‘‘do you know if [the
defendant] was intoxicated that day?,’’ this time omit-
ting any reference to ‘‘the level’’ of his intoxication, we
are still unconvinced that this omission indicates that
the defendant was asking him to opine on the ultimate
issue of the defendant’s intoxication generally, as
opposed to making the point that Dr. Powers did not
know his specific blood alcohol level. In reviewing this
specific colloquy in the transcript, defense counsel used
the phrase ‘‘level of intoxication’’ in four questions
immediately prior to the one at issue and asked Dr.
Powers whether the level of intoxication of a person
exhibiting certain behaviors would be lower than the
level on which he previously opined on direct examina-
tion—0.12 or higher—all of which indicate that he was
referring to blood alcohol level specifically during this
entire line of questioning and not intoxication generally.
Rather, the defendant, through his questions, was
pointing out to the jury that the expert witness had
not offered any opinion on this particular defendant’s
blood alcohol content when he testified on direct exami-
nation that a person who performed field sobriety tests
in a certain manner must have a ‘‘blood alcohol concen-
tration of a 0.12 or higher’’ and, thus, must be intoxi-
cated. In other words, the defendant was attempting to
make the significant point that the expert’s opinion was
based on a hypothetical set of facts and not on any
chemical analysis of the defendant’s blood alcohol con-
tent or even upon his own personal observation of the
defendant. Indeed, viewed in this light, the defendant
was attempting to make clear to the jury that the witness
had not and could not express an opinion on the ulti-
mate issue in this case: whether the defendant was
intoxicated and to what extent.9
Accordingly, we are left with a situation in which the
court improperly allowed the state to open the door
unfairly to the jury’s consideration of blood alcohol
levels in a case in which the defendant was charged
solely under the ‘‘behavioral’’ subdivision of § 14-227a,
as we will discuss more fully in our harmlessness analy-
sis, without also allowing the defendant an opportunity
to defend against that critical evidence by explaining
to the jury that the witness had not and could not
express an opinion regarding the defendant’s level of
intoxication or whether he was intoxicated at all. By
sustaining the state’s objections to this question, the
court’s ruling allowed the state to ‘‘have it both ways’’:
its expert was permitted to testify that a person who
performed on the field sobriety test in the same manner
that the state claimed the defendant did must have had
a blood alcohol level of at least 0.12, but the defendant
could not make clear that the expert had not opined
about the blood alcohol level of this specific defendant.
For these reasons, the court’s evidentiary ruling was
an abuse of discretion.
Having determined that the court’s ruling was an
abuse of discretion, we must next consider whether
that impropriety was nonetheless harmless. ‘‘When an
improper evidentiary ruling is not constitutional in
nature, the defendant bears the burden of demonstra-
ting that the error was harmful. . . . [A] nonconstitu-
tional error is harmless when an appellate court has a
fair assurance that the error did not substantially affect
the verdict. . . . [O]ur determination [of whether] the
defendant was harmed by the trial court’s . . . [eviden-
tiary ruling] is guided by the various factors that we have
articulated as relevant [to] the inquiry of evidentiary
harmlessness . . . such as the importance of the . . .
testimony in the [state’s] case, whether the testimony
was cumulative, the presence or absence of evidence
corroborating or contradicting the testimony . . . on
material points, the extent of cross-examination other-
wise permitted, and, of course, the overall strength of
the [state’s] case. . . . Most importantly, we must
examine the impact of the evidence on the trier of fact
and the result of the trial.’’ (Emphasis added; internal
quotation marks omitted.) State v. Rodriguez, 311 Conn.
80, 89, 83 A.3d 595 (2014). After reviewing these factors
in the present case, we are convinced that the defendant
has met his burden of demonstrating that the court’s
undue restriction on his cross-examination of Dr. Pow-
ers was harmful.10
Significantly, in considering the impact on the trier
of fact of Dr. Powers’ direct examination testimony
combined with the court’s limitation on his cross-exami-
nation testimony, we have serious concerns that the
jury may have misused the witness’ opinion testimony
on the topic of blood alcohol level to improperly find the
defendant guilty of operating while under the influence.
More specifically, because the legislature has evinced
a clear intent that a defendant’s blood alcohol content
should not be admitted without the defendant’s consent
in a prosecution brought pursuant to § 14-227a (a) (1),
and because there is a substantial question regarding
the scientific reliability of this opinion evidence, we
cannot conclude that the court’s ruling was harmless.
First, we note that § 14-227a (a) provides in relevant
part: ‘‘No person shall operate a motor vehicle while
under the influence of intoxicating liquor or any drug
or both. 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 intoxicat-
ing liquor or any drug or both, or (2) while such person
has an elevated blood alcohol content. For the purposes
of this section, ‘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 . . . .’’ Moreover, subsection (c) of § 14-227a
provides that ‘‘[i]n any prosecution for a violation of
subdivision (1) of subsection (a) of this section, reliable
evidence respecting the amount of alcohol in the defen-
dant’s blood or urine at the time of the alleged offense,
as shown by a chemical analysis of the defendant’s
blood, breath or urine, otherwise admissible under sub-
section (b)11 of this section, shall be admissible only at
the request of the defendant.’’ (Emphasis added; foot-
note added.)
As previously mentioned herein, this court has
‘‘described General Statutes § 14-227a (a) (1) as the
‘behavioral’ subdivision and § [14-227a] (a) (2) as the
‘per se’ subdivision’’ of the offense of operating under
the influence. State v. Longo, supra, 106 Conn. App.
705 n.5. ‘‘The legislative history reflects that the two
subdivisions of § 14-227a (a) describe alternative means
for committing the same offense of illegally operating a
motor vehicle while under the influence of intoxicating
liquor or drugs. In other words, the two subdivisions
provide for different methods of proof of the same
offense and, significantly, the legislature clearly indi-
cated that an individual could not be punished under
both subdivisions of the statute without violating dou-
ble jeopardy.’’ State v. Re, 111 Conn. App. 466, 472–73,
959 A.2d 1044 (2008).
In the present case, the defendant was charged only
under the behavioral subdivision of § 14-227a (a). In a
prosecution under that subdivision, the legislature has
evinced a clear intent that a defendant’s blood alcohol
content should not be admitted absent the defendant’s
consent, of which there is no evidence in the record of
the present case. See General Statutes § 14-227a (c).
Despite this, the state elicited testimony from Dr. Pow-
ers concerning the blood alcohol level—0.12 or
higher—of an individual who exhibited the same behav-
iors during the horizontal gaze nystagmus, walk and
turn, and one leg stand tests as the state alleged the
defendant exhibited on March 3, 2013, without allowing
the defendant to make clear to the jury that Dr. Powers
was not opining on the blood alcohol level of this spe-
cific defendant.12
Although we recognize that the language of the stat-
ute refers to blood alcohol content ‘‘as shown by a
chemical analysis of the defendant’s blood, breath or
urine’’; General Statutes § 14-227a (c); and that the
blood alcohol content evidence in this case was not
derived from such a chemical analysis, we do not
believe that, at the time the legislature passed the stat-
ute, it contemplated that there would be any other way
to demonstrate the concentration of alcohol in some-
one’s blood except by chemical analysis. Thus, as a
matter of statutory interpretation, it would lead to
absurd and unworkable results to interpret the statute
to permit evidence of the defendant’s blood alcohol
content derived from a less reliable, extrapolated analy-
sis, such as the one made here, while prohibiting blood
alcohol content evidence derived from a more reliable
procedure, i.e., chemical testing of the defendant’s
blood, breath, or urine. Indeed, from the plain language
of § 14-227a, it is reasonably apparent that the legisla-
ture intended blood alcohol content evidence to be
based solely on chemical testing and its admissibility
to be contingent on the satisfaction of strict statutory
criteria, e.g., the performance of multiple chemical tests
administered by qualified law enforcement personnel
within two hours of the defendant’s operation of the
vehicle. See General Statutes § 14-227a (b). Permitting
evidence in this behavioral prosecution case of a blood
alcohol content derived from a subjective interpretation
of the defendant’s performance on standard field sobri-
ety tests, without using any of the approved methods
and procedures, does great violence to the intent of
the statute.13
This leads to the second reason that the court’s evi-
dentiary ruling was harmful in its potential impact on
the jury: there is a substantial question regarding the
scientific reliability of this opinion evidence, and it has
been excluded by the large majority of courts that have
considered it. See, e.g., State v. Shadden, 290 Kan. 803,
820–25, 235 P.3d 436 (2010); Wilson v. State, 124 Md.
App. 543, 553–59, 723 A.2d 494 (1999); State v. Fisken,
138 Or. App. 396, 398–99, 909 P.2d 206 (1996). Although
we need not determine, for purposes of deciding this
claim, whether the opinion testimony should have been
excluded pursuant to State v. Porter, 241 Conn. 57, 698
A.2d 739 (1997) (en banc), cert. denied, 523 U.S. 1058,
118 S. Ct. 1384, 140 L. Ed. 2d 645 (1998), the significant
questions regarding its reliability exacerbate the con-
flict between our statutory provision generally exclud-
ing blood alcohol levels in behavioral cases and the
court’s admission of it in this case without an opportu-
nity for the defendant, at the very least, to limit the
scope of the opinion on cross-examination by emphasiz-
ing that the expert witness had not and could not
express an opinion regarding the defendant’s level of
intoxication or if he was intoxicated at all.
As the Arizona Supreme Court noted in construing
that state’s similar statutory scheme: ‘‘[O]ur state legis-
lature has specified that blood, breath, and urine tests
are the only methods for measuring, or quantifying,
[blood alcohol content]. A.R.S. § 28-692 (G), (H) . . .
People v. Dakuras, 172 Ill. App. 3d 865, [868–70, 527
N.E.2d 163] (because the [horizontal gaze nystagmus]
test does not determine [blood alcohol content] by anal-
ysis of specified bodily substances, the results are not
admissible to prove [blood alcohol content] in any pros-
ecution under [the driving while under the influence]
statute) [leave to appeal denied, 123 Ill. 2d 561, 535
N.E.2d 405 (1988)]; State v. Barker, [179 W. Va. 194,
198, 366 S.E.2d 642 (1988)] (assuming [horizontal gaze
nystagmus] test was found reliable, evidence would
be admissible only as evidence of driving under the
influence, but not to estimate[blood alcohol content],
as state legislature has not recognized [horizontal gaze
nystagmus] test as an appropriate method for measur-
ing [blood alcohol content]). Therefore, [blood alcohol
content], under § [28]-692 is to be determined deduc-
tively from analysis of bodily fluids, not inductively
from observation of involuntary bodily movements.
. . . Within the limits of due process, it is the legisla-
ture’s role to determine which tests may be used to
measure [blood alcohol content]. Where the legislature
has prescribed only specific tests for such measure-
ments, it is not our province to add others.
‘‘Moreover, the [horizontal gaze nystagmus] test does
not conform to the requirements for determining [blood
alcohol content] stated in the Arizona implied consent
law, which does not include implied consent to take
a [horizontal gaze nystagmus] test for[blood alcohol
content]. A refusal to take one of the prescribed tests
leads to automatic suspension of the license or permit
for a period of twelve months . . . and can be brought
out in any civil or criminal action arising from the inci-
dent . . . . In recognition of the constitutional limita-
tions of implied consent laws, tests pursuant to the
law are strictly governed by statutes for both testing
requirements and Department of Health Services . . .
qualifications. An important part of the testing require-
ments is the defendant’s right to independently check
the test results. . . . The [horizontal gaze nystagmus]
test, although it carries a scientific patina, is clearly
unchallengeable by independent means, other than by
cross-examining the officer who administered the test.
We do not believe cross-examination of the officer is
a sufficient check when compared to the standards
set forth for tests specifically accepted under [driving
under the influence] statute provisions for implied con-
sent and for establishing [blood alcohol content].’’ (Cita-
tions omitted; internal quotation marks omitted.) State
ex rel. Hamilton v. City Court of Mesa, 165 Ariz., 514,
517, 799 P.2d 855 (1990).
Accordingly, we find it significant, for purposes of
determining harmfulness, that the horizontal gaze nys-
tagmus test and other field sobriety tests from which
Dr. Powers derived his blood alcohol content opinion
testimony are not outlined in subsection (b) of § 14-
227a alongside the other strict chemical analysis
requirements for per se prosecutions in which blood
alcohol content evidence is admissible, had that been
the case here. Given the potential unreliability of blood
alcohol content evidence that is based on this method,
and given that ‘‘[w]e cannot ignore the heightened cre-
dence juries tend to give scientific evidence’’; (internal
quotation marks omitted) Wilson v. State, supra, 124
Md. App. 559; the risk that this type of evidence might
have had an improper impact on the jury and on the
result of the trial, without the defendant’s being permit-
ted to engage in the scope of unfettered cross-examina-
tion to which he was entitled, is too great.
Ultimately, our consideration of both of these factors
leads us to conclude that the defendant met his burden
of proving that the court’s restriction of his cross-exami-
nation of Dr. Powers on the issue of the defendant’s
blood alcohol content was harmful. Accordingly, we
reverse the judgment on this ground and remand the
case for a new trial.
II
Although we have concluded in part I of this opinion
that the judgment must be reversed and the case
remanded for a new trial, we address the defendant’s
claim that the court abused its discretion by admitting
into evidence a DVD containing an ‘‘incomplete and
altered’’ dashboard camera video taken from Richter’s
patrol car because that issue is likely to arise again on
remand. See State v. Chyung, 325 Conn. 236, 260 n.21,
157 A.3d 628 (2017) (addressing issue likely to arise on
remand). The plaintiff claims that the court abused its
discretion by admitting the DVD because the state failed
to authenticate it properly.14 Specifically, the defendant
contends that, as an altered exhibit, the DVD was sub-
ject to the ‘‘heightened standard’’ for authentication
articulated in State v. Swinton, 268 Conn. 781, 847 A.2d
921 (2004), and State v. Melendez, 291 Conn. 693, 970
A.2d 64 (2009).15 He also claims that the state failed to
demonstrate a chain of custody for the DVD. We are
not persuaded by the defendant’s claims.
The following additional facts are relevant to this
claim. A DVD of the dashboard camera footage from
Richter’s patrol car was admitted into evidence at trial,
depicting a portion of the traffic stop and the transporta-
tion of the defendant following his arrest. The video
footage on the DVD begins during administration of
the walk and turn test. Richter’s interactions with the
defendant from the time that he activated his emergency
lights, including the administration of the horizontal
gaze nystagmus test, are not depicted in the video.
Before that DVD was admitted and published to the
jury, however, Richter testified on direct examination
that the entire stop of the defendant, including the hori-
zontal gaze nystagmus test, should have been recorded
by his dashboard camera system because the system
begins recording whenever he activates his emergency
lights.16 He also testified that on the morning of his
testimony, he had viewed the DVD with the prosecutor.
The state then sought to admit the DVD into evidence.
Thereafter, defense counsel conducted voir dire of
Richter. During this voir dire, Richter testified that his
dashboard camera system records onto a VHS video-
tape, which he then submits to the trooper in charge
of evidence at the troop G barracks. Richter was unable
to explain how the video was transferred to a DVD,
but stated that he and the defendant were depicted in
the video.
The defendant objected to the admission of the DVD,
stating, ‘‘[Richter] didn’t make this actual DVD. I mean,
he isn’t able to identify how it got here or how it gets
here.’’ The court asked Richter whether the DVD, as
viewed by him earlier that morning, was a fair and
accurate representation of the events that occurred on
the morning in question, to which Richter responded
in the affirmative. The court then overruled the objec-
tion and admitted the DVD as a full exhibit.
After the court admitted the DVD as a full exhibit
and its contents were published to the jury, it became
apparent that the video on the DVD did not begin to
depict the defendant’s traffic stop until the defendant
was taking the second field sobriety test he was given,
the walk and turn test. Richter again testified that the
dashboard camera in his cruiser is activated when he
engages his emergency lights, and, when asked, could
not explain why the DVD did not include the entire
encounter.
It is significant that the defendant did not renew his
objection to the admission of the DVD when these facts
were revealed, nor did he specifically argue that the
state had violated his rights by failing to produce a
video of the entire traffic stop. Consequently, although
the defendant attempts to reframe, on appeal, his origi-
nal objection to the admission of the DVD as taking
issue with both the fact that only portions of Richter’s
full traffic stop, the entirety of which was never shown
to the defendant, were contained in the video presented
to the jury and the lack of proper authentication of the
video, this is not an accurate retelling of the events at
trial. Rather, a review of the trial transcripts makes it
clear that the defendant failed to preserve any claim
that the court abused its discretion in admitting the
DVD on the ground that it was incomplete or potentially
altered and, thus, the original evidence had not been
disclosed to him. See State v. Rivera, 169 Conn. App.
343, 366, 150 A.3d 244 (2016) (‘‘In order to preserve an
evidentiary ruling for review, trial counsel must object
properly. . . . In objecting to evidence, counsel must
properly articulate the basis of the objection so as to
apprise the trial court of the precise nature of the objec-
tion and its real purpose, in order to form an adequate
basis for a reviewable ruling.’’ [Internal quotation marks
omitted.]), cert. denied, 324 Conn. 905, 152 A.3d 544
(2017).
The defendant does argue on appeal, however, that
in the event his claim that the DVD was inadmissible
because the state failed to produce a video of the entire
traffic stop was not properly preserved at trial, the claim
is nevertheless reviewable under State v. Golding, 213
Conn. 233, 239–40, 567 A.2d 823 (1989), as modified by
In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015).
‘‘Under Golding, a defendant may prevail on an unpre-
served claim only if the following conditions are met:
(1) the record is adequate to review the alleged claim
of error; (2) the claim is of constitutional magnitude
alleging the violation of a fundamental right; (3) the
alleged constitutional violation . . . exists and . . .
deprived the defendant of a fair trial; and (4) if subject
to harmless error analysis, the state has failed to demon-
strate harmlessness of the alleged constitutional viola-
tion beyond a reasonable doubt.’’ (Internal quotation
marks omitted.) State v. Baccala, 326 Conn. 232, 269–70
n.11, 163 A.3d 1 (2017), petition for cert. docketed (U.S.
September 28, 2017).
With regard to the second prong of Golding, the
defendant appears to argue in his brief that both his
due process rights under the fifth and fourteenth
amendments to the United States constitution, and his
confrontation clause rights under the sixth amendment
were violated by the admission of the DVD. First, we
summarily reject his argument that his due process
rights were violated by the court’s admission of the
purportedly incomplete video because that claim was
abandoned when the defendant expressly disavowed,
in his reply brief to this court, any claim for failure to
preserve evidence pursuant to State v. Morales, 232
Conn. 707, 657 A.2d 585 (1995). Second, we conclude
that the defendant’s confrontation clause rights under
the sixth amendment were not violated by the court’s
admission of the DVD because the defendant was able
to cross-examine Richter, confronting him with the seg-
ment of the video that was admitted. Importantly, the
record shows that the defendant did, in fact, question
Richter regarding the portion of the traffic stop that was
not captured on the video on the DVD. Consequently,
he was able to confront Richter using the video that
was admitted into evidence. Thus, his claim is merely
of an evidentiary nature and does not rise to the level
of constitutional magnitude required by the second
prong of Golding. See State v. Smith, 110 Conn. App.
70, 86, 954 A.2d 202 (‘‘[r]obing garden variety claims
[of an evidentiary nature] in the majestic garb of consti-
tutional claims does not make such claims constitu-
tional in nature’’ [internal quotation marks omitted]),
cert. denied, 289 Conn. 954, 961 A.2d 422 (2008). There-
fore, the claim is not reviewable pursuant to Golding.
The defendant also invokes the plain error rule in
an attempt to prevail on his claim that the DVD was
inadmissible because the state failed to produce a video
of the entire traffic stop. See Practice Book § 60-5. ‘‘An
appellate court addressing a claim of plain error first
must determine if the error is indeed plain in the sense
that it is patent [or] readily discernable on the face of
a factually adequate record, [and] also . . . obvious in
the sense of not debatable. . . . Although a complete
record and an obvious error are prerequisites for plain
error review, they are not, of themselves, sufficient for
its application. . . . [I]n addition to examining the
patent nature of the error, the reviewing court must
examine that error for the grievousness of its conse-
quences in order to determine whether reversal under
the plain error doctrine is appropriate. A party cannot
prevail under plain error unless it has demonstrated
that the failure to grant relief will result in manifest
injustice.’’ (Internal quotation marks omitted.) State v.
Sanchez, 308 Conn. 64, 77, 60 A.3d 271 (2013).
We are not persuaded that there was any error in the
admission of the DVD, much less plain error. See State
v. Pierce, 269 Conn. 442, 453, 849 A.2d 375 (2004) (‘‘the
plain error doctrine should not be applied in order to
review a ruling that is not arguably incorrect in the first
place’’). Whether the DVD depicted the entire event or
not goes to the weight of the evidence, not its admissibil-
ity. See, e.g., Williams Ground Services, Inc. v. Jordan,
174 Conn. App. 247, 259, 166 A.3d 791 (2017) (stating
completeness of business records goes to weight not
admissibility). Additionally, the defendant has not pre-
sented evidence that the video contained on the DVD
was anything other than an exact copy of the original
footage.
As previously discussed in our analysis of whether
the defendant’s claim is entitled to Golding review, the
defendant appears to argue that the court’s ruling was
plain error because he was clearly entitled to produc-
tion of the video of the entire traffic stop; without it,
he argues, one is left to speculate as to whether the
entire video of the traffic stop was saved or, alterna-
tively, was simply not provided to him in discovery as
is required by State v. Morales, supra, 232 Conn. 707.
We reject this argument on the ground that the defen-
dant has expressly disavowed any such claim on appeal.
More specifically, the defendant clarified in his reply
brief to this court that he is not arguing that the state
improperly lost or destroyed evidence and that he thus
was deprived of due process pursuant to Morales. The
defendant accordingly has failed to persuade us that a
manifest injustice has occurred. Consequently, he can-
not prevail under the plain error doctrine.
We then turn to the only preserved claim that the
defendant advances on appeal, which is that the DVD
was not sufficiently authenticated and, thus, should
not have been admitted. ‘‘We review the trial court’s
decision to admit evidence, if premised on a correct
view of the law . . . for an abuse of discretion.’’ State
v. Saucier, 283 Conn. 207, 218, 926 A.2d 633 (2007); see
also Nieves v. Commissioner of Correction, 169 Conn.
App. 587, 597 n.12, 152 A.3d 570 (2016) (because ‘‘[t]he
trial court has broad discretion in ruling on the admissi-
bility . . . of evidence . . . [t]he trial court’s ruling on
evidentiary matters will be overturned only upon a
showing of a clear abuse of the court’s discretion’’
[internal quotation marks omitted]), cert. denied, 324
Conn. 915, 153 A.3d 1288 (2017). The abuse of discretion
standard requires that ‘‘every reasonable presumption
. . . be given in favor of the trial court’s rulings on
evidentiary matters.’’ (Internal quotation marks omit-
ted.) State v. Gauthier, 140 Conn. App. 69, 79–80, 57
A.3d 849, cert. denied, 308 Conn. 907, 61 A.3d 1097
(2013).
‘‘The requirement of authentication as a condition
precedent to admissibility is satisfied by evidence suffi-
cient to support a finding that the offered evidence is
what its proponent claims it to be.’’ Conn. Code Evid.
§ 9-1 (a); see also State v. Garcia, 299 Conn. 39, 57, 7
A.3d 355 (2010). A DVD of dashboard camera video
is ‘‘subject to the same foundational requirements for
admission as any other demonstrative evidence. Such
evidence should be admitted only if it is a fair and
accurate representation of that which it attempts to
portray.’’ (Internal quotation marks omitted.) State v.
Melendez, supra, 291 Conn. 710.
In the present case, the DVD was purported to be a
video of the traffic stop of the defendant on March 3,
2013. Richter testified that he and the defendant were
in the video and that it was a fair and accurate represen-
tation of the events of that morning. This evidence is
sufficient to establish that the DVD is what the state
claimed it to be. Richter’s testimony was sufficient to
authenticate the DVD, and the defendant cannot prevail
on his claim that the video was improperly admitted.
The judgment is reversed and the case is remanded
for a new trial.
In this opinion LAVINE, J., concurred.
1
The defendant also claims that the trial court improperly allowed an
expert witness to opine about the defendant’s blood alcohol content without
a proper foundation for that opinion, in the absence of any chemical testing,
and without first conducting a hearing pursuant to State v. Porter, 241 Conn.
57, 698 A.2d 739 (1997) (en banc), cert. denied, 523 U.S. 1058, 118 S. Ct.
1384, 140 L. Ed. 2d 645 (1998). Because we reverse the court’s judgment
on the ground that it improperly restricted the defendant’s cross-examination
of the expert witness, we need not reach the merits of this claim, except
as it is discussed in the context of our analysis of the first claim.
2
Richter was properly trained to administer the tests used to determine
whether the defendant was intoxicated.
3
‘‘The horizontal gaze nystagmus test measures the extent to which a
person’s eyes jerk as they follow an object moving from one side of the
person’s field of vision to the other. The test is premised on the understanding
that, whereas everyone’s eyes exhibit some jerking while turning to the side,
when the subject is intoxicated the onset of the jerking occurs after fewer
degrees of turning, and the jerking at more extreme angles becomes more
distinct.’’ (Internal quotation marks omitted.) State v. Popeleski, 291 Conn.
769, 770 n.3, 970 A.2d 108 (2009).
4
‘‘The walk and turn test requires the subject to walk heel to toe along
a straight line for nine paces, pivot, and then walk back heel to toe along
the line for another nine paces. The subject is required to count each pace
aloud from one to nine.’’ (Internal quotation marks omitted.) State v. Popel-
eski, 291 Conn. 769, 771 n.4, 970 A.2d 108 (2009).
5
‘‘The one leg stand test requires the subject to stand on one leg with
the other leg extended in the air for [thirty] seconds, while counting aloud
from [one] to [thirty].’’ (Internal quotation marks omitted.) State v. Popeleski,
291 Conn. 769, 771 n.5, 970 A.2d 108 (2009).
6
Richter previously had asked the defendant this same question before
he administered each of the three field sobriety tests.
7
General Statutes § 14-227a (g) provides in relevant part: ‘‘Any person
who violates any provision of subsection (a) of this section shall . . . (3)
for conviction of a third and subsequent violation within ten years after a
prior conviction for the same offense, (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 requiring as a condition
of such probation that such person . . . [p]erform one hundred hours of
community service, as defined in section 14-227e . . . and (C) have such
person’s motor vehicle operator’s license or nonresident operating privilege
permanently revoked upon such third offense . . . .’’
We note that although § 14-227a has been amended since the events at
issue here, those amendments are not relevant to this appeal. For conve-
nience, we refer in this opinion to the current revision of § 14-227a.
8
‘‘We previously have described General Statutes § 14-227a (a) (1) as the
‘behavioral’ subdivision and § [14-227a] (a) (2) as the ‘per se’ subdivision’’
of the offense of operating under the influence. State v. Longo, 106 Conn.
App. 701, 705 n.5, 943 A.2d 488 (2008). This statute will be discussed more
fully in this part of the opinion.
9
The dissent argues that the defendant’s questions must be construed as
an attempt to get the state’s expert to opine on an ultimate issue in the
case, namely, whether the defendant was intoxicated. We are not persuaded
by this reading of the transcript because it seems most unlikely that counsel
for the defendant would invite the state’s witness, who already had suggested
on direct examination that the defendant was intoxicated, to opine directly
on the ultimate issue in the case. In our view, defense counsel was attempting
to do precisely the opposite, i.e., make clear to the jury that the expert
witness had not and could not opine on the ultimate issue in the case.
10
In attempting to rebut our conclusion, the dissent implies that the quan-
tity of defense counsel’s overall cross-examination of the state’s expert
suggests harmlessness. In our view, however, the court’s restriction on
cross-examination impacted the quality of the cross-examination, and it is
that impact that is significant here.
11
General Statutes § 14-227a (b) provides: ‘‘Except as provided in subsec-
tion (c) of this section, in any criminal prosecution for violation of subsection
(a) of this section, evidence respecting the amount of alcohol or drug in
the defendant’s blood or urine at the time of the alleged offense, as shown
by a chemical analysis of the defendant’s breath, blood or urine shall be
admissible and competent provided: (1) The defendant was afforded a rea-
sonable opportunity to telephone an attorney prior to the performance of
the test and consented to the taking of the test upon which such analysis
is made; (2) a true copy of the report of the test result was mailed to or
personally delivered to the defendant within twenty-four hours or by the
end of the next regular business day, after such result was known, whichever
is later; (3) the test was performed by or at the direction of a police officer
according to methods and with equipment approved by the Department of
Emergency Services and Public Protection and was performed in accordance
with the regulations adopted under subsection (d) of this section; (4) the
device used for such test was checked for accuracy in accordance with the
regulations adopted under subsection (d) of this section; (5) an additional
chemical test of the same type was performed at least ten minutes after
the initial test was performed or, if requested by the police officer for
reasonable cause, an additional chemical test of a different type was per-
formed to detect the presence of a drug or drugs other than or in addition
to alcohol, provided the results of the initial test shall not be inadmissible
under this subsection if reasonable efforts were made to have such additional
test performed in accordance with the conditions set forth in this subsection
and such additional test was not performed or was not performed within
a reasonable time, or the results of such additional test are not admissible
for failure to meet a condition set forth in this subsection; and (6) evidence
is presented that the test was commenced within two hours of operation.
In any prosecution under this section it shall be a rebuttable presumption
that the results of such chemical analysis establish the ratio of alcohol in
the blood of the defendant at the time of the alleged offense, except that
if the results of the additional test indicate that the ratio of alcohol in the
blood of such defendant is ten-hundredths of one per cent or less of alcohol,
by weight, and is higher than the results of the first test, evidence shall be
presented that demonstrates that the test results and the analysis thereof
accurately indicate the blood alcohol content at the time of the alleged
offense.’’
12
Moreover, because the specific blood alcohol level that constitutes per
se intoxication in this state for purposes of operating a motor vehicle under
the influence is likely within the common knowledge of most jurors, Dr.
Powers’ opinion that an individual who behaved in a manner similar to the
defendant had a blood alcohol content over that per se number might provide
the jury with an attractive shortcut in determining the defendant’s guilt,
despite the fact that he solely was charged under the behavioral subdivision
of § 14-227a (a), and, thus, the state must prove the offense in that spe-
cific manner.
13
The dissent claims that our analysis rests in part on an implicit assump-
tion that the jury disobeyed or ignored the court’s legal instructions, and
asserts that the court expressly directed the jury that it could rely on ‘‘only’’
behavioral evidence in determining whether the defendant was intoxicated.
Nowhere in the court’s instructions, however, did the court place any limita-
tion on what duly admitted trial evidence the jury could consider in reaching
that ultimate conclusion. Because the blood alcohol content testimony was
admitted, it was evidence before the jury, and the jury was never given any
type of limiting instruction regarding that evidence.
14
In his appellate brief, the defendant appears to conflate what are two
separate arguments: that the video was not properly authenticated, and that
the admission of the video violated his due process rights because it only
showed selected parts of Richter’s full encounter with the defendant and a
video of the entire traffic stop had not been disclosed to him. As we will
discuss more fully, these are, in fact, two separate claims, one of which
was preserved at trial, and one of which was not.
15
Our Supreme Court in Swinton set forth six factors for a court to
consider when the authentication of computer generated evidence is in
question. See State v. Swinton, supra, 268 Conn. 811–14; id., 811–12; (propo-
nent must adduce testimony to establish that ‘‘(1) the computer equipment
is accepted in the field as standard and competent and was in good working
order, (2) qualified computer operators were employed, (3) proper proce-
dures were followed in connection with the input and output of information,
(4) a reliable software program was utilized, (5) the equipment was pro-
grammed and operated correctly, and (6) the exhibit is properly identified
as the output in question’’ [internal quotation marks omitted]). Following
Swinton, our Supreme Court held that the Swinton factors applied to video
evidence that had been modified but not to video evidence that copied
exactly footage from an original eight millimeter format to DVD by download-
ing the eight millimeter footage onto a computer hard drive and then copying
that footage to DVD. State v. Melendez, supra, 291 Conn. 709–11.
16
The prosecutor asked Richter on direct examination what portion of
the stop was recorded on video, and he answered, ‘‘All of it.’’ The prosecutor
then asked whether the horizontal gaze nystagmus test was recorded on
the video, and he responded, ‘‘Yes.’’ Nonetheless, he explained that he
‘‘knew’’ this because his dashboard camera system engages when he acti-
vates his emergency lights. As explained further in this opinion, the video
on the DVD entered into evidence began in the middle of the walk and turn
test; Richter could not explain, when asked, why the DVD did not include
additional footage.