The defendant was convicted of operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes 14-227a and of disorderly conduct in violation of General Statutes 53a-182 after a jury trial. In this appeal from the judgment the defendant claims error (1) in the admission of certain statements made by him to the police soon after the arrest; (2) in the trial court's failure in its charge to the jury to restrict the broad language of the disorderly conduct statute in such a way as to preclude a conviction for constitutionally protected speech; (3) in the failure to acquit the defendant of the disorderly conduct charge for lack of evidence; and (4) in the denial of the defendant's motion made before trial for accelerated rehabilitation pursuant to General Statutes 54-76p.1
I The defendant claims that the interrogation of him at the police station violated his constitutional right against self-incrimination as delineated in Miranda v. Arizona, 384 U.S. 436,86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), and Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774,12 L. Ed. 2d 908 (1964). No such claim was made at the trial and the evidence now challenged came into the trial without objection. Ordinarily we *Page 769 do not consider claims which have not been raised at trial or did not arise subsequent to the trial. Practice Book 288, 3063. The defendant, nevertheless, contends that his claim of error qualifies for appellate review under the exception affording such review in instances "where the record adequately supports a claim that a litigant has clearly been deprived of a fundamental constitutional right and a fair trial." State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). It appears that some new vitality may have been breathed into our contemporaneous objection rule by a more recent holding that failure to comply with such a rule, even where the issue is one of constitutional nature, such as the admissibility of an incriminating statement in claimed violation of Miranda, precludes federal habeas corpus intervention "absent a showing of cause for the non-compliance and some showing of actual prejudice resulting from the alleged constitutional violation." Wainwright v. Sykes, 433 U.S. 72,84, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977). It is not clear what content may eventually be poured into this cause-and-prejudice standard for federal habeas corpus review or what effect it may have upon our own standard for review upon direct appeal of claims not raised below. We shall adhere to the principles of Evans pending clarification.
The defendant was stopped by a Colchester police officer about midnight on December 19, 1979, while he was operating a pickup truck on route 16 from Colchester to East Hampton. The officer testified that she stopped the defendant because of the erratic manner in which he was driving. Two East Hampton officers, who had been called to assist, soon arrived. An altercation arose in the course of removing the defendant from his vehicle. The defendant struggled and he was handcuffed and taken to the East Hampton police station. *Page 770
At the police station the handcuffs were removed and the defendant was given the standard Miranda warning of his constitutional rights. He signed a printed form furnished by the police acknowledging that he had been so advised. In the absence of the jury, the parties agreed that testimony concerning the defendant's refusal to consent to tests to determine the amount of alcohol in his system would not be presented. He did, however, submit to certain performance tests, such as walking a straight line, picking up coins from the floor and standing on one leg. The officer relied on those tests, as well as on the slurred speech and the strong alcoholic odor of the defendant, in forming his opinion that the defendant had been driving under the influence of alcohol. He also relied on the answers of the defendant while he was questioned which indicated that he had last eaten at 4 p.m. when he had pizza and beer and that he also had two bottles of beer at a restaurant where he had been drinking from 5 p.m. until 12:30 a.m. The defendant had answered a series of questions concerning his health in such a way as to negate any physical problem which might explain his inability to perform the tests adequately.
At the trial the defendant testified that after work he and some fellow employees went to a restaurant for pizza and beer. Afterward they visited the home of a friend in Salem, but the defendant maintained he had nothing further to drink, a contention which was contradicted by a witness called to testify in his behalf.
We are not persuaded that the record before us shows either a deprivation of a constitutional right or prejudice to the defendant from the admission of his statements. State v. Evans, supra. The defendant now argues that his intoxicated condition as described by the police officer indicated that he could not have understood the Miranda warning given to him and he *Page 771 also points to the absence of any express testimony concerning his understanding of his rights. "[A] heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel." Miranda v. Arizona, supra, 475. The waiver need not be explicit, however, but may be inferred from the words and conduct of the person interrogated as well as from his educational background and from other circumstances relating to mental capacity. North Carolina v. Butler, 441 U.S. 369, 373,99 S. Ct. 1755, 60 L. Ed. 2d 286 (1979). Here there was evidence that the defendant worked as a foreman for a construction company, a position of some responsibility, and that his answers to the numerous questions asked were coherent, protective of his interest, generally consistent with his testimony at trial, and not merely monosyllabic. The fact that he was charged with and has been found guilty of operating while under the influence of liquor does not in itself demonstrate such a lack of understanding as to preclude the requisite mental capacity for making a voluntary and knowledgeable waiver. Bufford v. State,382 So. 2d 1162, 1165 (Ala.App. 1980); State v. Spencer, 46 N.C. App. 507, 509, 265 S.E.2d 451 (1980); Lowe v. State, 584 S.W.2d 239, 241 (Tenn.App. 1979). There is a substantial difference in the degree of intoxication required for the offense of operating a motor vehicle under the influence and that necessary to render a person mentally incapable of understanding what he is doing.
It is also obvious that the posture of the defendant on appeal in claiming that he was too intoxicated to waive his constitutional rights effectively is wholly inconsistent with his position at the trial that he was not under the influence of alcohol. As a matter of trial strategy he may well have decided to forgo a hearing *Page 772 upon the admissibility of his statements because they generally coincided with the evidence he presented in his own behalf. He could hardly have testified at a suppression hearing in the absence of the jury that he was so intoxicated that he did not comprehend what he was doing without jeopardizing the defense he chose to make. Even if the statements had been excluded, the testimony of the defendant at the suppression hearing would have been available for impeachment of his later testimony at the trial. Harris v. New York,401 U.S. 222, 225, 91 S. Ct. 643, 28 L. Ed. 2d 1 (1971); State v. Bember, Appellate Session of the Superior Court, Docket No. 577, May 16, 1980.
We conclude, therefore, that the record does not adequately support the defendant's claim that the evidence of his responses to the questions of the police officer violated the principles of Miranda. It is also our view that such testimony could not have prejudiced the defendant because it was not essentially different from his testimony at the trial.
II The defendant claims also that the evidence was insufficient to support his conviction of disorderly conduct in violation of General Statutes 53a-182.2 The facts which the jury might reasonably have found in relation to the charge of disorderly conduct may be summarized briefly. After stopping his truck in response to the siren and flashing signal lights of the *Page 773 police cruiser which had followed him for a distance of more than three miles, the defendant got out of his truck. Officer Mawni, who had been driving the cruiser, approached him and requested that he remain inside the truck. The defendant made an offensive remark,3 but he did get back into the truck. When the officer requested his license and registration, the defendant replied that he had none. Two East Hampton policemen who had been called to assist soon arrived. One of them, officer Vezina, approached the defendant, who was sitting in his truck and asked for his license and registration. The defendant refused to show them and, turning to officer Mawni who was standing next to the truck, he said that she was a "no good female cop" and that he did not have to take anything from her or listen to her. He also refused to get out of the truck. Officer Vezina then proceeded to open the door of the truck. As he did so, the defendant pushed the door, causing it to strike Vezina in the chest. With the assistance of another East Hampton policeman, Vezina grabbed the defendant and dragged him out of the truck. The defendant continued to struggle and had to be forcibly handcuffed. He continued to shout at officer Mawni.
This recital would adequately support a finding that the defendant, "with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof" had engaged "in fighting or in violent, tumultuous or threatening behavior" in violation of subsection (1) of 53a-182 (a). It would also justify a finding that he had with like intent annoyed or interfered with another person by offensive or disorderly conduct in violation of subsection (2) of the statute. The defendant's act of pushing the door into the officer4 and his physical resistance to being removed *Page 774 from the truck and being handcuffed can fairly be characterized as "violent," "tumultuous," "offensive or disorderly." The fact that a charge of interfering with an officer in the performance of his duties in violation of General Statutes53a-167a5 may have been more appropriate does not preclude a conviction for disorderly conduct, a less serious offense.6
III The error claimed in the overbreadth of the charge upon disorderly conduct was not made the subject of any exceptions to the charge or otherwise raised in the trial court. Again the defendant claims the special circumstances of a deprivation of a fundamental constitutional right. State v. Evans, supra, 70. We have previously allowed review of a similar claim involving the disorderly conduct statute in essentially the same situation. State v. Anonymous (1978-4), 34 Conn. Super. Ct. 689,692-93, 389 A.2d 1270 (1978).
Although, as we have already concluded, the evidence would have supported a finding that the defendant had engaged "in fighting or in violent, tumultuous or threatening behavior" in violation of subsection (1) of 53a-182, the trial court charged the jury only upon subsection (2) which prohibits intentional annoyance or interference with another person *Page 775 "by offensive or disorderly conduct."7 In State v. Anonymous (1978-4), supra, 694, we held that, where language consisting of epithets directed at a victim was the sole evidentiary basis for an accusation of disorderly conduct, the broad language of the statute must be limited in the charge "to prohibit only those expressions having a substantial tendency to provoke violent retaliation or other wrongful conduct." Where utterances are involved, this judicial limitation upon the scope of the statute is necessary in order to avoid the infringement upon constitutionally protected speech which application of its general terms might otherwise entail. When words are claimed to offend the statute only those "having a direct tendency to cause acts of violence by the persons" to whom they are addressed may be relied upon. Chaplinsky v. New Hampshire, 315 U.S. 568, 573, 62 S. Ct. 766,86 L. Ed. 1031 (1942). "[F]ighting words — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace" — are not protected by the first amendment. Id., 572; Cantwell v. Connecticut, 310 U.S. 296, 309,60 S. Ct. 900, 84 L. Ed. 1213 (1940). In State v. Anonymous (1978-4) supra, we concluded that the charge was deficient in that it failed to restrict the broad language of subsection (2) of 53a-182 (a) so as to preclude a conviction for constitutionally protected speech. "At least where speech in a public place is involved, an instruction that a conviction may be had for conduct which is `so grossly offensive . . . as to amount to a nuisance' or which `outrages the sense of public decency' or which causes `inconvenience, annoyance, or alarm' exceeds the narrow scope of permissible restrictions on freedom of speech." Id., 694; Plummer v. City of Columbus, 414 U.S. 2,2-3, 94 S. Ct. 17, 38 L. Ed. 2d 3 (1973); Gooding v. Wilson, 405 U.S. 518, 520-21, 92 S. Ct. 1103,31 L. Ed. 2d 408 (1971). *Page 776
The instructions8 given by the trial court upon disorderly conduct are quite similar to those we found inadequate in State v. Anonymous (1978-4), supra. No limitation was placed upon the broad terms of the statute in order to avoid the possibility of a conviction resting upon utterances not constituting "fighting words." Unlike the situation in State v. Anonymous (1978-4), where the only evidence supporting the disorderly conduct conviction consisted of words spoken to the victim, there was in this case evidence *Page 777 of acts and conduct not protected by the first amendment which was sufficient of itself to support the conviction. This distinction is of no benefit to the state, however, because a general verdict of guilty cannot stand if it is possible that under the instructions given the jury may have relied upon a constitutionally impermissible ground. Bachellar v. Maryland, 397 U.S. 564, 570,97 S. Ct. 1312, 25 L. Ed. 2d 570 (1970); Street v. New York, 394 U.S. 576, 592, 89 S. Ct. 1354,22 L. Ed. 2d 572 (1969); Stromberg v. California,283 U.S. 359, 368, 51 S. Ct. 532, 75 L. Ed. 1117 (1931). We have examined the charge to see whether there is any likelihood that the conviction may rest upon what the defendant said rather than upon what he did. The instructions upon the disorderly conduct statute were expressed in general terms with no reference to the evidence or the operative facts necessary to warrant conviction. Although the jury requested a further definition of disorderly conduct after the initial charge, the court merely repeated its prior instruction with no additional clarification. Since we must, with respect to constitutional claims, follow the standard that harmlessness of the error must be established beyond a reasonable doubt; Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824,17 L. Ed. 2d 705 (1967); Parham v. Warden, 172 Conn. 126,139, 374 A.2d 137 (1976); Aillon v. State,168 Conn. 541, 548, 363 A.2d 49 (1975); we are unable to conclude that the error in the charge was nonprejudicial. The greater probability that the defendant's conviction rested upon his conduct rather than his words does not satisfy the requisite standard. We find error, therefore, in the insufficiency of the charge on disorderly conduct.
IV The final claim of the defendant is that his application for a program of accelerated rehabilitation *Page 778 under General Statutes 54-76p9 in relation to the charge of operating while under the influence in violation of 14-227a was denied (Higgins, J.) erroneously. In State v. Anonymous (1980-5),36 Conn. Super. Ct. 527, 531, 416 A.2d 168 (1980), we held that operating while under the influence was an offense encompassed by the word "crime" in 54-76p and, therefore, reversed the decision of the trial court that accelerated rehabilitation was jurisdictionally unavailable in such a case. We stated that use of the program was "discretionary with the court and that such discretion must be exercised not only in reviewing the qualifications of the offender but also in considering the nature of the particular offense and the circumstances of its commission." Id., 531-32.
When the defendant's application for accelerated rehabilitation was presented to the court, the prosecutor offered to present the testimony of one of the *Page 779 police officers concerning the circumstances of the arrest. He also offered to read the report he had received from the police into the record. The defendant stated that those matters should be considered later, presumably after the report of the probation officer concerning the defendant's background and eligibility had been received. The trial court stated that before any referral to the probation department for a report it should be determined whether the offense was of a "serious nature." Section 54-76p by its terms applies only to "persons accused of a crime, not of a serious nature." The court declared its view that operating a motor vehicle under the influence was a crime of a "serious nature" and proceeded to deny the defendant's application.
In State v. Anonymous (1980-5), supra, we indicated that in exercising its discretion upon an application for accelerated rehabilitation the trial court must consider both "the nature of the particular offense and the circumstances of its commission." In denying the defendant's application wholly on the basis of the charge, the trial court failed to consider the circumstances under which the offense was committed as required for a proper exercise of discretion. Except where the offense falls within one of the categories specifically mentioned in the statute as disqualifications, the determination of whether the crime is of a "serious nature" ordinarily depends upon the facts surrounding its commission. Although it is possible that some offenses, in addition to those named in the statute, may be so heinous that a conclusion of their "serious nature" may be reached without any knowledge of the factual basis for the charge, we cannot say that every instance of operating under the influence must inevitably be so categorized. Despite the great danger to the public usually created by intoxicated drivers, it is possible to envision the extraordinary situation of an arrest upon such a charge *Page 780 where no substantial traffic hazard has been created and where the motorist ceased his operation of the vehicle after proceeding a short distance and realizing that his ability to drive was impaired. A court might reasonably conclude that under such extenuating circumstances the offense was not serious enough to warrant the denial of accelerated rehabilitation. Since we have determined that not every occasion of operating while under the influence constitutes a crime of a "serious nature" so as to preclude the availability of 54-76p, we must find error in the failure of the trial court to give any consideration to the circumstances of the commission of the offense before denying the defendant's application. The defendant was entitled to a reasonable exercise of the court's discretion in considering his application and he has not received it.
There is error in respect to the conviction of the defendant for disorderly conduct and the case is remanded for a new trial upon that charge.
There is no error with respect to the trial resulting in the conviction of the defendant for operating under the influence, but there is error in the denial of his application for accelerated rehabilitation. The judgment on that charge is vacated for the purpose of enabling the court to consider this application, but it is ordered to be reinstated if the application is not granted.
In this opinion DALY, J., concurred.