***********************************************
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. JULIE A.
FERRAZZANO-MAZZA
(AC 42481)
Bright, C. J., and Moll and Suarez, Js.
Syllabus
Convicted, after a jury trial, of the crime of operating a motor vehicle
while under the influence of intoxicating liquor or drugs as a third time
offender, and, after a court trial, of the infraction of operating a motor
vehicle without a license, the defendant appealed to this court. Held:
1. The defendant could not prevail on her claim that the trial court improperly
excluded evidence that she had offered to take a blood test in lieu of
a Breathalyzer test and gave the jury a limiting instruction that it could
not consider her offer to take a blood test as relevant to any issue in
the case:
a. There was no merit to the defendant’s claim that the trial court
improperly excluded evidence regarding her purported offer to take a
blood test, as the state, during its direct examination of D, the state
trooper who arrested and processed the defendant, elicited the very
testimony that the defendant asserted was improperly excluded and the
defendant, thereafter, did not attempt to question D about this or to
offer any other evidence of her purported offer to take a blood test.
b. Even if this court assumed that the trial court’s limiting instruction
concerning the relevancy of the defendant’s purported offer to take a
blood test was improper, there was no reasonable possibility that the
jury was misled: although the defendant correctly argued that evidence
of an offer to take a blood test instead of a Breathalyzer test may be
relevant to rebut the inference of guilt permitted under the applicable
statute (§ 14-227a (e)) when a defendant refuses to take the specific
chemical test chosen by a police officer, in this case, there was no
evidence that the defendant offered to take a blood test, and, therefore,
an instruction that the jury could consider the defendant’s consent to
a blood test would have confused the jury; moreover, the state presented
overwhelming evidence of the defendant’s guilt, independent of her
refusal to take a Breathalyzer test.
2. The defendant’s claim that the trial court improperly denied her request
to charge the jury on field sobriety acts, which provided that the jurors
should use their common experience to evaluate whether she had been
impaired and that the words used by the state’s witnesses to describe
field sobriety tests do not indicate that such tests are scientific, was
unavailing; there was no reasonable possibility that the jury was misled
by that court’s refusal to adopt the defendant’s requested instruction,
as the court’s instruction to the jurors that they must consider all the
evidence in light of reason, experience and common sense sufficiently
conveyed the defendant’s proposed instruction, and, in this context, the
terms used by the state’s witnesses were simply descriptive and did not
automatically imply that the topic was scientific in nature.
Argued October 19, 2020—officially released January 26, 2021
Procedural History
Two part substitute information charging the defen-
dant, in the first part, with the crime of operating a
motor vehicle while under the influence of intoxicating
liquor or drugs and with the infraction of operating a
motor vehicle without a license, and, in the second part,
with having previously 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 Windham, geographical area number
eleven, where the charge of operating a motor vehicle
while under the influence of intoxicating liquor or drugs
was tried to the jury before Newson, J.; verdict of guilty;
thereafter, the charge of operating a motor vehicle with-
out a license was tried to the court, Newson, J.; finding
of guilty; subsequently, the defendant was presented to
the court, Newson, J., on a conditional plea of nolo
contendere to the second part of the information; judg-
ment of guilty in accordance with the verdict, the find-
ing and the plea, from which the defendant appealed
to this court. Affirmed.
Vishal K. Garg, for the appellant (defendant).
Timothy F. Costello, senior assistant state’s attorney,
with whom, on the brief, were Anne F. Mahoney, state’s
attorney, and Bonnie R. Bentley and Brenda L. Hans,
senior assistant state’s attorneys, for the appellee
(state).
Opinion
BRIGHT, C. J. The defendant, Julie A. Ferrazzano-
Mazza, appeals from the judgment of conviction of
operating a motor vehicle while under the influence
of intoxicating liquor or drugs in violation of General
Statutes § 14-227a (a), which was tried to a jury, and
operating a motor vehicle without a license in violation
of General Statutes § 14-36 (a), which was tried to the
court. The defendant also pleaded nolo contendere to
being a third time offender in violation of § 14-227a (g)
(3). On appeal, the defendant claims that the court
improperly (1) excluded evidence that she had offered
to take a blood test in lieu of a Breathalyzer test and
delivered to the jury a limiting instruction on the use
of such evidence, and (2) denied her request to instruct
the jury that field sobriety tests are not based on sci-
ence. We affirm the judgment of the trial court.
The jury reasonably could have found the following
relevant facts. On December 22, 2016, after leaving work
in Vernon at approximately 7 p.m., a motorist, John
LaBossiere, came upon the defendant’s pickup truck,
a 2014 silver Dodge Ram (truck), stopped in the middle
of the road on Route 44 in or near Willington. As LaBos-
siere approached the truck, it sped off. LaBossiere con-
tinued behind the truck, driving through a few towns
before reaching Pomfret. He witnessed the truck swerv-
ing from side to side, repeatedly going over the yellow
line and across the white fog line, seemingly overcom-
pensating for its movements. He also observed that the
defendant, who was alone in the truck, was having
difficulty maintaining the truck at a consistent speed.
LaBossiere became concerned and telephoned 911 as
he followed behind the truck. He provided the 911 dis-
patcher with a description of the truck, including the
license plate number, as he followed behind it for sev-
eral more miles. LaBossiere, thereafter, lost sight of the
truck as it sped away.
Shortly thereafter, LaBossiere entered Killingly and,
as he came upon the intersection of Route 101 and
Maple Street, where the Four G’s restaurant is located,
he saw the truck in the parking lot of the restaurant,
positioned at an odd angle rather than in a designated
parking space. He noticed that the driver’s side door
of the truck was open, that the defendant was outside
of the truck, and that she was staggering. LaBossiere
proceeded to turn right onto Maple Street, and he went
about his business.
Just after 8 p.m., Bruce Taylor, a sergeant with the
state police, who had received a certificate from the
police academy for having completed a forty hour
course on identifying and addressing driving while
intoxicated offenses, observed the defendant’s truck,
which then was stopped facing the median between
Route 6 and South Main Street in Brooklyn, approxi-
mately three and one-quarter miles from the Four G’s
restaurant. The truck was blocking the connector in
such a way that no vehicles could get by it, and neither
its emergency flashers nor its headlights were illumi-
nated. Initially, Taylor thought that the truck might have
been involved in a motor vehicle accident. He activated
the emergency lights of his police vehicle, and he
approached the driver’s side of the truck. The defendant
exited the truck, and Taylor thought that she appeared
to be unsteady on her feet. When Taylor approached
her, he could smell alcohol on her breath, which was
more pronounced when she spoke to him. Her ‘‘manner-
isms . . . [were] sluggish . . . she was very slouched
over, she spoke in . . . a thick tongue manner, [and]
her eyes were glassy . . . .’’ She kept rambling and
told Taylor that she had run out of gas and that a good
Samaritan had gone to get some for her.1
Taylor requested the defendant’s license, registration,
and insurance card, which the defendant was unable
to produce at that time,2 and he removed the keys from
the ignition of the truck. Taylor then called in the license
plate number of the truck. He also requested backup
from Trooper Jason Deojay, who, at that time, was
working pursuant to a grant investigating driving while
intoxicated cases, so that Deojay could perform the
necessary testing of the defendant. Trooper Matthew
Siart also arrived on the scene. Taylor asked Siart to
stand near the truck because he did not want the defen-
dant, who was then seated in the truck, to exit the truck
and fall into traffic. When Deojay arrived, Taylor relayed
relevant information to him, including his suspicion that
the defendant was ‘‘under the influence.’’
Deojay, who was aware of LaBossiere’s 911 call,
noticed the defendant’s truck parked ‘‘somewhat diago-
nal with the driver’s side rear tire partially flat, nearly
flat, some minor damage to the driver’s side, and then
the driver’s side door was open with a female seated
in the driver’s seat.’’ When he approached the defen-
dant, he noticed that ‘‘she had glassy eyes, slightly . . .
slurred speech, and the odor of the alcoholic beverage
coming from her breath as she spoke.’’ Deojay acknowl-
edged that these were indicators of an impaired driver.
Deojay asked the defendant from where she was coming
and to where she was going, and she responded that
she was coming from a restaurant and going to a gas
station. He asked her if she had consumed any alcoholic
beverages, and she said no. Deojay then asked the
defendant to step away from the truck in order to per-
form some field sobriety tests. Deojay administered the
horizontal gaze nystagmus test, the walk and turn test,
and the one leg stand test.
As he administered each test, Deojay asked the defen-
dant whether she had any medical conditions that could
interfere with her performance, to which she responded
in the negative.3 When he administered the horizontal
gaze nystagmus test, Deojay noticed nystagmus, which
is an involuntary movement of the eye, at three posi-
tions in each eye. Out of the six possible clues that
indicate intoxication in this test, the defendant had all
six. When administering the walk and turn test, the
defendant swayed, did not follow directions, and had
to stop in order to steady herself. Out of eight possible
clues that indicate intoxication in this test, the defen-
dant had five. Finally, when Deojay administered the
one leg stand test, the defendant swayed and raised her
arms in an attempt to maintain her balance. She also
put down her foot more than three times in fewer than
ten seconds. Deojay saw three out of a possible four
clues of intoxication during that test. On the basis of the
totality of the circumstances, including the defendant’s
performance on all three tests, her ‘‘glassy eyes, the
slightly slurred speech, [and] the odor of the alcoholic
beverage on her breath,’’ Deojay determined that the
defendant was intoxicated, and he placed her under
arrest.
After arriving at the state police barracks, Deojay
took the defendant to the processing room, where
Trooper Donna Bimonte4 searched her. A silent video
recorded the events that took place in the processing
room. At 8:40 p.m., Deojay, in the presence of Bimonte,
advised the defendant of her rights by reading her a
preprinted notice of rights form, which Deojay and the
defendant then signed. Deojay then prepared a postar-
rest interview form, documenting the defendant’s
responses to various questions. In response to a ques-
tion asking whether she was ill, the defendant stated
that she had undergone surgery three days earlier, but
she did not elaborate.5 She also stated that she was not
taking any medication. Deojay also read the implied
consent advisory contained on the postarrest interview
form and notified the defendant that he would be
requesting that she submit to either a blood, Breatha-
lyzer, or urine test, as determined by him, and that, if
he requested that she take a blood test, she could refuse
to submit to that test and, instead, could opt to take a
Breathalyzer or urine test. Deojay afforded the defen-
dant an opportunity to telephone an attorney or a family
member, but the defendant did not attempt to contact
anyone at that time. Deojay thereafter told the defen-
dant that he wanted her to take a Breathalyzer test.
The defendant refused. When he testified before the
jury, Deojay had no recollection of whether the defen-
dant had requested to take a blood test, and he stated
that he had reviewed the video from the processing
room and that the defendant had held up her arms. He
was certain, however, that she had refused to take a
Breathalyzer test.
Trooper Bimonte had remained in the processing
room and was present when the defendant refused to
take a Breathalyzer test, and Bimonte acknowledged
this refusal on a computerized form. Bimonte also
observed that the defendant had a strong smell of alco-
hol coming from her person as she spoke and that she
‘‘was somewhat disheveled with makeup on her face
and very fidgety as she sat talking, moved her legs a
lot, used her hands a lot, just—and very, very talkative
during the whole process . . . [exhibiting a] flight of
ideas, rambling on about different subjects.’’ In
Bimonte’s opinion, after ‘‘thirteen years of nursing . . .
three years being a state trooper, working at detox
programs, [and] working in the prison system,’’ the
defendant was ‘‘impaired.’’ As Deojay was bringing the
defendant to the lockup, the defendant changed her
mind about making a telephone call, and Deojay
brought her back into the processing room and, as the
defendant held the receiver, he ‘‘dialed’’ the telephone
numbers given to him by the defendant, but she was
unsuccessful in reaching anyone.
The state charged the defendant with operating a
motor vehicle while under the influence of intoxicating
liquor or drugs, and the jury found her guilty of that
charge. In a part B information, the state charged the
defendant with being a third time offender, and the
defendant pleaded nolo contendere to that charge. The
state also charged the defendant with operating a motor
vehicle without a license, and the court, after finding the
defendant guilty, granted an unconditional discharge
on that charge. The court sentenced the defendant to a
term of three years incarceration, execution suspended
after twenty-eight months, with three years of probation
and 100 hours of community service on the charge of
operating a motor vehicle while under the influence
of intoxicating liquor as a third time offender. This
appeal followed.
I
The defendant first raises an evidentiary claim that
the court improperly excluded evidence that she had
offered to take a blood test in lieu of a Breathalyzer
test and improperly gave a limiting instruction to the
jury that it could not consider the defendant’s offer to
take a blood test as relevant to any issue in the case.6
The defendant argues that the evidence that she was
willing to take a blood test ‘‘was relevant to two issues
in the proceedings: (1) whether [she] had, in fact,
refused to take a Breathalyzer test, and (2) whether
[her] refusal to take a Breathalyzer test supported an
inference that [she] had operated a motor vehicle while
under the influence of alcohol.’’ We conclude that the
state, on direct examination of Deojay, elicited the very
testimony that the defendant claims the court improp-
erly excluded and that there is no reasonable possibility
that the jury was misled by the court’s limiting
instruction.
The following additional facts inform our review.
Prior to her trial, the defendant filed a motion in limine
seeking to preclude evidence that she had refused to
submit to a Breathalyzer test following her arrest. The
defendant argued that the evidence should be excluded
because Deojay, before asking her to take the Breatha-
lyzer test, had not afforded her an adequate opportunity
to contact an attorney.7 During Deojay’s testimony at
the hearing, he was asked to narrate the silent video
that had captured what had occurred in the processing
room when the defendant was arrested, which he did.
He acknowledged that the defendant had made many
gestures and movements on the video, but he could not
recall what she was saying. Deojay testified that once
he told the defendant that he had chosen to administer
a Breathalyzer test, she stated that she would not take
it. Deojay also stated that the defendant had informed
him earlier, while in the police cruiser, that she would
not take any test. Deojay also stated that the defendant
had not offered to take a blood test.
Defense counsel asked Deojay what procedure he
undertook when someone volunteered to take a differ-
ent test. The state objected to the question on relevance
grounds, and the court sustained the objection, noting
that the sole issue raised by the defendant in her motion
was whether Deojay had afforded her an adequate
opportunity to consult with an attorney before she
refused to take the Breathalyzer test. The court subse-
quently denied the motion in limine.
On the first day of the trial, the state requested that
the court preclude defense counsel from asking Deojay
whether the defendant had offered to take a blood test.
The state argued that, because § 14-227a (e) authorizes
a police officer to choose the specific test to administer
and gives no choice to an arrestee when the officer
chooses a Breathalyzer test, defense counsel should
be precluded from asking whether the defendant had
offered to take a blood test. Defense counsel argued
that she had a right to inquire as to what had happened
on the night of the defendant’s arrest and that the ques-
tion of whether the defendant had refused to submit
to a test was a question in the case. The court stated
that, because the statute does not give the defendant
the right to choose which test to take, whether she
offered to take a different test likely was irrelevant.
Defense counsel argued, among other things, that the
issue was relevant. The court, thereafter, ruled that
defense counsel could ask Deojay whether the defen-
dant had offered to take any other tests. The court
explained that it would not allow ‘‘any argument made
to the jury to the specifics of if she wasn’t drunk, she
wouldn’t have offered to provide this other test . . . .’’
Defense counsel responded, ‘‘I understand that. I have
no plan to make such an argument, Your Honor.’’
The next morning, the court indicated that it had
reconsidered its prior ruling on whether defense coun-
sel could ask Deojay whether he recalled the defendant
asking to take a blood test. The court stated that defense
counsel could question Deojay on this topic out of the
presence of the jury, and, depending on Deojay’s
answers, the court might permit such questioning
before the jury.
Thereafter, during direct examination of Deojay by
the state before the jury, and before defense counsel
conducted any questioning of Deojay outside the pres-
ence of the jury, the following colloquy occurred:
‘‘Q. Okay. And—and you mentioned, although it’s
entirely your choice, but there are two other ways that
a blood alcohol concentration can be obtained: blood
and urine?
‘‘A. Yes.
‘‘Q. Okay. And did the defendant indicate that she
would submit to either of those tests?
‘‘A. I don’t remember. But since I had an opportunity
to review the video, she raised her arms in this motion,
so it’s possible that [she] might [have] asked for a
breath—a blood test, but I don’t remember.
‘‘Q. Okay. So you have no—no recollection of her
asking for a blood test?
‘‘A. No.
‘‘Q. Okay. And—and have you, in your experience,
had people when you’ve told them you—you are offer-
ing them to take a breath test offer to take a blood
test instead?
‘‘A. I have.
‘‘Q. And what is your experience with that?
‘‘A. There’s a lot of factors that go [into it]. For a
blood test to be achieved, I have to transport the person
to the hospital where there’s a nurse on—or phleboto-
mist who can draw blood. We are not allowed to.
‘‘Q. Okay.
‘‘A. So it takes a—a lot of time to—to go there, then
you gotta have the availability of a nurse; if there’s
an emergency in the emergency room where they’re
attending to, then they’re not available. And she also
has the option at that point, the defendant, to refuse.
And normally it’s just a delaying tactic that they use to
prevent—cause I—I have a two hour window and—to
get the test in, so time is of the essence.’’
The court then excused the jury and questioned the
state as to why it had inquired into an area to which it
had objected and on which the court had ruled that
such questioning would first be conducted outside the
presence of the jury. The state told the court that, subse-
quent to its ruling, Deojay had informed the state that,
after reviewing the silent video, although he was certain
that the defendant had refused the Breathalyzer test,
he no longer was certain that the defendant had not
offered to take a blood test. The state further explained
that it had disclosed Deojay’s change in recollection to
the defense and that the state had decided to pursue
the topic on direct examination, rather than wait for
the defendant to do so during cross-examination.
The court responded: ‘‘I mean, you’re into it now, so
I—I don’t know [how] we can take it back, but it’s not
really relevant for the jury. I mean, I’m giving [it] an
instruction that says, the fact that there’s some other
test out there in the world is not relevant.’’
Defense counsel argued that Deojay’s testimony was
before the jury and that she should be able to argue
that the defendant might have offered to take an alterna-
tive test. The court reiterated that it was going to
instruct the jury that the defendant did not have the
option to choose which test to take and that the question
before the jury was whether the defendant had refused
to take the Breathalyzer test that had been chosen by
Deojay. Defense counsel told the court the defendant
was not contesting the fact that she had refused to take
a Breathalyzer test, and she explained: ‘‘I understand
that, Your Honor, and I understand that Your Honor [is
going to] give that instruction. That’s pursuant to the
standard criminal jury instructions. The—the point I’m
raising is that there has just been testimony that there
may have been an offer to take another test. I do intend
to argue that fact to the jury. That it’s now in evidence.
. . . That’s fair argument.’’ The court responded: ‘‘We’ll
deal with it,’’ and then reiterated that the statute does
not give the defendant the right to choose the test but
that the choice falls to the officer.
The court then recalled the jury and offered the fol-
lowing limiting instruction: ‘‘All right. Ladies and gentle-
men, before we get started again, the court’s [just going
to] advise you, you heard some—just heard some testi-
mony about the possibility that there may be some other
test available other than the breath test and where and
how and when those tests may be conducted. That was
provided for background and informational purpose
only.
‘‘You will get an instruction at the end of the trial
that in an operating under the influence case if there
is a claim that there is a refusal to take a test, the jury’s
only consideration is whether or not the test that was
offered by the police officer was refused by the defen-
dant, not whether there was an offer to take some
other test or whether there was an availability of some
other test.
‘‘So, in considering this evidence to the extent that
it’s relevant—and, again, the background and informa-
tion is not—your only consideration will be when I
instruct you at the end is whether or not the defendant,
if you find, if you find, and that’s your job, that there
was in fact a refusal, whether or not the defendant
refused the test that the officer chose. So, I’ll allow you
to continue. But I’ll reinstruct you at the end of the trial.’’
Later, still during its direct examination of Deojay,
the state presented a copy of the silent video, which
Deojay narrated for the jury. During one point in the
video, Deojay stated that he had just advised the defen-
dant of her right to contact an attorney and requested
that she take a Breathalyzer test, which she refused.
When defense counsel cross-examined Deojay, Deojay
again stated that the defendant had refused to take a
Breathalyzer test. Defense counsel did not attempt to
ask Deojay any questions about whether the defendant
had offered to take any other test.
During defense counsel’s closing argument, she sug-
gested that the jury should discount the defendant’s
refusal to take the Breathalyzer test because the jury
could find that Deojay had not afforded the defendant
a reasonable opportunity to contact an attorney before
he asked her to take the test. Specifically, she argued:
‘‘Trooper Deojay told you this, he reads the line from
the form, I’m now giving you a reasonable opportunity
to contact an attorney. And he said there was a phone
on the desk. She could have called whoever she wanted
to. She could have called 411. 411 from a police station?
To me, that’s incredible. He never instructed her that
she could dial 411; but he did testify that even if she
dialed 411, she would have to know the name of the
person that she was calling. Is that reasonable? Is that
a reasonable opportunity to contact an attorney? Did
she have a fair shot at that? That’s for you to decide.’’
She further argued: ‘‘And we have the booking video,
we have the recording of what actually transpired. . . .
All throughout the booking process you see [the defen-
dant] engaging in conversation with both Trooper
Bimonte and Trooper Deojay. She’s asking questions,
she’s engaged, she looks like she’s gesturing. They can’t
tell you what she was saying; no one remembers any-
thing, nothing.
‘‘That’s the evidence. That’s the evidence that the
state wants you to draw this conclusion that she must
have been drinking. That’s what explains her animated
speech. That’s what explains her refusal to take a test.
There’s a perfectly plausible other explanation for her
decision not to take this breath test, if you decide that
that was actually a legitimate refusal.’’
Defense counsel then argued: ‘‘The situation is she
ran outta gas, she then was asked by a bunch of troopers
to do a bunch of very awkward tests even though she’s
telling them the whole time, I just need to get to the
gas station. It’s just right around the corner. That’s—
that’s it. It just died.
‘‘She tells them, I’ve had surgery. I haven’t had any-
thing to drink. I’m just trying to get to the gas station.
No, no, no, no more of that, just get into the instructional
position. I’m gonna do this eye test for you. I want you
to walk in a straight line back and forth to me. I want
you to stand on one leg. I want you to pat your head
and rub your stomach. They didn’t ask her to do that,
but that’s the impression that she’s left with. So she
complies, she does everything they ask.
‘‘They ask her questions, she answers; they ask her
to do things, she does [them]. At the end of the day,
they arrest her anyway. They take her back to the sta-
tion. You’ve seen the video. She’s talking to them. She
looks like she’s pleading with them. They ask her to
take another test, no. No. That’s fair. Why would she
continue to cooperate? Why would she? Where has it
gotten her up until that point that night? Where had it
gotten her? She had done everything they asked. They’re
asking one more thing of her. That’s it. She’s had
enough. It’s a righteous refusal, if you find that it actu-
ally happened that way.’’
After the parties had concluded their closing argu-
ments, the trial court delivered its final charge to the
jury. Regarding the defendant’s refusal to take a Breath-
alyzer test, the court instructed: ‘‘In the present case,
there was evidence of the defendant’s refusal to submit
to specifically a breath test. If you find that the defen-
dant did refuse to submit to such test, you may make
any inference that follows from that fact that you
find reasonable.
‘‘Under our law, in the circumstances of this case, the
defendant is deemed to have given an implied consent
to the taking of a breath test, urine test, or other test
at the option of the police officer. Again, the selection
of the type of test is for the officer to make. Here, there
is evidence that the officer selected a breath test. The
issue, then, is not whether the defendant refused any
and all test[s], but whether she refused the selected test.
‘‘The word ‘refuse’ is defined as showing or express-
ing unwillingness to do or comply with. Here, it means
to show [or] express an unwillingness to do or comply
with the directive of the officer to take a particular . . .
test. Now whether the defendant refused the breath
test remains a question of fact for you to decide. You
also heard evidence about the possibility of other chem-
ical tests being available in addition to the Breathalyzer
test or that the defendant may have offered to take
another type of test.
‘‘As I have instructed you during the trial, the avail-
ability of some other test or the defendant’s offer to
take some other test is irrelevant and you shall not
consider it. Your only relevant consideration in
determining whether you believe there was a refusal is
whether the officer requested the defendant to take
a particular chemical test and whether the defendant
refused to take that particular test.’’
A
We begin with the defendant’s claim that the court
improperly excluded evidence that she had offered to
take a blood test in lieu of a Breathalyzer test. We
conclude that the state, on direct examination of Deo-
jay, elicited the testimony, which was equivocal, that
the defendant claims the court improperly excluded
and that the defendant, thereafter, neither attempted
to question Deojay about this, nor offered any other
evidence of her purported offer to take a blood test.
‘‘Our standard of review for evidentiary claims is well
settled. To the extent [that] a trial court’s admission of
evidence is based on an interpretation of the Code of
Evidence, our standard of review is plenary. . . . We
review the trial court’s decision to admit [or to exclude]
evidence, if premised on a correct view of the law,
however, for an abuse of discretion. . . . The trial
court has wide discretion to determine the relevancy of
evidence and the scope of cross-examination.’’ (Internal
quotation marks omitted.) State v. Taupier, 330 Conn.
149, 181, 193 A.3d 1 (2018), cert. denied, U.S. ,
139 S. Ct. 1188, 203 L. Ed. 2d 202 (2019).
Before Deojay took the witness stand to testify, the
court told defense counsel that she would have to ques-
tion Deojay out of the presence of the jury about
whether the defendant had offered to take a blood test
and that the court would rule on the propriety of such
questioning at that time. Unbeknownst to the court, the
state, having just learned that Deojay no longer was
certain that the defendant had not offered to take a
blood test, disclosed this information to the defendant,
and, during its direct examination of Deojay, questioned
him about it. Although the court was not pleased about
the manner in which such questioning had taken place
in light of its earlier ruling that such questioning initially
would have to take place out of the presence of the
jury, it did not strike the testimony, but it did offer a
limiting instruction to the jury, to which defense coun-
sel offered no objection and specifically stated that such
an instruction was part of the standard jury instructions.
After the state had opened the door to this issue,
defense counsel, when she cross-examined Deojay, did
not attempt to elicit additional testimony about this
issue—either out of the presence of the jury, in accor-
dance with the court’s earlier ruling, or in its presence—
and there is no indication in the record that the court
prohibited her from doing so. As a matter of fact, when
defense counsel told the court that she intended to
argue this point to the jury, the court responded, ‘‘We’ll
deal with it . . . .’’ Defense counsel, however, did not
raise this issue again, either through witness testimony
or during closing argument. On the basis of the forego-
ing, we conclude that the defendant’s claim that the
court improperly excluded evidence regarding her pur-
ported offer to take a blood test is without merit.
B
We next consider whether the court improperly
instructed the jury that it could not consider the possi-
bility that the defendant may have offered to take a
blood test as relevant to any issue in the case. The
defendant argues that the instruction was improper
because ‘‘[t]he evidence was relevant to two issues in
the proceedings: (1) whether the defendant had, in fact,
refused to take a Breathalyzer test, and (2) whether the
defendant’s refusal to take a Breathalyzer test sup-
ported an inference that the defendant had operated a
motor vehicle while under the influence of alcohol.’’
We conclude that, even if we were to assume some
impropriety in the court’s instruction, it is not reason-
ably possible that the jury was misled.
We begin with the well established standard of review
governing the defendant’s challenge to the court’s jury
instruction. ‘‘Our review of the defendant’s claim
requires that we examine the [trial] court’s entire charge
to determine whether it is reasonably possible that the
jury could have been misled . . . . As long as [the
instructions] are correct in law, adapted to the issues
and sufficient for the guidance of the jury . . . we will
not view the instructions as improper. . . . Addition-
ally, we have noted that [a]n [impropriety] in instruc-
tions in a criminal case is reversible . . . when it is
shown that it is reasonably possible for [improprieties]
of constitutional dimension or reasonably probable for
nonconstitutional [improprieties] that the jury [was]
misled.’’ (Internal quotation marks omitted.) State v.
Edwards, 334 Conn. 688, 716–17, 224 A.3d 504 (2020).
‘‘It is well established that when a challenge to a jury
instruction is not of constitutional magnitude . . . the
charge to the jury is to be considered in its entirety,
read as a whole, and judged by its total effect rather
than by its individual component parts. . . . [T]he test
of a court’s charge is not whether it is as accurate upon
legal principles as the opinions of a court of last resort
but whether it fairly presents the case to the jury in
such a way that injustice is not done to either party
under the established rules of law. . . . As long as [the
instructions] are correct in law, adapted to the issues
and sufficient for the guidance of the jury . . . we will
not view the instructions as improper.’’ (Internal quota-
tion marks omitted.) State v. Seekins, 123 Conn. App.
220, 227, 1 A.3d 1089, cert. denied, 298 Conn. 927, 5
A.3d 487 (2010).
Section 14-227a (e) provides: ‘‘In any criminal prose-
cution for a violation of subsection (a) of this section,
evidence that the defendant refused to submit to a
blood, breath or urine test requested in accordance
with section 14-227b8 shall be admissible provided the
requirements of subsection (b) of said section have
been satisfied. If a case involving a violation of subsec-
tion (a) of this section is tried to a jury, the court shall
instruct the jury as to any inference that may or may
not be drawn from the defendant’s refusal to submit to
a blood, breath or urine test.’’ (Footnote added.)
It is significant when a defendant refuses to take a
Breathalyzer test as chosen by the officer. The trier of
fact, ‘‘pursuant to § 14-227a (e), [may draw] an inference
of guilt from this refusal. . . . Such an inference is
statutorily valid and a factor to be considered in tandem
with other evidence when deciding the issue of intoxica-
tion. See, e.g., State v. Hall, 110 Conn. App. 41, 56–57,
954 A.2d 213 (2008) (refusal of Breathalyzer test and
failure of field sobriety tests amongst other factors suffi-
cient to prove intoxication); State v. Gordon, [84 Conn.
App. 519, 528, 854 A.2d 74] (same) [cert. denied, 271
Conn. 941, 861 A.2d 516 (2004)].’’ (Citation omitted.)
State v. Morelli, 293 Conn. 147, 163 n.11, 976 A.2d
678 (2009).
The defendant argues that the court’s instruction was
improper in that the court told the jury that Deojay’s
testimony that the defendant’s offer to take a blood test
was to be used only for background and informational
purposes and was not otherwise relevant. She argues
that the issue of whether she had offered to take a
blood test rather than the Breathalyzer test ‘‘was rele-
vant because the jury could have found that the defen-
dant’s offer to take another test did not amount to a
refusal, and that the officer had misinterpreted that
offer as a refusal.’’ (Emphasis in original.) Even if we
assume that the court’s instruction too narrowly con-
fined the jury’s use of the defendant’s purported consent
to a blood test, we conclude that there is no possibility
that the jury was misled.
First and foremost, although the defendant repeat-
edly argues that there was testimony that the defendant
offered to take a blood test, Deojay’s testimony was
that ‘‘it’s possible that [she] might [have] asked for a
breath—a blood test, but I don’t remember.’’ Deojay
then confirmed that he had ‘‘no recollection of [the
defendant] asking for a blood test,’’ but he was certain
that she had refused to take a Breathalyzer test.
Bimonte, who was in the processing room with Deojay
and the defendant, also acknowledged the defendant’s
refusal on a computerized form, and she testified that,
although she did not recall the defendant’s exact words,
the defendant asserted ‘‘an adamant refusal’’ to take a
Breathalyzer test. Although the defendant may be cor-
rect in arguing that evidence of an offer to take a blood
test instead of a Breathalyzer test may be relevant, in
some circumstances, to rebut the statutory inference
permissible under § 14-227a (e) when a defendant
refuses to take the specific chemical test chosen by the
officer, the testimony of Deojay in the present case
was so equivocal concerning the possibility that the
defendant may have requested to take a blood test that
it could not serve such a purpose, even if one were
permissible. In this case, there was no evidence that the
defendant offered to take a blood test. Consequently, an
instruction that the jury could consider the defendant’s
consent to a blood test, of which there was no evidence,
only would have confused the jury.
Furthermore, evidence of the defendant’s guilt, inde-
pendent of her refusal to take a Breathalyzer test, was
overwhelming. The jury had before it the testimony of
LaBossiere, who had followed behind the defendant’s
truck for several miles as the truck weaved in and out
of its lane of travel. The jury also had LaBossiere’s
testimony that he saw the defendant’s truck parked in
the parking lot of the Four G’s restaurant at an odd
angle with the defendant standing outside of the truck.
Additionally, it had LaBossiere’s 911 call. Moreover, the
jury had the testimony of the state police troopers who
had arrived on the scene when the defendant’s truck
purportedly had run out of gas and was blocking the
roadway. Those troopers testified that the defendant
smelled of alcohol. Taylor thought that the defendant
had been unsteady on her feet. He testified that her
‘‘mannerisms . . . [were] sluggish . . . she was very
slouched over, she spoke in . . . a thick tongue man-
ner, [and] her eyes were glassy . . . .’’ When Taylor
requested the defendant’s license, registration, and
insurance card, the defendant fumbled around in the
truck but was unable to produce them. Taylor was so
concerned that he removed the keys from the ignition
of the truck, and he asked Siart to stand near the truck
so that the defendant would not fall into traffic.
The jury also heard Deojay’s testimony that the defen-
dant ‘‘had glassy eyes, slightly . . . slurred speech, and
the odor of the alcoholic beverage coming from her
breath as she spoke.’’ Deojay told the jury that he asked
the defendant to perform several field sobriety tests,
and, on the basis of the defendant’s poor performance
of those tests and her ‘‘glassy eyes, the slightly slurred
speech, [and] odor of the alcoholic beverage on her
breath,’’ he determined that the defendant was intoxi-
cated. Additionally, the jury heard the testimony of
Bimonte, who, prior to becoming a trooper, had thirteen
years of experience in the nursing field, as well as having
worked in detoxification programs. Bimonte testified
that she believed that the defendant was ‘‘impaired’’
and that she had observed that the defendant smelled
of alcohol, that she was disheveled, very fidgety, and
exhibited a ‘‘flight of ideas.’’
This was not a close case. There was considerable
evidence before the jury that the defendant was
operating her truck while under the influence of alco-
hol. Accordingly, we conclude that, even if the court’s
instruction on the relevancy of Deojay’s equivocal state-
ment that the defendant ‘‘might have’’ indicated that
she would be willing to take a blood test had been
improper, it is not reasonably possible that the jury
was misled.
II
The defendant next claims that the court improperly
denied her request to charge the jury on field sobriety
acts. She argues that the evidence established that she
had been required to perform field sobriety tests but
that the court’s failure to provide the jury with her
requested charge left it without ‘‘any guidance as to
how to use the tests to assess the defendant’s guilt.’’
We are not persuaded.
The defendant filed a request to charge on field sobri-
ety acts, which provided: ‘‘In this case there has been
testimony that the defendant was asked and did agree
to perform certain acts, which are commonly called
field sobriety acts. It is up to you to decide if those
acts give any reliable indication of whether . . . the
defendant’s capacity to operate a motor vehicle was
impaired to such a degree that the defendant no longer
had the ability to drive a vehicle with the caution charac-
teristic of a sober person of ordinary prudence, under
the same or similar circumstances or whether they have
any rational connection to operating a motor vehicle
safely. In judging the defendant’s performance on those
acts, you may consider the circumstances under which
they were given, the defendant’s physical condition,
the defendant’s state of mind, and other factors you
deem relevant.
‘‘You have heard testimony concerning certain move-
ments known as field sobriety tests. You have also heard
terms such as ‘clues’ in connection with that testimony.
‘‘Words such as these are commonly used by the
average person to describe unscientific topics. You
should not believe that these terms indicate a sobriety
evaluation is based on science. Rather, you should eval-
uate this evidence based only on your common experi-
ence.’’ The court declined to give this instruction. The
defendant claims this was reversible error. We are
not persuaded.
‘‘The framework used to evaluate a challenge to a
jury instruction given by the trial court is well estab-
lished. Our review of the defendant’s claim requires
that we examine the court’s entire charge to determine
whether it is reasonably possible that the jury could
have been misled by the omission of the requested
instruction. . . . While a request to charge that is rele-
vant to the issues in a case and that accurately states
the applicable law must be honored, a court need not
tailor its charge to the precise letter of such a request.
. . . If a requested charge is in substance given, the
court’s failure to give a charge in exact conformance
with the words of the request will not constitute a
ground for reversal. . . . As long as [the instructions]
are correct in law, adapted to the issues and sufficient
for the guidance of the jury . . . we will not view the
instructions as improper. . . . [A]n error in instruc-
tions in a criminal case is reversible error when it is
shown that it is . . . reasonably probable . . . that
the jury [was] misled.’’ (Internal quotation marks omit-
ted.) State v. Kelley, 95 Conn. App. 423, 434–35, 896 A.2d
129, cert. denied, 279 Conn. 906, 901 A.2d 1227 (2006).
The defendant claims that the court erred in failing
to employ her proposed jury instruction, which pro-
vided that the jury should use its common experience
to evaluate whether the she was impaired and that the
words used by the state’s witnesses to describe field
sobriety tests do not indicate that these tests are scien-
tific in nature.9
In reviewing the defendant’s claim, we are guided by
this court’s holdings in Kelley, in which nearly identical
claims were raised. See id., 432–36. First, in the present
case, as in Kelley, the defendant had claimed that the
trial court had ‘‘failed to instruct the jury that it could
use its common experiences in determining impairment
. . . .’’ Id., 433. In Kelley, this court concluded that the
trial court’s instruction to the jury that it ‘‘must consider
all the evidence in light of reason, experience, and com-
mon sense’’ sufficiently met the defendant’s proposed
instruction. (Internal quotation marks omitted.) Id., 435.
In the present case, as in Kelley, the trial court also
specifically instructed the jury that it ‘‘must consider
all the evidence in light of reason, experience, and com-
mon sense.’’
Second, in Kelley, the defendant claimed, inter alia,
that the state or witnesses should not have been permit-
ted to use the words ‘‘tests, results, pass, fail and points’’
when discussing or testifying about the walk and turn
test and the one leg stand test because those ‘‘words
wrongly [implied] that the matters had scientific validity
. . . .’’ (Internal quotation marks omitted.) State v. Kel-
ley, supra, 95 Conn. App. 432. This court rejected that
claim, holding that, ‘‘[a]lthough there may be situations
when language imbues unscientific evidence with scien-
tific significance, using testing language to describe
field sobriety tests is not one of them. Words like tests,
results, pass, fail and points are commonly used by the
average person to describe unscientific topics. In this
context, the language is nothing more than descriptive
and does not automatically imply that the topic is scien-
tific in nature.’’ (Internal quotation marks omitted.) Id.,
433. The holdings in Kelley are applicable to the present
case. Accordingly, we conclude that there is no reason-
able possibility that the jury was misled by the court’s
refusal to adopt the defendant’s proposed instruction.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The good Samaritan about whom the defendant spoke did not return to
the scene while the police were there.
2
Although the defendant later provided her Rhode Island operator’s
license to the state police, it was determined that her license was under sus-
pension.
3
The defendant stated that she had hip displacement but that it would
not interfere with her performance.
4
At the time of trial, Bimonte was known as Donna Sabourin.
5
Joseph Lawrence Leclair, the defendant’s live-in boyfriend, explained
during his testimony that the defendant had undergone spinal injections
three days earlier. The defendant elected not to testify.
6
As an alternative argument, the defendant states that, if we conclude
that she has not preserved this issue properly, then the claim is reviewable
under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), as a constitutional
claim because the court violated her right to present a defense and to
confront witnesses against her. We conclude that this evidentiary issue was
preserved and, further, that the claim is not of constitutional magnitude.
7
The defendant has not raised on appeal any claim relating to the alleged
deprivation of her opportunity to contact an attorney in connection with
Deojay’s request that she take a Breathalyzer test.
8
General Statutes § 14-227b provides in relevant part: ‘‘(a) Any person
who operates a motor vehicle in this state shall be deemed to have given
such person’s consent to a chemical analysis of such person’s blood, breath
or urine . . . .
‘‘(b) If any such person, having been placed under arrest for a violation
of section 14-227a or 14-227m or subdivision (1) or (2) of subsection (a)
of section 14-227n, and thereafter, after being apprised of such person’s
constitutional rights, having been requested to submit to a blood, breath or
urine test at the option of the police officer, having been afforded a reason-
able opportunity to telephone an attorney prior to the performance of such
test and having been informed that such person’s license or nonresident
operating privilege may be suspended in accordance with the provisions of
this section if such person refuses to submit to such test, or if such person
submits to such test and the results of such test indicate that such person
has an elevated blood alcohol content, and that evidence of any such refusal
shall be admissible in accordance with subsection (e) of section 14-227a
and may be used against such person in any criminal prosecution, refuses
to submit to the designated test, the test shall not be given; provided, if the
person refuses or is unable to submit to a blood test, the police officer shall
designate the breath or urine test as the test to be taken. The police officer
shall make a notation upon the records of the police department that such
officer informed the person that such person’s license or nonresident
operating privilege may be suspended if such person refused to submit to
such test or if such person submitted to such test and the results of such
test indicated that such person had an elevated blood alcohol content. . . .’’
9
We note that during defense counsel’s cross-examination of Taylor, she
specifically questioned him about field sobriety tests, including the training
he had undergone. One of the questions she asked was: ‘‘And it’s not just
that these are tests that officers just go around doing on their own free will.
These are scientifically based measures of whether someone’s intoxicated,
right?’’ Taylor responded: ‘‘That is correct.’’ Defense counsel made no
attempt, with this witness or any other witness, to further explore the
scientific or unscientific nature of field sobriety tests, with the exception
of the state’s expert, Robert Lockwood, a forensic scientist with the state
forensic laboratory, whom she questioned about the horizontal gaze nystag-
mus test, a test the defendant concedes is scientific.