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STATE OF CONNECTICUT v. WAYNE A. KING
(AC 42764)
Bright, C. J., and Lavine and Alexander, Js.*
Syllabus
Convicted of operating a motor vehicle while under the influence of intox-
icating liquor or drugs, and of previously having been convicted of
operating a motor vehicle while under the influence of intoxicating
liquor or drugs, and sentenced pursuant to the statute (§ 14-227a (g))
that imposes enhanced penalties on a third time offender, the defendant
appealed to this court. Specifically, he claimed that the trial court should
not have sentenced him as a third time offender because the essential
elements of the crime of driving while under the influence are not
substantially the same in Connecticut and Florida, where he was con-
victed in 2000 and 2006. Held:
1. The defendant cannot prevail on his claim that prior convictions under
Florida’s statute for driving while under the influence did not qualify
as prior convictions for the same offense under § 14-227a (a) and, there-
fore, he was entitled to be resentenced as a first time offender:
a. Contrary to the defendant’s claim, the trial court’s application of the
current revision of § 14-227a to the defendant’s conduct, rather than the
revision that was in existence at the time of his Florida convictions, did
not violate the ex post facto clause; the court’s application of the current
revision did not enhance the defendant’s punishment for his prior Florida
convictions and did not punish him for conduct that was not criminal
in Connecticut at the time he committed the Florida offenses; instead,
the court, applying the statute as the legislature intended, merely
enhanced his sentence for his current illegal conduct because it was
considered more serious in light of his earlier offenses in Florida; more-
over, on the basis of the statute’s clear and unambiguous language, as
well as precedent from this court, our Supreme Court, and the United
States Supreme Court, the legislature intended that the applicable revi-
sion of § 14-227a was the one under which the defendant was charged
in this case.
b. The ‘‘operation’’ element in § 14-227a was substantially the same as
the ‘‘actual physical control’’ element in the Florida statute; the elements
of each statute need not be identical to be substantially similar, and, in
examining the manner in which Florida courts have applied the actual
physical control element and the manner in which Connecticut courts
have applied the operation element, it was clear that both statutes crimi-
nalize substantially the same conduct.
c. Contrary to the defendant’s claim, neither § 14-227a (a) nor the Florida
statute requires a vehicle to be motorized, and, accordingly, the statutes
are substantially the same in their definitions of ‘‘vehicle’’ and ‘‘motor
vehicle’’ for purposes of both statutes.
d. Contrary to the defendant’s claim that the Florida statute and § 14-
227a are dissimilar because at the time of his wrongful conduct in Florida,
§ 14-227a (a) required operation in specific proscribed areas, but the
Florida statute did not, § 14-227a (g) directs a comparison of a prior
conviction with the current revision of § 14a-227 (a) (1) or (2), and,
pursuant to the revision of § 14-227a under which the defendant was
charged for his 2016 conduct, there was no requirement that he operate
his vehicle on a public highway or another similar road, as the public
highway element of § 14-227a (a) was eliminated by the legislature in
2006.
e. The defendant’s claim that the statutes are dissimilar because at the
time of his 2000 conviction in Florida, § 14-227a (a) required a blood
alcohol content of at least 0.10 percent, but the Florida statute required
only a blood alcohol content of 0.08 percent, was without merit; as an
enhancement penalty for a repeat offender penalizes only the last offense
committed by a defendant, and, when the defendant was charged in the
present case for his Connecticut conduct, § 14-227a (a) applied to a
blood alcohol content of 0.08 percent or higher, the 0.10 percent element
of § 14-227a (a) having been lowered to 0.08 percent by the legislature
in 2002.
2. This court, as an intermediate court of appeal, was unable to overrule,
reevaluate, or reexamine controlling precedent of our Supreme Court
and, accordingly, declined the defendant’s request to overrule State v.
Burns (236 Conn. 18) and State v. Mattioli (210 Conn. 573) on the basis
that they contravene the plain language of § 14-227 (g).
Argued November 18, 2020—officially released April 20, 2021
Procedural History
Substitute two part information charging the defen-
dant, in the first part, with the crimes of operating a
motor vehicle under the influence of intoxicating liquor
or drugs and operating a motor vehicle while having
an elevated blood alcohol content, and, in the second
part, with previously having been convicted of
operating a motor vehicle while under the influence of
intoxicating liquor or drugs, brought to the Superior
Court in the judicial district of Waterbury, geographical
area number four, where the first part of the information
was tried to the jury before Crawford, J.; verdict of
guilty; thereafter, the defendant was tried to the court,
Crawford, J., on the second part of the information;
judgment of guilty, from which the defendant appealed
to this court. Affirmed.
Joshua R. Goodbaum, for the appellant (defendant).
Tanya K. Gaul, special deputy assistant state’s attor-
ney, with whom, on the brief, were Maureen Platt,
state’s attorney, and LeeAnn S. Neal, assistant state’s
attorney, for the appellee (state).
Opinion
BRIGHT, C. J. The defendant, Wayne A. King, appeals
from the judgment of conviction, rendered by the trial
court following a jury trial, of operating a motor vehicle
while under the influence of intoxicating liquor or drugs
in violation of General Statutes § 14-227a (a) (1) and
(2).1 The defendant claims that (1) the court should not
have sentenced him as a third time offender because
the essential elements of driving under the influence
are not substantially the same in Florida and Connecti-
cut, and (2) State v. Burns, 236 Conn. 18, 670 A.2d 851
(1996), and State v. Mattioli, 210 Conn. 573, 556 A.2d
584 (1989), should be overruled because those cases
contravene the plain language of § 14-227a (g), which
requires that a defendant’s prior convictions, on which
the enhanced penalty relies, occur less than ten years
before the current Connecticut conviction. We disagree
with the defendant’s first claim, and we, as an intermedi-
ary appellate court, are unable to overrule the decisions
of our Supreme Court and, therefore, reject the defen-
dant’s second claim.2 Accordingly, we affirm the judg-
ment of the trial court.
The following facts, as reasonably found by the jury,
and relevant procedural history inform our review of
the defendant’s claims. On April 1, 2016, the Naugatuck
police pulled over the defendant’s vehicle. The defen-
dant smelled of alcohol, so the police transported him
to the police station where the defendant agreed to
take a Breathalyzer test. The defendant’s blood alcohol
content registered at 0.1801 percent and then at 0.1785
percent, both of which were above the legal limit. The
defendant thereafter was charged with a violation of
§ 14-227a (a) (1) and (2). Following a guilty verdict
returned by the jury, the state proceeded on a part B
information, which the defendant elected to have tried
to the court, charging the defendant with being a third
time offender, pursuant to § 14-227a (g), on the basis
of two prior convictions in the state of Florida.3 Despite
the defendant’s objections on various grounds,4 the
court found that the state had established, beyond a
reasonable doubt, that the defendant twice had been
convicted of driving under the influence in Florida and
that the essential elements of the Florida statute; see
Fla. Stat. Ann. § 316.193 (West Supp. 2020);5 were sub-
stantially the same as the essential elements of § 14-
227a (a). Accordingly, the court sentenced the defen-
dant to three years of imprisonment, execution sus-
pended after eighteen months, twelve months of which
is mandatory, followed by three years of probation. This
appeal followed.
I
The defendant claims that his convictions under Fla.
Stat. Ann. § 316.193, ‘‘upon which [his] conviction as a
third time offender is predicated, [do] not satisfy’’ the
requirements of § 14-227a (g) (3), which mandates that
the out-of-state convictions of driving under the influ-
ence, on which the state relies in its part B information,
contain ‘‘substantially the same’’ essential elements as
§ 14-227a (a). He argues that Fla. Stat. Ann. § 316.193
‘‘criminalizes vast amounts of conduct that either are
not illegal in Connecticut now or were not illegal in
Connecticut at the time of [his] Florida arrests. Put
another way, what qualifies as a crime in Florida often
does not in Connecticut. On that basis, convictions
under [Fla. Stat. Ann. § 316.193] do not qualify as prior
convictions under [§ 14-227a (g)] because the essential
elements of the respective crimes are not substantially
the same.’’
More specifically, the defendant argues that the stat-
utes are dissimilar in the following ways: (1) § 14-227a
(a) requires operation, but Fla. Stat. Ann. § 316.193 does
not require operation; (2) § 14-227a (a) requires the
vehicle to be a ‘‘motor vehicle,’’ but Fla. Stat. Ann.
§ 316.193 does not require the vehicle to be motorized;
(3) at the time of the defendant’s June 23, 1999, and
May 16, 2005 ‘‘wrongful conduct’’ in Florida, which
resulted in convictions on March 14, 2000, and October
25, 2006, respectively, § 14-227a (a) required operation
in specified proscribed areas, but Fla. Stat. Ann.
§ 316.193 did not proscribe specific areas; and (4) at
the time of the defendant’s 2000 conviction in Florida,
§ 14-227a (a) required a blood alcohol content of at
least 0.10 percent, but Fla. Stat. Ann. § 316.193 required
a blood alcohol content of only 0.08 percent. See Gen-
eral Statutes (Rev. to 2005) § 14-227a (a); General Stat-
utes (Rev. to 1999) § 14-227a (a). Accordingly, the defen-
dant claims that ‘‘a conviction under [Fla. Stat. Ann.]
§ 316.193 . . . does not qualify as ‘a prior conviction
for the same offense’ under § 14-227a (g) (3) . . . and
[he] is therefore entitled to be resentenced as a first
time offender.’’
‘‘The issue of whether the elements of the [Florida]
and Connecticut statutes under which the defendant
was convicted were substantially the same calls for the
comparison and interpretation of those statutes, which
is a question of law.’’ State v. Commins, 276 Conn. 503,
513, 886 A.2d 824 (2005), overruled on other grounds
by State v. Elson, 311 Conn. 726, 91 A.3d 862 (2014).
Therefore, our review is plenary. Id., 510. ‘‘When inter-
preting a statute, [o]ur fundamental objective is to
ascertain and give effect to the apparent intent of the
legislature. . . . To do so, we first consult the text of
the statute itself and its relationship to other statutes.
If, after examining such text and considering such rela-
tionship, the meaning of such text is plain and unambig-
uous and does not yield absurd or unworkable results,
extratextual evidence of the meaning of the statute shall
not be considered.’’ (Citation omitted; internal quota-
tion marks omitted.) State v. Haight, 279 Conn. 546,
550, 903 A.2d 217 (2006).
A
Before we can compare the statutory language of
the relevant Connecticut and Florida statutes, we must
determine which revision of our General Statutes is
applicable in this case.6 Since the time of the defendant’s
conduct in Florida in 1999 and 2005, the essential ele-
ments of § 14-227a (a) have been revised in two relevant
ways, namely, the legislature eliminated the require-
ment that the operation of a motor vehicle occur on a
‘‘public highway,’’ and the legislature reduced the blood
alcohol content level from 0.10 percent to 0.08 percent.
See Public Acts 2006, No. 06-147, § 1; Public Acts, Spec.
Sess., June, 2002, No. 02-1, § 108.
The defendant argues that the applicable revision of
§ 14-227a (a) is the revision that was in place before
October 1, 2006, ‘‘when both of [his] Florida arrests
occurred . . . .’’ He contends that the use of the cur-
rent statute, rather than the one in existence at the time
of his Florida arrests, would amount to an ex post
facto application of the current statute. Specifically, he
argues: ‘‘In order for the state to increase [his] punish-
ment for his 2018 [Connecticut] conviction on the basis
of his prior wrongful conduct in Florida, that prior con-
duct must have been illegal in Connecticut at the time
it was committed.’’ (Emphasis in original.) The state
argues that the applicable revision of § 14-227a is the
one that was in effect on the date of the defendant’s
Connecticut conduct, namely, April 1, 2016. We agree
with the state.
Initially, we note that the defendant does not claim
that the legislature intended that the revision of § 14-
227a in existence at the time of the Florida offenses
was to apply to the defendant’s sentencing; nor could
he, based on the plain language of the statute. The text
of § 14-227a (g) provides in relevant part that ‘‘[f]or
purposes of the imposition of penalties for a second or
third and subsequent offense . . . a conviction in any
other state of any offense the essential elements of
which are determined by the court to be substantially
the same as subdivision (1) or (2) of subsection (a)
of this section . . . shall constitute a prior conviction
for the same offense.’’ (Emphasis added.) The legisla-
ture clearly has instructed that one must look to the
current revision of § 14-227a (a) (1) or (2) to determine
if the prior conviction in any other state is substantially
the same. Thus, the only question is whether application
of the current revision of § 14-227a (g) to the defen-
dant’s prior conduct in Florida violates the ex post
facto clause.
‘‘The ex post facto clause prohibits, inter alia, the
enactment of any law [that] imposes a punishment for
an act [that] was not punishable at the time it was
committed; or imposes additional punishment to that
then prescribed.’’ (Internal quotation marks omitted.)
State v. Hickey, 80 Conn. App. 589, 593, 836 A.2d 457
(2003), cert. denied, 267 Conn. 917, 841 A.2d 1192
(2004). ‘‘Habitual criminal statutes increase the punish-
ment for an offense because of previous convictions
for other offenses. In McDonald v. Massachusetts, [180
U.S. 311, 21 S. Ct. 389, 45 L. Ed. 542 (1901)], the Supreme
Court held that the ex post facto law clause did not
prevent the imposition of punishment under [a] habitual
criminal statute even though the prior offenses had
been committed prior to its passage. The [c]ourt
explained that the accused was being punished only
for the last offense, which occurred subsequent to the
enactment of the habitual criminal statute. Similarly, a
crime whose definition includes a predicate offense
may be applied to an accused who commits the charged
offense subsequent to the passage of the statute, even
though the predicate offense was committed prior to
the passage of the statute. This principle has also been
applied to acts, as well as crimes, occurring prior to
the passage of the habitual criminal statute. A different
result is reached if the habitual criminal statute was
enacted subsequent to commission of the offense [that]
leads to the charge of habitual criminality.
‘‘The reasoning in McDonald is also applicable to
cases in which an element of the offense is the previous
conviction for the same or different offense. That the
prior offense was committed before the enactment of
the offense for which the accused is prosecuted does
not make the law ex post facto.’’ (Footnotes omitted.)
J. Cook, 1 Constitutional Rights of the Accused (3d Ed.
December 2020) § 1:20.
In Hickey, this court addressed whether an amend-
ment to § 14-227a that extended the ‘‘ ‘look back’ ’’
period for enhancing a defendant’s sentence due to
prior convictions from five years to ten years violated
the ex post facto clause. State v. Hickey, supra, 80 Conn.
App. 592–95. The defendant claimed that the court could
not use convictions of driving under the influence in
1991 and 1994 to enhance his sentence arising from a
conviction for driving under the influence in 2000
because at the time of the earlier convictions the ‘‘ ‘look
back’ ’’ period for prior convictions was only five years.
Id. The defendant claimed that the court’s reliance on
a 1995 amendment to § 14-227a extending the look back
period to ten years violated the ex post facto clause of
the United States constitution because it increased his
punishment for the earlier offenses. Id., 590–91. In
rejecting the defendant’s claim, we explained: ‘‘The
United States Supreme Court has held that a statute
enhancing a defendant’s sentence because he is a repeat
offender does not violate the ex post facto clause even
if one of the convictions on which the sentence is based
occurred before the enactment passage of the statute.
See Gryger v. Burke, 334 U.S. 728, 732, 68 S. Ct. 1256, 92
L. Ed. 1683 (1948). Moreover, the United States Supreme
Court has consistently sustained repeat offender laws
as penalizing only the last offense committed by a defen-
dant. See Nichols v. United States, 511 U.S. 738, 747,
114 S. Ct. 1921, 128 L. Ed. 2d 745 (1994).’’ State v.
Hickey, supra, 593.
We also are guided, as we were in Hickey, by our
Supreme Court’s decision in State v. Holloway, 144
Conn. 295, 300–301, 130 A.2d 562 (1957). In Holloway,
our Supreme Court rejected the defendant’s contention
that his enhanced sentence as a third time offender, on
the basis of convictions that had occurred in 1947 and
1950, under a statute that had been enacted in 1955,
constituted a violation of the ex post facto clause. Id.
The court explained: ‘‘[T]he crucial fact is that [the 1955
statute] does not undertake to provide punishment for
any crime committed prior to the date when it went
into effect. The punishment provided is for a violation
of the . . . law [that] occurs subsequent to the effec-
tive date of the [1955 statute]. The only effect that a
conviction antedating the statute has is to enhance the
penalty to be imposed for a violation of the . . . [1955]
law. The theory of [the 1955 statute] is not that a person
shall be punished a second time for an earlier offense
but that the principal offense for which the person is
being prosecuted under the statute is made more seri-
ous by reason of its being a repetition of an earlier
offense or earlier offenses.’’ Id., 301. Consequently, this
court held in Holloway, ‘‘in no sense does the [1955]
statute operate ex post facto. 16A C.J.S. 161, [Constitu-
tional Law], § 450.’’ State v. Holloway, supra, 301.
Similarly, in the present case, the court’s application
of the current revision of § 14-227a to the defendant
did not enhance his punishment for his prior Florida
convictions. It also did not punish him for conduct
that was not criminal in Connecticut at the time he
committed the Florida offenses. Instead, the court, in
applying the statute as the legislature intended, merely
enhanced his sentence for his current illegal conduct
because it is considered more serious in light of his
earlier offenses in Florida.
On the basis of our clear authority, including the plain
and unambiguous language of § 14-227a (g), as well as
precedent from this court, our Supreme Court, and the
United States Supreme Court, we conclude that the
legislature clearly intended that the applicable revision
of the General Statutes is the one under which the
defendant was charged in this case, namely, the current
revision of § 14-227a, and that application of the current
revision of the statute does not violate the ex post
facto clause.
B
We next set forth the elements of Fla. Stat. Ann.
§ 316.193 and § 14-227a (a), followed by our consider-
ation of each of the defendant’s arguments related to
his claim that the Connecticut and Florida statutes are
not substantially the same.
Fla. Stat. Ann. § 316.193 (West Supp. 2020) provides
in relevant part: ‘‘(1) A person is guilty of the offense
of driving under the influence and is subject to punish-
ment as provided in subsection (2) if the person is
driving or in actual physical control of a vehicle within
this state and: (a) The person is under the influence of
alcoholic beverages, any chemical substance set forth
in s. 877.111, or any substance controlled under chapter
893, when affected to the extent that the person’s nor-
mal faculties are impaired; (b) The person has a blood-
alcohol level of 0.08 or more grams of alcohol per 100
milliliters of blood; or (c) The person has a breath-
alcohol level of 0.08 or more grams of alcohol per 210
liters of breath. . . .’’
Section 14-227a provides in relevant part: ‘‘(a) 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 vehi-
cle while under the influence of intoxicating liquor or
any drug or both if such person operates a motor vehicle
(1) while under the influence of intoxicating liquor or
any drug or both, or (2) while such person has an ele-
vated 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, except that if such person is operating a com-
mercial motor vehicle, ‘elevated blood alcohol content’
means a ratio of alcohol in the blood of such person
that is four-hundredths of one per cent or more of
alcohol, by weight, and ‘motor vehicle’ includes a snow-
mobile and all-terrain vehicle, as those terms are
defined in section 14-379. . . .’’
The defendant argues that the elements of the Florida
and Connecticut statutes are not substantially the same,
meaning ‘‘[they] are not ‘the same’ in their substance.’’
The state argues that the statutes are substantially the
same and that the defendant is comparing the statutes
for exactness, rather than for substantial similarity.
‘‘Black’s Law Dictionary (6th Ed. 1990) defines ‘sub-
stantially’ as ‘[e]ssentially; without material qualifica-
tion; in the main . . . in a substantial manner.’ Like-
wise, ‘substantial’ is defined as, ‘[o]f real worth and
importance; of considerable value; valuable. Belonging
to substance; actually existing; real; not seeming or
imaginary; not illusive; solid; true; veritable. . . . Syn-
onymous with material.’ . . . Thus, the requirement
of a ‘substantial’ association creates a threshold far
below . . . exclusive or complete association . . . .’’
(Citation omitted.) Hartford Electric Supply Co. v.
Allen-Bradley Co., 250 Conn. 334, 359, 736 A.2d 824
(1999). We next consider whether certain elements of
Fla. Stat. Ann. § 316.193 are substantially the same as
the purported corresponding elements of § 14-227a (a).
1
The defendant argues that the statutes are dissimilar
in that § 14-227a (a) requires ‘‘opera[tion]’’ of a motor
vehicle, but Fla. Stat. Ann. § 316.193 does not require
operation of a motor vehicle; it can be satisfied by proof
of ‘‘actual physical control . . . .’’ He contends that
being inside of a vehicle with keys in your hand is
insufficient to support ‘‘operation’’ of a motor vehicle
in Connecticut, but that such conduct is sufficient to
support ‘‘control’’ of a vehicle in Florida. Therefore, he
argues, ‘‘[b]ecause ‘operating’ a vehicle requires more
than being ‘in actual physical control of a vehicle,’ the
essential elements of [§ 14-227a (a)] and [Fla. Stat. Ann.
§ 316.193] are not substantially the same.’’ The state
argues that ‘‘the element of ‘actual physical control’ [in
Fla. Stat. Ann. § 316.193] is substantially the same as
the element of ‘operation’ [in § 14-227a].’’ We agree with
the state.
A review of the case law in Florida reveals that ‘‘the
reasonably capable of being rendered operable stan-
dard is applied when a person is charged with driving
under the influence and claims . . . that . . . he was
not in actual physical control of the vehicle. For exam-
ple, if a person is found passed out behind the steering
wheel of a vehicle with the keys either in the ignition
or on the floor of the vehicle, he may be found guilty
of violating [Fla. Stat. Ann. § 316.193] because he is in
actual physical control of a vehicle which can readily be
made operational. See State, Dept. of Highway Safety &
Motor Vehicles v. Prue, 701 So. 2d 637 (Fla. [App.] 1997)
(conviction upheld for being in actual physical control
while under the influence where a defendant was found
passed out in a vehicle on the shoulder of a highway,
with her face resting on the steering wheel and the keys
either in the ignition or on the floor of the vehicle,
because she could have used the keys to start the vehi-
cle and drive away); Baltrus v. State, 571 So. 2d 75 (Fla.
[App.] 1990) (upholding the reversal of a motion to
dismiss where the defendant was found passed out and
slumped over the steering wheel of his car, with the
keys to the car in his hands); Fieselman v. State, 537
So. 2d 603 (Fla. [App.] 1988) (finding that the trial court
erred by dismissing a charge of being in actual physical
control of a vehicle while under the influence, where
the defendant was found lying down, asleep in the front
seat of his automobile, with the engine off but with the
keys in the ignition, explaining that the presence of
the keys in the ignition led to the inference that the
defendant could have started the automobile and have
driven away at any time); Griffin v. State, 457 So. 2d
1070, 1072 (Fla. [App.] 1984) (affirming a conviction
based upon actual physical control where the defendant
was in the driver’s seat of a car that was stationary in
the roadway with the keys in the ignition and the lights
on, finding that, since the defendant had placed himself
behind the wheel of the vehicle and could have at any
time started the automobile and driven away, he was
in actual physical control of the vehicle).’’ (Internal
quotation marks omitted.) Hughes v. State, 943 So. 2d
176, 194–95 (Fla. App. 2006), review denied, 959 So. 2d
716 (Fla. 2007); see Cloyd v. State, 943 So. 2d 149, 168
(Fla. App. 2006), review denied, 959 So. 2d 715 (Fla.
2007); see also In re Standard Jury Instructions in
Criminal Cases–Report No. 2016-08, 211 So. 3d 995,
998 app. (Fla. 2017) (jury instruction set forth in appen-
dix provides that ‘‘ ‘[a]ctual physical control of a vehicle’
means the defendant must be physically in [or on] the
vehicle and have the capability to operate the vehicle,
regardless of whether [he] [she] is actually operating
the vehicle at the time’’).
In Connecticut, the definition of ‘‘operating’’ in § 14-
227a (a) has been derived from our case law. Our case
law has established that ‘‘the term operating encom-
passes a broader range of conduct than does [the term]
driving.’’ (Internal quotation marks omitted.) State v.
Cyr, 291 Conn. 49, 57, 967 A.2d 32 (2009). ‘‘Neither
§ 14-227a nor any related statute defines operation of
a motor vehicle. It is undisputed that the word
‘operating’ as used in [General Statutes] § 14-227b has
the same meaning that it does in § 14-227a. The defini-
tion was formulated many years ago: Our Supreme
Court . . . approved the following jury instruction in
State v. Swift, 125 Conn. 399, 402–403, 6 A.2d 359 (1939):
‘[T]he statute [in question] refers to persons who shall
operate a motor vehicle, and is not confined to persons
who shall drive a motor vehicle. A person operates a
motor vehicle within the meaning of this statute, when
in the vehicle he intentionally does any act or makes
use of any mechanical or electrical agency which alone
or in sequence will set in motion the motive power of
the vehicle.’
‘‘The definition [later] was refined in [State v. Ducatt,
22 Conn. App. 88, 90–91, 575 A.2d 708 (1990)] where the
defendant was unconscious or sleeping in his parked,
running vehicle with his arm wrapped around the steer-
ing wheel and his fingers curled around the gear shift
lever. ‘[T]he controls of a car capable of immediate
powered movement are under the control of an intoxi-
cated motorist, which is precisely the evil the legislature
sought to avoid through [§] 14-227a (a). We conclude,
therefore, that the statute does not require the state to
prove that the defendant intended to move the vehicle
in order to prove operation under [§] 14-227a (a).’
‘‘The court [in Ducatt] concluded: ‘An accused oper-
ates a motor vehicle within the meaning of . . . § 14-
227a (a) when, while under the influence of alcohol or
any drug and while in the vehicle and in a position to
control its movements, he manipulates, for any purpose,
the machinery of the motor or any other machinery
manipulable from the driver’s position that affects or
could affect the vehicle’s movement, whether the
accused moves the vehicle or not.’ [State v. Ducatt,
supra, 22 Conn. App. 93].’’ (Footnotes omitted.) S.
Tomeo & J. Sills, 21 Connecticut Practice Series: Con-
necticut [Driving Under the Influence] Law (2020 Ed.)
§ 8:3, pp. 215–16.
‘‘ ‘Nothing in our definition of ‘‘operation’’ requires
the vehicle to be in motion or its motor to be running.’
State v. Haight, [supra, 279 Conn. 552]. ‘It is well settled
that operating encompasses a broader range of conduct
than does driving. . . . [T]here is no requirement that
the fact of operation be established by direct evidence.’
. . . State v. Sienkiewicz, 162 Conn. App. 407, 410,
131 A.3d 1222, cert. denied, 320 Conn. 924, 134 A.3d
621 (2016). ‘Operation occurs when a person in the
vehicle intentionally does any act or makes use of any
mechanical or electrical agency which alone or in
sequence will set in motion the motive power of the
vehicle. . . . This court has clarified the meaning of
operation by holding that an intent to drive is not an
element of operation. . . . An accused operates a
motor vehicle within the meaning of . . . § 14-227a (a)
when, while under the influence of alcohol or any drug
and while in the vehicle and in a position to control
its movements, he manipulates, for any purpose, the
machinery of the motor or any other machinery manipu-
lable from the driver’s position that affects or could
affect the vehicle’s movement, whether the accused
moves the vehicle or not.’ ’’ State v. Smith, 179 Conn.
App. 734, 748–49, 181 A.3d 118, cert. denied, 328 Conn.
927, 182 A.3d 637 (2018).
Statutory prohibitions regarding driving while under
the influence ‘‘are preventive measure[s] . . . [that]
deter individuals who have been drinking intoxicating
liquor from getting into their vehicles, except as passen-
gers . . . and which enable the drunken driver to be
apprehended before he strikes . . . .’’ (Internal quota-
tion marks omitted.) State v. Cyr, supra, 291 Conn. 61;
id., 58 (defendant who remotely started vehicle and
then sat in driver’s seat met definition of ‘‘operation’’
even though he had not put key in ignition and car was
not capable of moving without key). ‘‘When an obstacle
or impediment [to driving the vehicle] is temporary
. . . it remains possible that it can be surmounted, and
that movement of the vehicle will ensue.’’ Id., 60.
The defendant argues that these definitions show that
the two statutes are not substantially the same because
in Florida one can be convicted simply because he was
in a position to operate the machinery of the vehicle,
whereas in Connecticut one can be convicted only if
he actually operated said machinery. We are not per-
suaded.
First, the defendant’s argument requires that the ele-
ments of the offenses be identical. That is not the proper
test. Second, in examining the manner in which Florida
courts have applied the actual physical control element
and the manner in which Connecticut courts have
applied the operation element, it is clear that both stat-
utes criminalize substantially the same conduct. As
noted previously in this opinion, Florida courts regu-
larly have held that one who is sitting in the driver seat
of his vehicle with the keys to the vehicle in his hand,
or within reach, is in actual physical control of the
vehicle because he is in a position to turn on the ignition
immediately and drive the vehicle. At the same time,
at least one case in the District Court of Appeal of
Florida has held that ‘‘sleeping in a prone position in
the front seat of a vehicle parked in a parking lot, the
engine of which is not running, is not itself sufficient
to establish actual physical control of the vehicle’’ if
the key to the vehicle is not in the ignition. Fieselman
v. State, supra, 537 So. 2d 606. The court concluded
that such evidence was insufficient for ‘‘a legitimate
inference to be drawn that [the] defendant had of his
own choice placed himself behind the wheel [of the
vehicle], and had either started the motor or permitted
it to run.’’ (Internal quotation marks omitted.) Id.
Thus, the manner in which Florida courts have inter-
preted actual physical control is substantially the same
as the manner in which our Supreme Court has defined
operation—a conviction can be based on the driver
sitting in the driver seat and placing the key in the
ignition, even though the vehicle is not yet operative,
because the driver is in a position to turn on the ignition
immediately and drive the vehicle. Both statutes are
aimed at preventing the same conduct. As our Supreme
Court has noted: ‘‘[T]he threat targeted by statutes disal-
lowing not just driving, but also operating a motor vehi-
cle while intoxicated—that is, ‘the danger that a parked
vehicle will be put in motion by an intoxicated occupant
and thereby pose a risk to the safety of the occupant and
others’—remains present when the condition rendering
the vehicle inoperable is a temporary one that quickly
can be remedied. State v. Adams, 142 Idaho 305, 308,
127 P.3d 208 ( App. 2005), review denied, 2005 Idaho
Lexis 206 (June 8, 2005).’’ State v. Cyr, supra, 291 Conn.
60. Significantly, our Supreme Court relied on Adams
even though the statute the court had to apply in that
case, like the Florida statute at issue in the present case,
criminalized the actual physical control of a vehicle by
a person under the influence of drugs or alcohol.
Similarly, in State v. Haight, supra, 279 Conn. 553–54,
our Supreme Court, in comparing our driving under the
influence statute with those of other states, treated the
operation requirement of § 14-227a as the equivalent
of the actual physical control element in other states’
statutes. See id., 553 (‘‘[n]umerous courts in other juris-
dictions have concluded that a motorist who is found
sleeping or unconscious in a stationary vehicle with the
motor not running violates the applicable prohibition
on operating or being in actual physical control of a
motor vehicle while intoxicated or under the influence
of intoxicating liquor or drugs’’). Furthermore, our
Supreme Court in Cyr found that the defendant’s con-
duct met the operation requirement of § 14-227a even
though, after the defendant started his vehicle remotely,
the key still needed to be inserted into the ignition to
make the vehicle operative. State v. Cyr, supra, 291
Conn. 61. As was the circumstance in the Florida cases
we have cited, as well as in the Adams case, the focus
of our Supreme Court has been on the fact that the
defendant was in position to overcome a temporary
obstacle to making the vehicle operative by taking an
immediate step while he was in the driver’s seat behind
the steering wheel. See id.
Finally, we note that at least one other state appellate
court has considered and rejected an almost identical
argument to that made by the defendant in this case.
In State v. Slyter, Docket No. 102,732, 2010 WL 4977154
(Kan. App. November 19, 2010) (unpublished opinion),7
review denied (Kan. February 15, 2011), the defendant
was convicted of operating his bicycle under the influ-
ence of drugs or alcohol. His sentence was enhanced
due to three prior driving under the influence convic-
tions, including one in Florida. Id., *1. The applicable
part of the Kansas statute defined a prior conviction
as ‘‘ ‘being convicted of a violation of a law of another
state . . . which prohibits the acts that this section
prohibits.’ ’’ Id. The defendant argued that the Florida
conviction was not a prior conviction under the statute
because ‘‘a person could be convicted under the Florida
statute for merely being in ‘actual physical control’ of
a vehicle while intoxicated, while [the Kansas statute]
is limited to persons who ‘operate or attempt to operate’
a vehicle while intoxicated.’’ Id., *2. Comparing a Kansas
case, which found that having a key in the ignition and
sitting in the driver’s seat constituted attempting to
operate under Kansas’ statute, with the Florida cases
cited previously in this opinion, the Court of Appeals
of Kansas concluded that the defendant’s Florida con-
viction could be used to enhance his sentence because
both statutes criminalized substantially the same acts.
Id., *2–4.
For all of the foregoing reasons, we conclude that
the ‘‘operation’’ element in § 14-227a (a) is substantially
the same as the ‘‘actual physical control’’ element in
Fla. Stat. Ann. § 316.193.
2
The defendant next argues that the statutes are dis-
similar because § 14-227a (a) requires the vehicle to be
a ‘‘motor vehicle,’’ but Fla. Stat. Ann. § 316.193 does
not require the vehicle to be motorized. He contends
that ‘‘Florida courts have straightforwardly concluded
that ‘vehicle’ includes not just an automobile, but also
a bicycle or a nonmotorized boat. See State v. Howard,
510 So. 2d 612, 612 (Fla. App. 1987) (affirming [driving
under the influence] charge under [Fla. Stat. Ann.]
§ 316.193 for operation of bicycle while intoxicated, and
reasoning that ‘[t]his section contemplates applicability
to all ‘‘vehicles’’ since it is not limited to ‘‘motor vehi-
cles,’’ as are many of the other statutes dealing with
driving while under the influence’); State v. Davis, 110
So. 3d 27, 32 n.9 (Fla. App. 2013) (holding that ‘boating
under the influence’ under Florida law applies to opera-
tion of nonmotorized vessels, and citing with approval
Howard’s holding that bicycles qualify as ‘vehicles’
under [Fla. Stat. Ann.] § 316.193).’’ The state argues that
the definition of ‘‘vehicle’’ in Florida substantially is the
same as the definition of ‘‘motor vehicle’’ in Connecticut
in that ‘‘both statutes cover vehicles used on a highway’’
regardless of whether they are motorized. We agree
with the state.
Pursuant to Fla. Stat. Ann. § 316.003 (75) (West 2005),
a vehicle is defined as: ‘‘[e]very device, in, upon, or by
which any person or property is or may be transported
or drawn upon a highway, excepting devices used exclu-
sively upon stationary rails or tracks.’’8 Florida’s driving
under the influence statute, Fla. Stat. Ann. § 316.193,
applies to nonmotorized vehicles as well as motorized
vehicles. See State v. Howard, supra, 510 So. 2d 612–13.
General Statutes § 14-212 (5) defines ‘‘[m]otor vehi-
cle’’ as ‘‘all vehicles used on the public highways . . . .’’
Section 14-212 further provides that ‘‘ ‘[v]ehicle’ has the
same meaning as ‘motor vehicle.’ ’’ General Statutes
§ 14-212 (10).
In State v. Fontaine, 112 Conn. App. 190, 962 A.2d
197, cert. denied, 290 Conn. 921, 966 A.2d 238 (2009),
this court, relying on our Supreme Court’s decision in
State v. Knybel, 281 Conn. 707, 916 A.2d 816 (2007),
explained that the statutory definition contained in § 14-
212 (5) is much broader than that contained in General
Statutes § 14-1.9 ‘‘[T]he definition of ‘motor vehicle’ in
chapter 248, when read in the context of the General
Statutes as a whole, not only suggests a broad definition
of the term ‘motor vehicle’ for purposes of chapter 248
but also that all ‘vehicles’ in the various chapters of the
General Statutes are included within that term. . . .
Whether a vehicle is wholly self-propelled does not
change whether it is a ‘vehicle,’ and thus a ‘motor vehi-
cle,’ for the purposes of chapter 248; per § 14-212 (5),
any vehicle that is driven on the public highways is a
‘motor vehicle’ under chapter 248.’’ (Citations omitted.)
State v. Fontaine, supra, 112 Conn. App. 201. As we
noted in Fontaine, § 14-227a, under which the defen-
dant in the present case was charged, is included in
chapter 248 of our General Statutes.
Employing the broad definition set forth in § 14-212
(5), we conclude that neither § 14-227a (a) nor Fla. Stat.
Ann. § 316.193 requires the vehicle to be motorized.
Accordingly, these statutes are substantially the same
in their definitions of ‘‘vehicle’’ and ‘‘motor vehicle’’ for
purposes of Fla. Stat. Ann. § 316.193 and § 14-227a (a).
3
The defendant next argues that the statutes are dis-
similar because, at the time of his June 23, 1999, and
May 16, 2005 ‘‘wrongful conduct’’ in Florida, which
resulted in convictions in Florida on March 14, 2000,
and October 25, 2006, § 14-227a (a) required operation
in specified proscribed areas, but Fla. Stat. Ann.
§ 316.193 did not proscribe specific areas. More specifi-
cally, the defendant argues that, ‘‘[i]n order for the state
to increase [his] punishment for his 2018 conviction on
the basis of his prior wrongful conduct in Florida, that
prior conduct must have been illegal in Connecticut at
the time it was committed. . . . To establish a violation
of § 14-227a before 2006, the state had to prove that
the defendant’s operation of a motor vehicle under the
influence occurred ‘on a public highway’ or another
similar road.’’ Under Florida law, he argues, there was
no such requirement that his conduct occur on a public
highway or another similar road. The defendant’s argu-
ment is without merit because it rests on a flawed
premise.
As we explained in part I A of this opinion, § 14-227a
(g) directs a comparison of the prior conviction with
the current revision of § 14-227a (a) (1) or (2). Further-
more, a conviction under a new or revised statute does
not result in a second punishment merely because an
enhancement is applied that was based on a prior con-
viction. See State v. Hickey, supra, 80 Conn. App. 589.
‘‘The United States Supreme Court has held that a stat-
ute enhancing a defendant’s sentence because he is a
repeat offender does not violate the ex post facto clause
even if one of the convictions on which the sentence
is based occurred before the enactment passage of the
statute. See Gryger v. Burke, [supra, 334 U.S. 732].’’
State v. Hickey, supra, 593. Repeat offender laws penal-
ize only the last offense committed by a defendant. Id.;
see Nichols v. United States, supra, 511 U.S. 747; see
also State v. Holloway, supra, 144 Conn. 300–301.
Pursuant to the revision of § 14-227a (a), under which
the defendant was charged for his April 1, 2016 conduct,
there was no requirement that he operate his vehicle
on a public highway or another similar road. The public
highway element of § 14-227a was eliminated by the
legislature in 2006. See Public Acts 2006, No. 06-147,
§ 1. Accordingly, the defendant’s claim has no merit.
4
The defendant next argues that the statutes are dis-
similar because, at the time of his 2000 conviction in
Florida, § 14-227a (a) required a blood alcohol content
of at least 0.10 percent, but Fla. Stat. Ann. § 316.193
required a blood alcohol content of only 0.08 percent.
For the reasons previously stated, the premise of this
claim also is flawed. See parts I A and I B 3 of this
opinion.
An enhancement penalty for a repeat offender penal-
izes only the last offense committed by a defendant.
See Nichols v. United States, supra, 511 U.S. 747; State
v. Hickey, supra, 80 Conn. App. 593; see also State v.
Holloway, supra, 144 Conn. 300–301. When the defen-
dant was charged in the present case for his Connecticut
conduct, § 14-227a (a) applied to a blood alcohol con-
tent of 0.08 percent or greater. The 0.10 percent element
of § 14-227a was lowered to 0.08 percent by the legisla-
ture in 2002. See Public Acts, Spec. Sess., June, 2002,
No. 02-1, § 108. Accordingly, this claim is without merit.
II
The defendant next claims that State v. Burns, supra,
236 Conn. 18, and State v. Mattioli, supra, 210 Conn.
573, should be overruled because the plain language of
§ 14-227a (g) requires that all of the defendant’s previ-
ous convictions on which the enhanced penalty relies
occur within ten years of the current Connecticut con-
viction. In Burns, our Supreme Court held that the
prior convictions just had to be within five10 years of
the defendant’s conduct that resulted in the conviction
on which his sentence was enhanced. State v. Burns,
supra, 236 Conn. 26. In Mattioli, the Supreme Court
held that only the defendant’s last conviction before
the conviction at issue had to have occurred within the
statutory look back period. State v. Mattioli, supra, 210
Conn. 576.
‘‘[A]s an intermediate court of appeal, we are unable
to overrule, reevaluate, or reexamine controlling prece-
dent of our Supreme Court. . . . As our Supreme Court
has stated: [O]nce this court has finally determined an
issue, for a lower court to reanalyze and revisit that
issue is an improper and fruitless endeavor.’’ (Internal
quotation marks omitted.) State v. Edwards, 202 Conn.
App. 384, 410, A.3d , cert. denied, 336 Conn. 920,
A.3d. (2021).
The judgment is affirmed.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
The defendant waived his right to a jury trial as to the part B information
under which he also was charged, and the court enhanced the defendant’s
sentence as a third time offender on the basis of two prior convictions in
the state of Florida.
2
Although § 14-227a has been amended by the legislature since the events
underlying the present case; see Public Acts 2016, No. 16-126, § 4; that
amendment has no bearing on the merits of this appeal. In the interest of
simplicity, we refer to the current revision of the statute.
In his appellate brief, the defendant recognizes that we are ‘‘foreclosed
by controlling authority.’’ See Stuart v. Stuart, 297 Conn. 26, 45–46, 996
A.2d 259 (2010) (‘‘it is manifest to our hierarchical judicial system that [the
Supreme Court] has the final say on matters of Connecticut law and that
the Appellate Court . . . [is] bound by [its] precedent’’); State v. Smith,
107 Conn. App. 666, 684, 946 A.2d 319 (‘‘[w]e are not at liberty to overrule
or discard the decisions of our Supreme Court but are bound by them’’)
(internal quotation marks omitted)), cert. denied, 288 Conn. 902, 952 A.2d
811 (2008). He raises his second claim only to preserve it for review by our
Supreme Court. See part II of this opinion.
3
General Statutes § 14-227a (g) provides in relevant part: ‘‘For purposes
of the imposition of penalties for a second or third and subsequent offense
. . . a conviction in any other state of any offense the essential elements
of which are determined by the court to be substantially the same as subdivi-
sion (1) or (2) of subsection (a) of this section . . . shall constitute a prior
conviction for the same offense.’’
4
The defendant also filed a motion for a judgment of acquittal.
5
The defendant and the state agree that Fla. Stat. Ann. § 316.193 has
not undergone any significant changes since the time of the defendant’s
convictions. Accordingly, we employ the current revision of that statute.
6
See footnote 5 of this opinion.
7
The decision in Slyter was an unpublished disposition. ‘‘Pursuant to
Kansas Supreme Court Rule 7.04 (f), unpublished opinions are not preceden-
tial and are not favored for citation. They may be cited for persuasive
authority on a material issue not addressed by a published Kansas appellate
court opinion.’’ State v. Slyter, supra, 2010 WL 4977154, *1. Because we
were unable to locate any published opinions of a Kansas appellate court
on this issue, we cite Slyter as persuasive authority.
8
The definition of ‘‘vehicle,’’ pursuant to Fla. Stat. Ann. § 316.003, has
been revised slightly. The revised definition is: ‘‘Every device in, upon, or
by which any person or property is or may be transported or drawn upon
a highway, except personal delivery devices, mobile carriers, and devices
used exclusively upon stationary rails or tracks.’’ Fla. Stat. Ann. § 316.003
(103) (West Supp. 2020).
9
Relying on this court’s decision in State v. Young, 186 Conn. App. 770,
794, 201 A.3d 439, cert. denied, 330 Conn. 972, 200 A.3d 1151 (2019), the
defendant argues in his principal brief that the statutory definition of ‘‘motor
vehicle’’ found in § 14-1 is applicable in this case. In his reply brief, the
defendant concedes that § 14-212 is, in fact, the applicable statutory section
in this case. In Young, this court was not asked to decide whether the
definition in § 14-212 or that in § 14-1 was applicable. Consequently, we
attach no significance to the fact that the court referred only to § 14-1. See
id. Instead, we agree with the parties that the definition of motor vehicle
in § 14-212 controls the resolution of the defendant’s claim.
10
When Burns was decided, the statutory look back period was only five
years. The defendant does not dispute that the holding in Burns applies to
the current ten year look back period, and this court has so held. See State
v. Tenay, 156 Conn. App. 792, 799, n.5, 114 A.3d 931 (2015).