Summary
holding that General Statutes of Connecticut § 14–227a(h), which provides enhanced penalties for a third conviction of driving under the influence of alcohol "within five years after a prior conviction," applied to the defendant's third conviction even though only one of his two prior convictions occurred "within five years" of his present offense
Summary of this case from People v. GriegoOpinion
(13501)
Convicted of the crime of operating a motor vehicle while under the influence of liquor and of being a third offender pursuant to the statute ( 14-227a [h] [3]) providing for enhanced penalties for subsequent convictions of that crime occurring within five years after a prior conviction, the defendant appealed. He claimed that he could not be charged as a third offender because his third conviction did not occur within five years of his first conviction. Held that the trial court did not err in determining that the language of 14-227a (h)(3) which speaks of a third conviction within five years of a prior conviction does not require that the third Conviction be within five years of all prior convictions.
Argued February 7, 1989
Decision released April 4, 1989
Information charging the defendant, in the first part, with the crime of operating a motor vehicle while under the influence of liquor and, in the second part, with having twice previously been convicted of operating a motor vehicle while under the influence, brought to the Superior Court in the judicial district of Stamford-Norwalk, geographical area number one, where the court, Lewis, J., denied the defendant's motion to dismiss the third offender charge; thereafter, the case was presented to the court, West, J., on a plea of nolo contendere; judgment of guilty, from which the defendant appealed. No error.
Norton P. Feinstein, with whom was Lionel A. DeSilva, for the appellant (defendant).
John O'Meara, deputy assistant state's attorney, with whom, on the brief, were Eugene Callahan, state's attorney, and Steven Weiss, assistant state's attorney, for the appellee (state).
General Statutes 14-227a (h)(3), provides enhanced penalties for a third conviction of driving under the influence of alcohol "within five years after a prior conviction." The dispositive issue in this appeal is whether these enhanced penalties apply to the third conviction of a defendant when only one of his two prior convictions occurred "within five years" of his present conviction. We conclude that they do.
General Statutes (Rev. to 1987) 14-227a (h)provides in part: "PENALTIES FOR OPERATION WHILE UNDER THE INFLUENCE. Any person who violates any provision of subsection (a) of this section shall . . . (3) for conviction of a third violation within five years after a prior conviction for the same offense, be fined not less than one thousand dollars nor more than four thousand dollars and imprisoned not more than two years, one hundred twenty days of which may not be suspended or reduced in any manner, and have his motor vehicle operator's license or nonresident operating privilege suspended for three years . . . . For purposes of the imposition of penalties for a second, third or fourth and subsequent offense pursuant to this subsection, a conviction under the provisions of subsection (a) of section 14-227a in effect on October 1, 1981, or as amended thereafter, and a conviction under the provisions of either subdivision (1) or (2) of subsection (a) of this section shall constitute a prior offense." General Statutes (Rev. to 1987) 14-227a (a) provides: "OPERATION WHILE UNDER THE INFLUENCE. No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. A person commits the offense of operating a motor vehicle while wider the influence of intoxicating liquor or any drug or both if he operates a motor vehicle on a public highway of this state or on any road of a district organized under the provisions of chapter 105, a purpose of which is the construction and maintenance of roads and sidewalks, or on any private road on which a speed limit has been established in accordance with the provisions of section 14-218a, or in any parking area for ten or more cars or on any school property (1) while under the influence of intoxicating liquor or any drug or both or (2) while the ratio of alcohol in the blood of such person is ten-hundredths of one per cent or more of alcohol, by weight."
We note that General Statutes 14-227a (h)(3) deals only with the enhancement of penalties and does not affect the statute of limitations for violations of 14-227a.
The defendant was arrested on November 27, 1987, and charged with driving under the influence of alcohol pursuant to General Statutes 14-227a. The defendant pleaded not guilty. On March 14, 1988, the state filed a second part to the information, charging the defendant with being a third offender pursuant to 14-227a (h)(3). The defendant had previously been convicted of violating 14-227a on March 14, 1983, and on October 11, 1983. On March 17, 1988, the defendant filed a motion to dismiss the state's allegation of a third offense, which the trial court denied. The defendant subsequently entered a plea of nolo contendere to both parts of the information, conditioned on his right to appeal from the denial of his motion to dismiss the second part of the information. He was sentenced to a term of one year imprisonment, suspended after 120 days, and three years probation, was ordered to participate in an alcohol treatment program and was fined $1000. From this judgment, the defendant appeals. The underlying facts are not at issue. The defendant contends that he could not be charged as a third offender pursuant to 14-227a (h)(3) because his third conviction for violating 14-227a did not occur within five years of his first conviction for violating the statute. The trial court held, however, in support of the state's position to the contrary, that the language of 14-227a (h)(3), which speaks of a third conviction "within five years of a prior conviction" (emphasis added), does not require that the third conviction be within five years of all prior convictions. We agree with the trial court.
Our interpretation of the requirements of 14-227a (h)(3) is informed by "well defined principles of statutory interpretation that require us to ascertain and give effect to the apparent intent of the legislature." State v. Blasko, 202 Conn. 541, 553, 522 A.2d 753 (1987); Rhodes v. Hartford, 201 Conn. 89, 93, 513 A.2d 124 (1986); see Capalbo v. Planning Zoning Board of Appeals, 208 Conn. 480, 486, 547 A.2d 528 (1988); State v. Champagne, 206 Conn. 421, 428, 538 A.2d 193 (1988); State v. Kozlowski, 199 Conn. 667, 673, 509 A.2d 20 (1986) (interpreting effect of amendment of 14-227a); 2A J. Sutherland, Statutory Construction (4th Ed. Sands 1984) 45.05. To determine the intent of the legislature, we first consider whether the statutory language "yields a plain and unambiguous resolution." State v. Champagne, supra; Rhodes v. Hartford, supra; see State v. Kozlowski, supra, 673-74. "If the words are clear and unambiguous, `it is assumed that [they] express the intention of the legislature'; Mazur v. Blum, 184 Conn. 116, 118-19, 441 A.2d 65 (1981); and we need inquire no further. Hayes v. Smith, [ 194 Conn. 52, 58, 480 A.2d 425 (1984)]; Doe v. Manson, [ 183 Conn. 183, 186, 438 A.2d 859 (1981)]." State v. Kozlowski, supra, 674; see also 2A J. Sutherland, supra, 48.01. The words of a statute must be "interpreted according to their ordinary meaning unless their context dictates otherwise." Nichols v. Warren, 209 Conn. 191, 196, 550 A.2d 309 (1988); State v. Burney, 189 Conn. 321, 326, 455 A.2d 1335 (1983). If the language is ambiguous, the ambiguity is "normally resolved by turning for guidance to the legislative history and the purpose the statute is to serve." State v. Champagne, supra; see also Capalbo v. Planning Zoning Board of Appeals, supra; State v. Kozlowski, supra, 673.
The language of 14-227a (h)(3), interpreted according to the ordinary meaning of its words, plainly states that it applies to a "conviction of a third violation within five years after a prior conviction . . . ." There is no dispute that this is the defendant's third conviction for violating 14-227a. It is also undisputed that this third conviction occurred within five years of a previous conviction, on October 11, 1983, for violating 14-227a. The most recent conviction is, therefore, a "conviction of a third violation within five years after a prior conviction"that subjects the defendant to the enhanced penalties provided by 14-227a (h)(3).
It is unnecessary to determine whether the language means that the period runs from conviction to conviction or from conviction to violation. Both the violation and the conviction for the third violation occurred within five years of the second conviction.
This interpretation of 14-227a (h)(3) finds further support in the final sentence of 14-227a (h), which defines the prior offenses that may give rise to enhanced penalties. The final sentence states that conviction for violating the "provisions of subsection (a) of section 14-227a in effect on October 1, 1981, or as amended thereafter . . . shall constitute a prior offense" for the purposes of 14-227a. (Emphasis added.) The defendant's 1983 conviction for violation of 14-227a clearly falls within this statutory definition of a "prior offense" for the purposes of 14-227a (h)(3).
See footnote 1, supra.
We note, furthermore, that to the, extent that the scope of 14-227a (h) could be considered ambiguous, our interpretation is consistent with the statute's legislative history and purpose. To determine legislative intent, "it is often useful to examine the title of a proposed bill; Cairns v. Shugrue, [ 186 Conn. 300, 308, 441 A.2d 185 (1982)]; and the purpose the legislature intended to accomplish by its enactment. Dukes v. Durante, [ 192 Conn. 207, 214, 471 A.2d 1368 (1984)] . . . ." State v. Kozlowski, supra, 678. Significantly, Public Acts 1985, No. 85-387, which amended 14-227a in 1985 to incorporate the language at issue in this case, was entitled "An Act Increasing Imprisonment Penalties for Drunk Driving to Meet the Federal Standards." Although the legislative history does not expressly address the statute's five year period, this provision was part of a statutory package that enhanced mandatory minimum sentences for both first and multiple offenders and increased penalties for each successive offense. In enacting Public Acts 1985, No. 85-387 so as to amend 14-227a, the legislature clearly intended to provide harsher penalties for offenders with a history of driving while under the influence.
The only reference to the five year time limit occurred during the House of Representatives proceedings. Representative Richard D. Tulisano referred to the five year limit in response to a comment voicing concern regarding prison overcrowding. See 28 H.R. Proc., Pt. 19, 1985 Sess., pp. 7039-40.
The defendant's principal response to this straightforward interpretation of 14-227a (h)is that such an interpretation would allow the "irrational and bizarre result that a person can be a `third' offender without ever being a `second' offender." We recognize that, under our interpretation, an enhanced penalty might follow despite a lengthy interval between a first and second conviction, if a third conviction came on the heels of the second. We are unpersuaded that this result is either irrational or bizarre. As written, 14-227a (h)(3) allows a person to be adjudged a third offender only after three convictions for violation of the statute. The statute makes the fact of a prior second conviction, rather than the status of being a prior second offender, the touchstone for an enhanced penalty. The legislature was free to make such a choice.
The defendant also contends that the statute is ambiguous and vague. A statute must be sufficiently clear to give fair notice of the conduct that it forbids. State v. Tyson, 195 Conn. 326, 332, 487 A.2d 1091 (1985); see United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 98 L.Ed. 989 (1954). Honest disagreement about the interpretation of a statutory provision does not, however, make the statute ambiguous or vague. Because 14-227a (h) clearly provides an enhanced penalty for a violation of 14-227a within five years of a second conviction for violation of that section, this argument is without merit.
The defendant's final attack on our interpretation of 14-227a (h)relies on the principle that penal statutes must be strictly construed against the state and liberally construed in favor of the accused. While we agree with this principle; State v. Champagne, supra, 430; State v. Belton, 190 Conn. 496, 505, 461 A.2d 973 (1983); under any reasonable rule of construction, we conclude that the legislature could and did provide for an enhanced penalty for repeated violations of 14-227a. The legislature was not obligated to limit the time period during which a first offense might be considered relevant to the sanctions imposed for a third violation of the statute. In the related case of enhanced penalties for persistent dangerous felony offenders, the legislature likewise authorized increased sanctions for prior misconduct without a time limitation for the earlier conviction. General Statutes 53a-40 (a). Accordingly, we hold that this defendant's conduct fell within the ambit of 14-227a (h)(3) and his motion to dismiss the third offender charge against him was properly denied.
General Statutes 53a-40 (a) provides in relevant part: "A persistent dangerous felony offender is a person who (1) stands convicted of manslaughter, arson, kidnapping . . . and (2) has been, prior to the commission of the present crime, convicted of and imprisoned, under a sentence to a term of imprisonment of more than one year or of death, in this state or in any other state or in a federal correctional institution for any of the following crimes . . . (B) prior to October 1, 1975, any of the crimes enumerated in section 53a-72 . . . or prior to October 1, 1971, in this state, assault with intent to kill under section 54-117, or any of the crimes enumerated in sections 53-9 . . . or any predecessor statutes in this state, or an attempt to commit any of said crimes . . . . (Emphasis added.)