ADAM STASH v. COMMISSIONER OF MOTOR VEHICLES, SC 18534;

JAMES R. MARSH, III, COMMISSIONER OF MOTOR VEHICLES, SC 18535

Judicial District of New Britain

 Administrative Appeal; License Suspension for Elevated Blood Alcohol Content; Whether a Device that Produces a Weight-to-Volume Measurement of Alcohol in the Blood can Properly be used to Establish Elevated Blood Alcohol Content. Adam Stash and James Marsh were arrested for operating a motor vehicle under the influence of alcohol in violation of General Statutes § 14-227a (the criminal statute).  A breath alcohol test was administered to each plaintiff using the Intoxilyzer 5000 EN.  Because the test results revealed that each plaintiff had an elevated blood alcohol content, the plaintiffs' licenses were suspended under General Statutes § 14-227b (the implied consent statute).  The plaintiffs appealed their license suspensions to the Superior Court, claiming that the Intoxilyzer breath test produced only a weight-to-volume measurement of alcohol, and not a weight-to-weight measurement, as required by § 14-227a (a) and § 14-227b (o).   Under both statutes, the definition of elevated blood alcohol content is based on "alcohol by weight."  The court dismissed the appeals.  In doing so, it noted that under the regulations pertaining to the criminal statute, a device that is used for measuring blood alcohol content "may indicate an equivalent blood alcohol content" and that the Intoxilyzer is approved for measuring elevated blood alcohol content.  It further observed that the implied consent regulations governing the testing of blood alcohol content "piggyback" on the criminal regulations, and, thus, permit equivalent measurements of blood alcohol content by the Intoxilyzer.  Also, the court relied on State v. Pilotti, 99 Conn. App. 563, cert. denied, 282 Conn. 903 (2007), in which the Appellate Court rejected the defendant's claim that the evidence was insufficient to uphold his conviction for driving with an elevated blood alcohol content because the Intoxilyzer measured alcohol as a percentage of volume, not weight.  The trial court concluded that by upholding the conviction in Pilotti, the Appellate Court implicitly found that an "equivalent" measurement of blood alcohol content complied with the "by weight" directive of the criminal statute.  The trial court further reasoned that because the Intoxilyzer was capable of measuring blood alcohol content by weight under the criminal statute, it was also capable of doing so under the implied consent statute.  The plaintiffs now appeal.