Connecticut has these things called diversionary programs. A diversionary program is something that lets people who are charged with certain crimes get out of trouble with the charges they face being erased. Wiped clean. It lets you answer the question “have you ever been arrested” with the answer “no.” There are some exceptions to this but for the most part it is accurate. The problem with diversionary programs is that you usually only get one bite of the apple for each type. This means if you use a program when you are 18 you can’t use it again when you are 75. Really stupid, I know, that a person can’t make two mistakes in a lifetime without being labelled a “criminal” but it is the law in Connecticut.
Our General Assembly, in its infinite wisdom (read – its ongoing pandering for votes and wrapping themselves in the American flag) has passed a new law that lets those who have been honorably discharged from the military use two of these diversionary programs not just once, but twice in a lifetime! Hooray! Certainly a well deserved perk for those who have served their country in any way, shape or form.
It applies to the Accelerated Rehabilitation program and the Drug Education Program.
Connecticut DUI law now allows a person convicted of driving under the influence to shorten the term of their license suspension if they install an Ignition Interlock Device (IID) in the vehicle they will be operating. What the law says, basically, is that certain offenders (1st and 2nd time offenders) can drive 45 days afte their suspension takes effect IF they install such a device at ther own cost and expense on every vehicle they drive. The law does not apply to those holding a CDL license. The length of time the device must be used will depend on whether you are a first or second time offender.
More information can be obtained at this DMV site.
http://www.ct.gov/dmv/cwp/view.asp?a=813&q=309844
The cost will vary slightly by vendor but figure on about $1,500 a year comprised of a few up front fees to DMV to apply and the vendor to install and then $75-$100 a month.
There are crazy stories out there about having to blow a sample into the device while driving or the car shuts off and other anecdotal myths. Rule of thumb is if what your being told sounds stupid and dangerous it probably isn’t true.
Really?
Is that what things have come to in the Connecticut criminal justice system? Shame, shame, shame on the Trumbull first selectman, Thomas Hermann, who is reported to have forced the issue, and the librarian, Bernadette Baldino, who called the police. The crime? Bringing the material back in 5 days versus the 24 hours the woman was given as a deadline. What audacity the woman had to disobey the great OZ!! The key part of this case is that there was no express refusal to bring stuff back – just tardiness in doing so. Further, every library has overdue fines for material returned after a deadline. Hell, I have added a wing onto the Wilton library with the fines I have paid for 4 kids! What raises this to the level of a criminal act? Well, nothing, actually.
This is a perfect example of what is wrong with our current system. Police too often abandon their discretion to treat a matter as “criminal.” Every shouting match is a Breach of Peace. Every fender bender, even when there is no damage, is an Evading Responsibility. Every family argument is a dual arrest and labelled domestic violence. 5 kids in a car and one bag of pot - they all get arrested. 10 kids at a party and one keg - same thing – 10 arrests.
Let’s assume the worse set of facts here. The woman in question is a jerk. She knew she had the books. She thumbed her nose at repeated late notices. She treated librarians and the police with disrespect when they contacted her. The police power of the government expressed their anger by ARRESTING her. Arrest warrants, handcuffs, booking photos, fingerprints, reading of rights, bail and appearance in criminal court subject to 6 months in jail. In order for this to happen the police had to receive a complaint, find it had merit, prepared an arrest affidavit claiming a crime was committed which is then submitted to the State’s Attorney’s office (prosecutor) for an independent review, the prosecutor has to agree with the police that a crime was committed and then a judge of the superior court has to agree with the police and prosecutor before this matter can ever result in an arrest! Being a jerk isn’t against the law.
Thousands of people have their lives turned upside down every year because of poor police judgment in the arrest process over stupid, petty disputes or spontaneous poor decision-making. Police used to have really thick skins; it was part of the job description. They would also settle disputes on site using their authority. If they didn’t the prosecutors would separate the wheat from the chaff and drop the charges once they got to court recognizing the person went through a lot just getting to court including everryone in town knowing they got arrested courtesy of the local police logs. Today – everyone gets arrested for everything and rarely is the case dropped. Every arrest is an assault on our liberty interest and subjects the arrested party to the full power of the State no matter how insignificant the transgression.
The politicians and law enforcement could care less about all this. And the fact is, neither will most of you reading this care . . . until it happens to you, or a son, or daughter, or loved one. Then we care. Don’t get me wrong. There are still many decent and compassionate people working in the criminal justice system who know the difference between acting like a jerk, a mistake and a crime. They are just becoming fewer and fewer.
This time it was an unfortunate woman in Trumbull. Tomorrow it could be you.
Now, I gotta run. Pretty sure I saw a copy of Lord of the Flies under my son’s bed . . .
Jail. Don’t think it can happen to you? Tricia Lynne Coccomo probably thought the same thing when she left her house on July 26, 2005. A little over 6 years later the Connecticut Supreme Court, which has become increasingly hostile to criminal defendants, reinstated her 12 year sentence which had been vacated and returned to the trial court for a new trial by the Appellate Court which found Judge Robert Devlin, Jr. had made errors in the trial. What separates her case from the standard DWI case? One thing and one thing only. She killed three other people; the exact same consequence ever driver risks when they get in the car and turn it on once they are over the .08 limit.
As we enter the 2011 Holiday season maybe this outcome will make people think twice before getting in the car. Ms. Coccomo was 32 years old and has 3 young children. She was a school teacher. She lives in Stamford, Connecticut. Sound familiar? Probably sounds like a lot of the people reading this. Now she will be a convicted felon serving a sentence of 20 years suspended after 12 years. That means she has to serve 12 years of that sentence and then have 8 more years hanging over her head if she violates her probation after she gets out of jail.
Most of us sat around a table yesterday that was full of food, surrounded by family and friends, being thankful for all the blessings we have. This case should remind us how quickly that fabric can be ripped apart by operating a motor vehicle after drinking. The family of the convicted and those of the victims probably had much different meals than we did yesterday.
To take a test or not to take a test, that is the question! It is the source of many late night telephone calls. Ask 10 lawyers the same question and you may get 10 slightly different answers. The only correct answer is “it depends.” There are so many fact specific scenarios that the subject can only be treated generally with some rules of thumb.
In Connecticut there is an implied consent law. That means that if you choose to drive a vehicle in Connecticut and get pulled over you have agreed to take a chemical test of the officer’s choosing if that stop results in an arrest for operating under the influence. The three types of tests are breath, urine and blood. The person arrested has no input into which test the police officer uses. It is the officers choice. The vast majority of cases involve breath tests so that is what we will discuss here.
If you refuse to take the test chosen by the officer then your right to drive in Connecticut will be suspended for a period of no less than 6 months without the ability to apply for a work/school permit for the first 90 days of that 6 month period. While there are worse things than getting your right to operate suspended it is a significant and costly consequence of your decision to refuse a test. The decision to take or refuse the test must be made almost immediately after you arrive back at the police department after being arrested and transported back to the station.
If you decide to take the breath test, and fail, and you have never had your license suspended for an alcohol related arrest in the past then you will lose your license for a maximum period of 120 days for a breath test .16 or higher and for a period of 90 days for result under .16. A result of .16 is twice the legal limit of .08. In either of those cases you will have the right to get a work or school travel permit from day 1 of the suspension unlike in the refusal scenario which has the 90 day waiting period.
What is the downside of taking the test? A failed breath test is a significant obstacle in fighting the operating under the influence (OUI) charge. There are two ways to be charged with OUI in Connecticut. The first is using the objective observations of the police officer such as erratic driving, odor of alcohol, bloodshot eyes, slurred speech, difficulty finding paperwork, unsteady on feet, failure to follow instructions, disoriented, and most importantly performance of standardized field sobriety tests such as horizontal gaze nystagmus (HGH), walk and turn and one-legged stand. The second is a failed chemical test. So, by taking and failing the test you make it much easier for the prosecutor to prove an OUI case against you. That is the downside.
Why would anyone take the test if it makes it easier for the prosecutor to prove the case? Because if the arrest is the first time you have been arrested for OUI by taking the test you limit the length of the suspension of your driver’s license and preserve the ability to get a work/school permit without a waiting period. Further, if it is your first arrest you will be eligible for a diversionary program called the Alcohol Education Program (AEP). This means that if you complete this one year program the charges get dismissed and you will not have a a further license suspension as the result of a conviction.
However, if you are not eligible for the AEP than you may not qualify for a work permit either if you have previously had your license suspended for an OUI charge in the past and will likely face an additional license suspension suspension of no less than one year in the future if you plead guilty to an OUI. Therefore, the benefits of taking the test for a person who will not be eligible for AEP drop significantly. Therefore, if this is not your first arrest for OUI refusing the test may be in your best interest in order to provide your attorney the best chance to fight the charge.
Are there times that even a first time offender should refuse to take the test? If you have been involved in an accident and there is the risk of that accident having resulted in serious injury or death to another person than you may not want to take the test as you may be charged with more serious offenses than OUI such as Assault in the 2nd degree with a motor vehicle or vehicular manslaughter.
In all of the above cases you know how much you have had to drink. Therefore, even in those cases where a refusal may seem the better course based upon your past history if you know you have not been drinking or have only had an amount to drink that would be unlikely to put you over the legal limit than you may still want to submit to the test.
The best advice is to keep the mobile telephone number or pager of a trusted criminal defense attorney in your wallet at all times. If you don’t have the ability to contact your lawyer after hours than that person isn’t much help to you as you are required to make real time decisions that cannot wait for him or her to get back to you the next day or even the next hour. Having my mobile phone on 24/7 may result in some lost sleep but preserving your freedom isn’t a 9-5 job.
Kevin Black
