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*********************************************** 
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 defendant, 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 without 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; judgment of guilty in accordance with the verdict, the finding 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. FerrazzanoMazza, 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 science. 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 LaBossiere approached the truck, it sped off. LaBossiere continued behind the truck, driving through a few towns

before reaching Pomfret. He witnessed the truck swerving from side to side, repeatedly going over the yellow

line and across the white fog line, seemingly overcompensating 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 dispatcher with a description of the truck, including the

license plate number, as he followed behind it for several 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 illuminated. 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 ‘‘mannerisms . . . [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 defendant, 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 diagonal 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 defendant, 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 acknowledged 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 perform 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 defendant 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 positions 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 defendant 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 postarrest interview form, documenting the defendant’s

responses to various questions. In response to a question 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, Breathalyzer, 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 defendant 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 defendant 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 defendant 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 alcohol 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 improperly 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 Breathalyzer 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 different 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 subsequently 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 question 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 defendant 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 counsel 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 presence 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 offering 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 phlebotomist 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, subsequent 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 alternative 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 following limiting instruction: ‘‘All right. Ladies and gentlemen, before we get started again, the court’s [just going

to] advise you, you heard some—just heard some testimony 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 defendant, 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 information 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 defendant 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 suggested 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 defendant] 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 anything, 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 anything 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 station. 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 actually happened that way.’’

After the parties had concluded their closing arguments, the trial court delivered its final charge to the

jury. Regarding the defendant’s refusal to take a Breathalyzer 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 defendant 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 expressing 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 chemical 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 availability 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 Deojay, 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 question 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 counsel 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 accordance 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 foregoing, we conclude that the defendant’s claim that the

court improperly excluded evidence regarding her purported 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 possibility 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 supported 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 reasonably 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. . . . Additionally, we have noted that [a]n [impropriety] in instructions 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 quotation 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 prosecution 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 intoxication. 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 sufficient 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 relevant because the jury could have found that the defendant’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 confined 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 repeatedly 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 correct 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, independent 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 manner, [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 defendant ‘‘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 intoxicated. 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 alcohol. Accordingly, we conclude that, even if the court’s

instruction on the relevancy of Deojay’s equivocal statement 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 sobriety 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 characteristic 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 movements 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 evaluate this evidence based only on your common experience.’’ 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 established. 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 relevant 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 instructions in a criminal case is reversible error when it is

shown that it is . . . reasonably probable . . . that

the jury [was] misled.’’ (Internal quotation marks omitted.) 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 provided 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 scientific 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 common 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 common sense.’’

Second, in Kelley, the defendant claimed, inter alia,

that the state or witnesses should not have been permitted 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. Kelley, supra, 95 Conn. App. 432. This court rejected that

claim, holding that, ‘‘[a]lthough there may be situations

when language imbues unscientific evidence with scientific 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 scientific 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 reasonable 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 suspension.

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 reasonable 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 nystagmus test, a test the defendant concedes is scientific.