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*********************************************** 
STATE OF CONNECTICUT v. RODNEY WATERS

(AC 44342)

Prescott, Alexander and Clark, Js.

Syllabus

Convicted, after a jury trial, of the crime of operating a motor vehicle

while under the influence of intoxicating liquor, and, under a part B

information, on a plea of guilty, of being a second time offender pursuant

to statute (§ 14-227a (g) (2)), the defendant appealed to this court. The

defendant had attempted to make a U-turn when the car he was driving

twice struck a car being driven by A. The defendant drove away from

the accident scene and went home, where he claimed to have consumed a

significant amount of alcohol and smoked a ‘‘spliff.’’ When the defendant

reappeared at the scene on foot about twenty minutes later, A identified

him as the driver of the other car. Police officers noticed that he was

acting aggressively, slurring his speech and moving unsteadily. The

defendant thereafter failed three sobriety tests the police administered

to him and was taken to the police station where he was questioned

after being advised of his rights pursuant to Miranda v. Arizona (384

U.S. 436). The defendant was charged under subdivision (1) of § 14-

227a (a), the behavioral subdivision, pursuant to which blood alcohol

levels generally are excluded from evidence without a defendant’s consent, in accordance with § 14-227a (c). The defendant testified on his

own behalf, including testifying that he had not begun to consume

alcohol until after he returned home after the incident with A. The state

offered as rebuttal evidence the testimony of its expert witness, L, a

forensic toxicologist. L testified in response to a set of hypothetical

facts about the amount of time it typically takes for alcohol to have

observable effects on an individual’s motor functions and typical behavior associated with certain blood alcohol levels. The court overruled

the defendant’s objection to L’s testimony. On appeal, the defendant

claimed, inter alia, that L’s testimony was tantamount to testimony about

the defendant’s blood alcohol content and, thus, violated the prohibition

of such testimony under § 14-227a (c) in a prosecution under the behavioral subdivision. Held:

1. The evidence was sufficient to support the defendant’s conviction of

operating a motor vehicle while under the influence of intoxicating

liquor: the defendant’s reckless driving, the fact that he drove away

from the accident scene, and his slurred speech and belligerent behavior

toward the police when he returned to the scene permitted the jury

reasonably to infer that he was intoxicated when his car struck A’s car;

moreover, the defendant admitted that he had been driving, he was

substantially unable to follow the police officers’ instructions when he

failed the sobriety tests, and his refusal to take a breath analysis or

urine test at the police station permitted an inference that a test would

have revealed that he had an elevated blood alcohol content; furthermore, the jury reasonably could have inferred that the defendant’s intoxication when he reappeared at the accident scene was not reasonably

attributable to his drinking when he arrived home after leaving the

scene, which was supported by L’s testimony, and, although the defendant claimed that A’s testimony was suspect and that the jury was

obligated to credit his testimony that he consumed a significant amount

of alcohol when he returned home, it was within the jury’s province to

determine whose testimony to credit.

2. The defendant could not prevail under State v. Golding (213 Conn. 233)

or the plain error doctrine on his unpreserved claim that the trial court

improperly permitted L to testify, in violation of § 14-227a (c), about

the likely blood alcohol content of a person who was slurring his speech:

a. Because the defendant objected to L’s testimony on the ground that

it was irrelevant and that L could not provide any definite conclusions

about the defendant’s blood alcohol content, the defendant’s claim on

appeal was unpreserved, as he did not cite to § 14-227a (c) or otherwise

inform the trial court that the admission of L’s testimony without the

defendant’s consent would violate § 14-227a (c).
b. The defendant’s claim that he was denied his right to due process as

a result of L’s testimony was unavailing; the defendant failed to demonstrate that the testimony was so crucial, critical and highly significant

that he was denied a fair trial, as his claim did not implicate anything

more than an evidentiary or statutory claim and, thus, could not be

reviewed because it was not constitutional in nature, as required by Golding.

c. Although the state violated the spirit if not the letter of § 14-227a (c)

by seeking to admit opinion testimony in a behavioral case under § 14-

227a (a) (1) that implicitly related to the defendant’s blood alcohol

content, the defendant nevertheless failed to demonstrate the existence

of plain error.

3. The trial court did not abuse its discretion in determining that the defendant failed to establish a proper foundation to cross-examine L about

whether other substances could have affected the rate at which an

individual can become visibly intoxicated from alcohol: although the

defendant had the opportunity to lay a factual foundation as to what

substances he ingested, he did not define what a spliff was or what

substances it contained, and, without that evidentiary foundation, any

opinion by L regarding the effect of other substances in combination

with alcohol on the rate of intoxication lacked relevance; accordingly,

the court’s decision to preclude L’s testimony on that basis did not

violate the defendant’s sixth amendment right to confrontation.

4. The record was inadequate to review the defendant’s claim that the trial

court improperly denied his motion to suppress statements he made at

the accident scene and at the police station, as he failed to seek a proper

memorandum of decision from the court addressing all of the arguments

he raised in his motion or to seek an articulation of the court’s decision,

which was made without having conducted an evidentiary hearing prior

to ruling on the motion.

Argued April 11—officially released August 2, 2022

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, 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 New

Haven, where the court, B. Fischer, J., denied the defendant’s motion to suppress certain evidence; thereafter,

the first part of the information was tried to the jury

before B. Fischer, J.; verdict of guilty; subsequently,

the defendant was presented to the court on a plea of

guilty to the second part of the information; judgment

of guilty in accordance with the verdict and the plea,

from which the defendant appealed to this court.

Affirmed.

James B. Streeto, senior assistant public defender,

with whom was Juan Carlos Leal, certified legal intern,

for the appellant (defendant).

Nathan J. Buchok, deputy assistant state’s attorney,

with whom were Kathleen E. Morgan, deputy assistant

state’s attorney, and, on the brief, Patrick J. Griffin,

former state’s attorney, Timothy F. Costello, senior

assistant state’s attorney, and Kevin M. Black, Jr., former special deputy assistant state’s attorney, for the

appellee (state).
Opinion

PRESCOTT, J. The defendant, Rodney Waters, appeals

from the judgment of conviction, rendered after a jury

trial, of operating a motor vehicle while under the influence of alcohol in violation of General Statutes § 14-

227a (a) (1), and, following a plea of guilty to a part B

information, of being a second time offender pursuant

to § 14-227a (g) (2). On appeal, the defendant claims

that his conviction under § 14-227a (a) (1) is not supported by sufficient evidence. He also claims that the

trial court improperly admitted expert testimony

related to the defendant’s blood alcohol content (BAC)

in contravention of § 14-227a (c), restricted his crossexamination of the state’s expert witness, and denied

his motion to suppress inculpatory statements he made

to the police. We affirm the judgment of the trial court.

The following facts, which the jury reasonably could

have found, and procedural history are relevant to this

appeal. At approximately 8:45 p.m. on May 18, 2019,

Tion Adlam was driving on Dixwell Avenue in New

Haven with her mother, daughter, and stepfather when

she observed the car ahead of her being driven recklessly and attempting a U-turn. Adlam stopped her car,

but the other driver, later identified as the defendant,

drove his car into the left side of her car, causing it to

‘‘jerk . . . .’’ After the initial impact, the defendant’s

car struck her car at least once more. Adlam was forced

to reverse her car to get out of the way. Before the

defendant fled from the scene, Adlam saw him and took

a photograph of his car’s license plate.

Adlam called 911 to report the incident. Officers

Christopher Troche, Marco Correa, and Robert Stratton

of the New Haven Police Department arrived on the

scene at approximately 9 p.m. and spoke with Adlam.

At approximately 9:05 p.m., twenty minutes after the

accident occurred, the defendant appeared at the scene

on foot, and Adlam identified him as the driver of the

other car involved in the accident.

The officers then approached the defendant. Upon

speaking with him, they observed him acting aggressively, slurring his speech, and moving unsteadily. After

this initial interaction with the police, the defendant

walked away from the scene but returned about ten

minutes later. Upon his return, the police placed the

defendant in handcuffs while Stratton confirmed that

the defendant’s address matched the registered address

of the suspect’s vehicle.1 After receiving confirmation,

Stratton and Troche had the defendant perform three

field sobriety tests:2

(1) the horizontal gaze nystagmus

test,3(2) the walk and turn test,4 and (3) the one leg

stand test.5 The defendant failed all three field sobriety tests.

As a result of failing the field sobriety tests and being

identified as the driver of the other car involved in the
accident, the defendant was transported to the police

station and brought to the ‘‘intoxilyzer room.’’6 Shortly

after arriving at the station, Correa read the defendant

his Miranda rights.7 The defendant declined a breath

analysis test, despite Stratton’s warning that it would

be deemed a refusal. Although the defendant initially

agreed to submit to a urine test, he proceeded to get

angry, raise his voice, and tell the officers to

‘‘unshackle’’ him because he was a ‘‘linebacker.’’ Stratton asked him if he would be ‘‘alright’’ if he removed

the defendant’s handcuffs. The defendant replied, ‘‘yes,’’

but remained aggressive, once again stating that he was

a linebacker. Stratton deemed this behavior as a refusal

to do the urine test.

Correa then proceeded to ask the defendant questions from an A-44 form,8

including whether he was

injured, suffered from any medical conditions, and if

he had taken any drugs. The defendant answered most

of the questions, despite a reminder from Correa that

he could refuse to answer. The defendant subsequently

was charged with operating a motor vehicle while under

the influence in violation of § 14-227a (1). The state also

charged the defendant, by way of a part B information,

with operating a motor vehicle while under the influence of intoxicating liquor or drugs as a second offender

pursuant to § 14-227a (g) (2).

On February 6, 2020, a jury trial commenced. The

state called three witnesses to testify: Adlam, Stratton,

and Troche. After the state rested its case, the defendant

testified on his own behalf. According to the defendant,

he had not begun to consume alcohol on May 18, 2019,

until after he returned home following the incident with

Adlam. Specifically, the defendant testified that he

returned home immediately after the accident and

quickly consumed a ‘‘Jamaican splash,’’ a mixed drink

that consisted of about ten to twelve ounces of highproof rum, wine, and cranberry juice. After finishing

the mixed drink, he testified that he smoked a ‘‘spliff’’

and sipped from a half pint bottle of vodka.

In response to the defendant’s testimony, the state

offered, and the court admitted, rebuttal evidence from

Robert Lockwood, a forensic toxicologist employed at

the state’s forensics laboratory. Lockwood testified

about the amount of time after the consumption of

alcohol that it typically takes for the alcohol to have

observable effects on an individual’s motor functions

and typical behaviors associated with certain BAC levels.

The jury found the defendant guilty of operating a

motor vehicle while under the influence of alcohol in

violation of § 14-227a (a) (1). The defendant then

pleaded guilty to being a second time offender under

§ 14-227a (g) (2). The court, B. Fischer, J., later sentenced the defendant to two years of incarceration,

execution suspended after nine months, 120 days of
which was the mandatory minimum sentence, followed

by two years of probation. This appeal followed. Additional facts and procedural history will be set forth as

necessary.

I

The defendant first claims that there was insufficient

evidence to support his conviction of operating a motor

vehicle while under the influence of intoxicating liquor

in violation of § 14-227a (a) (1). With respect to this

claim, the defendant makes three related arguments.

First, the defendant asserts that the only evidence of

his intoxication while driving was Adlam’s testimony

and that her testimony was insufficient and lacked credibility. Second, the defendant argues that the officers’

observations and the defendant’s performance on field

sobriety tests were not sufficient to establish that the

defendant was intoxicated while driving because they

did not take place until one-half hour after the defendant

had stopped driving. Third, the defendant argues that

Lockwood’s testimony did not establish that the defendant was intoxicated due to drinking that occurred

before, rather than after, the defendant stopped driving.

We are not persuaded that the evidence in the present

case was insufficient to prove beyond a reasonable

doubt that the defendant operated a motor vehicle while

under the influence of intoxicating liquor.

We begin our analysis by setting forth the well established legal principles for assessing an insufficiency of

the evidence claim. ‘‘In reviewing the sufficiency of the

evidence to support a criminal conviction we apply a

[two part] test. First, we construe the evidence in the

light most favorable to sustaining the verdict. Second,

we determine whether upon the facts so construed and

the inferences reasonably drawn therefrom the [finder

of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a

reasonable doubt.’’ (Internal quotation marks omitted.)

State v. Petersen, 196 Conn. App. 646, 655, 230 A.3d

696, cert. denied, 335 Conn. 921, 232 A.3d 1104 (2020).

‘‘In particular, before this court may overturn a jury

verdict for insufficient evidence, it must conclude that

no reasonable jury could arrive at the conclusion the

jury did. . . . Although the jury must find every element proven beyond a reasonable doubt in order to

find the defendant guilty of the charged offense . . .

each of the basic and inferred facts underlying those

conclusions need not be proved beyond a reasonable

doubt.’’ (Citation omitted; internal quotation marks

omitted.) State v. Rhodes, 335 Conn. 226, 233, 249 A.3d

683 (2020).

‘‘If it is reasonable and logical for the [finder of fact]

to conclude that a basic fact or an inferred fact is true,

the [finder of fact] is permitted to consider the fact

proven and may consider it in combination with other
proven facts in determining whether the cumulative

effect of all the evidence proves the defendant guilty

of all the elements of the crime charged beyond a reasonable doubt.’’ (Internal quotation marks omitted.)

State v. Petersen, supra, 196 Conn. App. 655.

‘‘[E]stablished case law commands us to review

claims of evidentiary insufficiency in light of all of the

evidence [adduced at trial].’’ (Emphasis omitted; internal quotation marks omitted.) Id., 656. ‘‘Moreover, even

improperly admitted evidence may be considered . . .

since [c]laims of evidentiary insufficiency in criminal

cases are always addressed independently of claims of

evidentiary error.’’ (Internal quotation marks omitted.)

State v. Morelli, 293 Conn. 147, 153, 976 A.2d 678 (2009).

Turning to our evaluation of the sufficiency of the

evidence, we begin with the elements of the offense

for which the defendant was convicted. Section 14-227a

(a) provides in relevant part: ‘‘A person commits the

offense of operating a motor vehicle while under the

influence of intoxicating liquor (1) if such person operates a motor vehicle . . . while under the influence of

intoxicating liquor . . . .’’

The defendant’s insufficiency of the evidence claim

focuses only on the state’s obligation to demonstrate

beyond a reasonable doubt that the defendant was

under the influence of intoxicating liquor at the time

he was operating his motor vehicle. We conclude that

the evidence admitted at trial, including the reasonable

inferences that the jury was permitted to draw from that

evidence, was sufficient to establish that the defendant

operated a motor vehicle while under the influence of

intoxicating liquor.

In construing the evidence in the light most favorable

to sustaining the verdict, we conclude that the jury

reasonably could have found that the defendant drove

recklessly and struck Adlam’s car with his vehicle not

only once but a second time as well. From his reckless

operation of his motor vehicle, the jury was permitted,

in conjunction with the evidence that he was visibly

intoxicated twenty minutes later, to infer that he was

already under the influence of intoxicating liquor when

he struck Adlam’s vehicle.

The defendant then immediately fled the scene after

the accident. See, e.g., State v. Holley, 90 Conn. App.

350, 361, 877 A.2d 872 (‘‘[f]light, when unexplained,

tends to prove a consciousness of guilt’’ (internal quotation marks omitted)), cert. denied, 275 Conn. 929, 883

A.2d 1249 (2005). The jury was, of course, free to infer

that the defendant fled the scene so that the police

would not arrive to find him intoxicated.

Additionally, the defendant returned to the scene less

than twenty minutes after the accident and was visibly

intoxicated. He slurred his speech, behaved belligerently, and engaged in drunken behaviors such as stum-
bling and challenging officers to a push-up contest.

The defendant also failed three field sobriety tests

administered within one-half hour after the defendant

admittedly had been driving and during which he demonstrated a substantial inability to follow the officers’

instructions. From these facts alone, the jury reasonably

could have inferred that the defendant was under the

influence of alcohol while driving and that his erratic

operation of his vehicle and behavior at the scene was

the result of his intoxication.

The defendant further refused to take a breath analysis or urine test. Pursuant to § 14-227a (e), the defendant’s refusal of a breath or urine test is admissible

evidence from which an adverse inference may be

drawn that the test would have revealed an elevated

BAC.

Even without the state’s expert testimony, the jury

reasonably could have inferred, based on the short

period of time between the accident and when the

defendant reappeared at the scene intoxicated, that his

intoxication was not reasonably attributable to drinking

that occurred within the short period of time after he

ceased driving and when he arrived on foot at the scene

of the accident. See, e.g., State v. McShea, 11 Conn.

App. 338, 340–41, 527 A.2d 1 (1987) (jury reasonably

could have inferred defendant was intoxicated while

driving from ‘‘the time and location of the accident . . .

the defendant’s admission that he was driving the car;

the evidence regarding the time sequence and its relationship to the defendant’s degree of intoxication’’); see

also State v. Morelli, supra, 293 Conn. 160 (despite

defendant’s alternative explanation for his behavior,

his failure of field sobriety tests, belligerent attitude,

questionable driving practices, and refusal of Breathalyzer test were sufficient to prove beyond reasonable

doubt that defendant had operated motor vehicle while

under influence of intoxicating liquor). With Lockwood’s testimony, the jury had additional evidence to

support the conclusion that, even if the defendant had

quickly consumed eight or nine drinks when he arrived

home, he could not have reached the level of intoxication he exhibited only thirteen to fifteen minutes later.

In large measure, the defendant’s insufficiency of the

evidence claim is premised on his assertion that the

jury was obligated to credit his testimony that he had

consumed a significant amount of alcohol after arriving

home and before returning to the scene of the incident,

and that this explained his subsequent behavior, including the results of the field sobriety tests. It is the province of the jury, however, to weigh conflicting evidence

and determine whose testimony to credit. Thus, the jury

was under no obligation to credit any of the defendant’s

testimony. See, e.g., State v. Allen, 289 Conn. 550, 559,

958 A.2d 1214 (2008). Similarly, the defendant argues

that ‘‘Adlam’s testimony is suspect’’ because she was
angry with the defendant for hitting her car and endangering her family. As with the defendant’s testimony,

it was within the province of the jury to credit Adlam’s

testimony and to accept or reject any claim of bias she

may have had against the defendant.

In support of his assertion that the state failed to

prove that he was under the influence of intoxicating

liquor while operating his motor vehicle, the defendant

relies largely on State v. DeCoster, 147 Conn. 502, 162

A.2d 704 (1960). DeCoster, however, is readily distinguishable from the present case.

In DeCoster, a police officer found the defendant’s

car stopped on a street in New Haven with the key in

the ignition but the engine turned off. Id., 504. The

defendant was slumped at the steering wheel of the

car. Id. There was visible damage to the defendant’s

car, and four nearby road signs were knocked over. Id.

On the basis of these facts, the defendant was arrested

and later found guilty of operating a motor vehicle while

under the influence of intoxicating liquor. Id., 503–504.

On appeal, however, our Supreme Court reversed the

judgment of conviction on insufficiency grounds, concluding that the state had failed to prove that the defendant was under the influence of liquor at the time he

was driving. See id., 505. The court found that ‘‘[n]o

one had seen him operating the car, and there was no

evidence to show how long it had been standing in the

place where it was found. Even though [a fact finder]

might infer that the defendant’s car had struck the signs

at the traffic circle, there was no evidence whatever to

show when or how the collision occurred. Id., 504–505.

The court concluded that, ‘‘[i]n the absence of any evidence as to the time when the defendant last operated

his car, the conclusion of the trial court that he violated

the statute was unwarranted and invaded the realm of

speculation and conjecture.’’ Id., 505.

In the present case, and unlike DeCoster, Adlam testified about how and when the collision between her and

the defendant occurred. As established through Adlam,

Troche, and Stratton’s testimony, the defendant was

admittedly driving at 8:47 p.m. and visibly intoxicated

less than twenty minutes later at 9:05 p.m. The defendant failed field sobriety tests approximately thirty

minutes after the accident. Furthermore, Lockwood testified that it would be unlikely for an individual to

engage in the behavior the defendant exhibited within

only thirteen to fifteen minutes after beginning to consume alcohol, even if that individual had quickly drank

eight to nine drinks.

In sum, we are not persuaded that the evidence in

the present case was insufficient to prove that the defendant operated a motor vehicle while under the influence

of intoxicating liquor. We therefore conclude that the

jury reasonably could have found the defendant guilty

beyond a reasonable doubt of violating § 14-227a (a) (1).
II

The defendant next claims that the trial court improperly admitted expert testimony regarding the likely BAC

of an individual who is slurring his or her speech. The

defendant asserts that this testimony was tantamount

to testimony on the defendant’s BAC and, thus, violated

§ 14-227a (c), which prohibits the admission of such

testimony without the defendant’s consent in a case in

which the defendant is charged with violating § 14-227a

(a) (1).9 The defendant, in seeking to prevail on this

claim, argues that the claim is preserved. The defendant

argues in the alternative that, if the claim is not preserved, he is entitled to prevail under State v. Golding,

213 Conn. 233, 239–40, 567 A.2d 823 (1989), as modified

by In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188

(2015), or pursuant to the plain error doctrine. We disagree with the defendant that his claim was preserved

at trial. We also conclude that his claim is not entitled

to review under Golding because it fails to satisfy Golding’s second prong. Finally, we are unpersuaded that

he is entitled to prevail under the plain error doctrine.

Before turning to the relevant facts and procedural

history, it is necessary to set forth the following legal

principles. Section 14-227a (a) establishes two different

ways an individual can commit the offense of operating

a motor vehicle while under the influence of intoxicating liquor: ‘‘[a] person commits the offense of operating

a motor vehicle 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 elevated blood alcohol content.’’ ‘‘We

previously have described . . . § 14-227a (a) (1) as the

‘behavioral’ subdivision and § [14-227a] (a) (2) as the

‘per se’ subdivision.’’ State v. Longo, 106 Conn. App.

701, 705 n.5, 943 A.2d 488 (2008).

Section 14-227a (c) provides: ‘‘In any prosecution for

a violation of subdivision (1) of subsection (a) of this

section, reliable evidence respecting the amount of

alcohol in the defendant’s blood or urine at the time of

the alleged offense, as shown by a chemical analysis

of the defendant’s blood, breath or urine, otherwise

admissible under subsection (b) of this section, shall

be admissible only at the request of the defendant.’’

Thus, under § 14-227a (c), when an individual is prosecuted under the behavioral subdivision of the statute,

the defendant’s BAC is admissible ‘‘only at the request

of the defendant.’’

The following additional facts and procedural history,

which are undisputed in the record, are relevant to our

resolution of the defendant’s claim. After the defense

rested, the state called Lockwood, a forensic toxicologist, as a rebuttal witness to testify as to the time it

takes for an individual to exhibit effects on their motor
functions after drinking alcohol and the typical BAC of

an individual exhibiting slurred speech. Prior to the

state’s offer of proof, defense counsel made a general

objection to this testimony. Specifically, defense counsel stated: ‘‘I do have a general objection to the testimony, and my argument is that it’s not relevant on this

rebuttal. This—this expert can’t testify to any definite

conclusions . . . .’’10

In response, the court stated, ‘‘[a]ll right. There has

been evidence from the defendant that he did—that he

just testified . . . that he consumed large amounts of

alcoholic beverages in a very short period of time. I

will allow the doctor to come up here . . . .’’

The court then permitted the state to make an offer

of proof outside the presence of the jury. During the

state’s offer of proof, Lockwood was presented a hypothetical and asked: ‘‘Given those facts, do you have an

opinion regarding—at the rate of consumption, the rate

of absorption of alcohol into the body given the facts

I’ve asked you to assume, and the effects one could

expect from the—on the human body of that much

alcohol in that time period?’’ Lockwood then testified

that the average time for an individual to begin to exhibit

the effects of alcohol is between thirty and forty minutes

after consumption. The expert was also asked, ‘‘when

one is stumbling and slurring their words, do you have

an opinion as to what BAC would be associated with

that?’’ The expert replied, ‘‘[b]ased on my training and

experience, when you have an individual with slurred

speech, you are around a BAC of 0.16 or 0.17.’’

Following the state’s offer of proof, the defendant

maintained his original objection to the general relevancy of the evidence and ‘‘lack of definite conclusions.’’ He did not otherwise explain the grounds for his

objection. Specifically, the court asked the defendant

whether he maintained his objection based on what he

heard. The defendant responded, ‘‘yes.’’ The court then

stated, ‘‘[y]ou still do? Okay. I’m going to overrule the

objection.’’

Lockwood then proceeded to testify in front of the

jury as to his opinion on the amount of time it would

take an individual who quickly drank eight or nine

drinks to reach a level of intoxication that would visibly

effect their motor functions.11 Lockwood also opined

on the typical BAC of an individual with slurred speech.

Finally, Lockwood testified that it is not reasonably

probable that an individual would be displaying signs

of intoxication within thirteen to fifteen minutes from

beginning to consume alcohol even if that individual

had quickly drank eight or nine drinks.

A

We begin by reviewing whether the defendant’s claim

that the admission of Lockwood’s testimony violated

§ 14-227a (c) was preserved. It plainly was not.
‘‘[T]he standard for the preservation of a claim alleging an improper evidentiary ruling at trial is well settled.

This court is not bound to consider claims of law not

made at the trial. . . . In order to preserve an evidentiary ruling for review, trial counsel must object properly. . . . In objecting to evidence, counsel must properly articulate the basis of the objection so as to apprise

the trial court of the precise nature of the objection

and its real purpose, in order to form an adequate basis

for a reviewable ruling. . . . Once counsel states the

authority and ground of [the] objection, any appeal will

be limited to the ground asserted. . . . We have

explained that these requirements are not simply formalities. [A] party cannot present a case to the trial

court on one theory and then seek appellate relief on

a different one . . . . For this court to . . . consider

[a] claim on the basis of a specific legal ground not

raised during trial would amount to trial by ambuscade,

unfair both to the [court] and to the opposing party.’’

(Citations omitted; emphasis omitted; internal quotation marks omitted.) State v. Miranda, 327 Conn. 451,

464–65, 174 A.3d 770 (2018).

The defendant simply objected on the grounds of

relevancy and on the ability of the witness to testify

about ‘‘definite conclusions.’’ He did not alert the court

or opposing party to the basis of the objection now

raised on appeal. The defendant did not cite to § 14-

227a (c) or otherwise inform the trial court of his claim

that admitting the proffered evidence without his consent would violate a statutory provision. See State v.

Forrest, 216 Conn. 139, 146, 578 A.2d 1066 (1990) (‘‘the

defendant, by objecting to the state’s questions on relevancy grounds, failed to preserve properly [the statutory violation claim] he has raised on appeal’’).12

In sum, the defendant never articulated to the trial

court the claim he now raises on appeal. Accordingly,

we agree with the state that the claim is unpreserved.

B

We next turn to the defendant’s argument that, even

if his claim is not preserved, he is entitled to prevail

pursuant to Golding. The defendant, likely recognizing

that Golding review is limited to claims of a constitutional magnitude, argues that the admission of the evidence violated the defendant’s due process rights

because it violated the statutory prohibition contained

in § 14-227a (c). We are not persuaded that a trial court’s

admission of evidence implicates anything more than

an evidentiary or statutory claim. Thus, the claim fails

under the second prong of Golding because it is not

constitutional in nature.

Pursuant to Golding, as modified by In re Yasiel R.,

supra, 317 Conn. 781, ‘‘a defendant can prevail on a

claim of constitutional error not preserved at trial only

if all of the following conditions are met: (1) the record
is adequate to review the alleged claim of error; (2)

the claim is of constitutional magnitude alleging the

violation of a fundamental right; (3) the alleged constitutional violation . . . exists and . . . deprived the

defendant of a fair trial; and (4) if subject to harmless

error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond

a reasonable doubt.’’ (Emphasis omitted; internal quotation marks omitted.) State v. Police, 343 Conn. 274, 288,

273 A.3d 211 (2022).

‘‘The first two [prongs of Golding] involve a determination of whether the claim is reviewable; the second

two . . . involve a determination of whether the defendant may prevail [on the merits]. . . . Thus, Golding

review of an unpreserved constitutional claim is available provided that the defendant can present a record

that is [adequate] for review and affirmatively [demonstrate] that his claim is indeed a violation of a fundamental constitutional right.’’ (Citation omitted; internal quotation marks omitted.) State v. Grant, 154 Conn. App.

293, 307, 112 A.3d 175 (2014), cert. denied, 315 Conn.

928, 109 A.3d 923 (2015).

‘‘[T]he defendant can not raise a constitutional claim

by attaching a constitutional label to a purely evidentiary claim or by asserting merely that a strained connection exists between the evidentiary claim and a fundamental constitutional right. . . . Thus, [o]nce

identified, unpreserved evidentiary claims masquerading as constitutional claims will be summarily

[rejected]. . . . We previously have stated that the

admissibility of evidence is a matter of state law and

unless there is a resultant denial of fundamental fairness

or the denial of a specific constitutional right, no constitutional issue is involved.’’ (Internal quotation marks

omitted.) State v. Gilbert I., 106 Conn. App. 793, 796,

944 A.2d 353, cert. denied, 287 Conn. 913, 950 A.2d

1289 (2008).

Though the defendant asserts that the admission of

evidence violated his due process rights, he fails to brief

or otherwise demonstrate that this alleged error was

so crucial, critical, and highly significant that he was

denied a fair trial.13 See, e.g., State v. Turner, 334 Conn.

660, 674, 224 A.3d 129 (2020) (evidentiary error must

be crucial, critical, and highly significant to degree that

defendant was denied a fair trial in order to rise to

constitutional error). The defendant has failed to cite

to a single case from Connecticut, or elsewhere, that

holds that the admission of BAC testing in a behavioral

case violates the defendant’s right to due process. Moreover, the defendant has not argued that, if the legislature

had chosen not to include in § 14-227a (c) the prohibition on admissibility of the defendant’s BAC, then the

due process clause itself would have barred the admission of a defendant’s BAC level in a behavioral case.

Because we conclude that the defendant’s claim is
not constitutional in nature, it fails under the second

prong of Golding. Accordingly, we decline to review it.

C

Finally, we address whether the defendant is entitled

to prevail on his statutory claim under the plain error

doctrine. See Practice Book § 60-5. We do not agree

that Lockwood’s testimony regarding the expected BAC

of an individual exhibiting slurred speech, which the

defendant exhibited, was plain error under the circumstances of this case.

We begin by setting forth the relevant legal principles.

‘‘[I]f a claim is unpreserved . . . an appellate court may

in the interests of justice notice plain error not brought

to the attention of the trial court. . . . Application of

the plain error doctrine is nevertheless reserved for

truly extraordinary situations [in which] the existence

of the error is so obvious that it affects the fairness

and integrity of and public confidence in the judicial

proceedings. . . . [Thus, a] defendant cannot prevail

under [the plain error doctrine] . . . unless he demonstrates that the claimed error is both so clear and so

harmful that a failure to reverse the judgment would

result in manifest injustice.’’ (Citations omitted; internal

quotation marks omitted.) State v. Brett B., 186 Conn.

App. 563, 603, 200 A.3d 706 (2018), cert. denied, 330

Conn. 961, 199 A.3d 560 (2019).

There is a two step framework for evaluating claims

under the plain error doctrine. ‘‘First, we must determine whether the trial court in fact committed an error

and, if it did, whether that error was indeed plain in

the sense that it is patent [or] readily discernable on

the face of a factually adequate record, [and] also . . .

obvious in the sense of not debatable. . . . [T]his

inquiry entails a relatively high standard, under which

it is not enough for the defendant simply to demonstrate

that his position is correct. Rather, the party seeking

plain error review must demonstrate that the claimed

impropriety was so clear, obvious and indisputable as

to warrant the extraordinary remedy of reversal.’’

(Internal quotation marks omitted.) State v. Darryl W.,

303 Conn. 353, 373, 33 A.3d 239 (2012).

In the present case, the trial court did not admit direct

evidence of the defendant’s BAC. Lockwood testified

only about the BAC of a hypothetical individual who

exhibited the same behaviors that the defendant had

exhibited. On cross-examination, defense counsel made

clear through his questioning of Lockwood that he was

not testifying about the defendant’s BAC and that the

state’s scenarios were purely hypothetical.14 Although

Lockwood’s testimony may have implicitly suggested

what the defendant’s BAC level may have been, if it

had been tested, we cannot say that the alleged error

constituted ‘‘impropriety . . . so clear, obvious and

indisputable as to warrant the extraordinary remedy of
reversal.’’ (Internal quotation marks omitted.) Id.

In reaching this conclusion, we do not mean to suggest that the defendant could not have prevailed on this

claim if it had been preserved properly and brought to

the attention of the trial court. Although we do not

conclude that the admission of this evidence is such a

clear and obvious error that it results in a manifest

injustice to the defendant, we are nevertheless troubled

by the state’s introduction of Lockwood’s testimony

regarding blood alcohol content. In State v. Lopez, 177

Conn. App. 651, 669–70, 173 A.3d 485, cert. denied, 327

Conn. 989, 175 A.3d 563 (2017), we made it clear that

evidence pertaining to the expected BAC of a hypothetical individual exhibiting the same behavior as the defendant is problematic at best.

In State v. Lopez, supra, 177 Conn. App. 669, the

state elicited testimony of the blood alcohol level of

a hypothetical individual based on behaviors that the

defendant had exhibited, such as his performance on

the field sobriety tests. We stated: ‘‘Although we recognize that the language of the statute refers to blood

alcohol content as shown by a chemical analysis of the

defendant’s blood, breath or urine . . . and that the

blood alcohol content evidence in this case was not

derived from such a chemical analysis, we do not

believe that, at the time the legislature passed the statute, it contemplated that there would be any other way

to demonstrate the concentration of alcohol in someone’s blood except by chemical analysis. Thus, as a

matter of statutory interpretation, it would lead to

absurd and unworkable results to interpret the statute

to permit evidence of the defendant’s blood alcohol

content derived from a less reliable, extrapolated analysis, such as the one made here, while prohibiting blood

alcohol content evidence derived from a more reliable

procedure, i.e., chemical testing of the defendant’s

blood, breath, or urine . . . . Permitting evidence in

this behavioral prosecution case of a blood alcohol

content derived from a subjective interpretation of the

defendant’s performance on standard field sobriety

tests, without using any of the approved methods and

procedures, does great violence to the intent of the

statute. . . . Given the potential unreliability of blood

alcohol content evidence that is based on this method,

and given that [w]e cannot ignore the heightened credence juries tend to give scientific evidence . . . the

risk that this type of evidence might have had an

improper impact on the jury and on the result of the

trial, without the defendant’s being permitted to engage

in the scope of unfettered cross-examination to which

he was entitled, is too great.’’ (Citations omitted; footnote omitted; internal quotation marks omitted.) Id.,

669–73.

We maintain this view and caution the state against

seeking to admit opinion testimony concerning an indi-
vidual’s BAC, whether it be hypothetical or otherwise, in

behavioral cases under § 14-227a (a) (1). Such evidence

implicitly relating to the defendant’s BAC in behavioral

cases violates the spirit if not the letter of § 14-227a

(c). Nevertheless, we conclude that the defendant failed

to demonstrate the existence of plain error.

III

The defendant next claims that the trial court violated

his sixth amendment right to confrontation by unduly

restricting his cross-examination of Lockwood regarding the effects that additional ingested substances may

have on the rate at which alcohol will begin to cause

observable effects on an individual’s behavior. The state

responds that the defendant failed to lay an adequate

foundation to permit him to cross-examine Lockwood

regarding the effects of additional substances because

there was no evidence of what additional substances,

if any, he had ingested. We agree with the state.

The following facts are relevant to this claim. At trial,

Lockwood was permitted to testify as an expert about

the amount of time after the consumption of alcohol

that it typically takes for the alcohol to have observable

effects on an individual’s motor functions and the typical BAC associated with slurred speech. The state asked

Lockwood several hypothetical questions comprised of

facts mirroring those in the present case. The first hypothetical described a man who had consumed a large

volume of alcohol in a very short amount of time. The

state asked Lockwood if he had an opinion on the speed

at which an individual would exhibit the effects of intoxication after alcohol consumption commenced. Lockwood responded that it would take the individual in the

hypothetical scenario thirty to forty minutes to become

observably intoxicated. The second hypothetical

assumed that an individual had slurred speech, and the

state asked whether there is a BAC that is associated

with that behavior. Lockwood responded that slurred

speech usually suggests a BAC of 0.16 or 0.17. Next,

the state asked how many alcoholic beverages (drinks)

an individual would have to consume to reach a BAC

of 0.16 or higher, assuming that the individual weighed

190 pounds. Lockwood responded that the individual

would need to consume eight or nine drinks. The state

next posed a hypothetical in which an individual was

stumbling and slurring words at approximately 9:05

p.m. The state asked what time the individual likely

began drinking to have reached a BAC of 0.16 at 9:05

p.m. Lockwood estimated they likely would have

needed to start drinking at about 8:35 p.m. The state’s

final question was whether it was reasonably probable

that an individual who quickly drank eight or nine drinks

would exhibit slurred speech within thirteen to fifteen

minutes of consuming those drinks. Lockwood

responded that it was not reasonably probable for this

to occur.
The defendant sought to cross-examine Lockwood

on whether additional ingested substances could affect

how quickly an individual would become visibly intoxicated from alcohol. The following colloquy took place

between Lockwood, defense counsel, the prosecutor,

and the court:

‘‘[Defense Counsel]: Okay. What about adding other

substances to that alcohol?

‘‘[Lockwood]: Could you be more specific?

‘‘[Defense Counsel]: Like, if [the defendant] said he

smoked a spliff while he was drinking, would that

enhance the effects?

‘‘[Lockwood]: Pardon me, when you say a spliff, you

mean marijuana?

‘‘[Defense Counsel]: Marijuana, yes.

‘‘[Lockwood]: Okay.

‘‘[Defense Counsel]: Would that enhance it?

‘‘[The Prosecutor]: I’m going to object at this point,

Your Honor. There’s been no evidence what a spliff is

before this jury or this court as to what that is.

‘‘The Court: Yeah, there hasn’t been any evidence of

what a . . .

‘‘[Defense Counsel]: A spliff. He smoked—he smoked

something. He said he was smoking something at the—15

‘‘The Court: Yeah, but there’s no evidence, counsel,

that that was any—you know—illegal substance or marijuana. Unless I missed it, I didn’t hear that. Do you

agree with that or disagree with that?

‘‘[Defense Counsel]: I disagree. I think a spliff in general is a substance and that he could enhance—

‘‘The Court: Well, there was no evidence of what the

substance was. My question is . . . I’m not aware that

that was ever—a question was ever asked of [the defendant] of—you know . . . what [a spliff] . . . contains.

I’m not aware of that. Tell me if I’m wrong.

‘‘[Defense Counsel]: Right, I didn’t ask him what it

contains.

‘‘The Court: All right, all right. So, I’m not gonna . . .

it’s not in evidence . . . what is in a spliff.

‘‘[Defense Counsel]: But he did smoke something, so

I would like to ask this expert if that could enhance

the effects.

‘‘The Court: Well, I mean, it could’ve been a Camel

cigarette, I don’t know. It could’ve been an Ashton cigar,

you know. Do you follow me? In other words, there’s

no evidence that it was an illegal substance, is what

I’m trying to say . . . so, I’m not going to allow that—

‘‘[Defense Counsel]: Anything about smoking?
‘‘The Court: Not with this—I mean, if you want to

argue this, you could do that in closing argument

. . . .’’ (Footnote added.)

We begin our analysis by setting forth the applicable

standard of review and the relevant legal principles for

assessing a confrontation clause claim. ‘‘The right of

an accused to effectively cross-examine an adverse witness is embodied in the confrontation clause of the

sixth amendment. . . . The general rule is that restrictions on the scope of cross-examination are within the

sound discretion of the trial judge . . . but this discretion comes into play only after the defendant has been

permitted cross-examination sufficient to satisfy the

sixth amendment. . . . The constitutional standard is

met when defense counsel is permitted to expose to

the jury the facts from which [the] jurors, as the sole

triers of fact and credibility, could appropriately draw

inferences relating to the reliability of the witness. . . .

Indeed, if testimony of a witness is to remain in the

case as a basis for conviction, the defendant must be

afforded a reasonable opportunity to reveal any infirmities that cast doubt on the reliability of that testimony.

The defendant’s right to cross-examine a witness, however, is not absolute. . . . Therefore, a claim that the

trial court unduly restricted cross-examination generally involves a two-pronged analysis: whether the aforementioned constitutional standard has been met, and,

if so, whether the court nonetheless abused its discretion . . . .’’ (Citations omitted; emphasis omitted;

internal quotation marks omitted.) State v. Clark, 260

Conn. 813, 826–27, 801 A.2d 718 (2002).

‘‘In order to comport with the constitutional standards embodied in the confrontation clause, the trial

court must allow a defendant to expose to the jury facts

from which [the] jurors, as the sole triers of fact and

credibility, could appropriately draw inferences relating

to the reliability of the witness. . . . We have emphasized in numerous decisions, however, that the confrontation clause does not give the defendant the right to

engage in unrestricted cross-examination. . . . A

defendant may elicit only relevant evidence through

cross-examination. . . . The court determines

whether the evidence sought on cross-examination is

relevant by determining whether that evidence renders

the existence of [other facts] either certain or more

probable.’’ (Citation omitted; internal quotation marks

omitted.) State v. Crespo, 303 Conn. 589, 610–11, 35

A.3d 243 (2012).

‘‘The trial court has wide discretion to determine the

relevancy of evidence and [e]very reasonable presumption should be made in favor of the correctness of the

court’s ruling in determining whether there has been

an abuse of discretion. . . . The proffering party bears

the burden of establishing the relevance of the offered

testimony. Unless such a proper foundation is estab-
lished, the evidence . . . is irrelevant.’’ (Citation omitted; internal quotation marks omitted.) State v. Davis,

298 Conn. 1, 23, 1 A.3d 76 (2010).

‘‘To be admissible, [expert] testimony must comply

with the requirements for reliability and relevance

established in State v. Porter, 241 Conn. 57, 698 A.2d

739 (1997) (en banc), cert. denied, 523 U.S. 1058, 118

S. Ct. 1384, 140 L. Ed. 2d 645 (1998).’’ Kairon v. Burnham, 120 Conn. App. 291, 292, 991 A.2d 675, cert. denied,

297 Conn. 906, 995 A.2d 634 (2010). ‘‘To be helpful, an

expert’s opinion testimony must aid the fact finder in

resolving an issue in the case and have some basis in

fact.’’ Weaver v. McKnight, 313 Conn. 393, 410, 97 A.3d

920 (2014).

In the present case, we conclude that the trial court

did not abuse its discretion in determining that the

defendant failed to establish a proper foundation to

cross-examine Lockwood regarding whether other substances could have affected the rate at which an individual can become visibly intoxicated from alcohol. See,

e.g., State v. Davis, supra, 298 Conn. 24–25 (because

defendant’s evidentiary foundation was insufficient,

preclusion of irrelevant evidence did not violate defendant’s right to confrontation). The defendant testified

that he smoked a ‘‘spliff,’’ but the defendant did not

define what a ‘‘spliff’’ was or what substances it contained. Because the defendant did not testify what a

‘‘spliff’’ contained, the defendant could have been referencing marijuana, other psychotropic drugs, a combination of the two, or some other substance. Without this

evidentiary foundation, any opinion regarding the effect

of those substances in combination with alcohol on the

rate of intoxication simply lacks any relevance or ‘‘fit’’

in the case. See State v. Porter, supra, 241 Conn. 65

(‘‘fit’’ means the ‘‘proposed scientific testimony must

be demonstrably relevant to the facts of the particular

case in which it is offered, and not simply be valid in

the abstract’’ (internal quotation marks omitted)). The

defendant had the opportunity when he testified to lay

the factual foundation as to what substances he

ingested, but he failed to do so.

Accordingly, the trial court did not abuse its discretion in determining that Lockwood’s testimony lacked

relevance to the case. Accordingly, the court’s decision

to preclude it on that basis did not violate the defendant’s sixth amendment right to confrontation.

IV

The defendant’s final claim is that the court improperly denied the defendant’s motion to suppress certain

statements that he made to the police (1) at the scene

of the accident and (2) in the intoxilyzer room. In regard

to the statements he made at the scene of the accident,

the defendant claims that, after he was placed in handcuffs, he was in custody for purposes of Miranda and
had not been advised of his Miranda rights at that time.

As for the statements made in the intoxilyzer room, the

defendant claims that, although he had been advised

of his Miranda rights prior to giving these statements,

the court should have suppressed the statements

because he never expressly or impliedly waived his

Miranda rights. The state responds that the defendant’s

claims are unreviewable because the record is inadequate for review.16 Alternatively, the state argues that

the defendant was not subjected to custodial interrogation at the scene of the accident and that the defendant’s

conduct in the intoxilyzer room ‘‘evinced a knowing

and intelligent waiver of his right to remain silent

. . . .’’ We agree that the record is inadequate to review

whether the defendant (1) was subjected to custodial

interrogation at the scene of the accident and (2) waived

his Miranda rights in the intoxilyzer room.

The following additional procedural history and facts

are relevant to our resolution of this claim. On January

10, 2020, the defendant filed a motion to suppress. The

motion to suppress asserted that the defendant, while

in custody, made inculpatory statements to law enforcement officers, the statements were made without a valid

Miranda waiver, the statements were involuntary, and

that the statements were tainted by a prior illegality.

On February 4, 2020, the defendant filed an addendum

to his motion to suppress, requesting the suppression

of certain statements that were made by the defendant

after he was handcuffed. The addendum specified

which statements the defendant was moving to suppress but did not reference facts in support of his claim.

The statements specified in the addendum were limited

to (1) ‘‘[the] defendant’s responses to police asking him

if he was driving,’’ (2) ‘‘[the] defendant’s responses to

police asking him where his car was,’’ (3) ‘‘[the] defendant’s responses to police asking him what ‘‘RDW

Works’’ is,’’ and (4) ‘‘[the] defendant’s answer of ‘13’ to

the postarrest questions . . . .’’

It is important to note that the record is extremely

opaque with respect to the manner in which the motion

to suppress was adjudicated. The court did not hold an

evidentiary hearing prior to ruling on the motion. No

witnesses testified in support of or in opposition to the

motion to suppress. The record also does not memorialize an agreement between the parties on the procedure

to be followed for litigating the motion to suppress.

From our review of the record, it appears that the court

and the parties agreed that the court would review the

police body camera footage and base its decision solely

on what it could determine from these videos.

On February 5, 2020, the court, B. Fischer J., asked

the parties to address the defendant’s motion to suppress. In support of the motion, defense counsel argued:

‘‘I am specifically asking for these statements after he

was handcuffed because, at that point, he was in cus-
tody, and these are questions from the police, so this

is interrogation. He did not waive his Miranda rights,

did not sign the form at the station.’’ The prosecutor

responded: ‘‘[T]he defendant was not in custody at that

point. It was a Terry stop,17 and it was based on reasonable and interpretable facts. The defendant had already

walked away once, and, based on his behavior, using

handcuffs was the least restrictive means in order to

keep him on the scene. Therefore, the state would

request to have those statements be admissible.’’ (Footnote added.)

Immediately after this exchange, the court stated the

following, which comprises its entire decision with

respect to the motion to suppress: ‘‘I’m going to deny

the defendant’s motion to suppress . . . and I’ll just

recite some of our case law on this issue. General,

on-the-scene questioning of citizens in the fact-finding

process is not affected by Miranda holdings. It is an

act of responsible citizenship for individuals to give

whatever information they may have to aid in law

enforcement. In such situations, the compelling atmosphere inherent in the process of in-custody interrogation is not necessarily present. An officer may ask the

detainee a moderate number of questions to determine

his identity and to try to obtain information confirming

or dispelling the officer’s suspicions, but the detainee

is not obliged to respond, and, unless the detainee’s

answers provide the officer with probable cause to

arrest him—so forth. . . .

‘‘[A]nd this is the case of State v. Mucha, [137 Conn.

App. 173, 189, 47 A.3d 931, cert. denied, 307 Conn. 912,

53 A.3d 998 (2012)] . . . that the routine investigatory

stage of a motor vehicle accident is a noncustodial

situation and, thus—that statements made by a defendant to a police officer in such circumstances are admissible regardless of whether the police officer gave the

defendant his Miranda warning. The court, moreover,

has concluded that conducting a field sobriety test does

not place a suspect in custody for the purposes of

Miranda. So, the questions the police asked, Miranda

warning was not required based on what I observed in

the body cam . . . .’’

The court made no factual findings beyond its assertion that ‘‘the questions the police asked, Miranda

warning was not required based on what I observed in

the body cam . . . .’’ Although the court’s statement

suggests that the trial court relied primarily on the body

camera footage in deciding to deny the motion to suppress, the record is unclear as to when and how the

body camera footage18 was admitted into evidence and

reviewed in relation to the motion to suppress.19 More

importantly, the court did not make any explicit findings

regarding the content of the video. The court later

signed the transcript of its brief oral ruling.

Practice Book § 61-10 (a) provides: ‘‘It is the responsi-
bility of the appellant to provide an adequate record

for review. The appellant shall determine whether the

entire record is complete, correct and otherwise perfected for presentation on appeal.’’ Practice Book § 64-

1 (a) provides in relevant part: ‘‘The trial court shall

state its decision either orally or in writing . . . in ruling on motions to suppress . . . . The court’s decision

shall encompass its conclusion as to each claim of law

raised by the parties and the factual basis therefor.

. . .’’ (Emphasis added.) Subsection (b) of § 64-1 further

provides that, if the trial court fails to comply with

these requirements, ‘‘the appellant may file with the

appellate clerk a notice that the decision has not been

filed in compliance with subsection (a).’’

Additionally, it is axiomatic that ‘‘[t]he proper procedure by which an appellant may ask the trial court to

provide the factual and legal basis for a ruling, or to

address a matter that it has overlooked in its decision,

is to file a motion for articulation. See Practice Book

§ 66-5.20 A motion seeking articulation is appropriate in

cases in which the trial court has failed to state the

basis of a decision . . . [or] to clarify the legal basis

of a ruling . . . [and it is the proper procedural vehicle]

to ask the trial judge to rule on an overlooked matter.’’

(Footnote added; internal quotation marks omitted.)

State v. Bennett, 101 Conn. App. 76, 81, 920 A.2d 312

(2007).

In the present case, the defendant filed a motion to

suppress statements that the defendant made to the

police both at the scene of the incident and while in

the intoxilyzer room. The trial court’s brief oral ruling,

however, addressed only the admissibility of the statements made at the scene of the incident. The oral ruling

did not set forth the facts the court found established

in making the ultimate determination that Miranda

warnings were not required at the scene of the accident

before the officers questioned the defendant. Although

the trial court determined that a ‘‘Miranda warning was

not required based on what [was] observed in the body

cam,’’ the trial court did not specify whether the defendant was in custody or subject to police interrogation.21

Furthermore, the court altogether did not address,

either factually or legally, the statements made by the

defendant in the intoxilyzer room, including whether

the defendant had waived his Miranda rights.

Despite the court’s failure to include in its oral decision a ‘‘conclusion as to each claim of law raised by

the parties and the factual basis therefor’’; Practice

Book § 64-1 (a); the defendant did not file a notice of

noncompliance with the appellate clerk. In addition,

the defendant failed to seek an articulation pursuant

to Practice Book § 66-5.

The defendant argues that, if we find the record to

be inadequate for review of his claim, we ‘‘should

remand the matter to the trial court for further articula-
tion.’’ In doing so, the defendant relies on Practice Book

§ 61-10 (b), which provides: ‘‘The failure of any party

on appeal to seek articulation pursuant to Section 66-

5 shall not be the sole ground upon which the court

declines to review any issue or claim on appeal. If the

court determines that articulation of the trial court decision is appropriate, it may, pursuant to Section 60-5,

order articulation by the trial court within a specified

time period.’’ (Emphasis added.)

We decline the defendant’s invitation to order an

articulation in this case because his failure to seek an

articulation is not the sole ground on which we decline

to review this claim. The defendant failed to exercise

at least two avenues to meet his obligation to provide

an adequate record for appellate review of his claim.

Furthermore, we note that this appeal was filed on

October 26, 2020, and it has been more than two years

since the court issued its oral ruling on the motion to

suppress. This lengthy passage of time would undoubtedly frustrate its ability to remedy the legal and factual

lacunas relating to its decision on the motion. Additionally, because there was no evidentiary hearing, the court

would not have the benefit of any transcripts to review

when attempting to comply with an articulation order.

‘‘Our role is not to guess at possibilities, but to review

claims based on a complete factual record developed

by a trial court. . . . Without the necessary factual and

legal conclusions furnished by the trial court, either on

its own or in response to a proper motion for articulation, any decision made by us respecting [a] claim would

be entirely speculative.’’ (Internal quotation marks

omitted.) Shobeiri v. Richards, 104 Conn. App. 293,

296, 933 A.2d 728 (2007). Because the defendant failed

to seek a proper memorandum of decision addressing

all the legal arguments he raised in his motion to suppress or to file a motion for articulation, the record is

inadequate to review the defendant’s claim that he was

subjected to custodial interrogation at the scene of the

accident and that he did not expressly or impliedly

waive his Miranda rights after they were read to him

in the intoxilyzer room.

The judgment is affirmed.

In this opinion the other judges concurred.

1 Stratton testified that the registration to the license plate number Adlam

provided ‘‘came back to 44 Admiral Street, and it was registered to [R]DW

Works’’ and that the defendant lived at that same address. The record is

unclear as to how Stratton obtained the defendant’s address in order to

make that connection.

2 The officers testified that they started the field sobriety tests approximately ten minutes after the defendant returned to the scene for the second time.

3

‘‘Nystagmus is the inability of the eyes to maintain visual fixation on a

stimulus when the eyes are turned to the side, often resulting in a lateral

jerking of the eyeball. . . . The premise of the horizontal gaze nystagmus

test is that as alcohol consumption increases, the closer to the midline of

the nose the onset of nystagmus occurs. To administer the test, the officer

positions a stimulus approximately twelve to eighteen inches away from

and slightly above the subject’s eyes. The stimulus, usually a pen or the
officer’s finger, is then moved slowly from the midline of the nose to maximum deviation, the farthest lateral point to which the eyes can move to

either side. The officer observes the subject’s eyes as he tracks the stimulus

and looks for six clues, three for each eye, to determine whether the subject

passes or fails the test.’’ (Citations omitted.) State v. Commins, 83 Conn.

App. 496, 499, 850 A.2d 1074 (2004), aff’d, 276 Conn. 503, 886 A.2d 824 (2005),

overruled in part on other grounds by State v. Elson, 311 Conn. 726, 91 A.3d

862 (2014). The defendant failed the test and also failed to follow instructions

to refrain from moving his head.

4 The walk and turn test requires the subject to take nine heel-to-toe steps

in a straight line, pivot, and take nine heel-to-toe steps back while counting

aloud. The defendant failed to keep his hands by his side, fell off the line,

and had unsteady balance.

5 The one leg stand test requires the subject to pick a leg and balance on

that leg with the raised leg’s toes pointing upward; this must be done while

keeping their hands to their sides. The defendant was unable to balance

and kept stumbling.

6 According to Troche, ‘‘[t]he [i]ntoxilyzer room has a state calibrated

[i]ntoxilyzer machine which calibrates the blood alcohol . . . content and,

in that room, [officers] conduct the A-44s. [Officers] look up the person’s

record, check with [the police] center system, [officers] read [detained

individuals] their rights, and [officers] would perform either the blood alcohol test with the breath test or . . . do the urine test all within that room.’’

See footnote 8 of this opinion.

7 See Miranda v. Arizona, 384 U.S. 436, 478–79, 86 S. Ct. 1602, 16 L. Ed.

2d 694 (1966).

8

‘‘The A-44 form is used by the police to report an arrest related to

operating a motor vehicle under the influence and the results of any sobriety

tests administered or the refusal to submit to such tests.’’ (Internal quotation

marks omitted.) Winsor v. Commissioner of Motor Vehicles, 101 Conn. App.

674, 678 n.4, 922 A.2d 330 (2007).

9 The defendant claims that, ‘‘[d]uring the state’s rebuttal case, it elicited

evidence from its expert, who testified to the defendant’s BAC. . . . Lockwood gave his opinion that he believed the defendant’s BAC to be somewhere

around 0.16 and 0.17 at the time the police officers started questioning him.

. . . This testimony was improper, as it was unscientific, and was a direct

violation of . . . § 14-227a (b), which only permits evidence from chemical

testing of the defendant’s blood alcohol level at the time of the offense if

offered by the defendant. . . . The evidence in this case rises to the level

of extreme unreliability. In consequence, it violated the defendant’s due

process rights . . . .’’ (Citations omitted; emphasis added.) The state

responds to the defendant’s claim by arguing that ‘‘[a] reliability objection

is specifically tied to State v. Porter, 241 Conn. 57, 698 A.2d 739 (1997) [cert.

denied, 523 U.S. 1058, 118 S. Ct. 1384, 140 L. Ed. 2d 645 (1998)] . . . .’’

In his reply brief, the defendant attempted to clarify his claim, stating,

‘‘[t]his claim is not based upon an objection to the underlying science but,

rather, an objection to a statutory violation. The defendant has not asserted

that . . . Lockwood’s opinion is not scientifically possible. He has asserted

it violated . . . § 14-227a, as it injected a blood alcohol content measurement into a behavioral prosecution.’’

We observe the following regarding the defendant’s characterization of

his claim on appeal. First, the defendant inaccurately describes Lockwood’s

testimony. Lockwood testified about the BAC of a hypothetical individual

exhibiting certain behaviors and did not opine directly about the BAC of

the defendant. Second, the defendant misidentifies subsection (b) of § 14-

227a as containing the prohibition on the admissibility of the defendant’s

BAC in this case. It is subsection (c) of § 14-227a that limits the admission

of a defendant’s BAC in a behavioral case only to those instances when the

defendant consents to its admission. We read the defendant’s reliance on

§ 14-227a (b), which sets forth requirements regarding the manner in which

BAC testing must be performed to ensure the reliability of BAC evidence,

as another way of asserting his claim that the testimony was scientifically

unreliable. Because the defendant expressly disavows any claim concerning

the scientific reliability of the evidence, we review only the defendant’s

claim that the testimony violated § 14-227a (c).

10 The defendant has not briefed on appeal any claim based on the relevancy of the evidence or the ‘‘lack of definite conclusions.’’ Accordingly,

we deem these claims abandoned. See, e.g., State v. Nieves, 65 Conn. App.

212, 215–16 n.4, 782 A.2d 203 (2001).

11 The relevant colloquy between the prosecutor and Lockwood during
direct examination was as follows:

‘‘Q. Okay. So . . . assume that the following—assume that the following

facts are in evidence. Assume that there was a motor vehicle accident at

8:47 p.m. Assume that the defendant is sober at that time, no alcohol in the

body. Assume fifteen seconds to get home, get out of the car, go upstairs,

sit down in a chair, take a bottle out, and that bottle is—assume that—

in evidence—the bottle is approximately twenty-four ounces, it is filled

approximately half with rum, and then leaving one inch, it is approximately—

assume that it is a mixture of port wine and some other alcohol and then

one inch remaining for cranberry juice. Assume that the defendant then

sips from a bottle—a pint of vodka and assume this drink is—it’s drank

quickly, and that the defendant walks four minutes, and at—assume at

approximately 9:05, the defendant has slurred words and is stumbling. Do

you, based on your opinion, your training and experience, do you have an

opinion on the rate of absorption?

‘‘A. Yes.

‘‘Q. And what is that opinion?

‘‘A. So, the drinking scenario described is a large volume of alcohol in a

very short amount of time. The absorption is, again, the process by getting

a drug into the blood system. So, we have to think about how are we getting

the alcohol from the stomach into the small intestine, and, in this scenario,

studies have shown that it takes about thirty to forty minutes for an individual

to absorb to the peak—peak alcohol concentration of the drinks they’ve had.

‘‘Q. Okay, and let’s assume again, assume that . . . the defendant in these

set of facts are—was approximately five feet, ten inches, let’s say 190. Does

that have an effect on your opinion on the rate of the absorption?

‘‘A. On the rate of my absorption—just on the rate of absorption, no.

‘‘Q. Okay, and do you have an opinion on how much time it would take

to absorb the alcohol?

‘‘A. Yes, as I mentioned it—I would estimate between thirty and forty

minutes.

‘‘Q. Okay. Does that change—does that opinion change if the person has

a full stomach or an empty stomach?

‘‘A. If the person has a full stomach, we have to push back the absorption

time; so, it actually would take a little bit more—more time to reach the peak.

‘‘Q. Okay, and now, based on your training and experience, if somebody

has—assume that somebody has slurred words. Do you have a BAC that

you associate with slurred words based on your training and experience?

‘‘A. Yes.

‘‘Q. Okay, and what is that?

‘‘A. So, slurred speech, when we talk about slurred speech, we’re actually

talking about the musculature around the mouth being affected, and this

means that we have a significant amount of alcohol. When we see slurred

speech, we usually think of a BAC around 0.16, 0.17 or higher.

‘‘Q. Okay, and do you have an opinion on how many drinks you would

have to drink in order to get to that level of a BAC?

‘‘A. Yes.

‘‘Q. And what is that?

‘‘A. Given the parameters—

‘‘Q. Hm-hmm.

‘‘A. —of the previous question?

‘‘Q. Yes.

‘‘A. Okay. So, for an individual that weighs around 190 pounds, each drink

would raise the BAC about 0.02 parts per deciliter or percent. So, if we

give—if we take the BAC of 0.16, that would be about eight drinks. As I

mentioned to you, this process of metabolism or breaking down is always

occurring, so we’ll give eight or nine drinks.

‘‘Q. Okay, and let’s assume that somebody that—there’s somebody stumbling, slurring words, at approximately 9:05. What time would they have to

stop drinking in order to show those—have slurred words at 9:05? How

long—how long ago prior would they have to start showing those symptoms?

‘‘A. I’m looking—estimating, not given the time of absorption, somewhere

around 8:30—I’m sorry 8:35.’’

12 The defendant relies on Rowe v. Superior Court, 289 Conn. 649, 663,

960 A.2d 256 (2008), and State v. Fernando A., 294 Conn. 1, 31 n.26, 981

A.2d 427 (2009), to support his argument that his claim is preserved. In

those cases, our Supreme Court found that a claim was preserved when

the objection raised at trial and those raised on appeal were related, meaning

‘‘there [was] substantial overlap between [the] theories under the case law.’’

(Internal quotation marks omitted.) State v. Fernando A., supra, 31 n.26. In
the present case, the general relevance and ‘‘definite conclusions’’ objections

raise completely different legal grounds than an assertion that the testimony

violated a prohibition on admissibility contained in § 14-227a (c). If the

defendant had raised § 14-227a (c) during his objection at trial, the trial

court would have been alerted to the need to consider the nature and

application of the statutory prohibition.

13 In an attempt to demonstrate that the admission of Lockwood’s testimony violated his due process rights, the defendant cites State v. Johnson,

312 Conn. 687, 94 A.3d 1173 (2014), as authority that his claim is constitutional in nature. The claim in Johnson concerned the admission of an outof-court identification of the defendant that was tainted by unnecessarily

suggestive identification procedures. It is well established that the admission

of an out-of-court identification that is unreliable and based on unduly

suggestive identification procedures violates due process. See, e.g., Neil v.

Biggers, 409 U.S. 188, 196, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972). The

defendant does not explain how the jurisprudence relating to the admission

of an unreliable out-of-court identification is applicable to the present case.

14 The following exchange occurred between defense counsel and Lockwood during cross-examination:

‘‘[Defense Counsel]: All of those estimates you gave [to the prosecutor]

are just estimates, correct?

‘‘[Lockwood]: Yes.

* * *

‘‘[Defense Counsel]: Okay. Also, you don’t actually know [the defendant], correct?

‘‘[Lockwood]: I do not.

‘‘[Defense Counsel]: You’ve never met him and—right?—before this?

‘‘[Lockwood]: I have not.

‘‘[Defense Counsel]: And you’ve never tested him?

‘‘[Lockwood]: I have not.’’

15 The following exchange occurred between defense counsel and the

defendant on direct examination:

‘‘[Defense Counsel]: . . . Okay. Mr. Waters, then, after drinking the Jamaican splash, what did you do?

‘‘[The Defendant]: So, after I drunk the Jamaican splash, I had the halfpint of vodka, and then I also had a spliff—half a spliff left on my coffee table;

so, I just started smoking that and sipping on—on the half-pint of vodka.’’

Later, during defense counsel’s direct examination of the defendant, the

following colloquy occurred:

‘‘[Defense Counsel]: Okay, and you said that you were also smoking a

spliff that was on your coffee table?

‘‘[The Defendant]: Yes.’’

16 Specifically, the state claims that the record is inadequate to review the

defendant’s statements at the police station because ‘‘[t]he trial court did

not make any factual findings or legal conclusions regarding [those statements],’’ and the defendant failed to seek an articulation from the trial

court. The state also argues that the entirety of his suppression claim is

inadequately briefed. Although we agree with the state that the record is

inadequate to review the defendant’s claim, we do not agree that the defendant’s claim is inadequately briefed. See State v. Buhl, 321 Conn. 688, 724,

138 A.3d 868 (2016) (‘‘[a]nalysis, rather than mere abstract assertion, is

required in order to avoid abandoning an issue by failure to brief the issue

properly’’ (internal quotation marks omitted)).

17 See Terry v. Ohio, 392 U.S. 1, 21–22, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).

18 The body camera footage consists of approximately three hours of film

from Correa’s, Stratton’s, and Troche’s body cameras on the night of the

accident. The footage shows the officers’ interaction with the defendant

both at the scene of the accident and in the intoxilyzer room. Some of the

facts in the recordings are undisputed by the parties, such as the fact that

the defendant was handcuffed, asked questions by the police, and failed

three field sobriety tests. Other facts are disputed by the parties, including

the defendant’s statements at the scene of the accident relating to whether he

believed he was being detained or whether he knew he was not under arrest.

19 We note that, after issuing its oral decision on the motion to suppress,

the court marked the DVDs containing the body camera footage as court

exhibits two, three, and four.

20 Practice Book § 66-5 provides in relevant part: ‘‘A motion seeking corrections in the transcript or the trial court record or seeking an articulation

or further articulation of the decision of the trial court shall be called a

motion for rectification or a motion for articulation, whichever is applicable.
Any motion filed pursuant to this section shall state with particularity the

relief sought and shall be filed with the appellate clerk. . . .’’

21 ‘‘Two threshold conditions must be satisfied in order to invoke the

warnings constitutionally required by Miranda: (1) the defendant must have

been in custody; and (2) the defendant must have been subjected to police

interrogation.’’ (Internal quotation marks omitted.) State v. Gonzalez, 302

Conn. 287, 294, 25 A.3d 648 (2011). The court may have concluded that,

even if the defendant was in custody, he had not been subjected to police

interrogation and, thus, Miranda warnings were not required.