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STATE OF CONNECTICUT v. ROBERT J. MOSBACK

(AC 35173)

Beach, Alvord and Mullins, Js.

Argued February 4—officially released August 11, 2015

(Appeal from Superior Court, judicial district of New

Britain, geographical area number fifteen, Kahn, J.

[motions to suppress, dismiss]; Alander, J. [motion for

judgment of acquittal, judgment].)

David V. DeRosa, with whom, on the brief, was Austin B. Johns, for the appellant (defendant).

Michele C. Lukban, senior assistant state’s attorney,

with whom, on the brief, were Brian Preleski, state’s

attorney, and Mary Rose Palmese, supervisory assistant

state’s attorney, for the appellee (state).
Opinion

MULLINS, J. The defendant, Robert J. Mosback,

appeals from the judgment of conviction,rendered after

a jury trial, of operating a motor vehicle while having an

elevated blood alcohol content in violation of General

Statutes § 14-227a (a) (2) and reckless driving in violation of General Statutes § 14-222 (a). The defendant

claims thatthe trial courtimproperly denied his motions

(1) to suppress evidence of his medical records; (2) for

a judgment of acquittal that was based on the alleged

insufficiency of the blood test evidence; and (3) to dismiss the reckless driving count, and refused to allow

him to present his statute of limitations defense to the

jury and refused his request to charge the jury on that

issue. We disagree and, accordingly, affirm the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. In the late afternoon and evening

of June 26, 2010, the defendant, a police officer with

the city of Bristol, consumed multiple alcoholic beverages at two separate gatherings in his neighborhood

while off duty. The defendant went home from the second gathering at approximately 8 p.m., and took a two

hour nap.

After waking from his nap, the defendant drove to

the Bristol Police Department headquarters and

reported for his shift. His shift ran from 10:45 p.m. until

6:45 a.m. Shortly after starting his shift, the defendant

left the department in his police cruiser and drove eastbound on Riverside Avenue. At the same time, Tammy

Forrest was driving her vehicle in the opposite direction, westbound on Riverside Avenue.

As the vehicles were travelling toward one another,

the defendant was driving at a high rate of speed and

lost control of his cruiser at a bend in the road. He

crossed into Forrest’s lane and nearly hit her vehicle

head-on. After narrowly missing Forrest’s vehicle, the

defendant crashed his cruiser sideways into a utility

pole, causing the pole to break. The crash rendered

the defendant unconscious. A short time later, medical

personnel arrived and transported the defendant to

Saint Francis Hospital and Medical Center in Hartford

for treatment.

The defendant was admitted to the hospital at approximately 11:56 p.m. Immediately upon his admission, the

medical staff ordered various tests, which was part

of the hospital’s protocol for trauma patients such as

the defendant.

Among the tests performed by the medical staff was

an ‘‘ETOH’’ test, which analyzed the defendant’s blood

alcohol content. At approximately 12:01 a.m., the medical staff drew a sample of the defendant’s blood, which

was sent to the laboratory for testing.
The blood test was conducted using a Vitros Fusion

5.1 machine. The Vitros machine measured the defendant’s blood alcohol content by means of an enzymatic

reaction with alcohol dehydrogenase; it then expressed

the alcohol content results using a weight of alcohol

to volume of blood ratio. The test was completed at

approximately 12:45 a.m. The test revealed that the

defendant had a serum blood alcohol concentration of

151 milligrams per deciliter.1 The serum blood alcohol

contentrange for a patient with no alcohol in his system

is less than ten milligrams per deciliter. A serum result

of 151 milligrams per deciliter translated to a 0.13 percent whole blood alcohol content, which is the measure

used to determine legal intoxication. As a result of the

defendant’s elevated blood alcohol content, the treating

physician initially was unable to make an accurate

assessment of the defendant’s condition, and the defendant was kept at the hospital. The treating physician

wrote ‘‘alcohol intoxication’’ under the ‘‘clinical impression’’ section of the emergency physician record. The

next morning, the defendant’s blood alcohol content

fell closer to normal levels, and he was released from

the hospital. The defendant’s evaluation at the hospital,

including his blood test results, was recorded in his

medical records. The police later seized the medical

records pursuant to a search warrant issued on November 16, 2010.

On November 22, 2010, the state issued a warrant for

the defendant’s arrest and filed the original information

charging the defendant with operating a motor vehicle

while under the influence of alcohol in violation of

§ 14-227a.2 The arrest warrant affidavit incorporated

statements from the defendant’s neighbors, which indicated that the defendant had consumed multiple alcoholic beverages on the evening of the crash before

beginning his shift. The arrest warrant affidavit also

included statements from witnesses to the crash

describing the defendant’s erratic driving. Finally, the

affidavit contained the defendant’s hospital blood test

result, which showed that his ‘‘blood alcohol content

was 0.151’’ on the night of the crash.

The police arrested the defendant on December 2,

2010. On May 29, 2012, the state filed an amended information. In the amended information, the state for the

first time clarified that it was charging the defendant

with operating his police cruiser while having an elevated blood alcohol content in violation of § 14-227a

(a) (2). The state also added, inter alia,3 a new count

of reckless driving in violation of § 14-222 (a).4

In the course of the jury trial on these charges, the

defendant filed a motion for a judgment of acquittal

on the basis of alleged insufficiency of the blood test

evidence. The court denied that motion. The defendant

was convicted of operating a motor vehicle while having

an elevated blood alcohol content and reckless driving.
The court imposed a sentence of six months and thirty

days incarceration, execution suspended, followed by

two years of probation. This appealfollowed.Additional

facts will be set forth as necessary.

I

MOTION TO SUPPRESS MEDICAL RECORDS

The defendant claims that the court improperly

denied his motion to suppress his medical records. Specifically, the defendant claims that his original attorney,

Theodore Wurz, provided ineffective assistance of

counsel, in violation of the sixth amendment to the

United States constitution, when he provided portions

of the defendant’s medical records to the police. In

particular, he argues that the court should have suppressed his medical records because the disclosure of

those records ‘‘was premised on [Wurz’] failure to adequately investigate and seek expert assistance in

reviewing the medical records before formulating a

deeply flawed theory of the criminal case.’’ We are

not persuaded.

We first set forth the standard of review for claims

relating to a motion to suppress. ‘‘Our standard of

review of a trial court’s findings and conclusions in

connection with a motion to suppress is well defined.

A finding of fact will not be disturbed unless it is clearly

erroneous in view of the evidence and pleadings in the

whole record . . . . [W]here the legal conclusions of

the court are challenged, we must determine whether

they are legally and logically correct and whether they

find support in the facts set out in the memorandum

of decision . . . . Additionally, we are mindful of our

authority to affirm a judgment of a trial court on a

dispositive alternate ground for which there is support

in the trial court record.’’ (Internal quotation marks

omitted.) State v. Pierce, 67 Conn. App. 634, 638–39,

789 A.2d 496, cert. denied, 260 Conn. 904, 795 A.2d

546 (2002).

The following facts and procedural history are relevant to this claim. Following the accident, the city filed

a workers’ compensation claim on behalf of the defendant.5 The city’s insurance carrier challenged the claim

to the Workers’ Compensation Commission on the basis

of the defendant’s wilful misconduct and intoxication.

Due to the challenge to the workers’ compensation

claim, the city and the department became aware that

the defendant’s medical records indicated he was intoxicated on the night of June 26, 2010.

On September 29, 2010, after meeting with the chief

of the department, a representative from the city, and

the defendant’s union representative, the defendant

resigned from the department. Notwithstanding the

defendant’s resignation, on the basis of rumors that the

defendant had been drinking at neighborhood gatherings prior to his shift, the department suspected that
he had been intoxicated when he crashed his cruiser

and continued to investigate his alleged misconduct on

the night of June 26, 2010. In particular, the department,

the city, and the state’s attorney deputized James

McGlynn, a detective with the state police, to investigate

the accident.

After resigning from the department, the defendant

hired Wurz to assist him in rescinding his resignation

and to represent him in connection with the department’s continued investigation into his alleged misconduct. The defendant and Wurz decided that their

defense strategy would be to challenge the validity of

the blood test, the results of which they believed had

been released at 12:01 a.m., a mere five minutes after

the defendant was admitted to the hospital.6 Accordingly, the defendant and Wurz agreed to cooperate with

any potential investigation and to challenge the validity

of the blood test.

On November 1, 2010, McGlynn, in furtherance of his

investigation, contacted Wurz by telephone and

requested an interview with the defendant. Wurz told

McGlynn that the defendant would not meet with him.

Instead, Wurz personally agreed to meet with McGlynn

that day without the defendant being present. Wurz also

told McGlynn that he possessed copies of the defendant’s medical records, which he claimed contained

an error that invalidated the test results, namely, the

incorrectrelease time of the testresults. At the meeting,

Wurz provided McGlynn a copy of portions of the medical records. During that meeting, McGlynn noticed that

sections of the medical records were missing and

requested that the defendant sign a full release of his

medical records. In accordance with McGlynn’s

requests, the defendant executed two signed authorizations releasing the medical records, one dated November 1, 2010, and another dated November 10, 2010.

Thereafter, McGlynn prepared a search and seizure

warrant to obtain a full copy of the defendant’s medical

records. The search warrant affidavit stated that the

defendant had consumed alcohol at neighborhood gatherings prior to his shift, that his reported blood alcohol

content at the hospital was 0.151, and that he had signed

authorizations to release his medical records. A judge

signed the search warrant on November 16, 2010. Thereafter, the police arrested the defendant and charged

him with operating a motor vehicle while under the

influence of intoxicating liquor.

On May 11, 2012, the defendant obtained new counsel. On May 16, 2012, the defendant filed a motion to

suppress his medical records on the ground that the

release of those records to the police amounted to a

‘‘breach of . . . [the defendant’s] attorney-client privilege.’’7 After holding a hearing on the motion to suppress, the court, Kahn, J., issued a memorandum of

decision in which it denied the motion to suppress on
the grounds that ‘‘[i]t was only a matter of time before

the authorities would gain access to the medicalrecords

in full’’ and that Wurz had not been ineffective in representing the defendant. The defendant’s medicalrecords,

which included the blood test results, were entered into

evidence at trial.

On appeal, the defendant contends that his medical

records should have been suppressed because Wurz

‘‘rendered ineffective assistance of counsel by failing

to adequately investigate before disclosing privilege[d]

medical records to the state police, and doing so without [getting] [the defendant’s] informed consent.’’ The

state contends, as an alternative ground for affirmance,

that ‘‘the defendant’s sixth amendment right to counsel

had not yet attached’’ when Wurz provided the defendant’s medical records to the police. In his reply brief,

the defendant responds that his sixth amendment right

to counsel had attached when Wurz released his medical records because the police inquiry at that time ‘‘was

more than a mere investigation but an attempt to build

a case against a targeted defendant . . . .’’ We agree

with the state’s alternative ground for affirmance.8

It is well established that ‘‘[a] criminal defendant is

constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings. . . . This right arises under the sixth and

fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. . . . It is axiomatic that the right to counsel is the

right to the effective assistance of counsel.’’ (Citations

omitted; internal quotation marks omitted.) Thiersaint

v. Commissioner of Correction, 316 Conn. 89, 100–101,

111 A.3d 829 (2015). ‘‘This right attaches only at or after

the initiation of adversary judicial criminal proceedings—whether by way of formal charge, preliminary

hearing, indictment, information, or arraignment. . . .

The initiation of judicial criminal proceedings is far

from a mere formalism. It is the starting point of our

whole system of adversary criminal justice. For it is

only then that the government has committed itself to

prosecute, and only then that the adverse positions of

[the] government and [the] defendant have solidified.

It is then that a defendant finds himself faced with the

prosecutorial forces of organized society, and

immersed in the intricacies of substantive and procedural criminal law. It is this point, therefore, that marks

the commencement of the criminal prosecutions to

which alone the explicit guarantees of the [s]ixth

[a]mendment are applicable. . . . We also have noted

that the time of the attachment of the right to counsel

under the federal constitution is no different under article first, § 8, of the constitution of Connecticut.’’ (Citations omitted; internal quotation marks omitted.) State

v. Pierre, 277 Conn. 42, 92–93, 890 A.2d 474, cert. denied,

547 U.S. 1197, 126 S. Ct. 2873, 165 L. Ed. 2d 904 (2006).
In the present case, it is undisputed that the state

had not charged the defendant with any crime on

November 1, 2010, when Wurz provided the defendant’s

medical records to the police. Additionally, the state

had not charged the defendant with any crime at the

time he executed a second signed release of his medical

records on November 10, 2010. Indeed, the state did

not file the original information against the defendant

until November 22, 2010. Therefore, criminal proceedings had not commenced, and the defendant’s sixth

amendment right to counsel had not been triggered

when Wurz provided the medical records to the police.

See, e.g., State v. Vitale, 190 Conn. 219, 233, 460 A.2d

961 (1983) (defendant’s sixth amendment right to counsel did not attach in period between arrest and filing

of information or indictment); State v. Packard, 184

Conn. 258, 267, 439 A.2d 983 (1981) (‘‘[c]ounsel is

required at all lineups and showups held after the commencement of criminal proceedings and is notrequired

at the prearraignment stage, including the period from

the initial detention to the formal arrest’’ [emphasis

added]). As a result, in the present case the alleged

constitutionally ineffective assistance of the defendant’s original attorney provided no basis to suppress

the medical records. The court, thus, properly denied

the defendant’s motion to suppress.

II

SUFFICIENCY OF BLOOD TEST

Next, the defendant claims that the court improperly

denied his motion for a judgment of acquittal because

the evidence of his blood test results was ‘‘insufficient

to establish the element of ‘blood alcohol content’ in

the statutory definition of operating underthe influence

in violation of General Statutes § 14-227a (a).’’ Specifically, the defendant argues that the state failed to demonstrate that his blood alcohol content was elevated in

terms of the ratio of weight of alcohol to weight of

blood, as required by statute, and that evidence that he

had an elevated blood alcohol content expressed in

terms of weight of alcohol to volume of blood was

insufficient. We disagree and conclude that there was

sufficient evidence from which the jury reasonably

could have determined that the defendant was

operating a motor vehicle with a blood alcohol content

of 0.08 percent or more by weight, as required by statute.

We begin by setting forth our standard of review. ‘‘In

reviewing a sufficiency of the evidence claim, 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 [trier

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

reasonable doubt. . . . In evaluating evidence, the trier
of fact is not required to accept as dispositive those

inferences that are consistent with the defendant’s innocence. . . . The trier may draw whatever inferences

from the evidence orfacts established by the evidence it

deems to be reasonable and logical.’’(Internal quotation

marks omitted.) State v. Jordan, 314 Conn. 89, 106–107,

101 A.3d 179 (2014). ‘‘Due process requires that the state

prove each element of an offense beyond a reasonable

doubt. . . . It follows that insufficiency of the evidence

to support a jury’s ultimate findings on each of these

elements requires acquittal.’’ (Citation omitted.) State

v. Crafts, 226 Conn. 237, 244, 627 A.2d 877 (1993).

The defendant claims that the blood test results were

insufficient for the jury to conclude that he had an

‘‘elevated blood alcohol content’’ as defined by § 14-

227a (a) (2). The defendant argues that, because the

Vitros machine measured his blood alcohol content

with a weight of alcohol to volume of blood basis,rather

than with a weight of alcohol to weight of blood basis,

the evidence was insufficient to support his conviction

under § 14-227a (a) (2). We disagree.

Section 14-227a (a) provides in relevant part that

‘‘[a] person commits the offense of operating a motor

vehicle while under the influence of intoxicating liquor

. . . if such person operates a motor vehicle . . . (2)

while such person has an elevated blood alcohol content. . . .’’ ‘‘Elevated blood alcohol content’’ is defined

as ‘‘a ratio of alcohol in the blood of such person that

is eight-hundredths of one per cent or more of alcohol,

by weight . . . .’’ (Emphasis added.) General Statutes

§ 14-227a (a) (2).

Here, to establish that the defendant’s blood alcohol

content was greater than 0.08 percent, the state introduced into evidence blood test results that expressed

the defendant’s blood alcohol content using a weight

of alcohol to volume of blood ratio, instead of a weight

of alcohol to weight of blood ratio. This court and our

Supreme Court have held, in the context of Breathalyzer

tests, that test results reporting blood alcohol content

by using a ratio of weight of alcohol to volume of breath

are sufficient to demonstrate that the defendant had an

‘‘elevated blood alcohol content’’ as defined by § 14-

227a (a) (2). See, e.g., Stash v. Commissioner of Motor

Vehicles, 297 Conn. 204, 211, 999 A.2d 696 (2010)(Intoxilyzer test results expressed in weight of alcohol to volume of breath basis, rather than weight of alcohol to

weight of blood basis, sufficient to show operator had

elevated blood alcohol content as defined by General

Statutes § 14-227b [o] [1]);9 State v. Pilotti, 99 Conn.

App. 563, 571–79, 914 A.2d 1067 (sufficient evidence that

defendant operated motor vehicle with blood alcohol

greater than 0.08 percent by weight despite Breathalyzer test result reporting amount of alcohol measured

by volume of breath rather than measured by weight

of breath), cert. denied, 282 Conn. 903, 919 A.2d 1037
(2007).

Thus, Stash and Pilotti instruct that the statutory

requirement regarding the amount of alcohol in one’s

blood being eight-hundredths of 1 percent or more of

alcohol, by weight, may be satisfied by a measuring

metric of weight to volume.10 We see no reason to

diverge from this principle in this case, where the state

introduced into evidence blood test results that

expressed the defendant’s blood alcohol content in

terms of weight of alcohol to volume of blood.

In the present case, the blood test results showed

that the defendant had a serum blood alcohol content

of 151 milligrams per deciliter when he was admitted

to the hospital. After the test results were introduced

into evidence, Robert H. Powers, the director of the

state toxicology laboratory, testified that the measurement translated to a whole blood alcohol content of

approximately 0.13 percent.11 Powers then estimated

that, because the defendant metabolized some of the

alcohol that was in his system between the time of the

crash and when he arrived at the hospital, the defendant’s blood alcohol content was 0.139 percent when

he crashed his cruiser into a utility pole. That blood

alcohol content clearly was greater than the legally

permissible limit of 0.08 percent. This was strong evidence that the defendant had an elevated blood alcohol

content when he drove his police cruiser on the night

of this incident.

Although the defendant cross-examined the state’s

witnesses aggressively, offered his own expert to undermine the reliability of the test results, and criticized the

validity of the blood test results at closing argument,

once the blood testresults were admitted into evidence,

it was within the province of the jury to assess the

weight of that evidence. See State v. Kirsch, 263 Conn.

390, 409, 820 A.2d 236 (2003) (‘‘the defendant’s challenges to the methodology [of an alcohol dehydrogenase based blood test] affected the weight of the

testimony and not its reliability’’). On the evidence presented here, the jury easily could have concluded that

the cumulative force of the evidence proved beyond a

reasonable doubt that the defendant had an elevated

blood alcohol content, as defined by § 14-227a (a) (2),

when he operated his police cruiser on the night of

June 26, 2010.

III

STATUTE OF LIMITATIONS

Finally, the defendant claims that the court improperly (1) denied his motion to dismiss the reckless driving

count because the state brought this charge beyond the

statute of limitations and (2) refused to allow him to

present that ground to the jury. We disagree.

1
Motion to Dismiss

The defendant claims that the court, Kahn, J.,

improperly denied his motion to dismiss the reckless

driving count. The defendant argues that ‘‘[t]he statute

of limitations was not tolled by the state’s original

November 22, 2010 information, as the charge of reckless driving is insufficiently related to the original

charge of operating a motor vehicle [while] under the

influence of alcohol . . . .’’ We disagree.

The following facts and procedural history are relevant to this claim. On June 4, 2012, the defendant moved

to dismiss the counts added in the amended information

on the ground that they were barred by the applicable

statute of limitations. On July 11, 2012, the court denied

the defendant’s motion to dismiss as to the reckless

driving charge.

In its memorandum of decision, the court stated that

the allegations underlying the reckless driving count

were ‘‘identical to the facts underlying the original information charging the defendant with operating a motor

vehicle [while] underthe influence.’’ The court specified

that the warrant affidavits included allegations about

the reckless manner that the defendant was driving on

the night of the crash and, therefore, ‘‘the defendant

was aware, from the date of his arrest, of the factual

allegations against which he would have to defend in

regard to the crash on June 26, 2010.’’ According to the

court, ‘‘[t]he factual allegations relating to the manner

in which the defendant was driving, speed and direction,

[were] also included in the affidavits. The affidavits

also contained statements from witnesses on the scene

relating to the alleged reckless manner in which the

defendant operated the vehicle prior to the crash.’’

Finally, the court acknowledged that ‘‘[w]hile the elements of the offenses are slightly different, the factual

allegations and evidence in support of those charges is

similar. While there is an additional exposure to the

defendant, that exposure is not impermissible or prejudicial under the circumstances of this case.’’ The record

supports the court’s conclusions.

‘‘The standard of review governing the defendant’s

claim that the trial court improperly failed to grant his

motion to dismiss a charge on the ground that the statute of limitations had passed is well settled. Our review

of the trial court’s legal conclusions and resulting denial

of the defendant’s motion to dismiss is de novo.’’ State

v. Golodner, 305 Conn. 330, 357, 46 A.3d 71 (2012).

Practice Book § 36-17 provides in relevant part: ‘‘If the

trial has not commenced, the prosecuting authority may

amend the information, or add additional counts, or file

a substitute information. . . .’’ ‘‘The general rule is that,

although the prosecution has broad authority to file an

amended or substitute information prior to trial . . .

[General Statutes § 54-193 (c)] provides that no person
may be prosecuted except within one year next after

the offense has been committed. . . . The issuance of

an arrest warrant tolls the running of the statute of

limitations, provided that it is executed without unreasonable delay and with due diligence. . . . When the

state files an amended or substitute information after

the limitations period has passed, however, a timely

information will toll the statute of limitations only if the

amended or substitute information does not broaden or

substantially amend the charges made in the timely

information. . . . Although notice is the touchstone of

the analysis in determining whether an amended or

substitute information substantially broadens or

amends the timely charges . . . factors to assist in this

determination are whether the additional pleadings

allege violations of a different statute, contain different

elements, rely on different evidence, or expose the

defendant to a potentially greater sentence.’’ (Citations

omitted; internal quotation marks omitted.) State v.

Golodner, supra, 357–58.

Pursuant to § 54-193 (c),12 the charged violation of

§ 14-222 (a) was subject to a one year limitations period

because it was not punishable by a term of imprisonment of more than one year. Here, because the offense

occurred on June 26, 2010, and the state did not file

the amended information until May 29, 2012, there is

no dispute that the state failed to charge the defendant

with reckless driving within the applicable one year

statute of limitations. Consequently, we must address

whether the ‘‘arrest warrant and [original] information

. . . served to toll the running of the statute of limitations’’ to permit the state to add the reckless driving

charge. State v. Jennings, 101 Conn. App. 810, 821, 928

A.2d 541 (2007).

In the present case, in the original information, the

state charged the defendant with violating § 14-227a.

There are two distinct ways in which a defendant could

violate § 14-227a. Indeed, this court has explained that

‘‘subdivisions (1) and (2) of . . . § 14-227a (a) . . . are

known, respectively, as the behavioral and per se subdivisions of that statute. . . . The behavioral subdivision

prohibits a person from operating a motor vehicle while

under the influence of intoxicating liquor. General Statutes § 14-227a (a) (1). The per se subdivision prohibits

a person from operating a motor vehicle while he has

a blood alcohol content of 0.08 percent or greater. General Statutes § 14-227a (a)(2).’’(Citation omitted.) State

v. Sunila, 98 Conn. App. 847, 849, 911 A.2d 773 (2006).

The original information in this case did not specify

the subdivision of § 14-227a (a) under which the state

would proceed with this prosecution. Thus, when the

state had filed the original information, it was possible

that the state would elect to prosecute the defendant

for violating § 14-227a (a) (1) for operating his police

cruiser while under the influence of an intoxicating
liquor.13 Indeed, ‘‘[i]n Connecticut, it is sufficient for

the state to set out in the information the statutory

name of the crime with which the defendant is charged,

leaving to the defendant the burden of requesting a bill

of particulars more precisely defining the manner in

which the defendant committed the offense.’’ (Internal

quotation marks omitted.) State v. Walton, 34 Conn.

App. 223, 227, 641 A.2d 391, cert. denied, 230 Conn. 902,

644 A.2d 916 (1994). Stated differently, the defendant

had to be prepared to defend against either or both

subdivisions until further clarification was obtained. In

this case, the defendant never asked the state to identify

the precise way in which he violated § 14-227a (a) and,

therefore, he was on notice that he was being charged

with both statutory alternative theories available under

that subsection.

In prosecutions for violations of § 14-227a (a) (1),

direct evidence that the driver had an elevated blood

alcohol content is not necessary or required for the

state to prove that a driver operated a motor vehicle

while under the influence of an intoxicating liquor. See

State v. Howell, 98 Conn. App. 369, 377, 908 A.2d 1145

(2006) (evidence that driver appeared impaired, spoke

with slurred speech, failed field sobriety tests, and

refused to submit to breath test sufficient for jury to

find driver violated § 14-227a [a] [1]). To demonstrate

that a defendant violated § 14-227a (a) (1), the state is

required to show that, as a result of the consumption

of intoxicating liquor, the defendant ‘‘had become so

affected in his mental, physical or nervous processes

that he lacked to an appreciable degree the ability to

function properly in relation to the operation of his

vehicle.’’ (Internal quotation marks omitted.) State v.

Morelli, 293 Conn. 147, 154, 976 A.2d 678 (2009).

This court consistently has held that evidence of

erratic driving supports a jury’s guilty verdict for violations of § 14-227a (a) (1). See, e.g., State v. Fontaine,

134 Conn. App. 224, 228, 40 A.3d 331 (conviction of

violation of § 14-227a [a] [1] supported by evidence that

defendant ‘‘drove in an erratic manner, crossing over

the white line on the right side of the roadway on three

occasions’’), cert. denied, 304 Conn. 926, 41 A.3d 1051

(2012); State v. Monahan, 125 Conn. App. 113, 120, 7

A.3d 404 (2010) (conviction of violation of § 14-227a [a]

[1] supported by evidence that driver ‘‘drove [vehicle]

onto the right curb five to seven times and into the

wrong lane three times, almost hitting four cars’’), cert.

denied, 299 Conn. 926, 11 A.3d 152 (2011); State v.

Coyne, 118 Conn. App. 818, 826–27, 985 A.2d 1091 (2010)

(‘‘testimony describing the defendant’s erratic driving,

including drifting between travel lanes, turning without

signaling, driving over a traffic cone, failing to maintain

a consistent speed and making a U-turn despite being

familiar with the area’’ supported conviction of violation

of § 14-227a [a] [1]).
Here, the arrest warrant included witness statements

indicating that, after consuming alcohol on the night

of June 26, 2010, the defendant drove his police cruiser

in an erratic manner and crashed into a utility pole.

The amended information charging the defendant with

reckless driving relied on those very facts pertaining

to the manner in which the defendant drove. Significantly, the date, time, and place that the reckless driving

was alleged to have occurred were identical to the date,

time, and place that the defendant was alleged to have

operated his police cruiser while under the influence

of alcohol. See State v. Almeda, 211 Conn. 441, 447–48,

560 A.2d 389 (1989) (prosecution on substitute information charging assault in first degree not time barred

where factual allegations were identical to those underlying original information charging attempt to commit murder).

The factual allegations underlying the amended information, thus, were ‘‘substantially similar to the facts

underlying’’ the original information; id., 446; and did

not ‘‘broaden or substantially amend the charges made

in the first information.’’ State v. Jennings, supra, 101

Conn. App. 818.14 The evidence in the record, thus, demonstrates that the defendant had ‘‘timely notice . . .

of the factual allegations against which he [would] be

required to defend’’; (internal quotation marks omitted)

State v. Almeda, supra, 211 Conn. 446; and supports

the court’s conclusion that ‘‘the defendant was aware,

from the date of his arrest, of the factual allegations

against which he would have to defend in regard to the

crash on June 26, 2010.’’15 Therefore, the court properly

denied the defendant’s motion to dismiss the reckless

driving count.

2

Jury Charge

Next, the defendant claims that the court, Alander,

J., improperly denied his requests to raise his statute

of limitations defense at trial and to include an instruction on the statute of limitations in the jury charge. We

are not persuaded.

‘‘A challenge to the validity of jury instructions presents a question of law over which [we have] plenary

review.’’ (Internal quotation marks omitted.) State v.

Santiago, 305 Conn. 101, 191, 49 A.3d 566 (2012). It is

well established that ‘‘[c]entral to a defendant’s right

to a fair trial is the right to have issues of fact and

credibility decided by the jury.’’ (Emphasis added;

internal quotation marks omitted.) State v. Diaz, 86

Conn. App. 244, 253, 860 A.2d 791 (2004), cert. denied,

273 Conn. 908, 870 A.2d 1081 (2005). Nonetheless, ‘‘[t]he

court shall decide all issues of law and all questions of

law arising in the trial of criminal cases. . . .’’ General

Statutes § 54-89; see also State v. Marx, 78 Conn. 18,

28, 60 A. 690 (1905) (‘‘[i]n jury trials it is the province
of the court to decide questions of law, and of the jury

to decide questions of fact’’). Indeed, ‘‘[t]he principal

function of a jury charge is to assist the jury in applying

the law correctly to the facts which [it] might find to

be established . . . .’’ (Emphasis added; internal quotation marks omitted.) State v. Wright, 149 Conn. App.

758, 772, 89 A.3d 458, cert. denied, 312 Conn. 917, 94

A.3d 641 (2014). Significantly, it is well established that

‘‘[t]he interpretation of pleadings is always a question

of law for the court . . . .’’ (Internal quotation marks

omitted.) Torres v. Carrese, 149 Conn. App. 596, 613, 90

A.3d 256, cert. denied, 312 Conn. 912, 93 A.3d 595 (2014).

In the present case, the court permitted the state to

charge the defendant with additional counts beyond

the statutorily permitted period because the new information did not ‘‘broaden or substantially amend the

charges made in the timely information.’’ State v.

Golodner, supra, 305 Conn. 357. That determination

required a comparison between the facts underlying

the amended information and the facts underlying the

original information; see State v. Jennings, supra, 101

Conn. App. 821; which was a legal determination outside of the jury’s purview. See, e.g., Watts v. Chittenden,

301 Conn. 575, 582, 22 A.3d 1214 (2011) (in a civil action,

‘‘[t]he question of whether a party’s claim is barred by

the statute of limitations is a question of law’’ [internal

quotation marks omitted]).

Here, in denying the motion to dismiss, the court,

Kahn, J., determined that‘‘the factual allegations underlying the [reckless driving count in the] substitute information . . . are identical to the facts underlying the

original information charging the defendant with

operating a motor vehicle under the influence.’’ Such

a determination was a conclusion of law and, therefore,

inappropriate for the jury’s consideration. As a result,

under the circumstances of this case,16 the court,

Alander, J., properly denied both the defendant’s

request to raise the statute of limitations defense before

the jury and his request to instruct the jury on his statute

of limitations defense.

The judgment is affirmed.

In this opinion the other judges concurred.

1

‘‘ ‘Serum’ is the liquid portion of the blood separated from the solids

and a serum blood alcohol content is on average 16 percent higher than a

whole blood alcohol content. See 1 E. Fitzgerald, Intoxication Test Evidence

(2d Ed. 1995) § 19:3, p. 19-10, and § 19:16, fig. 29.’’ State v. Kirsch, 263 Conn.

390, 395 n.5, 820 A.2d 236 (2003). At trial, Robert H. Powers, the director

of the state toxicology laboratory, testified that a serum result of 151 milligrams per deciliter translates to a 0.13 percent whole blood alcohol level.

2 General Statutes § 14-227a provides in relevant part: ‘‘(a) Operation while

under the influence or while having an elevated blood alcohol content. No

person shall operate a motor vehicle while underthe influence ofintoxicating

liquor or any drug or both. 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. . . .’’

3 The amended information also included new charges of reckless endan-
germent in the first degree in violation of General Statutes § 53a-63, and

carrying a firearm while underthe influence of intoxicating liquorin violation

of General Statutes § 53-206d (a). The court dismissed the carrying a firearm

while under the influence count, and the defendant was acquitted of reckless endangerment.

4 General Statutes § 14-222 (a) provides in relevant part: ‘‘No person shall

operate any motor vehicle upon any public highway of the state, or any

road of any specially chartered municipal association . . . recklessly, having regard to the width, traffic and use of such highway [or] road . . . the

intersection of streets and the weather conditions. The operation of a motor

vehicle upon any such highway [or] road . . . at such a rate of speed as

to endanger the life of any person other than the operator of such motor

vehicle . . . shall constitute a violation of the provisions of this section.

. . .’’

5 Although ordinarily, employees file workers’ compensation claims on

their own behalf, in this case the record indicates that the city filed a

workers’ compensation claim on behalf of the defendant.

6 On appeal, the defendant does not challenge the validity of the blood

test on this basis.

7 On May 16, 2012, the defendant filed a separate motion to suppress in

which he claimed that the blood test results were inadmissible because they

lacked scientific reliability, the state was unable to demonstrate a proper

chain of custody, and the blood sample was obtained in a manner that failed

to comply with applicable regulations. The court denied that motion, and

the defendant does not challenge that ruling in this appeal.

8

It is appropriate for this court to consider the state’s claim as alternative

grounds for affirmance because it included ‘‘[a]ny other alternate ground

for affirmance’’ in its preliminary statement of issues and raised the claim

in its principal brief to this court, affording the defendant an adequate

opportunity to respond, which he did in his reply brief. See Gerardi v.

Bridgeport, 294 Conn. 461, 466, 985 A.2d 328 (2010).

9

‘‘Elevated blood alcohol content’’ is defined by § 14-227b (o) (1), which

governs the suspension of driver’s licenses, as ‘‘a ratio of alcohol in the

blood of such person that is eight-hundredths of one per cent or more of

alcohol, by weight . . . .’’ This definition is identical to the definition of

‘‘elevated blood alcohol content’’ set forth in § 14-227a (a) (2).

10 We do not suggest that a blood alcohol content measured with a weight

to volume ratio is the scientific equivalent of a measurement expressed with

a weight to weight ratio. Nonetheless, it is well established that a blood

alcohol content measured with a weight to volume ratio is admissible and

competent evidence to prove that a defendant had an elevated blood alcohol

content as defined by § 14-227a (a) (2). See, e.g., State v. Pilotti, supra, 99

Conn. App. 571–79.

11 Powers explained that serum blood alcohol levels tend to be higher by

a factor of 1.16 than the whole blood alcohol content, which is the measurement required by § 14-227a (a) (2). Thus, for the purposes of trial and to

conform to the statutory requirements of § 14-227a, Powers converted the

defendant’s serum blood alcohol content to a whole blood alcohol content

of 0.13 percent. See footnote 1 of this opinion; see also State v. Kirsch, 263

Conn. 390, 403–409, 820 A.2d 236 (2003) (hospital blood test results initially

reported in serum blood alcohol content, and converted by expert at trial

to whole blood alcohol content equivalent, admissible to demonstrate that

defendant operated motor vehicle while under influence of intoxicating

liquor).

12 General Statutes § 54-193 (c) provides in relevant part: ‘‘No person may

be prosecuted for any offense, other than an offense set forth in subsection

(a) or (b) of this section, except within one year next after the offense has

been committed.’’

The reckless driving charge did not encompass either subsection (a) or

(b) of § 54-193; thus, the one year statute of limitations set forth in subsection

(c) was applicable.

13 In the amended information dated May 29, 2012, the state revised the

§ 14-227a charge to charge the defendant specifically with violating subsection (a) (2) of the statute for operating his police cruiser while having a

blood alcohol content higher than 0.08 percent. In this appeal, the defendant

has not made a constitutional notice challenge that the original information

charging him simply with § 14-227a, which identified no specific subsection,

was insufficiently precise such that he was unable to defend against it.

14 The defendant’s reliance on State v. Jennings, supra, 101 Conn. App.

810, is misplaced. In that case, the defendant originally was charged with
stalking ‘‘on or about September 24, 2004.’’ (Internal quotation marks omitted.) Id., 820. After the statute of limitations had passed, the state added a

second stalking charge that was based on an incident that allegedly occurred

‘‘on or about September 20, 2004.’’ (Internal quotation marks omitted.) Id.

Thus, in that case, the defendant was called upon to answer for conduct

arising from a wholly separate incident. This court held that the second

charge was impermissible. We specified that because the second stalking

charge ‘‘would double the possible maximum penalty, the addition of second

count impermissibly would broaden the charges against the defendant by

exposing him to a potentially greater sentence.’’ Id.

In the present case, unlike in Jennings, the reckless driving charge arose

from the exact incident as the charged violation of § 14-227a. Thus, the

defendant here had notice, from the outset of the prosecution, that evidence

pertaining to the manner in which he drove his cruiser on the night of the

accident might be introduced at trial.

15 We are not persuaded by the defendant’s reliance on State v. Golodner,

supra, 305 Conn. 330. In that case, a driver allegedly drove his vehicle at

two individuals that were standing next to each other. Id., 336. The driver

originally was charged with one count of reckless endangerment, which

pertained to only one of the victims. More than one year later, after the

statute of limitations passed, the state filed a substitute information in which

it added a second reckless endangerment charge, which pertained to the

second victim. Id., 355.

In determining that the amended information impermissibly broadened

the charges set forth in the original information, the Supreme Court emphasized that the ‘‘substitute information was filed relating to a different victim.’’ (Emphasis in original.) Id., 358. As a result, the court in Golodner

concluded that ‘‘the defendant had no notice that he was accused of any

criminal conduct related to the new victim.’’ (Emphasis added.) Id., 359.

In the present case, however, there is no concern that the defendant was

charged in the amended information with conduct related to a new victim.

Golodner, thus, is inapposite to the present case.

16 We are cognizant that, under circumstances wholly different from this

case, factual issues are determinative of whether additional charges are

precluded by the statute of limitations. See, e.g., State v. Ali, 233 Conn. 403,

416, 660 A.2d 337 (1995) (‘‘the issue of whether the state executed the

warrant within a reasonable period of time was properly a question of fact

for the jury’’); State v. Parsons, 28 Conn. App. 91, 96, 612 A.2d 73 (tolling

of statute of limitations was based on factual determination as to when

offense occurred), cert. denied, 223 Conn. 920, 614 A.2d 829 (1992). In the

present case, however, the tolling of the statute of limitations was properly

determined by comparing the facts underlying the original and amended

informations, which was a question of law properly determined by the court.