Neither victim or victim’s attorney has a right to attend settlement conference

On December 5, 2017 the Connecticut Supreme Court will officially release an opinion.  The Court concluded that neither a victim of a crime, or a victim’s representative, is permitted to participate in off-the-record, in-chambers pretrial disposition (settlement) conferences.  The decision is available here:

http://www.jud.ct.gov/external/supapp/Cases/AROcr/CR327/327CR117.pdf

The U.S. Supreme Court weighs in on Stun-Gun Carry Ban

In Massachusetts, a law prohibits the possession of stun guns.  The Supreme Judicial Court of Massachusetts upheld that law, when a woman convicted of violating the law challenged it on constitutional grounds.  On March 21, 2016, the United States Supreme Court issued a two page decision, which vacates the judgment of the Massachusetts Court.  However, it is a separate concurring opinion of Justice Samuel Alito (with whom Justice Clarence Thomas joins), which provides us with these details:

After a “bad altercation” with an abusive boyfriend put
her in the hospital, Jaime Caetano found herself homeless
and “in fear for [her] life.” Tr. 31, 38 (July 10, 2013). She
obtained multiple restraining orders against her abuser,
but they proved futile. So when a friend offered her a stun
gun “for self-defense against [her] former boy friend,” 470
Mass. 774, 776, 26 N. E. 3d 688, 690 (2015), Caetano
accepted the weapon.

It is a good thing she did. One night after leaving work,
Caetano found her ex-boyfriend “waiting for [her] outside.”
Tr. 35. He “started screaming” that she was “not gonna
[expletive deleted] work at this place” any more because
she “should be home with the kids” they had together.
Ibid. Caetano’s abuser towered over her by nearly a foot
and outweighed her by close to 100 pounds. But she didn’t
need physical strength to protect herself. She stood her
ground, displayed the stun gun, and announced: “I’m not
gonna take this anymore. . . . I don’t wanna have to [use
the stun gun on] you, but if you don’t leave me alone, I’m
gonna have to.” Id., at 35–36. The gambit worked. The
ex-boyfriend “got scared and he left [her] alone.” Id.,
at 36.

The events leading to Caetano’s prosecution occurred
sometime after the confrontation between her and her ex boyfriend.
[Police officers] arrested her for violating Mass. Gen. Laws, ch. 140, §131J,
“which bans entirely the possession of an electrical weapon,” 470
Mass., at 775, 26 N. E. 3d, at 689.1 When Caetano moved
to dismiss the charge on Second Amendment grounds, the
trial court denied the motion.

The United States Supreme Court rejected three explanations provided by the Massachusetts court, which were used to uphold the law, because those explanations contradict United States Supreme Court precedent, as follows:

1)  The Massachusetts Court explained that stun guns are not protected because they “were not in common use at the time of the Second Amendment’s enactment.”  The US Supreme Court stated this is inconsistent with the decision of District of Columbia v. Heller, 554 US 570 (2008), which provided a clear statement that the Second Amendment “extends … to … arms… that were not in existence at the time of the founding.”

2)  The Massachusetts Court concluded that stun guns are “unusual” because they are “a thoroughly modern invention.”  The US Supreme Court disagreed with the reasoning, and found the reasoning was inconsistent with the Heller opinion.

3)  The Massachusetts Court used “a contemporary lens” and found “nothing in the record to suggest that [stun guns] are readily adaptable to use in the military.”  The US Supreme Court disagreed again, because “Heller rejected the proposition ‘that only those weapons useful in warfare are protected.”  (citation omitted.)

For these three reasons, the US Supreme Court issued its order vacating the judgment of the Supreme Judicial Court of Massachusetts, and remanded the case “for further proceedings not inconsistent with [the US Supreme Court’s] opinion.”

In the concurring opinion Justice Alito wrote:

“A State’s most basic responsibility is to keep its people safe.  The Commonwealth of Massachusetts was either unable or unwilling to do what was necessary to protect Jaime Caetano, so she was forced to protect herself.  To make matters worse, the Commonwealth chose to deploy its prosecutorial resources to prosecute and convict her of a criminal offense for arming herself with a nonlethal weapon that may well have saved her life.”

Justice Alito was dismayed by the manner in which the US Supreme Court issued its decision.  He wrote:

“This Court’s grudging per curiam now sends the case back to that same [Massachusetts Supreme Judicial] court.  And the consequences for Caetano may prove more tragic still, as her conviction likely bars her from ever bearing arms for self-defense.”  “If the fundamental right of self-defense does not protect Caetano, then the safety of all Americans is left to the mercy of state authorities who may be more concerned about disarming the people than about keeping them safe.”

The Supreme Court’s per curiam opinion in Caetano v. Massachusetts, and the concurring opinion of Justice Alito and Justice Thomas, is available here:

http://www.supremecourt.gov/orders/courtorders/032116zor_h3ci.pdf

 

Remote Vehicle Starters: DUI/OUI laws in Connecticut

In Connecticut, no person shall operate a motor vehicle while under the influence of intoxicating liquor, or any drug, or both.  CGS 14-227a.

Question: What if the key is in the ignition, but the engine is not started?

Answer:  “We [the Connecticut Supreme Court] conclude that the defendant’s act of inserting the key into the ignition constituted operation of a motor vehicle within the meaning of [the statute] § 14-227a (a).”  State of CT vs. Haight, 279 Conn. 546 (2006).


Question:  What if the engine is started by a Remote Starter, but no key is in the ignition?

Answer:  “… the lack of an inserted ignition key is but a temporary impediment to the movement of a remotely started vehicle.  Because such an impediment easily is overcome by insertion of the key, it will not preclude a finding of operation.”  State of CT vs. Cyr, 291 Conn. 49 (2009).

Sleeping in a Vehicle?

Each case is fact specific.  However there are many DUI arrests in Connecticut that involve occupants sleeping in the vehicle, who had not put the vehicle in motion, but who are considered to have violated the statute.  Connecticut court decisions finding that this action constitutes prohibited “operation”, rely on public policy provisions of the statute. Such provisions are “preventive measure [s] … which deter individuals who have been drinking intoxicating liquor from getting into their vehicles, except as passengers … and which enable the drunken driver to be apprehended before he strikes ….” (Citations omitted)  State of CT  vs. Cyr, at 61.

Restraining Orders & Protective Orders

We are often asked about Restraining Orders, and Protective Orders.

The information below, is available on the Connecticut judicial website:  http://www.jud.ct.gov/statistics/prot_restrain/

Every case is fact specific.  If you are involved in a proceeding that involves either a civil Restraining Order, or a criminal Protective Order, we strongly advise you to speak with an experienced attorney.

Protective / Restraining Order Glossary

  • Family Violence Protective Order (section 46b-38c of the Connecticut General Statutes) is an order that is issued at the time of arraignment during a criminal proceeding. Usually these orders are recommended by either the family relations office or in some cases the state’s attorney’s office. These orders are usually in effect from the date they are issued until the criminal case is sentenced and/or disposed of. In some cases a protective order can be removed prior to the underlying case being settled.
  • Standing Criminal Restraining Order (section 53a-40e of the Connecticut General Statutes is an order that is issued usually at the end of a criminal case. These are lifetime orders and remain in effect until further order of the court. This order type is generally issued when it is a more severe criminal case.
  • Restraining Order Application (section 46b-15 of the Connecticut General Statutes) is an application for a restraining order ex parte (immediate). It is given out at the clerk’s office to people who come in for relief from abuse in family cases. A Judge reviews the application and affidavit, and decides whether or not to issue a restraining order relief from abuse. If one is issued, the application is then updated to an ex parte restraining order. The Judge can also deny the ex parte relief and issue an Order for Hearing and Notice Summons.
  • Ex Parte Restraining Order (section 46b-15 of the Connecticut General Statutes) is an order issued by the family court when someone has completed the restraining order application. The Judge has reviewed the application and affidavit, and issues a temporary ex parte restraining order. A hearing date is scheduled, and the respondent must be notified. Generally speaking, this order is good for for 14 days, or until the date of the hearing. (Hearings can be scheduled before the 14-day time limit).
  • Restraining Order After Hearing (section 46b-15 of the Connecticut General Statutes) is issued after a hearing on an ex parte restraining order, or an Order for Hearing and Notice Summons. Again, this order type is issued out of the family court. Generally speaking, it is effective for 6 months from the date of the hearing. A victim/applicant can request that the restraining order after the hearing be extended when the 6 months is about to run out. They must file a motion to extend and the respondent must again get notice.

Connecticut’s DUI/OUI laws effective July 1, 2015

The Connecticut Department of Motor Vehicles has provided a useful summary of changes to Connecticut’s Operating Under the Influence (OUI) laws.  Note new provisions of the laws, effective July 1, 2015, affecting driver license suspensions and Ignition Interlock Devices.

The summary below is available at:  http://www.ct.gov/dmv/cwp/view.asp?a=813&q=249562

Connecticut’s Drunk Driving Law
Operating Under the Influence (OUI)
   In Connecticut, operating a motor vehicle while under the influence of alcohol and/or drugs is a criminal offense.  This offense may be prosecuted with or without any direct evidence of a person’s BAC.  The determining factor is whether a person’s ability to drive has been impaired.
Driving is a privilege, and under Connecticut’s Implied Consent Law any person who operates a motor vehicle is presumed to have given his or her consent to a test to determine blood alcohol concentration (BAC).
You are legally intoxicated if your BAC is .08 or above.
If you are under 21 years of age, you are legally intoxicated at a .02 BAC or higher.
Any amount of alcohol will affect driving ability.  Alcohol’s effect is magnified by emotions, physical condition, use of prescription drugs or other types of drugs, some over-the-counter medications and some herbal supplements.
If you are arrested for OUI:
  • You will be detained by the police and read your rights.
  • Your vehicle will be towed at your expense.
  • You will be taken in a police cruiser to the police station.
  • If the test registers a BAC of .08 or higher, you will be held on the presumption that you were operating under the influence.
  • You will be kept in a police lock-up until you are bailed out.
There are two ways to lose your license:
1.  Administrative Per Se through DMV
for failing or refusing a chemical alcohol test
When a driver is arrested and charged with operating under the influence of alcohol or drugs, the arrest report is sent to DMV.  Upon receipt of the arrest report, DMV imposes a suspension under Connecticut General Statute §14-227b for the failure of the blood, breath or urine test (whichever is requested by the arresting officer) or for the refusal to submit to the test.  In most cases, the suspension will begin 30 days after the arrest date.  The license suspension is based on the arrest information and is separate from any penalties or requirements that may be imposed as a result of the court case.
A notice of suspension will be mailed to the address of record allowing you seven days to request a hearing.  If you wish to request a hearing, call the Administrative Per Se Unit at 860-263-5204 (8:30a.m. to 4:30 p.m. Monday through Friday) before the deadline stated on your suspension notice.

Beginning with arrest dates on or after July 1, 2015, ALL driver license suspensions for failing or refusing a chemical alcohol test will be forty-five (45) days.

Installation of an Ignition Interlock Device (IID) will be required prior to restoration for ALL alcohol related suspensions. Following restoration, the IID must be maintained for at least the length of time listed below:

IID requirement for drivers under 21 years old*

Blood Alcohol Level

First Offense

Second Offense

Third or Subsequent Offense

Test results of .02 or higher

1 year

2 years

3 years

IID requirement for drivers 21 Years Old and Older*

Blood Alcohol Level

First Offense

Second Offense

Third or Subsequent Offense

Test results of .08 or higher

6 months

1 year

2 years

IID requirement for ALL drivers*

Refusal of test

First Offense

Second Offense

Third or Subsequent

Offense

Refusal to submit to a breath, urine, or blood test

1 year

2 years

3 years

*If you are convicted in court for operating while under the influence of alcohol or drugs under Connecticut General Statute §14-227a for the same arrest, the IID may be required for a longer term. The IID is required for the duration specified in Connecticut General Statute §14-227b(i) or Connecticut General Statute §14-227a(g), whichever is longer. See Section 2 below.

If you were arrested prior to July 1, 2015 you may petition in writing to the Commissioner of the Department of Motor Vehicles for the option to participate in the IID program.  After serving at least 45 days of your suspension for failing or refusing the chemical test, you will be required to have an IID for the remainder of the original suspension, plus the additional duration required (if any) following a conviction under Connecticut General Statute §14-227a for the same arrest.

 

2. Court conviction for Operating Under the Influence of Alcohol or Drugs (OUI)

 

Under Connecticut’s criminal law, a driver arrested for OUI will receive both a summons and a court date.  If the court proceedings result in a conviction, the following penalties must be imposed by the Department of Motor Vehicles:

 

Operating Under the Influence of Alcohol or Drugs

Connecticut General Statute §14-227a or §14-227g

Conviction on or after July 1, 2015

First Conviction

Second Conviction

Third or Subsequent Conviction

45 day license suspension

If the 45 day suspension for failing or refusing a chemical test for the same arrest has already been served, may be eligible for restoration immediately if there are no other suspensions.

Must install Ignition Interlock Device (IID)

IID required for one year following restoration, or for the duration required under the Administrative Per Se law, whichever is longer

If already reinstated with an IID following the suspension for failing or refusing a chemical test for the same arrest, the IID will be credited toward completion of the one year requirement

45 day license suspension

If the 45 day suspension for failing or refusing a chemical test for the same arrest has already been served, may be eligible for restoration immediately if there are no other suspensions.

Must install Ignition Interlock Device (IID)

IID required for three years following restoration

During the first year of this three-year period you may drive only to or from work, school, an alcohol or drug abuse treatment program, an IID service center, or an appointment with a probation officer.

If already reinstated with an IID following the suspension for failing or refusing a chemical test for the same arrest, the IID will be credited toward completion of the three year requirement

Permanent revocation of license

Must wait at least two yearsfrom the date of revocation to request a hearing for reconsideration

For arrests prior to July 1, 2015 you may petition in writing to the Commissioner of the Department of Motor Vehicles for the option to participate in the IID program after serving at least 45 days of the suspension under Connecticut General Statute §14-227b for the same arrest. You will be required to have an IID for the time required conviction under Connecticut General Statute §14-227a or Connecticut General Statute §14-227b, whichever is longer.

 

Operating Under the Influence of Alcohol or Drugs

Connecticut General Statute §14-227a, §14-227g, or §14-111n

Conviction after January 1, 2012

First Conviction

Second Conviction

Third or Subsequent Conviction

45 day license suspension

If no other suspensions, eligible for restoration after the 45 day suspension regardless of whether the suspension for failing or refusing a chemical test for the same arrest has been fully served

Must install Ignition Interlock Device (IID)

IID required for one year following restoration

45 days license suspension, or until 21st birthday, whichever is longer.

If no other suspensions, eligible for restoration after the 45 day suspension regardless of whether the suspension for failing or refusing a chemical test for the same arrest has been fully served

Must install Ignition Interlock Device (IID)

IID required for three years following restoration

During the first year of this three-year period you may drive only to or from work, school, an alcohol or drug abuse treatment program, an IID service center, or an appointment with a probation officer.

Permanent revocation of license

Must wait at least two years from the date of revocation to request a hearing for reconsideration for reconsideration

  

Operating Under the Influence of Alcohol or Drugs

Connecticut General Statute §14-227a, §14-227g, or §14-111n

Conviction prior to January 1, 2012

Under Age 21

First Conviction

Second Conviction

Third or Subsequent conviction

1 year license suspension

3 year license suspension, or until 21st birthday, whichever is longer

Must install Ignition Interlock Device (IID)

IID required for two years following restoration

Permanent revocation of license

Must wait at least two years from the date of revocation to request a hearing forreconsideration

  

Age 21 or older

First Conviction

Second Conviction

Third or Subsequent conviction

1 year license suspension

1 year license suspension

Must install Ignition Interlock Device (IID)

IID required for two years following restoration

Permanent revocation of license

Must wait at least two years from the date of revocation to request a hearing for reconsideration

 

Manslaughter with a Motor Vehicle, Connecticut General Statute §53a-56b

Assault with a Motor Vehicle, Connecticut General Statute §53a-60d

First Conviction

Second Conviction

Third or Subsequent Conviction

1 year license suspension

Must install Ignition Interlock Device (IID)

IID required for two years following restoration

1 year license suspension

Must install Ignition Interlock Device (IID)

IID required for two years following restoration

Permanent revocation of license

Must wait at least two years from the date of revocation to request a hearing for reconsideration

 

 

To determine if a conviction is a first, second, or third/subsequent offense, any and all convictions reported under Connecticut General Statutes §14-111n, §14-227a, §14-227g, §53a-56b or §53a-60d are considered.

For information concerning restoration or IID requirements, you may write or call:

 

Department of Motor Vehicles

Driver Services Division

60 State Street

Wethersfield, CT  06161-2525

dmv.suspension@ct.gov

Phone:  860-263-5720

 

 

Content Last Modified on 7/29/2015 12:40:16 PM