State v. Lavorgna , 37 Conn. Super. Ct. 767 ( 1981 )

I disagree with that portion of the opinion which finds error in the denial of the defendant's application for accelerated rehabilitation. There are several steps involved in the procedure of applying for accelerated rehabilitation. These are outlined on the application form furnished by the court as follows: (1) Application; (2) Oath; (3) 1st Order, and (4) 2nd Order (if applicable).

The statute authorizing accelerated rehabilitation; General Statutes 54-76p (now 54-56e); provides in relevant part: "There shall be a pretrial program for accelerated rehabilitation of persons accused of a crime, not of a serious nature. The court may, in its discretion, invoke such program on motion of the defendant or on motion of a state's attorney or prosecuting attorney with respect to an accused who, the court believes, will probably not offend again and who has no previous record of conviction of crime and who states under oath in open court under the penalties of perjury that he has never had such program invoked in his behalf . . . ." (Emphasis added.) The application signed by the defendant and his attorney recited that "the Accused never had such program invoked is [sic] his/her behalf and will so state in open court under the penalties of perjury." (Emphasis added.) This the defendant never did. The required oath was never given in court. The record of the court proceedings and the application form confirm this statutory deficiency. The transcript of events fails to show that any such oath was given by the defendant. The oath on the application form is completely unexecuted. The assumption was made by all concerned in the discussion and consideration of the application for accelerated rehabilitation that it was proper in form and met all of the statutory requirements, but this was erroneous in fact. The defendant's failure to comply with the statutorily prescribed procedures and conditions precluded any further consideration or grant of accelerated rehabilitation and supports the court's denial of the application.

The statute is plain and unequivocal, and the application form tracks its terms in clear and precise steps. The court is bound to follow the provisions of the law. There is no room left for judicial deviation from the specified mode of application. The law is to be interpreted and followed according to the intent of the legislature apparent upon its face in the express language of the statute. We must follow the judicial "principle that `[w]e have no choice but to interpret the statutes as they are written.' Mancinone v. Warden, 162 Conn. 430, 439,294 A.2d 564." Liistro v. Robinson, 170 Conn. 116,129, 365 A.2d 109 (1976). Where the statutory requirement that one be sworn is of the essence of legislation such as that which is now under consideration, the prescribed oath is mandatory. Daly v. Fisk, 104 Conn. 579, 583, 134 A. 169 (1926).

After the completed application for accelerated rehabilitation has been sworn to by the defendant, it is then presented to the court for the "1st Order," the third step in the proceedings. At this time the judge must determine whether he will allow the application to be continued with an order of notice to the victim or victims "of the opportunity to be heard on this matter" on a prescribed form. The alternative to a continuance is an order that "[t]he foregoing Application is denied." In deciding whether to deny the application at this stage of the proceedings, the court must determine whether the crime charged was of a serious nature. Before arriving at this decision, the judge must consider (1) the nature of the specific offense itself and, thereafter, if necessary for such a conclusion, (2) the circumstances surrounding its commission by the defendant. Once a determination is made by the court that the crime charged is of a serious nature, with or without a review of the particulars of the charge, the application may be denied by the court.

The trial court was reasonable in concluding that the charge against the defendant of operating a motor vehicle while under the influence of intoxicating liquor was of a serious nature. It is an acknowledged fact that accidents caused by drunken drivers kill many people in our state annually. Because of such consequences, the public at large considers drunken driving to be a serious problem which has both human and economic costs.

Indeed, our legislature has recognized the increasing concern about this problem and has recently enacted legislation which demonstrates the seriousness with which it views drunken driving. Public Acts 1980, No. 80-438, for example, deals with the problem in the following manner. Section 1 of the act requires compulsory treatment or rehabilitation in order to reverse a license suspension or revocation following a conviction under 14-227a. Section 3 significantly increases the penalties for conviction under this statute. The monetary fine is increased from not less than $150 nor more than $500 to not less than $300 nor more than $1000, and provides that two days of any sentence imposed for a second or subsequent offense must be served without suspension or reduction. Further, these changes in the statute strengthen the already existing seriousness which the legislature has affixed to this statutory scheme. In addition, 4 of the act amends General Statutes 14-227b by extending the provision for license suspension or revocation after refusal of an operator to take a blood, breath or urine test to determine the presence of alcohol in his system at the time of the alleged offense. This provision now makes license suspension or revocation compulsory, regardless of whether the charge was nolled or changed.¹

More recently, the seriousness of the problem of drunken drivers resulted in the legislature's enactment of Public Acts 1981, No. 81-446: "An Act Concerning the Pretrial Alcohol Education System and the Prosecution of Violations for Operating Under the Influence of Alcohol." This act creates a specific form of rehabilitation for violators of14-227a. Section 1 of the act provides a pretrial education and treatment program for first offenders. It further amends the statute by increasing the admissibility and competence of such tests as evidence of driving under the influence. Section 2 provides that in lieu of the two-day minimum mandatory sentence discussed previously, the court may order violators to participate in an alcohol education and treatment program. Further, it provides that a second or subsequent offender "shall not be charged or prosecuted for a lesser violation without the approval of the court." Section 3 provides for compulsory suspension of a license by the commissioner of motor vehicles for an operator's refusal to submit to such a test. Reinstatement of one's license is allowed after a hearing upon limited procedural grounds. Finally, and most significantly, the act expressly prohibits accelerated rehabilitation as provided by General Statutes 54-56e for persons charged with drunken driving.

Although not effective until October 1, 1981, this act represents in clear terms the seriousness with which the legislature views the problem of drunken driving. I am convinced, therefore, that the majority opinion is incorrect in its refusal to conclude that every instance of operating under the influence may be considered a serious offense, thereby constituting an exception to the accelerated rehabilitation statute. Furthermore, the act demonstrates that the legislature never intended that the general provisions for accelerated rehabilitation under 54-56e be applicable to drunken driving because of its serious nature. In view of the trend for pretrial rehabilitation and education of offenders, the legislature has now for the first time provided for the accelerated rehabilitation of drunken drivers under appropriate circumstances and conditions.

The trial judge's determination that the serious nature of the charge against the defendant precluded any further consideration of his application for accelerated rehabilitation and compelled its denial on the "1st Order" should not be disturbed by this court on review. "In Hayward v. Plant, 98 Conn. 374, 382, 119 A. 341, the general rule is stated to be: `Judicial discretion is always a legal discretion. Its abuse will not be interfered with on appeal to this court except in a case of manifest abuse and where injustice appears to have been done.'" Grievance Committee v. Nevas, 139 Conn. 660, 666, 96 A.2d 802 (1953). The judge may in his judicial discretion consider the very nature of the offense, as was done in this case, to be serious and beyond consideration for accelerated rehabilitation. The majority opinion acknowledges this discretion in other possible cases, but not as to drunken driving. It is led to this illogical conclusion by substituting "serious consequences" of a crime for "serious nature" of a crime in its analysis. Operating a motor vehicle under the influence of intoxicating liquor may reasonably be found to be a serious offense by its very nature under all circumstances. Its serious nature attaches at the commencement of such operation with all its attendant risks of injury and death and is not determined ex post facto by the consequences of the act or the circumstances of the defendant's apprehension as in the example suggested by the majority opinion. There has been no abuse of discretion by the trial court in its rejection of the defendant's application for accelerated rehabilitation, and no injustice was done to him. He was properly convicted by the jury, and this conviction has been upheld by this court.

The majority opinion's suggestion that the court should have held a hearing on the seriousness of the crime, in any event, is not appropriate in this case. First, at the time of the application the prosecutor offered for the court's consideration (1) the testimony of one of the officers involved in the defendant's apprehension and arrest, and (2) the officer's report to the prosecutor, being "the statement of the people that were involved that gave rise to the arrest in this case." Defense counsel disagreed with this procedure, saying that "this is to be considered at a future time, you know, by the Court — in the ultimate disposition of the case." The court then stated: "Well, I think that under that contention you're right because I think that the first determination has got to be made by the Court before it goes to Probation whether it is appropriate in view of the charges." If the court erred, as the majority opinion holds, then it was led to this error by the defendant, and not by the prosecutor who was denied in his effort to substantiate the seriousness of the particular arrest.

Second, a review of the transcript reasonably establishes that the circumstances preceding and surrounding the defendant's arrest were serious in nature and even after the majority opinion's required inquiry do not warrant further accelerated rehabilitation consideration.

I would find no error.