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A Case Study

PL was arrested for DUI on August 18, 2003 at approximately 12:30 a.m. after she allegedly backed into a parked car while she was parking her own car in the Hotel parking lot in Gotcha, Connecticut.

Conn. Gen. Stat. § 14-227a (a) defines the offense of operating a motor vehicle while under the influence of intoxicating liquor or any drug if the motor vehicle is operated “in any parking area for ten or more cars.” “Parking area” is defined in Conn. Gen. Stat. §14-212(5) as “lots, areas or other accommodations for the parking of motor vehicles off the street or highway and open to public use with or without charge.”

In this case, PL argues that she was not operating a motor vehicle within the meaning of the statute.

The front page of Form A-44 has the box indicating “parking lot for 10 or more cars” checked off. In the narrative portion of the arrest report, the officer states “The parking lot of the Hotel holds in excess of ten or more cars and was near capacity at the time of the accident.” “Ten or more cars” is simply a restatement of the form A-44 language and does not give independent evidence or explanation of the size of the parking lot.

In Eubanks v. State Department of Motor Vehicles, No. 0058429, 1993 Ct. Sup. 2211, JD of Litchfield, March 1, 1993 (Pickett, J.), the defendant challenged his license suspension on the basis that the state did not prove he was in a parking area of 10 or more spaces. The only evidence presented at the hearing was the A-44 form, which had no description as to the nature or character of the parking lot. The trial court found that at a “per se license suspension hearing, the burden is on the state to present sufficient evidence to permit a finding as to each of the four required issues. The hearings officer may not make such an assumption and then require the petitioner to offer evidence to refute such unsupported assumption. Such evidence is lacking on the record, the hearings officer may not shift the burden to the petitioner to disprove the unsupported issue.” The court sustained the appeal.

Similarly, in Maher v Goldberg Comm. Of Motor Vehicles, No. 029- 03 94, 1992 Ct. Sup. 13047, 7 CSCR 1331, JD of Fairfield at Bridgeport, November 19, 1992 (Maloney, J.) the state failed to present any evidence as to the nature or character of the parking lot where the defendant was arrested for drunk driving. “Evidence of operation in a parking lot, standing alone, is not sufficient because the statute specifically provides that the lot must be of a certain size.” The appeal of the commissioner’s decision was sustained.

Eubanks and Maher were decided in the same general time frame as Dowen v. Dept. of Motor Vehicles, 1992 Ct. Sup. 240, Docket No. 51 75 75, J.D. of New London (Jan. 24, 1992)(Purtill, J.). No parking lot size was described where the petitioner was stopped in the parking lot of the New London Mall. Relying on common sense and general knowledge, the court found “[i]t is common knowledge and beyond mere speculation that malls are shopping centers, and that the parking lot for, even the smallest entity with such a designation, would have a capacity for more than ten vehicles…. It was also not unreasonable to conclude that the road leading from such a commercial facility would be such as to bring it within the preview of General Statutes Section 14-227a(a) and (b).”

In this case, the Hotel in Gotcha, Connecticut is not commonly known. It is not uncommon for hotels and motels in such small towns to offer only a few units and parking lots may be designed to hold fewer than ten cars.

Without further information, such as the number of rooms available at the Hotel, or how many cars the police officer counted as properly parked inappropriately striped and marked spaces, it cannot be determined whether the Hotel parking lot was in fact a lot for 10 or more cars. The state has failed to prove operation of a motor vehicle in a parking lot for 10 or more cars.

Conclusion

The state, through the Form A-44, has not set forth sufficient facts to find that Ms. Cave was “operating a motor vehicle” within the meaning of the statute. The state has not set forth any facts showing that the Hotel lot was a lot for 10 or more cars. The state has failed to make its case.

Note: Many clients pull into a convenience store parking lot and go to sleep. Sometimes they leave the engine running and sometimes they do not. In any event, the Court looks at the cases individually and the prosecutors are mindful that jurors are reluctant to convict in such situations.

When preparing for your case, get the zoning map as an aid, take pictures, and make the argument that the pumping area should not be considered a parking area.

STEVEN TOMEO, ESQ.

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