Adams v. Comm'r Vehicles

NICHOLAS ADAMS v. COMMISSIONER OF MOTOR VEHICLES^*

AC40272

COURT OF APPEALS OF THE STATE OF CONNECTICUT

March 7, 2017

APPENDIX

Superior Court, Judicial District of New Britain

File No. CV-16-6033742-S

Proceedings

Memorandum of decision on plaintiff's appeal from decision by defendant suspending the plaintiff's motor vehicle operator's license. Appeal dismissed.

Jonathan Ross Sills, for the plaintiff.

Drew S. Graham, assistant attorney general, for the defendant.

Opinion

HUDDLESTON, J. The plaintiff, Nicholas Adams, appeals from the decision of the defendant Commissioner of Motor Vehicles (commissioner) suspending his driver's license for forty-five days and requiring him to install and maintain an ignition interlock device for one year for operating a motor vehicle under the influence of drugs or alcohol. The plaintiff asserts that the hearing officer violated his right to due process, that the record lacks substantial evidence that he was operating a motor vehicle, that there was no probable cause for his arrest, and that there is insufficient evidence to support the finding that he refused a urine test. Most of these claims were not asserted in the hearing and therefore are not properly before the court. Even if they had been properly preserved, the plaintiff's claims are not supported by the record. The plaintiff's appeal is dismissed.

FACTS AND PROCEDURAL HISTORY

At about 4:44 a.m. on May 14, 2016, the Stonington police were dispatched to investigate a report that a motor vehicle had struck a telephone pole and then left the scene. Officer Ryan Armstrong immediately responded and began checking the area. He came upon two vehicles on Pawcatuck Avenue. One was a disabled vehicle with significant front end damage consistent with hitting a telephone pole. The other was operated by a witness who had followed the first vehicle after the accident occurred. Armstrong approached the vehicle with front end damage. The plaintiff was standing outside it. Armstrong asked whether he needed medical assistance, and he stated that he did not. When Armstrong asked what had happened, the plaintiff stated that he struck a traffic cone in the roadway when he turned from Mechanic Street onto Clark Street. He denied having hit the telephone pole on Mechanic Street even after Armstrong remarked that a traffic cone would not cause the damage to his vehicle that was evident. Armstrong asked the plaintiff why he had fled the accident scene, and he replied that he had attempted to stop but his brakes had malfunctioned. Armstrong observed that the location of the accident was about a half mile from the location where the plaintiff's car was found with several stretches of uphill grades between the two locations. Armstrong asked the plaintiff when the accident occurred. He replied that it happened at approximately 4:45 a.m. Supp. Return of Record¹ (ROR), A-44, narrative, pp. 1-2.

Armstrong observed that the plaintiff appeared very drowsy, with droopy eyelids. His movements were very slow and he spoke in a low, raspy voice. Armstrong told the plaintiff that he was going to conduct field sobriety tests, and the plaintiff "immediately volunteered" to take a Breathalyzer test. The plaintiff deniedhaving used alcohol or drugs of any kind. ROR, A-44, narrative, p. 2.

Armstrong administered three standardized field sobriety tests. In administering the horizontal gaze nystagmus test, Armstrong noted that the pupils of the plaintiff's eyes were constricted, which Armstrong recognized as a sign of narcotic use. After the plaintiff failed all three sobriety tests, Armstrong placed him under arrest and transported him to the police station. ROR, A-44, narrative, pp. 2-4.

Before leaving the scene, Armstrong spoke with the witness, who said she was sitting in her residence when she heard a loud crash and the power went out. She looked outside her window and saw the plaintiff's vehicle traveling down Pawcatuck Avenue. She followed his vehicle. When it stopped and she made contact with the plaintiff, he asked her not to notify the police. ROR, A-44, narrative, p. 4.

At the police station, the plaintiff was advised of his Miranda rights² and offered the opportunity to contact an attorney, which he declined. He denied alcohol or drug use and elected to submit to a breath test. The first sample, taken at 5:50 a.m., showed a 0.000 percent blood alcohol content. Armstrong then asked the plaintiff to provide a urine sample. The plaintiff said he wanted to speak with an attorney. After several failed attempts to reach an attorney, he spoke with a family member and then elected to refuse to provide a urine sample. ROR, A-44, narrative, p. 4.

After the breath test, the plaintiff stated that he was having difficulty breathing and complained of chest pains. An ambulance responded to the booking room, examined the plaintiff, and suggested that he be transported to the hospital for further evaluation. He refused transport to the hospital. ROR, A-44, narrative, p. 5.

The plaintiff was charged with operating under the influence of alcohol or drugs in violation of General Statutes § 14-227a and with other motor vehicle violations. Id. The Department of Motor Vehicles (department) thereafter notified the plaintiff that his license would be suspended for forty-five days, and he would be required to install and maintain an ignition interlock device in his vehicle. ROR, Item 1. The plaintiff requested an administrative hearing, which was held on June 8, 2016. The plaintiff appeared with counsel. At the hearing, the A-44 form, with attached reports, was introduced as an exhibit without objection. ROR, transcript, p. 2. The plaintiff's counsel commented that the copy of the A-44 he had received before the hearing had not been notarized, but he acknowledged that the copy introduced into evidence was notarized. ROR, transcript, pp. 3-4. He argued to the hearing officer that "they have not proven operation; number one. And number two, they can't prove the time of operation asto whether it was if in two hours or not." ROR, transcript, p. 4. He argued that his client had been disoriented by the collision and that his client was cooperating with the police. Despite evidence that the plaintiff had refused transport to a hospital, his attorney asserted that the plaintiff had to go to the hospital and commented that there were no hospital records of a "drug tox." ROR, transcript, pp. 4-5. The plaintiff then testified that when he was at the police station, he was not able to reach his lawyer by telephone and did not recall speaking to any family member. ROR, transcript, p. 8. The hearing then concluded.

The hearing officer subsequently found that the police had probable cause to arrest the plaintiff for a violation specified in General Statutes § 14-227b, the plaintiff was placed under arrest, he refused to submit to a test, and he was operating a motor vehicle. In a subordinate finding, the hearing officer found that "[t]he police report supports an affirmative finding on all four issues of fact." ROR, p. 3. This appeal followed.

ANALYSIS

This appeal is brought pursuant to the Uniform Administrative Procedure Act (UAPA), General Statutes § 4-183.³ Judicial review of the commissioner's action is very restricted. Murphy v. Commissioner of Motor Vehicles, 254 Conn. 333, 343, 757 A.2d 561 (2000). "[R]eview of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency's findings of basic fact and whether the conclusions drawn from those facts are reasonable. . . . Neither [the Supreme Court] nor the trial court may retry the case or substitute its own judgment for that of the administrative agency on the weight of the evidence or questions of fact. . . . Our ultimate duty is to determine, in view of all of the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily, illegally or in abuse of its discretion." (Internal quotation marks omitted.) Id.

"General Statutes § 14-227b, commonly referred to as the implied consent statute, governs license suspension hearings." Santiago v. Commissioner of Motor Vehicles, 134 Conn. App. 668, 674, 39 A.3d 1224 (2012). Section 14-227b (g) provides in relevant part that "[t]he hearing shall be limited to a determination of the following issues: (1) Did the police officer have probable cause to arrest the person for operating a motor vehicle while under the influence of intoxicating liquor or any drug or both; (2) was such person placed under arrest; (3) did such person refuse to submit to such test or analysis or did such person submit to such test or analysis, commenced within two hours of the time of operation, and the results of such test or analysis indicated that such person had an elevated blood alcohol content; and (4) was such person operating the motor vehicle. . . ."A license suspension hearing is expressly limited to these four issues. Buckley v. Muzio, 200 Conn. 1, 7, 509 A.2d 489 (1986). In this case, the hearing officer affirmatively found that each of these requirements was met.

The standard of proof under the UAPA is not so exacting as in a criminal case, where proof beyond a reasonable doubt is required. O'Rourke v. Commissioner of Motor Vehicles, 33 Conn. App. 501, 508, 636 A.2d 409, cert. denied, 229 Conn. 909, 646 A.2d 1205 (1994). In an administrative hearing, "the agency need only produce probative and reliable evidence to ensure that the proceedings are fundamentally fair." (Internal quotation marks omitted.) Id.

I

The plaintiff first argues that there is insufficient proof that he was operating the vehicle because none of the officers involved in his arrest observed him operating the vehicle at any time and the lay witness who followed his vehicle did not give a sworn statement. The court disagrees. Even without the statement of the lay witness, the plaintiff's own admissions, as reported by the arresting officer,...