Chiagouris v. Commissioner of Motor Vehicles

Larry Chiagouris v. Commissioner of Motor Vehicles

No. HHBCV156030194S

Superior Court of Connecticut, Judicial District of New Britain, New Britain

January 20, 2016

UNPUBLISHED OPINION

MEMORANDUM OF DECISION

Carl J. Schuman, Judge

The plaintiff, Larry Chiagouris, appeals from the decision of the defendant commissioner of motor vehicles (commissioner) suspending the plaintiff's driver's license for forty-five days and requiring that he maintain an ignition interlock device for one year based on his refusal to take a breath test. For the reasons stated below, the court sustains the appeal and reverses the commissioner's decision.

I

The record reveals the following historical facts. (Return of Record (ROR), Officers OUI Report and attachments.)^[1] On July 2, 2015, at approximately 7:15 p.m., an employee of the McDonald's in Clinton observed a man, later identified as the plaintiff, in an inebriated condition waiting in line at the counter. Another employee asked him if he was driving and he said " no, " swaying while he spoke to her. Customers observed the plaintiff eating at a table and then having difficulty attempting to leave the restaurant. At 7:37 p.m., a customer called 911 when she observed the plaintiff, whom she described as " really drunk" and " wreaking of alcohol, " walk outside and get into a blue BMW.

Police arrived at 7:42 p.m. and observed the plaintiff in the vehicle without the engine on or the keys in the ignition. For the next nineteen minutes, the police attempted to have the plaintiff open the door, roll down his window, or produce his keys. The plaintiff failed in these attempts, repeatedly asked for his keys, and kept putting his finger to his ear motioning that he was having difficulty hearing. Finally, the police informed the plaintiff that they would have to break one of the windows to gain access. At that point, the plaintiff opened the car door and stumbled out of the vehicle, emitting a strong odor of alcohol.

The officer asked the plaintiff how long he was at McDonald's but the plaintiff could not recall. When asked how he got to McDonald's, the plaintiff replied: " I drove." The officer then found the keys to the car under the driver's seat. The plaintiff refused to answer whether he would submit to field sobriety testing.

The officer placed the plaintiff under arrest for operating under the influence. The plaintiff nonetheless attempted to walk away from the scene and then screamed when an officer held him by the arm. The plaintiff's wife arrived and claimed that she was with him " 40 minutes prior" at a picnic and that she had three cans of diet sprite in a cooler in her car.

In the police cruiser, the plaintiff screamed that an officer had hit him in the head. The plaintiff refused to leave the vehicle at the police station and screamed when the officers assisted him in that process. At the booking area, the officer attempted to read the plaintiff his rights. The plaintiff kept interrupting and stated that he could not hear. He claimed that he had a hearing aid, but the officer did not see one in his ear. The plaintiff refused to let the officer read him anything. As a result, according to the officer's report, the officer could not successfully read him his rights or " move forward with the A-44 form which also provided him an opportunity to call an attorney."

Around this time, which was approximately 9:15 p.m., a police sergeant attempted to read the plaintiff the Miranda rights. The plaintiff repeated his claim that he could not hear and also continued to argue and change the subject. The sergeant stood next to the plaintiff and yelled the rights into his ear. The plaintiff responded by asking " why are you yelling?" and complained that the sergeant was squeezing his arm. The plaintiff finally indicated that he understood his Miranda rights and agreed to be processed and tested further. However, the sergeant according to his report, then " attempted to ask [the plaintiff] if he would try to submit to sobriety testing or the A-44 process but he refused."

The officers soon learned that the plaintiff had urinated on the floor of his cell and had spit water from a fountain all over the floor. An attorney for the plaintiff then arrived and he had a normal conversation with the plaintiff. The plaintiff had no issues hearing. After that meeting, the sergeant asked the plaintiff in a normal tone to stand for a photograph and the plaintiff did so without any complaints that he could not hear.

After a hearing, a hearing officer for the department of motor vehicles (department) found that the police had probable cause to arrest the plaintiff for operating under the influence, that the plaintiff was placed under arrest, that the plaintiff refused a chemical test, and that the plaintiff was operating the motor vehicle. The hearing officer made the following subordinate finding: " The [plaintiff] admitted to driving his vehicle to McDonald's. Time of operation is not an issue and the respondent refused to submit to a test to measure BAC. The police report documents the respondent's lack of cooperation throughout all contact with the police officers." (ROR, department decision.) Accordingly, the department suspended the plaintiff's driver's license for forty-five days and ordered that the plaintiff maintain an ignition interlock device for one year.^[2]

The plaintiff appeals.

II

Under the Uniform Administrative Procedure Act (UAPA), General Statutes § 4-166 et seq., judicial review of an agency decision is " very restricted." (Internal quotation marks omitted.) MacDermid, Inc. v. Dept. of Environmental Protection, 257 Conn. 128, 136-37, 778 A.2d 7 (2001). Section 4-183(j) of the General Statutes provides as follows " The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) In violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion."

Stated differently, " [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 appellate] 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.) Okeke v. Commissioner of Public Health, 304 Conn. 317, 324, 39 A.3d 1095 (2012). " It is fundamental that a plaintiff has the burden of proving that the [agency], on the facts before [it], acted contrary to law and in abuse of [its] discretion." (Internal quotation marks omitted.) Murphy v. Commissioner of Motor Vehicles, 254 Conn. 333, 343, 757 A.2d 561 (2000).

III

Our appellate courts have consistently made clear that a license suspension hearing is " limited to the four issues set forth in [General Statutes] § 14-227b[g]." Volck v. Muzio, 204 Conn. 507, 512, 529 A.2d 177 (1987). Accord Fitzgerald v. Commissioner of Motor Vehicles, 142 Conn.App. 361, 365, 65 A.3d 533 (2013). Those four issues are: " (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." General Statutes § 14-227b(g).

The plaintiff challenges the hearing officer's findings on all but the second issue on appeal. The court first addresses the fourth issue concerning operation. " An accused operates a motor vehicle within the meaning of . . . § 14-227a(a) when, while under the influence of alcohol or any drug and while in the vehicle and in a position to control its movements, he manipulates, for any purpose, the machinery of the motor or any other machinery manipulable from the driver's position that affects or could affect the vehicle's movement, whether the accused moves the vehicle or not." (Citations omitted; internal quotation marks omitted.) State v. Roth, 104 Conn.App. 248, 251 n.3, 932 A.2d 1071 (2007). " [M]ere insertion of the key into the ignition is an act . . . which alone or in sequence will set in motion the motive power of the vehicle . . . and, therefore, itself constitutes operation of the vehicle." (Internal quotation marks omitted.) Sengchanthong v. Commissioner of Motor Vehicles, 281 Conn. 604, 610-11, 917 A.2d 942 (2007).^[3]

Under these standards, there can be no valid claim--and the commissioner makes none--that the plaintiff was operating the vehicle when the police discovered him in the driver's seat at McDonald's, as the engine was not running and the keys were not in the...