Flanagan v. State, Department of Motor Vehicles, HHBCV166034201S

Michael J. Flanagan, Jr. v. State of Connecticut Department of Motor Vehicles

No. HHBCV166034201S

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

March 8, 2017

UNPUBLISHED OPINION

MEMORANDUM OF DECISION

Sheila A. Huddleston, Judge.

The plaintiff, Michael J. Flanagan, Jr., appeals from the final decision of the defendant Department of Motor Vehicles (department) suspending his driver's license for forty-five days and requiring him to maintain an ignition interlock device in his vehicle for six months. The department acted pursuant to General Statutes § 14-227b on the basis that the plaintiff failed a chemical test of the alcohol content of his blood after having been arrested on a charge of operating a motor vehicle under the influence of alcohol. The plaintiff appeals pursuant to General Statutes § 4-183, claiming that (1) in light of his expert's opinion, there is not substantial evidence in the record to support a finding that his blood alcohol exceeded the legal limit; (2) there is inadequate evidence that the machine on which the plaintiff was tested was functioning properly; (3) the hearing officer failed to follow prior department rulings on the same issue; and (4) the hearing officer should not have considered the breath test results because the plaintiff had previously refused to take a breath test. The court finds for the defendant on all issues.

The record discloses the following relevant facts. On May 12 2016, at approximately 12:22 a.m., Officer A. Pagliughi of the Glastonbury police department was traveling east in the left travel lane on Route 2 when a black BMW, also traveling east, drifted from the right travel lane into the left travel lane and then drifted back into the right lane and crossed the fog line. The officer slowed and followed the BMW observing the operator drifting back and forth into the left lane, then back into the right lane and over the fog line three more times. The officer then stopped the vehicle and asked the plaintiff for his license, registration, and insurance paperwork. The plaintiff fumbled in his wallet and handed the officer a credit card, stating that it was his license. He then fumbled with his wallet again and, with the assistance of his female passenger, gave the officer his license. Return of Record (ROR), p. 24.

The officer explained why he had stopped the vehicle. The plaintiff apologized and said he was heading home. The officer again asked for the registration and insurance information. The plaintiff said that he had recently purchased the vehicle and was not sure where the registration was. The officer could see the registration in a clear pouch that the plaintiff was holding while talking with the officer. ROR, p. 24.

The plaintiff's speech was pressured and slightly slurred. The officer could detect a strong odor of alcohol on the plaintiff's breath, and the plaintiff's eyes were bloodshot and glossy. The plaintiff admitted he had been drinking beer earlier in the evening. ROR, p. 24.

The officer had the plaintiff get out of his vehicle to perform standardized field sobriety tests. The plaintiff was unsteady on his feet and was unable to follow instruction on the horizontal gaze nystagmus test. He failed all three standardized tests. Based on the plaintiff's erratic driving, odor of alcohol, and failure of the sobriety tests the officer arrested the plaintiff and transported him to the Glastonbury police department. The plaintiff's passenger, Dana Flanagan, was determined to be fit to drive the vehicle to remove it from the scene. ROR, p. 25.

The plaintiff was advised of his rights and afforded the opportunity to contact an attorney. He initially said he wanted to talk with an attorney but then changed his mind. He was read the implied consent advisory and refused to submit to a breath test. The refusal was witnessed by another officer. The plaintiff then phoned his wife to come pick him up. After speaking with his wife, the plaintiff decided to submit to the breath tests. The tests were conducted on a Drager Alcotest 9510 machine at 1:45 a.m., resulting in a reading of 0.2360%, and at 2:04 a.m., resulting in a reading of 0.2074%. ROR, pp. 25-26.

The department thereafter notified that his license would be suspended for forty-five days and he would be required to maintain an ignition interlock device on every vehicle he owned or operated for six months. ROR, p. 1. The plaintiff requested an administrative hearing. ROR, p. 2. The hearing was continued at the request of the plaintiff's attorney to allow him to prepare a defense. ROR, pp. 7-9. The hearing was held on June 23, 2016, before hearing officer James M. Quinn. ROR, pp. 12-17.

The department introduced as a single exhibit, without objection, copies of the A-44 form, the test reports, the Glastonbury police department incident report, a notice of rights form, and the plaintiff's appearance bond. ROR, pp. 13-14. The plaintiff then introduced an unsworn letter from James E. O'Brien, who described himself as a " Ph.D., M.D." ROR, pp. 14-15, 30. O'Brien stated that the plaintiff's blood alcohol decreased 0.0286% in the nineteen minutes between the tests. ROR, p. 30. He represented that the " normal decline" would be 0.0057% in nineteen minutes, and that a decrease in the magnitude shown in the plaintiff's tests was " most unlikely, and far beyond medical probability." Id. In his opinion, a decrease of the magnitude shown in the plaintiff's tests could " only be explained by either one or both of the tests being incorrect." Id. He stated that since the values were invalid, it was impossible to determine whether the plaintiff's blood alcohol level was at or above .08% at the time in question. Id.

The plaintiff also introduced as an exhibit several documents reflecting the maintenance and repair records for the Drager Alcotest machine used by the Glastonbury police. ROR, pp. 15, 31-36. The plaintiff's counsel argued, based on the exhibits he introduced, that the tests were invalid and did not provide substantial evidence for a suspension, and that the particular machine on which the test had been performed had required a significant repair in the prior year. ROR, pp. 14-15. The hearing was then adjourned. ROR, pp. 15-16.

On June 24, 2016, the hearing officer issued his final decision, finding that the police had probable cause to arrest the plaintiff for a violation specified in General Statutes § 14-227b; that the plaintiff was arrested; that the plaintiff submitted to a test or analysis and the results indicated a blood alcohol content of 0.08% or more; and that the plaintiff was operating a motor vehicle. The hearing officer made the following subordinate finding: " Expert toxicological report not persuasive." ROR, p. 37.

The plaintiff requested reconsideration, arguing that the department " cannot disregard the only expert evidence on an issue before it when the agency members lack their own expertise or knowledge on the subject." ROR, p. 40. He further argued that department hearing officers, including the hearing officer who presided over the plaintiff's hearing, had relied on O'Brien's opinion in a similar case to overturn a suspension order. ROR, pp. 41-42. The department's petition review committee denied the plaintiff's request for reconsideration. ROR, p. 47. This appeal followed.

ANALYSIS

This appeal is brought pursuant to the Uniform Administrative Procedure Act (UAPA), General Statutes § 4-183.^[1] 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.

" The substantial evidence rule governs judicial review of administrative factfinding under General Statutes [§ 4-183(j)]." (Internal quotation marks omitted." Bancroft v. Commissioner of Motor Vehicles, 48 Conn.App. 391, 400, 710 A.2d 807, cert. denied, 245 Conn. 917, 717 A.2d 234 (1998). " An administrative finding is supported by substantial evidence if the record affords a substantial basis of fact from which the fact in issue can be reasonably inferred . . . Such a standard of review allows less room for judicial scrutiny than does the weight of the evidence rule or the clearly erroneous rule . . . In determining whether an administrative finding is supported by substantial evidence, a court must defer to the agency's assessment of the credibility of the witnesses and to the agency's right to believe or disbelieve the evidence presented by any witness, even an expert, in whole or in part . . . Basically, an agency is not required to use in any particular fashion any of the materials presented to it so long as the conduct of the hearing is fundamentally fair." (Citations omitted; 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...