Glanz v. Comm'r of Motor Vehicles

210 Conn.App. 515

270 A.3d 766

Adam GLANZ

v.COMMISSIONER OF MOTOR VEHICLES

AC 44189

Appellate Court of Connecticut.

Argued October 18, 2021

Officially released February 8, 2022

Morgan Paul Rueckert, Hartford, for the appellant (plaintiff).

John M. Russo, Jr., assistant attorney general, with whom, on the brief, was William Tong, attorney general, for the appellee (defendant).

Bright, C. J., and Alvord and Norcott, Js.

NORCOTT, J.

The plaintiff, Adam Glanz, appeals from the judgment of the Superior Court rendered in favor of the defendant, the Commissioner of Motor Vehicles (commissioner), dismissing his appeal from the decision of the commissioner suspending his motor vehicle operator's license for forty-five days, pursuant to General Statutes § 14-227b, and requiring ignition interlock devices in his motor vehicles for six months. On appeal, the plaintiff claims that (1) the presumption in § 14-227b (g) that the results of blood alcohol tests commenced within two hours of operation shall be sufficient to indicate blood alcohol content at the time of operation violates his right to due process under the federal constitution because it does not include an exception requiring the submission of additional evidence to prove the accuracy of the blood alcohol test results in the event that such test results reveal that the operator's blood alcohol level was rising, and (2) the court erred in concluding that the rising blood alcohol exception in the criminal statute for operating a motor vehicle while under the influence of intoxicating liquor or drugs, General Statutes § 14-227a (b), did not apply to his administrative license suspension hearing. We affirm the judgment of the Superior Court.

In its memorandum of decision, the court found the following facts. "On December 1, 2019, Officer [Kevin] Geraci of the South Windsor Police Department observed a vehicle speeding, crossing the solid yellow center line of the road, and revving its engine thereby creating loud exhaust noise. The officer pulled the vehicle over at 12:47 a.m. and identified the plaintiff as its operator. The officer smelled the odor of alcohol emanating from inside the vehicle. The plaintiff then admitted to recently drinking two beers. As a result of all of the foregoing, the officer asked the plaintiff to exit the vehicle so that the officer could administer the standard field sobriety tests. During the conduct of the field sobriety tests, the plaintiff then admitted to recently drinking four beers. The plaintiff failed the standard field sobriety tests.

"In light of the foregoing, the officer arrested the plaintiff for violating ... § 14-227a and transported the plaintiff to police headquarters. At the police headquarters, the plaintiff was read his Miranda rights [pursuant to Miranda v. Arizona , 384 U.S. 436, 478–79, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966) ] and the implied consent advisory. The plaintiff was allowed time to contact his attorney. The plaintiff initially refused to submit to the breath alcohol test, but then changed his mind and consented. The officer administered the breath test four times to the plaintiff. The first test was administered at 1:41 a.m. and yielded a result of 0.1066. The second test was administered at 2 a.m. and yielded a result of 0.1068, but was invalidated in the final calibration check of the equipment because of the presence of alcohol in the ambient air, apparently because the officer used hand sanitizer. The third test, administered at 2:03 a.m., did not produce a result because the external standard used to calibrate the equipment failed. The fourth test, administered at 2:12 a.m., produced a result of 0.0999."

On December 10, 2019, the plaintiff was issued a notice informing him of the suspension of his operator's license pursuant to § 14-227b unless he requested an administrative hearing.¹ The plaintiff requested such a hearing, and one was held before the commissioner's hearing officer on January 3, 2020, to determine whether the plaintiff's operator's license should be suspended.

At the hearing, an A-44 form,² the breath alcohol test results, a narrative police report, and the plaintiff's driving history were admitted into evidence. The plaintiff also offered the testimony of Robert Powers, who has a Ph.D. in biochemistry, and a report from Powers. Powers testified that, on the basis of his assessment of the blood alcohol tests, the plaintiff's blood alcohol was rising from the time when he was operating his motor vehicle to the time when the tests were performed. He further stated that the second test was scientifically valid. After considering all the evidence, the hearing officer found the following: the police officer had probable cause to arrest the plaintiff; the plaintiff was operating a motor vehicle; the plaintiff was placed under arrest; and the plaintiff submitted to blood alcohol tests, the results of which indicated a blood alcohol content of 0.08 or more. The hearing officer also found that the expert testimony of Powers was informative but was not persuasive under § 14-227b. The hearing officer suspended the plaintiff's operator's license for forty-five days and required the installation of ignition interlock devices for six months.

The plaintiff appealed the decision of the hearing officer to the Superior Court. In his brief filed in the Superior Court, the plaintiff argued that the hearing officer improperly relied on the presumption in § 14-227b (g) to establish blood alcohol content at the time of operation and ignored the rising blood alcohol exception in the criminal statute for operating a motor vehicle under the influence of intoxicating liquor or drugs, § 14-227a (b). The court issued a memorandum of decision dismissing the appeal. The court reasoned that the criminal statute, § 14-227a (b), which governs prosecutions for operating a motor vehicle while under the influence of intoxicating liquor or drugs, did not apply. The court concluded that "[t]he statutory presumption provided for in § 14-227b (g) applies and, as a result the alcohol test results are representative of the blood alcohol content of the plaintiff at the time he was operating his motor vehicle." The court further determined that the record contains substantial evidence to support the hearing officer's findings, including that the plaintiff's blood alcohol content was 0.08 or more at the time he was operating his motor vehicle. This appeal followed.

"[J]udicial review of the commissioner's action is governed by the Uniform Administrative Procedure Act [(UAPA), General Statutes §§ 4-166 through 4-189 ], and the scope of that review is very restricted. ... [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 this 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." (Citation omitted; internal quotation marks omitted.) Murphy v. Commissioner of Motor Vehicles , 254 Conn. 333, 343, 757 A.2d 561 (2000).

I

The plaintiff claims that the hearing officer's reliance on § 14-227b (g) violated his right to due process under the fourteenth amendment to the United States constitution because his blood alcohol test results indicated that he had a rising blood alcohol content, thereby showing that he had a lower blood alcohol content at the time of operation. He contends that the presumption in § 14-227b (g), that the results of blood alcohol tests commenced within two hours of operation are sufficient to demonstrate blood alcohol content at the time of operation, is unconstitutional because it does not contain an exception like its criminal statutory counterpart, § 14-227a (b).³ We are not persuaded.

Although the plaintiff does not specify whether he is making a substantive or procedural due process claim, we interpret his claim, which concerns the constitutionality of the procedures in license suspension hearings, to invoke principles of procedural due process. Whether the plaintiff was deprived of his right to due process is a question of law over which our review is plenary. See McFarline v. Mickens , 177 Conn. App. 83, 100, 173 A.3d 417 (2017), cert. denied, 327 Conn. 997, 176 A.3d 557 (2018). "The fourteenth amendment to the United States constitution provides that the [s]tate [shall not] deprive any person of life, liberty, or property, without due process of law .... In order to prevail on his due process claim, the plaintiff must prove that: (1) he has been deprived of a property interest cognizable under the due process clause; and (2) the deprivation of the property interest has occurred without due process of law. ... A driver's license, as a property interest, may not be suspended or revoked without due process of law. ... [D]ue process ... is not a technical conception with a fixed content unrelated to time, place and circumstances. ... [D]ue process is flexible and calls for such procedural protections as the particular situation demands. ...

"In Mathews v. Eldridge , 424 U.S. 319, 335, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976), the Supreme Court indicated that to determine the level of procedural due process necessary, we must consider three factors: (1) the private interest that will be affected by the official action, (2) the risk of an erroneous deprivation of such interest through the procedure used and the probable value, if any, of additional substitute procedural safeguards and (3) the state's interest, including the function involved and the fiscal and administrative burdens that the additional or...