Llanos v. Bzdyra

Adrian A. Llanos v. Michael Bzdyra, Commissioner, Department of Motor Vehicles

No. HHBCV166035005S

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

October 17, 2017

UNPUBLISHED OPINION

MEMORANDUM OF DECISION

Sheila A. Huddleston, Judge.

The plaintiff, Adrian A. Llanos, appeals from the final decision of the defendant, Michael Bzdyra, Commissioner of the Department of Motor Vehicles, suspending the plaintiff's driver's license for forty-five days and requiring the use of an ignition interlock device for six months, in accordance with the administrative license suspension provisions of General Statutes § 14-227b. The plaintiff argues that the finding that he operated his vehicle within two hours of the commencement of the chemical test was erroneous as it was based on triple hearsay that should not have been considered. Based on the totality of the circumstances in the record, the court concludes that there was substantial reliable and probative evidence from which the hearing officer could reasonably infer that the plaintiff had operated a vehicle within two hours of the commencement of the test.

FACTS

The following statement of facts is taken from the A-44 report^[1] with the attached Enfield Police Department incident report, which was introduced, over the plaintiff's objection, as an exhibit at the administrative hearing.

On July 11, 2016, at 2:06 a.m., Enfield Police Officer Allison Fell was dispatched to a single car accident on North Street by Taylor Road. Upon arrival at the scene, Officer Fell observed the plaintiff's vehicle on the left side of the road with the left front of the vehicle crashed into a tree. The vehicle had sustained significant damage. Based on her observations, Officer Fell concluded that the vehicle was traveling eastbound on North Street when it crossed the double center line and crashed into the tree. She observed " fresh tire marks" that were consistent with the accident.

Officer Fell met with the vehicle's operator, the plaintiff, and immediately noticed an overwhelming smell of cologne and alcoholic beverages. She asked the plaintiff what had happened and he said that the vehicle had started to " seize up, " nothing was working, and he crashed into the tree. He stated that he was operating the vehicle and that he was the only occupant at the time of the crash. Fell asked him when the crash had occurred. The plaintiff stated that it was about five minutes after he called his girlfriend.

Enfield Police Officer Thomas, who had arrived at the scene to assist, contacted the plaintiff's girlfriend to ask when the plaintiff had called her. She said it was at approximately 2:00 a.m. Based on this information provided by Officer Thomas, Officer Fell estimated the time of the crash to have been 1:55 a.m. Officer Fell asked the plaintiff if he had been drinking before the accident. He said that he had a gin and tanqueray around midnight. Officer Fell then conducted field sobriety tests that the plaintiff failed. He was placed under arrest and taken to the Enfield Police Department. After he was advised of his rights and declined the opportunity to contact an attorney, the plaintiff consented to the breath alcohol test. The first breath test conducted at 3:23 a.m., produced a blood alcohol content reading of .0970. The second breath test, conducted at 3:44 a.m., produced a blood alcohol content reading of .0896.

PROCEDURAL HISTORY

On August 22, 2016, the Department of Motor Vehicles held an administrative hearing to determine whether the plaintiff's operator's license should be suspended for failing a chemical test. The plaintiff did not attend the hearing but was represented by counsel. The plaintiff's counsel expressly agreed that the hearing could proceed in the plaintiff's absence. He then argued that the A-44 should not be admitted into evidence because the statements in the A-44, with regard to the time of operation, were based on " triple hearsay" --that is, on the plaintiff's girlfriend's statement to Officer Thomas who reported it to Officer Fell, who included it in the A-44 and attached incident report. The hearing officer overruled the plaintiff's objection to the admission of the A-44 and incident report, stating that the issue of hearsay went to its weight rather than its admissibility. The plaintiff's counsel then presented legal argument as to why the time of operation was not supported by substantial evidence. The plaintiff did not seek a subpoena for his girlfriend or either of the police officers to testify at the hearing.

APPLICABLE LEGAL STANDARDS

This appeal is brought pursuant to the Uniform Administrative Procedure Act (UAPA), General Statutes § 4-183.^[2] Judicial review of the commissioner's action is very restricted in scope. See 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." Id.

General Statutes § 14-227b, commonly referred to as the implied consent statute, governs license suspension hearings. 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. In the hearing, the results of the test or analysis shall be sufficient to indicate the ratio of alcohol in the blood of such person at the time of operation, provided such test was commenced within two hours of the time of operation." " [A] license suspension hearing is expressly limited to the four issues enumerated in [§ 14-227b(g)." (Internal quotation marks omitted.) Santiago v. Commissioner of Motor Vehicles, 134 Conn.App. 668, 674, 39 A.3d 1224 (2012), citing, Buckley v. Muzio, 200 Conn. 1, 7, 509 A.2d 489 (1986).

In this case, the hearing officer affirmatively found that (1) the police officer had probable cause to arrest the plaintiff for a violation specified in General Statutes § 14-227b; (2) the plaintiff was placed under arrest; (3) the plaintiff submitted to a test and the results indicated a blood alcohol content of .08% or more; and (4) said plaintiff was operating the motor vehicle. The hearing officer did not make an express finding that the blood alcohol test was commenced within two hours of operation.^[3]

The timing of the chemical test is " absolutely crucial" in determining whether the test results may be used as the basis for an administrative suspension. Tuttle v. Commissioner of Motor Vehicles, Superior Court, judicial district of Hartford-New Britain at Hartford Docket No. CV-95-0555532-S (June 28, 1996, Maloney, J.) (17 Conn. L. Rptr. 221, ). Nevertheless, " [t]he absence of witnesses to the plaintiff's operation of the vehicle is not dispositive on the issue of operation." Murphy v. Commissioner of Motor Vehicles., supra, 254 Conn. 347. In addition, the standard of proof is not so exacting as in a criminal case, where proof beyond a reasonable doubt is required. See O'Rourke v. Commissioner of Motor Vehicles, 33 Conn.App. 501, 508, 636 A.2d 409, cert. denied, 229 Conn. 909, 642 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." Id.

The plaintiff claims that the defendant erroneously concluded that there was sufficient evidence to support a finding that the plaintiff had operated a vehicle within two hours of the commencement of the chemical test, as required by § 14-227b(g). A challenge to the commissioner's finding is reviewed under the substantial evidence standard. See Santiago v. Commissioner of Motor Vehicles, supra, 134 Conn.App. 677. " Substantial evidence exists if the administrative record affords a substantial basis of fact from which the fact in issue can be reasonably inferred . . . If the defendant's determination to suspend the plaintiff's license pursuant to General Statutes § 14-227b is supported by substantial evidence in the record, that determination must be sustained." (Citations omitted; internal quotation marks omitted.) O'Rourke v. Commissioner of Motor Vehicles, supra, 33 Conn.App. 507. There is no requirement that the facts be established by direct evidence. See Murphy v. Commissioner of Motor Vehicles, supra, 254 Conn. 345. There is " no distinction between direct and circumstantial evidence [so] far as probative force is concerned . . . In fact, circumstantial evidence may be more certain, satisfying and persuasive than direct evidence." (Citations omitted; internal quotation marks omitted.) Id., n.14.

Pursuant to General Statutes § 4-178, an agency conducting a contested case proceeding may receive " any oral or documentary evidence." It may receive...