Marshall v. Comm'r Vehicles

210 Conn.App. 109

269 A.3d 816

Anthony J. MARSHALL III

v.COMMISSIONER OF MOTOR VEHICLES

AC 44191

Appellate Court of Connecticut.

Submitted on briefs September 9, 2021

Officially released January 18, 2022

Cody A. Layton, filed a brief for the appellant (plaintiff).

Drew S. Graham, assistant attorney general, with whom were William Tong, attorney general, and Clare E. Kindall, solicitor general, filed a brief for the appellee (defendant).

Prescott, Alexander and DiPentima, Js.

DiPENTIMA, J.

The plaintiff, Anthony J. Marshall III, 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 to suspend his motor vehicle operator's license, pursuant to General Statutes § 14-227b, for forty-five days and requiring an ignition interlock device in his motor vehicles for six months. On appeal, the plaintiff claims that the court improperly determined that the hearing officer did not abuse her discretion in admitting into evidence a report, which consisted of an A-44 form,¹ a narrative police report and the results of the plaintiff's breath analysis tests, that did not comply with the three day mailing requirement in § 14-227b (c).² We affirm the judgment of the Superior Court.

The following facts, as found by the court in its memorandum of decision regarding the suspension of the plaintiff's license, and procedural history are relevant. On July 14, 2019, at approximately 5:31 p.m., after hearing an announcement over the police radio that a particular vehicle with a specified Connecticut registration allegedly had been involved in a "hit and run" accident in Westerly, Rhode Island, Officer Jeffrey Hewes of the Stonington Police Department observed and stopped the specified vehicle. On approaching the vehicle, Hewes identified the plaintiff as the operator and noticed that his eyes were glassy and bloodshot, his speech was slow and there was the smell of alcohol on his breath. Hewes administered the standardized field sobriety tests, which the plaintiff failed. The plaintiff was then arrested and transported to police headquarters where he consented to taking breath alcohol tests. The first test, which was administered at 6:48 p.m., yielded a result of 0.1936 percent blood alcohol content, and the second test, which was administered at 7:07 p.m., yielded a result of 0.1860 percent blood alcohol. The plaintiff was charged with driving under the influence of intoxicating liquor in violation of General Statutes § 14-227a.

On July 24, 2019, the plaintiff was issued a notice informing him of the suspension of his operator's license pursuant to § 14-227b. An administrative hearing was held before the commissioner's hearing officer on August 9, 2019, to determine whether the plaintiff's operator's license should be suspended pursuant to § 14-227b. At the hearing, the plaintiff's counsel objected to the admissibility of the A-44 form and its attachments because it had not been mailed to the Department of Motor Vehicles (department) within three business days as required by § 14-227b (c). The hearing officer overruled the objection and admitted into evidence the packet containing the A-44 form and its attachments as state's exhibit A. It was the only evidence submitted at the hearing. The A-44 form is stamped "Department of Motor Vehicles ... 2019 Jul 23 AM 10:23," and both the narrative police report and the A-44 form are signed under oath by Hewes and dated July 19, 2019. The document containing the breath analysis tests results is dated July 14, 2019, and is also signed by Hewes. The hearing officer found that the plaintiff was operating a motor vehicle, was arrested and submitted to breath alcohol tests, the results of which indicated a blood alcohol content of 0.08 percent or more, and that there was probable cause to arrest the plaintiff. The hearing officer suspended the plaintiff's operator's license for forty-five days and required the installation of an ignition interlock device for six months.

On August 28, 2019, 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 acted contrary to the law when she admitted the A-44 form and its attachments into evidence because that report was not mailed to the department within three business days as required by § 14-227b (c) and, therefore, was inadmissible. He contended that the A-44 form and the narrative police report were not completed until five days after his arrest and that the A-44 form is time-stamped by the defendant nine days after his arrest. The plaintiff argued that the packet containing the A-44 form and its attachments was the only evidence submitted by the defendant at the administrative hearing, and, without that report, there was not substantial evidence to suspend his license.

On July 8, 2020, the court issued a memorandum of decision dismissing the appeal. The court reasoned that the "[f]ailure to meet the conditions for admissibility specified in ... § 14-227b (c) does not necessarily mean that the report is absolutely inadmissible. The rules of evidence, including the hearsay rules, are not strictly applied in administrative hearings. The law remains that, in the setting of an administrative hearing such as the underlying hearing in this matter, police reports, and other hearsay documents, are admissible without the testimony of the author, if the documents are reasonably found to bear indicia of trustworthiness and reliability. Such is the case here." The court reasoned that the failure to satisfy the three day mailing requirement did not undermine the reliability and trustworthiness of the information reported therein, as the A-44 form and its attachments were signed by the arresting officer. The court thus concluded that exhibit A properly was admitted into evidence. This appeal followed.

The plaintiff claims that exhibit A, the A-44 form and its attachments, is inadmissible because that report was not submitted to the department within three business days as required by § 14-227b (c). The plaintiff notes, and the commissioner does not dispute, that the A-44 form and the narrative police report were not completed until July 19, 2019, five days after his July 14, 2019 arrest and were not received by the department until July 23, 2019, nine days after his arrest. As a result, he concludes, the A-44 form and its attachments lacked sufficient indicia of reliability to be admissible at the administrative hearing. We are not persuaded.

At the outset we note that "[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. ... 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). "The plaintiff bears the burden of demonstrating that a hearing officer's evidentiary ruling is arbitrary, illegal or an abuse of discretion." (Internal quotation marks omitted.) Paquette v. Hadley , 45 Conn. App. 577, 580, 697 A.2d 691 (1997).

Section 14-227b (c) provides in relevant part that if a person arrested for operating a motor vehicle while under the influence of intoxicating liquor submits to a breath analysis test that indicates such person has an elevated blood alcohol content then "the police officer ... shall prepare a report of the incident and shall mail or otherwise transmit in accordance with this subsection the report and a copy of the results of any chemical test or analysis to the Department of Motor Vehicles within three business days. The report shall contain such information as prescribed by the Commissioner of Motor Vehicles and shall be subscribed and sworn to under penalty of false statement as provided in section 53a-157b by the arresting officer. If the person arrested refused to submit to such test or analysis, the report shall be endorsed by a third person who witnessed such refusal. The report shall set forth the grounds for the officer's belief that there was probable cause to arrest such person for a violation of section 14-227a or 14-227m or subdivision (1) or (2) of subsection (a) of section 14-227n and shall state that such person had refused to submit to such test or analysis when requested by such police officer to do so or that such person submitted 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. ..."

Because the plaintiff argues that the A-44 form and its attachments were rendered inadmissible as a result of noncompliance with the three day mailing requirement, we first consider whether that requirement in § 14-227b (c), which provides that the police officer "shall" mail or otherwise transmit the report within three business days, is mandatory or directory. Because this claim regarding § 14-227b (c) requires us to construe the relevant statute, our standard of review is plenary. See Ives v. Commissioner of Motor Vehicles , 192 Conn. App. 587, 595, 218 A.3d 72 (2019).

The use of the word "shall" in § 14-227b (c) does not, in and of itself, create a mandatory duty to mail the report within three business days. "[T]he use of the word shall, though significant, does not invariably create a mandatory duty. ... In order to determine whether a statute's provisions are mandatory we have traditionally looked beyond the use of the word shall and examined the statute's essential purpose." (Citations omitted; internal quotation marks omitted.) Crest Pontiac Cadillac, Inc...