Nandabalan v. Comm'r Vehicles

KIRSHAN NANDABALAN v. COMMISSIONER OF MOTOR VEHICLES

AC 43691

COURT OF APPEALS OF THE STATE OF CONNECTICUT

Argued January 11, 2021

May 4, 2021

Bright, C. J., and Cradle and Suarez, Js.

Syllabus

The plaintiff, who had been charged with the crime of operating a motor vehicle while under the influence of intoxicating liquor, appealed to the trial court from the decision of the defendant Commissioner of Motor Vehicles suspending his motor vehicle operator's license for forty-five days and requiring the use of an ignition interlock device in his motor vehicle for one year, pursuant to statute (§ 14-227b), for his refusal to submit to a breath test to determine his blood alcohol content. The trial court rendered judgment dismissing the plaintiff's appeal, from which the plaintiff appealed to this court. Held that the judgment of the trial court dismissing the plaintiff's appeal was affirmed; the trial court did not err in concluding that the administrative record contained substantial evidence to support the hearing officer's finding that the plaintiff knowingly refused to submit to the breath test; the totality of the evidence, including a police report, a Form A-44, a breath test strip that read "test aborted refusal," and the testimony of the arresting officer and the plaintiff at the hearing, provided reliable, probative, and substantial evidence that the plaintiff refused to submit to a breath test; moreover, although the officer did not provide a narrative to describe the plaintiff's words or actions that constituted a refusal, as required by Form A-44, the officer's testimony at the hearing about the plaintiff's express verbal refusal cured any defects in the Form A-44.

Procedural History

Appeal from the decision of the defendant suspending the plaintiff's motor vehicle operator's license, brought to the Superior Court in the judicial district of New Britain and tried to the court, Cordani, J.; judgment dismissing the appeal, from which the plaintiff appealed to this court. Affirmed.

Devin W. Janosov, with whom was Donald A. Papcsy, for the appellant (plaintiff).

Christine Jean-Louis, assistant attorney general, with whom were Eileen Meskill, assistant attorney general and, on the brief, William Tong, attorney general, for the appellee (defendant).

Opinion

SUAREZ, J. The plaintiff, Kirshan Nandabalan, appeals from the judgment of the trial court dismissing his appeal from the decision of the defendant, the Commissioner of Motor Vehicles, ordering a forty-five day suspension of his license to operate a motor vehicle and requiring him to employ an ignition interlock device, pursuant to General Statutes § 14-227b, for his refusal to submit to a chemical alcohol test. The plaintiff claims that the court erred in concluding that the administrative record contained substantial evidence to support the hearing officer's finding that he knowingly refused to submit to the chemical alcohol test.¹ We disagree and affirm the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. We begin by restating the trial court's recitation of the facts surrounding the suspension of the plaintiff's license. "On May 7, 2019, Officer [Dimitar] Sadiev of the Guilford Police Department was dispatched in response to a 911 call indicating that a red Porsche with a specified license plate was operating erratically.² Officer Sadiev located the Porsche, noticed that it was driving about [fifteen miles per hour] in a [thirty mile per hour] zone and pulled it over. As he approached the operator, later identified as the plaintiff, the officer detected the odor of alcohol. Upon questioning, the plaintiff informed Officer Sadiev that he was coming from KC's Pub and that he had consumed a glass of wine.³ Officer Sadiev noticed that the plaintiff spoke slowly and slurred his words. Sergeant [Martina] Jakober and Officer Potter then arrived to assist. The plaintiff had some difficulty in reciting portions of the alphabet and counting [backward] and was asked to exit his car.

"Officer Sadiev then administered standard field sobriety tests to the plaintiff. The plaintiff failed some of the standard field sobriety tests and was placed under arrest at approximately 10:20 p.m. The plaintiff was then transported to Guilford police headquarters. At approximately 10:54 p.m., the plaintiff was read his rights and signed a form indicating that he understood them. The plaintiff was read the Implied Consent Advisory and allowed to contact an attorney at 11:13 p.m. The plaintiff made a call. At 11:23 p.m. the plaintiff was read the Test Consent Form but refused to consent to a Breathalyzer test. The plaintiff was again read the Test Consent Form and again refused to consent to the test." (Footnotes in original.)

On May 22, 2019, the defendant sent a notice to the plaintiff to inform him of the suspension of his license pursuant to § 14-227b.⁴ On June 7, 2019, pursuant to subsection (g) of § 14-227b, an administrative hearing was held before a hearing officer to determine if the plaintiff's license should be suspended for refusal of achemical alcohol test. At the hearing, Officer Sadiev and the plaintiff testified about the plaintiff's arrest and his alleged refusal to take the breath test. A copy of Form A-44⁵ with its attachments was admitted into evidence. The plaintiff maintained that he did not refuse to take the breath test. In support thereof, he relied upon Officer Sadiev's failure to document on the A-44 form the exact language he used when he asked the plaintiff to submit to a chemical alcohol test, along with Officer Sadiev's hearing testimony that he "[did not] remember the specific words that [he] used" to make this request. Officer Sadiev testified at the hearing that, although he could not remember what he asked the plaintiff, the plaintiff "said no to [his] request for a . . . breath sample . . . ."

On June 13, 2019, the hearing officer issued a decision with the following findings of fact and conclusions of law: "(1) The police officer had probable cause to arrest the [plaintiff] for a violation specified in [§] 14-227b . . . . (2) The [plaintiff] was placed under arrest. (3) The [plaintiff] refused to submit to such test or analysis. (4) [The plaintiff] was operating the motor vehicle. (5) [The plaintiff] was not under [twenty-one] years of age." The hearing officer also made the following subordinate finding: "Based upon sworn, credible testimony of . . . Officer Sadiev and testimony of [the plaintiff], it is found that there was a refusal to participate in testing." On the basis of these facts, the hearing officer ordered that the plaintiff's license be suspended for forty-five days and that an ignition interlock device be installed and maintained in the plaintiff's vehicle for one year.

On August 6, 2019, the plaintiff appealed from the hearing officer's decision to the Superior Court pursuant to General Statutes § 4-183.⁶ In the complaint, the plaintiff alleged, among other things, that the decision was "clearly erroneous in light of the reliable, probative, and substantial evidence produced at the hearing" and that "the hearing officer abused his discretion in finding that . . . the state submitted 'substantial evidence' of [the plaintiff's] refusal to take a [chemical alcohol] test . . . ." This decision, the plaintiff alleged, was "arbitrary and capricious," "[constituted] an abuse of discretion," and "was clearly an unwarranted exercise of discretion." Both parties submitted briefs and a hearing was held before the trial court on December 2, 2019.

On December 3, 2019, the court rendered judgment dismissing the appeal and issued a memorandum of decision. After setting forth its findings, the court concluded that "the record contain[ed] substantial evidence to support the hearing officer's finding that the plaintiff knowingly refused the test," and that "the hearing officer's decision was not clearly erroneous, arbitrary and capricious, or an abuse of discretion in view of the reliable, probative and substantial evidence on the whole record." The court pointed to three piecesof evidence in the record that supported the hearing officer's finding: "(1) the A-44 report and its attachments; (2) Officer Sadiev's hearing testimony; and (3) the plaintiff's hearing testimony." The court stated that, "given the reports, the testimony of Officer Sadiev and the testimony of the plaintiff himself, it is clear that (1) the plaintiff was requested by the officers to take the test; (2) the plaintiff understood that the officers were requesting that he take the test; and (3) that the plaintiff refused."⁷

Lastly, the court determined that "the plaintiff . . . failed to establish on appeal that the [defendant's] decision was (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." (Emphasis added.) This appeal followed. Additional facts and procedural history will be set forth as necessary.

On appeal, the plaintiff claims that the court erred in concluding that the administrative record contained substantial evidence to support the hearing officer's finding that he knowingly refused to submit to the chemical alcohol test. We disagree.

We begin by setting forth the standard of review. "The determination of whether the plaintiff's actions constituted a refusal to submit to a Breathalyzer test is a question of fact for the hearing officer to resolve. . . .

"In an administrative appeal, the plaintiff bears the burden of proving that the commissioner's decision to suspend a motor vehicle operating privilege was clearly erroneous in view of the reliable, probative and...