Opinion
HHBCV166035005S
10-17-2017
Adrian A. Llanos v. Michael Bzdyra, Commissioner, Department of Motor Vehicles
UNPUBLISHED OPINION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 with the attached Enfield Police Department incident report, which was introduced, over the plaintiff's objection, as an exhibit at the administrative hearing.
" The A-44 form is used by the police to report an arrest related to operating a motor vehicle under the influence and the results of any sobriety tests administered or the refusal to submit to such tests." Santiago v. Commissioner of Motor Vehicles, 134 Conn.App. 668, 672 n.2, 39 A.3d 1224 (2012).
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. 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.
Section 4-183(j) provides in relevant part: " The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (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. If the court finds such prejudice, it shall sustain the appeal and, if appropriate, may render a judgment under subsection (k) of this section or remand the case for further proceedings."
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.
Both parties appear to assume that the hearing officer implicitly found that the test was commenced within two hours of operation. The plaintiff did not assert in this appeal that the omission of an express finding as to the time of operation was itself a ground for sustaining the appeal. At oral argument, the court asked counsel for both parties whether the omission of an express finding as to time of operation had any significance for the appeal. The commissioner's counsel argued that it did not; the plaintiff's counsel said that it " might" but did not further elaborate on any potential significance. The court concludes that the parties correctly assumed, in their briefs, that the hearing officer implicitly found that the test was commenced within two hours of operation.
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 evidence in written form if the interests of the parties will not be substantially prejudiced thereby. Id. " [A]dministrative tribunals are not strictly bound by the rules of evidence and . . . they may consider evidence which would normally be incompetent in a judicial proceeding, as long as the evidence is reliable and probative." (Internal quotation marks omitted.) Jutkowitz v. Department of Health Services, 220 Conn. 86, 108, 596 A.2d 374 (1991). Moreover, there is no prohibition against hearsay evidence in the UAPA. Id.
ANALYSIS
The plaintiff acknowledges that the A-44 with its attached report is generally admissible by statute and case law. It is undisputed that the A-44 was properly executed. The plaintiff's argument is that the only evidence as to time of operation is the " triple hearsay" statement by the plaintiff's girlfriend. The plaintiff argues that reliance on triple hearsay offends concepts of fundamental fairness and due process, and fails to provide substantial reliable evidence on which to base a finding as to the time of operation.
In support of his argument, the plaintiff relies primarily on civil negligence cases, including Hutchinson v. Plante, 175 Conn. 1, 5, 392 A.2d 488 (1978), and Pirolo v. DeJesus, 97 Conn.App. 585, 589, 905 A.2d 1210 (2006). In Hutchinson, a civil jury case, the Supreme Court found error in the admission of an accident report containing a diagram based on " oral statements" of the parties. It concluded that the diagram was based primarily on the defendant's " self-serving" statement that did not come within any exception to the rule against hearsay. In Pirolo, another civil jury case, the Appellate Court similarly found error in the admission of an accident report containing a diagram based on witness statements. In Pirolo, however, the court found that the evidentiary error was harmless because it was merely cumulative of other evidence in the case.
Hutchinson and Pirolo stand for the proposition that witness statements contained in a police report are generally inadmissible in a civil jury trial unless they come within a specific exception to the hearsay rule. At least one Superior Court decision in an administrative appeal has applied the logic of Hutchinson and Pirolo to conclude that reliance on a hearsay statement for determination of a critical fact violated principles of fundamental fairness and required the court to sustain the appeal. See Zadroga v. Commissioner, 42 Conn.Supp. 1, 597 A.2d 848 (1991). This court is not persuaded that Hutchinson, Pirolo, or Zadroga control the outcome of this case. There is a substantial body of appellate case law concerning the use of hearsay evidence in administrative proceedings. Under that body of law, it is well established that administrative tribunals are not strictly bound by the rules of evidence " so long as the evidence is reliable and probative." Bialowas v. Commissioner of Motor Vehicles, 44 Conn.App. 702, 712, 692 A.2d 834 (1997). On the other hand, " [i]f hearsay evidence is insufficiently trustworthy to be considered 'substantial evidence' and it is the only evidence probative of the plaintiff's culpability, its use to support the agency decision would be prejudicial to the plaintiff, absent a showing . . . that the appellant knew it would be used and failed to ask the commissioner to subpoena the declarants." Carlson v. Kozlowski, 172 Conn. 263, 267, 374 A.2d 207 (1977).
In Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971), the United States Supreme Court held that medical reports, although hearsay, were sufficiently trustworthy to constitute substantial evidence to support the denial of a disability claim. In Carlson, our Supreme Court observed that, although the federal substantial evidence standard differs somewhat from the standard under the UAPA, the factors considered in Richardson establishing the reliability and probative value of hearsay evidence were useful to its consideration of such evidence in an administrative appeal under the UAPA. Carlson v. Kozlowski, supra, 172 Conn. 267-68. Such factors included the lack of bias of the hearsay declarants; that the reports were based on personal consultation and examination; that there was no inconsistency on the face of the reports; and that medical reports by treating physicians, in general, had long been recognized by courts as having inherent reliability and probative worth. Id.
Our Appellate Court recently summarized the Richardson factors, in the context of an unemployment compensation hearing, as follows: " The reliability test has four factors: (1) the nature and atmosphere of the proceeding, (2) the availability of the witness declarant, (3) the lack of bias or interest of the witness declarant, and (4) the quality and probative value of the statements." Phillips v. Administrator, Unemployment Compensation Act, 157 Conn.App. 342, 346-47, 115 A.3d 1162 (2015), citing, Richardson v. Perales, supra, 402 U.S. 402-07.
Courts also frequently assess the reliability and probative value of hearsay statements in other contexts. For instance, courts examine hearsay statements in a search warrant application to determine whether such statements are sufficiently reliable and probative to support a finding of probable cause. In making such a determination, courts must assess the " veracity or reliability and basis of knowledge" of the declarant, as well as other relevant factors based on the totality of the circumstances. See State v. Flores, 319 Conn. 218, 226, 125 A.3d 157 (2015).
The hearsay statement at issue in this appeal was the statement of the plaintiff's girlfriend that the plaintiff had called her at around 2 a.m. The plaintiff could have responded to Officer Fell's question regarding when the crash occurred with his own estimate of the time that he crashed, but he framed his response instead in reference to a phone call he had made to his girlfriend. There is nothing in the record to suggest that the plaintiff's girlfriend had any bias against the plaintiff. Although the police report does not expressly so state, it is reasonable to infer that the plaintiff provided Officer Thomas with his girlfriend's telephone number so that Officer Thomas could contact her about the time of the plaintiff's call to her. The plaintiff's call was likely to have been relatively recent, since the plaintiff said he had been drinking around midnight and the accident was reported to the police at about 2:06 a.m. The plaintiff's girlfriend would have direct, personal, first-hand knowledge as to the time of the plaintiff's call to her. Moreover, the plaintiff himself essentially directed the police to rely on his girlfriend's statement. If he later believed she was mistaken as to the time of the call, he could have had her subpoenaed to testify at the administrative proceeding. If he thought that Officer Thomas had misreported her statement, he could have had Officer Thomas subpoenaed. His counsel was plainly aware that the report was likely to be admitted into evidence, despite his argument that there was no probative or reliable evidence as to the time of operation. In view of all these factors and the totality of the circumstances, the hearing officer did not abuse his discretion or commit legal error in admitting and considering the hearsay statement of the plaintiff's girlfriend that the plaintiff had called her around 2 a.m. The plaintiff himself said that the accident occurred about five minutes after he called his girlfriend, which would have put it at 2:05 a.m. This is consistent with Officer Fell's observation of fresh tire marks at the scene of the accident and with the fact that Officer Fell was dispatched to the accident scene at 2:06 a.m. Because there are sufficient indicia of reliability and probative value as to the girlfriend's statement about the time of the call, the hearing officer's admission of and reliance on that hearsay statement does not offend principles of fundamental fairness.
Officer Fell calculated the time of the accident as 1:55 a.m., apparently construing the plaintiff's statement to mean that he had called his girlfriend about five minutes after the accident. Although the court would have been inclined to place the time of the accident at 2:05 a.m. based on the combination of statements from the plaintiff and his girlfriend, the difference of ten minutes is inconsequential in this case, because either calculation places the time of last operation well within the two-hour window before the first breath test was administered at 3:43 a.m.
CONCLUSION
The hearsay statement by the plaintiff's girlfriend is sufficiently reliable and probative to provide substantial evidence, when combined with the plaintiff's own statements, that the plaintiff's crash occurred between 1:55 a.m. and 2:05 a.m. This evidence reasonably supports the hearing officer's implicit finding that the first breath alcohol test was commenced within two hours of the plaintiff's operation of his vehicle. The plaintiff's appeal is accordingly dismissed.