Opinion
HHBCV165017609S
03-06-2017
Anthony Manuele v. Commissioner of Department of Motor Vehicles
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Sheila A. Huddleston, J.
The plaintiff, Anthony Manuele, appeals from the final decision of the defendant, commissioner of the department of motor vehicles (commissioner), suspending his operator's license for forty-five days and requiring him to maintain an ignition interlock device in his vehicle for two years. The plaintiff claims that the commissioner erred by (1) allowing the hearing officer to continue the hearing to subpoena the police officer who submitted the report on the plaintiff's arrest for operating under the influence of drugs or alcohol, and (2) finding that the plaintiff refused to submit to a chemical test. The commissioner argues that the hearing officer was statutorily authorized to continue the hearing for good cause and to subpoena the police officer who submitted the police report. The commissioner further argues that substantial evidence supported the finding that the plaintiff refused to submit to a chemical test. The court agrees with the commissioner on both issues. The appeal is dismissed.
FACTS AND PROCEDURAL HISTORY
The plaintiff was arrested on February 14, 2016, at approximately 1:34 a.m. for operating under the influence in violation of General Statutes § 14-227a. Return of Record (ROR), pp. 19-29 (A-44 form and attached police report [*]). He had been stopped for driving too slowly in the right lane of Interstate 84 westbound near exit 43. A West Hartford police officer, Daniel Moffo, observed the plaintiff's vehicle traveling very slowly without hazard lights and drifting back and forth within the right lane. The front left tire of the vehicle was blown out. After Moffo stopped the plaintiff, Moffo observed that the plaintiff's eyes were red and glossy, his speech was slurred, and he had difficulty retrieving his registration and insurance information. ROR, p. 23. The plaintiff admitted that he had been drinking and subsequently failed all the field sobriety tests. ROR, pp. 24-25. Moffo observed a large amount of cash in the plaintiff's vehicle, which the plaintiff claimed was from a fundraising event for veterans. Moffo also found an empty wax bag stamped " New Arrival, " with a small amount of white powder that field tested positive as heroin. ROR, p. 26.
Moffo arrested the plaintiff and transported him to the West Hartford police station for processing and booking. At the station, Officer Xenalis asked the plaintiff to submit to a breath test, but the plaintiff refused. Officer Grant witnessed the refusal. ROR, pp. 20, 26, 43-46.
After receiving the arrest information, the commissioner suspended the plaintiff's operator's license on February 19, 2016, pursuant to General Statutes § 14-227b(e)(2)(B) because the plaintiff had a prior license suspension for a violation of General Statutes § 14-227a within the past ten years. The commissioner's notice informed the plaintiff that his license would be suspended for forty-five days and he would be required to maintain an ignition interlock device on his vehicle for two years. ROR, p. 1. The plaintiff requested a hearing on the suspension. The hearing was scheduled for March 10, 2016, but the plaintiff requested a continuance so that he could obtain counsel. ROR, pp. 2, 3. The hearing was rescheduled for April 15, 2016. ROR, p. 4. The plaintiff's attorney appeared on April 15, 2016, and requested a further continuance so that he could subpoena the police officer. ROR, p. 6. The hearing was rescheduled to April 26, 2016, but the subpoenaed officer did not appear on that date. ROR, pp. 10-12. Over the plaintiff's objection, the hearing officer continued the hearing a third time so that she could subpoena the officer. Id. The hearing was rescheduled to May 10, 2016. On that date, the plaintiff appeared with counsel and Officers Moffo and Grant appeared in response to the hearing officer's subpoenas. ROR, pp. 15, 17, 18, 35-45.
At the hearing, the A-44 form and attached police reports* were admitted as Exhibit A and the plaintiff's driving history was admitted as Exhibit B. Both exhibits were admitted without objection. ROR, pp. 36-37.
Officer Grant testified that she witnessed the plaintiff's refusal to take the breath test. ROR, p. 41. She admitted that she did not recall the exact words the plaintiff had used to refuse the test. ROR, p. 45. She guessed that it was possible that he might have shaken his head no rather than saying anything. Id. She testified that if he had refused by conduct such as remaining silent or stomping his feet, that conduct would have been documented. Id. She testified that she would not have signed as a witness to his refusal if she had not heard or seen him refuse the test. ROR, pp. 43-45. Based on Grant's testimony that she could not recall exactly how the plaintiff had refused the test, the plaintiff's counsel argued that there was insufficient evidence of refusal. ROR, pp. 46-47.
On May 11, 2016, the hearing officer issued her decision. ROR, p. 49. She made the four findings required by General Statutes § 14-227b(g) and made the following subordinate finding: " Officer Grant's testimony was credible and the evidence of the refusal was uncontroverted." ROR, p. 52. The plaintiff petitioned for reconsideration. ROR, p. 53-57. The commissioner's petition review committee denied the petition, holding that " There is sufficient evidence in the file to support the Hearing Officer's decision." ROR, p. 58.
ANALYSIS
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. 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." (Internal quotation marks omitted.) 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." Santiago v. Commissioner of Motor Vehicles, 134 Conn.App. 668, 674, 39 A.3d 1224 (2012). 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." A license suspension hearing is expressly limited to these four issues. Buckley v. Muzio, 200 Conn. 1, 7, 509 A.2d 489 (1986). In this case, the hearing officer affirmatively found that each of these requirements was met.
The standard of proof under the UAPA 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 (1994). In an administrative hearing, " the agency need only produce probative and reliable evidence to ensure that the proceedings are fundamentally fair." Id.
The Hearing Officer's Continuation of the Hearing
The plaintiff claims that the hearing officer exceeded her statutory authority when she continued the hearing a third time to subpoena the police officer. He argues that the regulations of the department of motor vehicles allows a hearing officer to grant a continuance only once, for a period of fifteen days, on a showing of good cause. See Regs., Conn. State Agencies § 14-227b-15 (Rev. to July 11, 2006). The commissioner argues, in opposition, that (1) noncompliance with the department's regulations is not one of the four issues addressed at an administrative license suspension hearing and is therefore not a ground for reversing the decision; (2) General Statutes § 14-227b(g) expressly authorizes the hearing officer to grant " one or more continuances, " and where a statute and regulation conflict, the statute prevails; and (3) even without Grant's testimony, there was sufficient evidence to support a finding of refusal, in the form of the A-44 form which was admitted without objection. The court agrees with the commissioner.
At the time of the arrest and at the time of the administrative hearing in this case, the relevant regulation, § 14-227b-15 of the Regulations of Connecticut State Agencies (revised to July 11, 2006), provided in relevant part as follows:
Our Supreme Court has clearly and repeatedly held that a license suspension hearing under § 14-227b is strictly limited to the four issues identified in § 14-227b(g). See, e.g., Buckley v. Muzio, 200 Conn. 1, 7-9, 509 A.2d 489 (1986) (reversing a trial court's decision sustaining an appeal of a license suspension on ground that operator did not understand the legal consequences of refusing a breath test; holding that " [t]he language of General Statutes § 14-227b[(g)] is plain and unambiguous. The hearing is expressly limited to the four issues enumerated above"); Schallenkemp v. DelPonte, 229 Conn. 31, 41-42, 639 A.2d 1018 (1994) (failure to comply with a regulation requiring certification of officer who administers breath test was not a basis for overturning commissioner's decision when the four elements required by § 14-227b are established); Fishbein v. Kozlowski, 252 Conn. 38, 47-50, 743 A.2d 1110 (1999) (lack of reasonable and articulable suspicion for investigatory stop would not be a basis for overturning license suspension if, after the stop, officer had probable cause to arrest). In Fishbein, the Supreme Court observed that it had previously " distinguished license suspension proceedings, the primary purpose of which is to promote public safety by removing those who have demonstrated a reckless disregard for the safety of others from the state's roadways, from criminal proceedings, the primary purpose of which is punishment." (Internal quotation marks omitted.) Id., 48-49. See also Charbonneau v. Commissioner of Motor Vehicles, 124 Conn.App. 556, 560, 4 A.3d 887 (2010) (following Fishbein). In this case, even if the regulation could fairly be read to limit the hearing officer's ability to continue the hearing on her own motion (as opposed to that of the operator requesting the hearing), it would not be a reason for disturbing the final decision as long as the required elements of § 14-227b(g) are established.
In addition, as the commissioner argues, General Statutes § 14-227b(g) expressly states that " [a]t the request of such person [who requested the hearing] or the hearing officer and upon a showing of good cause, the commissioner may grant one or more continuances." (Emphasis added.) " When a statute and a regulation conflict, the statute must prevail." Med-Trans of Connecticut, Inc. v. Dept. of Public Health & Addiction Services, 242 Conn. 152, 168, 699 A.2d 142 (1997). The statute plainly allows more than one continuance, including a continuance at the request of the hearing officer. The hearing officer found good cause to continue the hearing at the plaintiff's attorney's request, when the attorney wanted to subpoena the officer who witnessed the refusal. When that officer did not appear on the scheduled hearing date, the hearing officer again found that there was good cause to continue the hearing so that the hearing officer could subpoena the officer. The plaintiff cannot be heard to argue that the need to subpoena the officer was good cause for the plaintiff's continuance but not for the hearing officer's continuance.
Finally, even if the hearing had proceeded on April 26, 2016, without Grant's testimony, the evidence of the A-44 and attached police report* would have provided substantial evidence supporting the finding of refusal. On the A-44, which was admitted without objection, Officer Grant endorsed her name in Section J below the statement: " The operator named above refused to submit to such test or analysis when requested to do so. The refusal occurred in my presence and my endorsement appears below." ROR, p. 20. Similarly, the West Hartford police department's incident report, prepared by Moffo as the arresting officer, states that " Officer Xenelis (#372) requested that Anthony submit to a breath test, however Anthony refused. The refusal was witnessed by Officer Grant (#265)." ROR, p. 26.
This brings us to the plaintiff's second claim, which is that the evidence of refusal is insufficient because the arrest report merely states that " Anthony refused" the test but does not directly quote the words the plaintiff used. Relying on Bialowas v. Commissioner of Motor Vehicles, 44 Conn.App. 702, 692 A.2d 834 (1997), the plaintiff argues that a direct quotation or a description of conduct by which the refusal is communicated is required to provide substantial evidence of a refusal to submit to a chemical test under General Statutes § 14-227b. The department argues that, under Bialowas, a description of conduct constituting refusal is required only when a person has consented to a chemical test but has produced an inadequate sample to be tested. The court agrees with the defendant.
In Bialowas, the narrative supplement to the A-44 stated that the plaintiff " was explained all necessary procedures but failed to give a sufficient breath sample on three separate occasions . . . therefore resulting in a refusal of the test." Bialowas v. Commissioner of Motor Vehicles, supra, 44 Conn.App. 706. The police officer completing the form indicated that the plaintiff " was very uncooperative and would not sign any necessary papers." (Internal quotation marks omitted.) Id. In that case, the plaintiff testified that after his first breath test attempt, the officer changed the intoximeter nozzle. After the second attempt, with the new nozzle, the officer told the plaintiff to " try again, " and after the third attempt, said " that's enough." Id. The court concluded that there was evidence that the plaintiff took the test and no evidence that the equipment was working properly. Under those circumstances, the court held as follows: " [W]here it is undisputed that the motorist submitted to the chemical alcohol test, the fact that he failed to provide an adequate breath sample does not automatically constitute refusal within the meaning of § 14-227b." Id., 714-15. In such a circumstance, additional evidence was needed to support a conclusion that the failure to provide sufficient breath was, in fact, a refusal to take the test. Id., 716-17.
In this case, unlike Bialowas, there is no evidence that the plaintiff attempted to take a breath test; to the contrary, the only evidence is that he refused to take it. The plaintiff was present at the hearing but declined to offer any testimony. ROR, p. 46.
The plaintiff's theory of the case would require police officers essentially to provide a verbatim report of an arrestee's refusal in order for their evidence to rise to the level of " substantial." General Statutes § 14-227b contains no such requirement. Instead, General Statutes § 14-227b(c) describes the report that police are required to prepare regarding an arrest pursuant to § 14-227a. In relevant part, § 14-227b(c) provides: " If the person arrested refuses to submit to such test or analysis . . . [t]he police officer shall prepare a report of the incident . . . 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 subsection (a) of section 14-227a, section 1 of public act 16-126 or subdivision (1) or (2) of subsection (a) of section 2 of public act 16-126 and shall state that such person had refused to submit to such test or analysis when requested by such police officer to do so . . ." The A-44 form is the form prescribed by the Commissioner of Motor Vehicles for the reporting of arrests for violations of § 14-227a. See ROR, p. 19; see also Roy v. Commissioner of Motor Vehicles, 67 Conn.App. 394, 396 n.3, 786 A.2d 1279 (2001). By regulation, additional statements attached to the form are considered part of the report if sworn to under penalty of false statement. See Regs., Conn. State Agencies § 14-227b-10(b).
In this case, as the commissioner argues, the A-44 with its attached report* is substantial evidence of the plaintiff's refusal to submit to the breath test, and it is unrebutted by any contradictory evidence. A verbatim account of the specific words used by the plaintiff to refuse the test is not required by § 14-227b, by regulation, or by case law. Bialowas was an unusual case in which a person who actually attempted to give breath samples was found to have " refused" the test. In those circumstances, additional information is required to establish why the attempt is believed to have been a " refusal." Where, as here, the person refuses the test outright, no further explanation is required. See Fonville-Smith v. Commissioner of Motor Vehicles, Superior Court, judicial district of New Britain, Docket No. 16-6029440-S, (October 28, 2015, Schuman, J.).
In sum, the hearing officer properly exercised her discretion to continue the hearing to obtain Grant's testimony, which the plaintiff himself had initially sought to produce when his attorney requested a continuance to subpoena Grant. But Grant's testimony was not essential to provide substantial evidence of the plaintiff's refusal; her sworn attestation on the A-44 was sufficient under the statute and the circumstances of this case. Her testimony was, however, confirmatory; she stated that she would not have signed the report if she had not heard or seen the plaintiff refuse the test. The hearing officer did not err in finding her credible.
In sum, the hearing officer did not abuse her discretion in continuing the hearing to obtain Grant's presence. Even without Grant's testimony, there is reliable, probative, and substantial evidence in the record to support the finding that the plaintiff refused to take the breath test. The appeal is therefore dismissed. [*] Editor's Note: The referenced A-44 form and police report, pg. 2, par. 1; pg. 4, par. 1; pg. 10, par. 2; pg. 13, par. 2, has not been reproduced.
(a) Only for good cause shown will a continuance be granted to a person who has requested a hearing or to his attorney . . .
(c) A hearing may be continued only once, and any such continuance shall be for a period not to exceed fifteen (15) days.
This regulation was amended, effective September 3, 2016, and as amended, eliminates the restriction that a " hearing may be continued only once." The amendment is not applicable here, and the analysis in this decision is based on the version of the regulation in effect at the time of the plaintiff's hearing.