Bancroft v. Commissioner of Motor Vehicles

• Decision Date: 14 April 1998
• Docket Number: No. 16554,16554
• Court: Connecticut Court of Appeals
• Parties: Steven BANCROFT v. COMMISSIONER OF MOTOR VEHICLES.

Page 807

710 A.2d 807

48 Conn.App. 391

Steven BANCROFT v. COMMISSIONER OF MOTOR VEHICLES.

No. 16554.

Appellate Court of Connecticut.

Argued Dec. 12, 1997.

Decided April 14, 1998.

Edward S. Domnarski, Old Saybrook,, for appellant (plaintiff).

Robert T. Morrin, Assistant Attorney General, with whom, on the brief, was Richard Blumenthal, Attorney General, for appellee (defendant).

Before LAVERY, SPEAR and HEALEY, JJ.

HEALEY, Judge.

On April 7, 1996, the plaintiff, Steven Bancroft, was arrested in Old Saybrook for operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a. ¹ On April 11, 1996, the defendant commissioner of motor vehicles notified the plaintiff of the suspension of his Connecticut motor vehicle operator's license pursuant to General Statutes § 14-227b (d). ²

On April 24, 1996, an administrative hearing was held before a hearing officer pursuant to § 14-227b (f). ³ At that hearing, there was no testimony, but two exhibits were admitted into evidence. The commissioner submitted the arresting officer's form A-44 report of the arrest and the times and results of the chemical blood alcohol content (BAC) tests administered to the plaintiff. The two breath tests administered by the arresting officer demonstrated a BAC of 0.148 percent on each, which were in excess of the 0.10 percent BAC set out in § 14-227a (a). The plaintiff submitted a letter from James E. O'Brien, a toxicologist, to the plaintiff's attorney. ⁴ On that date, the hearing officer rendered his decision affirming the one year suspension.

Thereafter, the plaintiff appealed the commissioner's decision of suspension to the Superior Court. The court pointed out that the sole basis of the appeal was that there was insufficient evidence to support the hearing officer's decision that the plaintiff's BAC at the time of operation exceeded the legal level. The plaintiff claimed that the O'Brien letter legally rebutted the inference permitted by § 14-227b, which meant, he argued, that the commissioner was required to provide additional evidence that would extrapolate the test results back to the time of operation. In rejecting the plaintiff's claim, the trial court referred to two recent cases of this court to support its position. Those cases were State v. Nokes, 42 Conn.App. 10, 678 A.2d 510, remanded for reconsideration, 239 Conn. 926, 683 A.2d 22, on remand, 44 Conn.App. 40, 686 A.2d 999 (1996), and State v. Korhn, 41 Conn.App. 874, 678 A.2d 492, cert. denied, 239 Conn. 910, 682 A.2d 1010 (1996). The trial court pointed out that both cases involved § 14-227a, which contains provisions that are "essentially identical" to those in § 14-227b, and held in effect that the statute creates only a permissive presumption or inference. The trial court also opined that these decisions established that the jury may draw the inferences, despite expert evidence to the contrary, provided that the jury finds the predicate facts to be true and disbelieves the contrary evidence. The court decided that this analysis also applied to an administrative proceeding under § 14-227b. Accordingly, the trial court reasoned, a hearing officer may rely on the statutory presumption and infer that the plaintiff's BAC had exceeded the legal BAC level at the time of operation provided that there was substantial evidence to provide the predicate facts. ⁵ It also meant that, if there was contrary expert evidence before the hearing officer, the hearing officer was free to believe or disbelieve that evidence. The trial court also decided that no additional expert evidence was required to rebut the plaintiff's expert evidence in such a case. This appeal followed.

On appeal to this court, the plaintiff claims that the trial court improperly (1) held that the presumption created by § 14-227b could withstand "uncontroverted expert testimony that it was not possible with reasonable scientific certainty to determine [the] alcohol level [in the blood] at the time of operation" and (2) dismissed his appeal after the hearing officer arbitrarily and capriciously had ignored the evidence of his expert witness.

The plaintiff correctly acknowledges that under § 14-227b (f), "[i]n the [administrative] 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...." He points out that in providing that the BAC test results "shall be sufficient," the legislature created a "rebuttable presumption" that the test results can be used in place of direct evidence to prove the BAC at the time of operation and that the presumed fact is that the driver had a BAC equal to or more than 0.10 percent. We agree.

Relying on the letter from his expert, O'Brien, the plaintiff contends that he has rebutted the "rational connection" between the test results and the presumption that his BAC at the time of operation can be determined from them. He depends heavily on O'Brien's letter and argues that it "stated in essence that because of the flat readings ... 'there is no extrapolation factor, nor any reliable means to determine [the plaintiff's] alcohol level at the time of operation. Also for similar reasons it is impossible to state with reasonable scientific certainty that [the plaintiff's] alcohol level was at or above 0.10 percent at the time of operation.' " This uncontradicted expert evidence, the plaintiff claims, makes the statutory presumption disappear from the case. It effectively "annuls" the claimed connection between the basic fact, i.e., the test results, and the presumed fact, i.e., that his BAC at the time of operation was 0.10 percent or greater. In effect, the plaintiff argues that his expert evidence in O'Brien's letter rebuts the presumption created by § 14-227b and shifts the burden of proof to the commissioner who in turn did not sustain that burden. The plaintiff ultimately claims that, because the commissioner did not produce more evidence on the BAC level at the time of operation, the plaintiff must be found to have rebutted the statutory presumption with substantial countervailing evidence, and his license should not have been suspended. ⁶

The plaintiff's other claim is that suspension of his license was improper because the hearing officer "arbitrarily and capriciously ignored or disregarded the evidence of his expert witness." In advancing this claim, he contends that in a § 14-227b hearing, the hearing officer acts as the fact finder and has a responsibility different from that of a jury in a criminal case. To support this position, he maintains that this distinction is mandated by the relevant departmental regulation, § 14-227b-20 of the Regulations of Connecticut State Agencies. ⁷ Stressing subsection (b) of that regulation as highlighting the different responsibility of the hearing officer from that of a jury, the plaintiff argues that the trial court improperly affirmed the hearing officer's decision when the hearing officer disregarded the only expert testimony ⁸ produced at the hearing. The plaintiff argues quoting Tanner v. Conservation Commission, 15 Conn.App. 336, 341, 544 A.2d 258 (1988), that while an administrative agency is not required "to believe any of the witnesses, including expert witnesses ... it must not disregard the only expert evidence available on the issue when the commission members lack their own expertise or knowledge [on a specific issue]." (Citation omitted.) The plaintiff contends that it was not legal for the hearing officer to rely on his own special or expert knowledge, if he had any, concerning the issue of the BAC level. If the hearing officer intended to do that, then Feinson v. Conservation Commission, 180 Conn. 421, 428-29, 429 A.2d 910 (1980), required that he so notify the plaintiff in a timely fashion. Because the hearing officer made no reference to the O'Brien letter in his decision, the plaintiff argues that the hearing officer acted in a manner that was "arbitrary, capricious, illegal and an abuse of discretion."

The commissioner counters that in an appeal under the Uniform Administrative Procedure Act, General Statutes § 4-166 et seq., judicial review is very limited, and the plaintiff has the burden of demonstrating that the hearing officer has acted unreasonably, arbitrarily, illegally or in abuse of his discretion. This review, the commissioner argues, prohibits the reviewing court from retrying the case, reassessing credibility, determining factual issues within the province of the administrative agency or substituting its judgment for that of the agency. In this case, he argues, the decision of the hearing officer must be affirmed because there is substantial evidence to support his decision. The commissioner also argues that the Nokes and Korhn decisions cannot be distinguished as the plaintiff claims. In the decisional context, he also argues that Ramisk v. Commissioner of Motor Vehicles, 45 Conn.App. 924, 696 A.2d 1325, cert. denied, 243 Conn. 923, 701 A.2d 343 (1997), is on "all fours" with this case. With reference to the O'Brien letter, he claims that the hearing officer had the right to believe or disbelieve it, in whole or in part, even though it was the only expert evidence before him. ⁹ He argues that the hearing officer did not believe the O'Brien letter. The commissioner argues that the statutory presumption that the plaintiff's BAC ¹⁰ was in excess of the 0.10 percent level at the time of operation was not rebutted and, therefore, the Superior Court correctly sustained the decision of the hearing officer.

I

"[J]udicial review of the commissioner's action is governed by the Uniform Administrative Procedure Act (General Statutes §§ 4-166 through 4-189), and the scope of that review is very restricted." (Internal quotation marks omitted.) Costello v. Kozlowski, 47 Conn.App. 111, 114, 702 A.2d 1197 (1997); see Burinskas v. Dept. of Social Services,...