Bialowas v. Commissioner of Motor Vehicles

• Decision Date: 15 April 1997
• Docket Number: No. 15548,15548
• Citation: 44 Conn.App. 702,692 A.2d 834
• Court: Connecticut Court of Appeals
• Parties: Sean P. BIALOWAS v. COMMISSIONER OF MOTOR VEHICLES.

Page 834

692 A.2d 834

44 Conn.App. 702

Sean P. BIALOWAS v. COMMISSIONER OF MOTOR VEHICLES.

No. 15548.

Appellate Court of Connecticut.

Argued Nov. 13, 1996.

Decided April 15, 1997.

Stanley Maxim Lucas, for appellant (plaintiff).

Priscilla J. Green, Assistant Attorney General, with whom, on the brief, was Richard Blumenthal, Attorney General, for appellee (defendant).

Before EDWARD Y. O'CONNELL, FRANCIS X. HENNESSY and SPALLONE, JJ.

SPALLONE, Judge.

This is an appeal from a judgment dismissing the appeal of the plaintiff from the administrative decision of the defendant commissioner of motor vehicles (commissioner) made pursuant to General Statutes § 14- 227b. ¹ The plaintiff claims that the trial court improperly (1) upheld the administrative hearing officer's decision to suspend the plaintiff's license even though the procedures of § 14-227b were not followed, (2) upheld the administrative officer's decision to suspend the plaintiff's license on the basis of the plaintiff's so-called failure to perform a breath test successfully, allegedly constituting a "refusal" under § 14-227b, and (3) violated the plaintiff's due process rights under the fourteenth amendment to the United States constitution and article first, § 8, of the Connecticut constitution by allowing the narrative supplement to the police report into evidence and by the failure of the police to apprise the plaintiff of all of his test results. We reverse the judgment of the trial court.

A review of the record reveals the following. On September 10, 1994, at approximately 2:18 a.m., Officer Joseph Jones of the Norwich police department observed the plaintiff driving a motor vehicle in an erratic manner. The plaintiff was driving his pickup truck at a high rate of speed and, while swerving back and forth across the entire width of the road, almost collided with several parked vehicles. Jones pulled over the plaintiff and, on the basis of plaintiff's "glossy eyes," the strong odor of alcohol on his breath, slurred speech, and his failure to perform certain sobriety tests satisfactorily, Jones placed the plaintiff under arrest for operating a motor vehicle while under the influence of alcohol or drugs pursuant to General Statutes § 14-227a.

Jones transported the plaintiff to police headquarters and made three attempts, using an intoximeter, to administer a breath test to the plaintiff. Jones stated in the narrative supplement that the plaintiff "was explained all necessary procedures but failed to give a sufficient breath sample on three separate occasions ... [t]herefore resulting in a refusal of the test." He filled out an A-44 police report form as well as a narrative supplement to that form and stated in the supplement that the plaintiff "was very uncooperative and would not sign any necessary papers."

Pursuant to § 14-227b (c), a written report of the plaintiff's arrest and alleged test refusal was forwarded to the department of motor vehicles (department). Thereafter, the plaintiff was notified by the commissioner that his operator's license was to be suspended for a period of six months because he refused to be tested. He was also notified that he was entitled to a hearing to contest the suspension.

The plaintiff requested and was given an administrative hearing. The hearing officer admitted into evidence, over the objection of the plaintiff, the police report, the narrative supplement to the police report, and a breath test result tape from the intoximeter. Jones did not testify. The plaintiff testified that he did not refuse to take a breath test. He testified that he did refuse to sign the temporary operator's license ² because he was "upset." He said that he had taken three tests and that Jones had changed the intoximeter nozzle between the first and second tests. The plaintiff testified that, after the first test attempt, Jones had said that they would attempt another test. After the second attempt, according to the plaintiff, Jones said, "Try again." The plaintiff testified that, after the third attempt, Jones had said, "That's enough." The plaintiff also testified that he had not been told that he was not blowing hard enough or that his actions were being treated as a test refusal. ³

The hearing officer found that the mandates of § 14-227b were satisfied and ordered that the plaintiff's license to operate a motor vehicle be suspended for six months. In making her decision, the hearing officer made subordinate findings that the plaintiff's "conduct was properly deemed a refusal by the police officer, as his failure to sign the temporary license and other documents supports a lack of cooperation."

Pursuant to General Statutes § 4-183, the plaintiff appealed the administrative decision to the Superior Court, claiming that the decision should be reversed because (1) procedural errors were committed by the arresting officer, (2) the plaintiff did not refuse to be tested for his blood alcohol count and (3) the suspension subjected the plaintiff to double jeopardy. The trial court on November 16, 1995, heard the plaintiff's appeal. After summarizing the evidence and arguments, ⁴ the trial court stated that, "[i]n the court's view, the plaintiff's evidence was clearly more persuasive...." The court nonetheless found that there was substantial evidence on which the hearing officer could reasonably have based her finding and upheld the administrative hearing officer's decision. The trial court also rejected the plaintiff's other legal arguments and dismissed his appeal. This appeal followed.

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 substantial evidence on the whole record. Schallenkamp v. DelPonte, 229 Conn. 31, 39, 639 A.2d 1018 (1994); see Lawrence v. Kozlowski, 171 Conn. 705, 713-14, 372 A.2d 110 (1976), cert. denied, 431 U.S. 969, 97 S.Ct. 2930, 53 L.Ed.2d 1066 (1977). "Judicial review 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.... Substantial evidence exists if the administrative record affords a substantial basis of fact from which the fact in issue can be reasonably inferred." (Internal quotation marks omitted.) Schallenkamp v. DelPonte, supra, at 40, 639 A.2d 1018. "The evidence must be substantial enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury." (Internal quotation marks omitted.) Marshall v. DelPonte, 27 Conn.App. 346, 352, 606 A.2d 716 (1992). "[I]f the administrative record provides substantial evidence upon which the hearing officer could reasonably have based his finding ... the decision must be upheld." Connecticut Building Wrecking Co. v. Carothers, 218 Conn. 580, 601, 590 A.2d 447 (1991). The obvious corollary to the substantial evidence rule is that a court may not affirm a decision if the evidence in the record does not support it.

I

The plaintiff's first claim is that the trial court improperly upheld the administrative hearing officer's decision even though the procedures of § 14-227b were not followed. Specifically, the plaintiff claims procedural errors in that (1) he was not advised of his constitutional rights, a requirement of § 14-227b (b); (2) he was not informed that he would lose his license if he refused to submit to testing or that the test results or a refusal to take the tests could be used against him in a criminal prosecution, a further requirement of § 14-227b (b); (3) he never received the results of the second and third breath tests, as per § 14-227b-8 of the Regulations of Connecticut State Agencies; ⁵ (4) there is no indication that all the test results were mailed to the department as required by § 14-227b (c); (5) there is no indication that the police report and accompanying documents were mailed to the department within three business days, ⁶ as further required by § 14-227b (c); and (6) the narrative supplement to the police report was not marked as having been made under oath. The plaintiff argues that, because a police report must conform to the requirements of § 14-227b to be admissible, this nonconforming report was inadmissible. Thus, the plaintiff argues, he has met his burden of demonstrating that no evidence exists because, without the police report and the accompanying documents, no admissible evidence was offered at the administrative hearing to support the hearing officer's conclusion.

This claim fails for three reasons. First, § 14-227b (f) does not provide for an adjudication of claimed procedural errors but expressly provides 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 drug or both or while his ability to operate such motor vehicle was impaired by the consumption of intoxicating liquor; (2) was such person placed under arrest; (3) did such person refuse to submit to such test ... and (4) was such person operating the motor vehicle...." The language of § 14-227b (f) is plain and unambiguous. The hearing is expressly limited to the four issues enumerated above. Buckley v. Muzio, 200 Conn. 1, 6, 509 A.2d 489 (1986). The hearing officer made the findings mandated by law ⁷ and was not required to do more.

Second, our Supreme Court has held that "even multiple failures on the part of an arresting officer to comply with the statutory dictates of § 14-227b [are] not sufficient grounds for overturning the commissioner's determination, after a hearing, that the essential elements of the statute had been proven...