Costello v. Kozlowski

• Decision Date: 11 November 1997
• Docket Number: No. 16638,16638
• Citation: 47 Conn.App. 111,702 A.2d 1197
• Court: Connecticut Court of Appeals
• Parties: John P. COSTELLO v. Michael KOZLOWSKI, Commissioner of Motor Vehicles.

Page 1197

702 A.2d 1197

47 Conn.App. 111

John P. COSTELLO v. Michael KOZLOWSKI, Commissioner of Motor Vehicles.

No. 16638.

Appellate Court of Connecticut.

Submitted on Briefs Sept. 26, 1997.

Decided Nov. 11, 1997.

Richard Blumenthal, Atty. Gen., and Priscilla J. Green, Asst. Atty. Gen., filed a brief for Appellant (Defendant).

Norman B. Teague, Meriden, filed a brief for Appellee (Plaintiff).

Before EDWARD Y. O'CONNELL, C.J., and SPEAR and FRANCIS X. HENNESSY, JJ.

EDWARD Y. O'CONNELL, Chief Judge.

The defendant commissioner of motor vehicles (commissioner) appeals from a judgment of the trial court sustaining the plaintiff's appeal from the commissioner's administrative decision.

The plaintiff's motor vehicle operator's license was suspended for six months because he refused to submit to a chemical alcohol test following his arrest for operating a motor vehicle while under the influence of alcohol or drugs. General Statutes § 14-227b. ¹ The plaintiff challenged the suspension at an administrative hearing. The commissioner affirmed the suspension after finding that the four license suspension criteria set forth in § 14-227b(f) had been met. ² The plaintiff appealed to the trial court, claiming that the statutory criteria were not satisfied because the plaintiff's arrest was not lawful. The trial court sustained the plaintiff's appeal.

On appeal to this court, the commissioner claims that the trial court improperly determined that the police lacked a reasonable and articulable suspicion to stop the plaintiff's vehicle and, therefore, that the plaintiff's arrest was not lawful. We reverse the judgment of the trial court and remand the case to the trial court with direction to dismiss the appeal.

The plaintiff's suspension was based on the following facts. At 1:07 a.m. on October 20, 1995, a Berlin police officer was informed by his dispatcher that someone was banging on the door of a closed restaurant and attempting to gain entry. The officer was also informed that the person in question might be driving a red Chevrolet Corsica. Upon arrival at the scene, the officer stopped a red Chevrolet Corsica that was exiting from an area behind the restaurant. The plaintiff was operating the Corsica. The officer noticed that the plaintiff's speech was slurred, his eyes were bloodshot and he smelled of alcohol. After administering field sobriety tests, the officer placed the plaintiff under arrest for operating a motor vehicle while under the influence of intoxicating liquor or drugs. General Statutes § 14-227a(a). ³ The plaintiff later refused to submit to a chemical alcohol test. Refusal to submit to such a test is grounds for suspension of an operator's license. General Statutes § 14-227b. ⁴

"[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.... In cases involving administrative appeals it is not the function of this court, nor was it the function of the trial court, to retry the case or to substitute its judgment for that of the administrative agency...." (Citations omitted; internal quotation marks omitted.) Redden v. Kozlowski, 45 Conn.App. 225, 228, 695 A.2d 26 (1997).

In order to sustain an administrative decision, all that is required is that the determination be "reasonably supported by the evidence in the record." Clark v. Muzio, 40 Conn.Supp. 512, 514, 516 A.2d 160 (1986), aff'd, 14 Conn.App. 212, 540 A.2d 1063, cert. denied, 208 Conn. 809, 545 A.2d 1105 (1988). "[T]he 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." Bialowas v. Commissioner of Motor Vehicles, 44 Conn.App. 702, 708-709, 692 A.2d 834 (1997). "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.) Id., at 709, 692 A.2d 834.

Pursuant to the license suspension criteria set forth in § 14-227b(f), in affirming a police initiated suspension, the commissioner must find, inter alia, that the operator of the vehicle was placed under arrest. The plaintiff contends that this criterion was not satisfied here because the investigatory stop that led to his arrest was unlawful. We are not persuaded.

A police officer does not need to have probable cause to believe that a crime has been committed in order to make a lawful stop of a motor vehicle. An investigatory stop is authorized if the police officer had a "reasonable and articulable suspicion that a person has committed or is about to commit a crime." State v. Lamme, 216 Conn. 172, 184, 579 A.2d 484 (1990). Whether a reasonable and articulable suspicion exists depends on the totality of the circumstances. State v. Anderson, 24 Conn.App. 438, 441, 589 A.2d 372, cert. denied, 219 Conn. 903, 593 A.2d 130 (1991). "An investigative stop can be appropriate even where the police have not observed a violation because a reasonable and articulable suspicion can arise from conduct that alone is not criminal." (Internal quotation marks omitted.) Kolakowski v. Hadley, 43 Conn.App. 636, 644, 685 A.2d 689 (1996). The purpose of an investigatory stop is to maintain the status quo for a brief period of time to allow the police to investigate the circumstances that give rise to the suspicion of criminal wrongdoing. State v. Anderson, supra, at 441, 589 A.2d 372.

In the present case, the police officer was dispatched to investigate a complaint that someone was banging on the door of a closed restaurant and attempting to gain entry shortly after 1 a.m. He was further informed that the person might be operating a red Chevrolet Corsica. Arriving at the scene, the officer observed a red Chevrolet Corsica departing from the immediate area of the restaurant. Because the vehicle was the same color and make as that identified by the complainant, the officer had a reasonable and articulable suspicion that the vehicle's operator was the person who had been seeking entry to the restaurant. Banging on the door of a closed restaurant and trying to gain entry in the middle of the night is unusual behavior. Such...