Do v. Comm'r of Motor Vehicles

• Decision Date: 19 April 2016
• Docket Number: No. 37712.,37712.
• Citation: 164 Conn.App. 616,138 A.3d 359
• Parties: Angel Huang DO v. COMMISSIONER OF MOTOR VEHICLES.
• Court: Connecticut Court of Appeals

164 Conn.App. 616

138 A.3d 359

Angel Huang DO

v.COMMISSIONER OF MOTOR VEHICLES.

No. 37712.

Appellate Court of Connecticut.

Argued Jan. 7, 2016.

Decided April 19, 2016.

Chet L. Jackson, New Haven, for the appellant (plaintiff).

Drew S. Graham, assistant attorney general, with whom, on the brief, was George Jepsen, attorney general, for the appellee (defendant).

GRUENDEL, PRESCOTT and BEAR, Js.^*

PRESCOTT, J.

“It is axiomatic that administrative tribunals are not strictly bound by the rules of evidence.... [T]hey may consider exhibits [that] would normally be incompetent in a judicial proceeding, so long as the evidence is reliable and probative.” (Internal quotation marks omitted.) Gagliardi v. Commissioner of Children & Families, 155 Conn.App. 610, 619, 110 A.3d 512, cert. denied, 316 Conn. 917, 113 A.3d 70 (2015). It is a rare case in which a decision by an administrative hearing officer to admit an exhibit will be reversed for an abuse of discretion. Principles of fundamental fairness dictate that this is such a case.

The plaintiff, Angel Huang Do, appeals from the judgment of the trial court remanding to the defendant, the Commissioner of Motor Vehicles (commissioner), her appeal from his decision to suspend her motor vehicle operator's license for ninety days pursuant to General Statutes § 14–227b. On appeal to this court, the plaintiff claims that the trial court improperly held that the hearing officer did not abuse his discretion by admitting into evidence an unreliable A–44 form and its attachments.¹

In the alternative, the plaintiff claims that even if the exhibit was properly admitted into evidence, the court improperly remanded the case for an articulation. Specifically, the plaintiff challenges the court's decision to remand the case to the agency for an articulation regarding which of the two motor vehicles referenced in the exhibit was the vehicle that the hearing officer concluded that the plaintiff was actually driving. The plaintiff argues that, instead of remanding the case, the court should have concluded that the exhibit, even if properly admitted, did not constitute substantial evidence that the plaintiff violated General Statutes § 14–227a (a),² and, thus, the court should have sustained the plaintiff's appeal.

Because we agree with the plaintiff's claim that the hearing officer improperly admitted the exhibit, and there was no other evidence admitted into evidence, we conclude that the commissioner's decision is not supported by substantial evidence. It is therefore unnecessary to reach the plaintiff's alternative claim. Accordingly, we reverse the judgment of the trial court and remand the case with direction to render judgment sustaining the plaintiff's appeal.

The following facts and procedural history are relevant to the plaintiff's appeal. On April 24, 2014, the plaintiff was arrested and charged with operating a motor vehicle while under the influence of intoxicating liquor in violation of § 14–227a (a). On May 14, 2014, the commissioner sent a revised notice to the plaintiff to inform her of the suspension of her license pursuant to § 14–227b. On May 29, 2014, an administrative hearing was held before a hearing officer pursuant to § 14–227b (g).³

At that hearing, no testimony was presented, but the Department of Motor Vehicles (department) offered into evidence the A–44 form completed by the arresting officer, Trooper Troy M. Biggs.⁴ Attached to the A–44 form were Biggs' investigation report and the results of the breath analysis tests administered to the plaintiff, which showed that she had a blood alcohol content of 0.1184 and 0.1186 percent. The plaintiff objected to the admission of the exhibit on the ground that it was unreliable because it contained numerous errors and discrepancies. The hearing officer overruled the plaintiff's objection on the basis that the discrepancies went to the weight to be given to the exhibit, not its admissibility, and admitted the exhibit into evidence.

The hearing officer, acting on behalf of the commissioner, subsequently found, pursuant to § 14–227b (g), that: “(1) The police officer had probable cause to arrest the [plaintiff] for a violation specified in [§ 14–227a (a) ]”; “(2) [the plaintiff] was placed under arrest”; “(3) [the plaintiff] submitted to [a sobriety] test or analysis and the results indicated a BAC of .08% or more”; and “(4) [the plaintiff] was operating the motor vehicle.” On the basis of these findings, the commissioner ordered that the plaintiff's license be suspended for a period of ninety days.

Pursuant to General Statutes § 4–183,⁵ the plaintiff appealed from the hearing officer's decision to the Superior Court.

The plaintiff claimed that (1) the hearing officer improperly admitted the exhibit into evidence and (2) there was not substantial evidence in the record to support the hearing officer's findings. The court rejected the plaintiff's claim that the exhibit was inadmissible, but, because of conflicting information in the exhibit regarding the motor vehicle involved, it remanded the case to the hearing officer for an articulation as to which motor vehicle the hearing officer concluded that the plaintiff had operated.⁶ This appeal followed. Additional facts will be set forth as necessary.

I

The plaintiff claims that the court improperly concluded that the hearing officer did not abuse his discretion by admitting the exhibit into evidence. Specifically, the plaintiff argues that the numerous errors and discrepancies contained in the exhibit render it unreliable and, thus, inadmissible. The commissioner responds that because the exhibit was signed under oath by the arresting officer in accordance with § 14–227b (c), the exhibit contained sufficient indicia of reliability and, thus, was admissible. We agree with the plaintiff that the hearing officer abused his discretion by admitting the exhibit because the number of obvious discrepancies and errors in the documents rendered the exhibit unreliable.

The following additional facts are necessary to resolve this claim. At the administrative hearing, the plaintiff objected to the admission of the exhibit into evidence on the ground that it was unreliable because of numerous discrepancies and errors contained therein. In the A–44 form, Trooper Biggs swore under oath that the vehicle that the plaintiff operated was a 2007 Audi A4 with a Massachusetts registration plate. In the attached investigation report, however, Biggs swore under oath that the vehicle that the plaintiff operated was a Mercedes–Benz with a Connecticut registration plate.

Additionally, in section B of the A–44 form, the incident date is recorded as April 23, 2014. That notation, however, is crossed out and replaced in handwriting with the date April 24, 2014. Next to the handwritten date are the initials “RH,” which do not correspond to the initials of the arresting officer, Troy M. Biggs. There is no evidence as to who made this alteration, when it was made, and whether it was sworn to under oath.⁷

Our review of the exhibit suggests that the information contained in it may have been copied from another A–44 form involving the arrest of a different individual. In the “Phase III” section of the investigation report, Biggs stated that the plaintiff wore contact lenses. In the following section, Biggs averred that he had the plaintiff perform the Horizontal Gaze Nystagmus test with and without her glasses, which presumably she would not have been wearing had she been wearing her contact lenses.

In section J of the A–44 form, which is completed in cases in which an operator of a vehicle refuses to participate in a chemical alcohol test, “Helt, David” is listed as a witness to the plaintiff's alleged refusal. The plaintiff, however, submitted to a breath analysis test, which the commissioner conceded in his brief to this court. On the A–44 form, “Helt, David” is crossed out and initialed by “RH.” Again, there is no evidence regarding who made this alteration, when it was made, and whether it was made under oath.⁸

On the basis of these errors and discrepancies, the plaintiff argued that the exhibit was unreliable because it is not clear what information contained in the exhibit actually pertained to this case. The hearing officer, however, agreed with the department that these discrepancies amounted to scrivener's errors and went to the weight to be afforded the exhibit, not its admissibility. On appeal to the trial court, the court agreed with the hearing officer that these discrepancies “[do] not negate the overall reliability of the report, which otherwise meets the statutory and regulatory criteria. Rather, the conflict simply creates a fact or credibility issue for the hearing officer to resolve. ‘It is within the province of the hearing officer to determine the credibility of evidence.’ Roy v. Commissioner of Motor Vehicles, 67 Conn.App. 394, 397, 786 A.2d 1279 (2002[2001] ). Therefore, the hearing officer did not abuse his discretion in admitting the [exhibit].”

We begin by setting forth the relevant standard of review and legal principles that guide our analysis. We review a hearing officer's evidentiary ruling for whether “the [agency] has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion.” (Internal quotation marks omitted.) Gagliardi v. Commissioner of Children & Families, supra, 155 Conn.App. at 618, 110 A.3d 512. “It is axiomatic that administrative tribunals are not strictly bound by the rules of evidence.... [T]hey may consider exhibits [that] would normally be incompetent in a judicial proceeding, so long as the evidence is reliable and probative.... According to General Statutes § 4–178, in a contested case before an agency, [a]ny oral or documentary evidence may be received, but the agency shall, as a matter of policy, provide for the exclusion of irrelevant, immaterial or unduly repetitious evidence....” (Citation omitted; internal quotation marks omitted.) Id., at 619–20, ...