Harrington v. DelPonte

• Decision Date: 17 March 1994
• Docket Number: No. 14676,14676
• Citation: 639 A.2d 1028,229 Conn. 51
• Court: Connecticut Supreme Court
• Parties: Francis HARRINGTON v. Lawrence DelPONTE, Commissioner of Motor Vehicles.

Page 1028

639 A.2d 1028

229 Conn. 51

Francis HARRINGTON v. Lawrence DelPONTE, Commissioner of Motor Vehicles.

No. 14676.

Supreme Court of Connecticut.

Argued Nov. 3, 1993.

Decided March 17, 1994. ^*

Donald G. Leis, Jr., Windsor Locks, for appellant (plaintiff).

Robert T. Morrin, Asst. Atty. Gen., with whom, on the brief, was Richard Blumenthal, Atty. Gen., for appellee (defendant).

CALLAHAN, Associate Justice.

This is the certified appeal of the plaintiff, Francis Harrington, from a judgment of the Appellate Court affirming the trial court's dismissal of his administrative appeal from the suspension of his motor vehicle operator's license by the defendant commissioner of motor vehicles pursuant to the applicable provisions of General Statutes § 14-227b. ¹ After a hearing conducted pursuant to General Statutes § 14-227b(f), a hearing officer designated by the defendant commissioner suspended the plaintiff's license to operate a motor vehicle for ninety days, effective July 8, 1990. In the plaintiff's subsequent appeal from the commissioner's decision to the Superior Court pursuant to General Statutes § 4-183, ² he maintained that the record contained insufficient evidence to support a finding that the arresting officer was certified to administer the breath analysis test. The trial court, Maloney, J., dismissed the appeal and the Appellate Court affirmed. Harrington v. DelPonte, 29 Conn.App. 582, 616 A.2d 1160 (1992). We granted certification to appeal the following question: "Did the Appellate Court properly conclude that there was substantial evidence in the record to support the finding that the arresting officer was certified to administer the breathalyzer test?" Harrington v. DelPonte, 225 Conn. 901, 621 A.2d 284 (1993). We affirm the judgment of the Appellate Court.

The plaintiff was arrested in Windsor on June 3, 1990, for operating a motor vehicle while under the influence of alcohol in violation of General Statutes § 14-227a. ³ The plaintiff submitted to a breath analysis test that indicated a blood alcohol content of 0.155 percent, a figure in excess of the 0.10 percent ratio of alcohol in the blood required for the suspension of the plaintiff's motor vehicle operator's license under § 14-227b(f). On an approved motor vehicle department form, Walter Bacon, the officer who had administered the breath analysis test, filed a report with the commissioner wherein Bacon noted the results of the test, checked a box that indicated that he was certified to administer the breath analysis test and swore to the truth of his report. The plaintiff thereafter was notified by the commissioner that his operator's license would be suspended for ninety days but that he would be afforded a hearing to contest the suspension if he so desired.

The plaintiff requested and was afforded an administrative hearing. At the hearing, the plaintiff claimed that Bacon's certification to operate the "Intoximeter 3000," the instrument used to measure the plaintiff's blood alcohol content, had lapsed prior to the plaintiff's arrest. He argued therefore that the test results could not have been substantial evidence of his blood alcohol content.

Section 14-227b(f) specifies that a license suspension 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 under the influence of intoxicating liquor or 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 and the results of such test or analysis indicated that at the time of the alleged offense the ratio of alcohol in the blood of such person was ten-hundredths of one per cent or more of alcohol, by weight; and (4) was such person operating the motor vehicle." "The language of General Statutes § 14-227b[ (f) ] is plain and unambiguous. The hearing is expressly limited to the four issues enumerated above." Buckley v. Muzio, 200 Conn. 1, 7, 509 A.2d 489 (1986); see also Volck v. Muzio, 204 Conn. 507, 512, 529 A.2d 177 (1987). The hearing officer determined that all the issues specified by the statute had been demonstrated affirmatively. Consequently, he ordered the suspension of the plaintiff's operator's license for a period of ninety days pursuant to § 14-227b(h).

In appealing from an administrative decision, the plaintiff bears the burden of proving that the decision to suspend his operator's license is "clearly erroneous in view of the reliable, probative and substantial evidence on the whole record." General Statutes § 4-183(j)(5); see also 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." (Citations omitted; internal quotation marks omitted). Connecticut Light & Power Co. v. Dept. of Public Utility Control, 216 Conn. 627, 639-40, 583 A.2d 906 (1990).

At the administrative hearing, in support of his claim that Bacon's certification to administer breath analysis tests had lapsed at the time he was arrested, the plaintiff stated that he had spoken to Sanders Hawkins, the chief state toxicologist of the department of health services, and had been told by Hawkins that " 'he did not have in his possession, the copy of the recertification [report] of the officer [who had performed the test]....' " Harrington v. DelPonte, supra, 29 Conn.App. at 583-84, 616 A.2d 1160. The plaintiff also subpoenaed Bacon's department of health services breath analysis certification forms from the Windsor police department, the most recent of which indicated that Bacon's recertification to operate the "Intoximeter 3000" had expired on October 1, 1989. The plaintiff did not obtain the actual records of the department of health services and chose not to call Bacon to testify about the current status of his certification. The evidence that Bacon was properly certified consisted of Bacon's sworn representation on the form he had filed with the commissioner that he was certified to operate the "Intoximeter 3000" to administer the breath analysis test.

The result in this case is governed by our decision in Schallenkamp v. DelPonte, 229 Conn. 31, 639 A.2d 1018 (1994), also published today, in which we addressed the same questions raised by this plaintiff. In summary, because there was sworn evidence that Bacon was certified to administer breath analysis tests on the date of the plaintiff's arrest, we cannot say, despite the presence of conflicting evidence, that the record failed to afford a substantial factual basis from which Bacon's certification could have been inferred by the hearing officer. Id., at 41, 639 A.2d 1018. Moreover, Bacon's report and the test results contained therein, on which the commissioner was entitled to rely, were admissible at the plaintiff's administrative hearing irrespective of whether Bacon was certified. Id., at 41-42, 639 A.2d 1018. As a result, even the putative expiration of Bacon's certification would not be a ground for overturning the commissioner's decision to suspend the plaintiff's operator's license because there was evidence to demonstrate affirmatively all the prerequisites for suspension set forth in § 14-227b(f). Id., at 42, 639 A.2d 1018; see Volck v. Muzio, supra.

The judgment of the Appellate Court is affirmed.

In this opinion PETERS, C.J., and NORCOTT and PALMER, JJ., concurred.

KATZ, Associate Justice, concurring in part and dissenting in part.

Consistent with my reasoning contained in my separate opinion in Schallenkamp v. DelPonte, 229 Conn. at 43, 639 A.2d 1018 (1994), I continue to adhere to the belief that an arresting officer's valid certification to administer breath analysis tests is essential to the commissioner's proper suspension of a driver's motor vehicle operator's license pursuant to General Statutes § 14-227b(f). Nevertheless, in light of the evidence contained in the administrative record in the present case, I agree with the majority that substantial evidence exists to support the conclusion that the arresting officer was certified. Accordingly, I respectfully concur with the result.

* March 17, 1994, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.

1 "[General Statutes] Sec. 14-227b. IMPLIED CONSENT TO TEST. SUSPENSION OF LICENSE FOR REFUSING TO SUBMIT TO TEST OR HAVING ELEVATED BLOOD ALCOHOL CONTENT. HEARING. . (a) Any person who operates a motor vehicle in this state shall be deemed to have given his consent to a chemical analysis of his blood, breath or urine and, if said person is a minor, his parent or parents or guardian shall also be deemed to have given his consent.

"(b) If any such person, having been placed under arrest for manslaughter in the second degree with a motor vehicle or assault in the second degree with a motor vehicle or for operating a motor vehicle while under the influence of intoxicating liquor or any drug or both or while his ability to operate such motor vehicle is impaired by the consumption of intoxicating liquor, and thereafter, after being apprised of his constitutional rights, having been requested to submit to a blood, breath or urine test at the option of the police officer, having been afforded a reasonable opportunity to telephone an attorney prior to the performance of such test and...