Schallenkamp v. DelPonte

• Decision Date: 17 March 1994
• Docket Number: No. 14678,14678
• Citation: 229 Conn. 31,639 A.2d 1018
• Court: Connecticut Supreme Court
• Parties: Lois SCHALLENKAMP v. Lawrence DelPONTE, Commissioner of Motor Vehicles.

Page 1018

639 A.2d 1018

229 Conn. 31

Lois SCHALLENKAMP v. Lawrence DelPONTE, Commissioner of Motor Vehicles.

No. 14678.

Supreme Court of Connecticut.

Argued Nov. 3, 1993.

Decided March 17, 1994. ^*

Donald G. Leis, Jr., with whom, on the brief, was Francis S. Holbrook II, Windsor Locks, for appellant (plaintiff).

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

Before PETERS, C.J., and CALLAHAN, KATZ and PALMER, JJ.

CALLAHAN, Associate Justice.

This is the certified appeal of the plaintiff, Lois Schallenkamp, a resident of Springfield, Massachusetts, from a judgment of the Appellate Court affirming the dismissal by the trial court of her appeal from the suspension, pursuant to the applicable provisions of General Statutes § 14-227b, ¹ of her nonresident motor vehicle operating privilege by the commissioner of motor vehicles.

After a hearing conducted pursuant to § 14-227b(f), the commissioner, acting by a designated hearing officer, suspended the plaintiff's nonresident operating privilege for a period of ninety days. In the plaintiff's subsequent appeal from the commissioner's decision to the Superior Court pursuant to General Statutes § 4-183(a), ² she claimed that the record contained insufficient evidence that the arresting officer was certified to administer the breath analysis test, the results of which were admitted into evidence at her administrative hearing. The trial court dismissed the plaintiff's appeal. The Appellate Court affirmed the decision of the trial court. Schallenkamp v. DelPonte, 29 Conn.App. 576, 616 A.2d 1157 (1992). We granted certification to appeal, limited to 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 tests?" Schallenkamp v. DelPonte, 224 Conn. 928, 619 A.2d 851 (1993). We affirm the judgment of the Appellate Court.

The plaintiff was arrested in Windsor Locks on October 6, 1990, for operating a motor vehicle while under the influence of alcohol in violation of General Statutes § 14-227a(a). ³ After her arrest, she submitted to a breath analysis test that indicated a blood alcohol content of 0.199 percent, a figure well in excess of the 0.10 percent ratio of alcohol in the blood required for the suspension of her operator's privilege under § 14-227b(f). The arresting officer, Michael Balfore, temporarily suspended the plaintiff's nonresident operating privilege pursuant to § 14-227b(c). Thereafter, Balfore, who had administered the breath analysis test, filed a report with the commissioner, on an approved motor vehicle department form, wherein he noted the results of the test, checked a box that indicated that he was certified to administer the test and swore to the truth of his report.

A subsequent hearing was held, pursuant to § 14-227b(f), to determine whether, pursuant to § 14-227b(g), the plaintiff's nonresident operating privilege should be suspended for a period of ninety days. At the hearing, the motor vehicle department form filed by Balfore was admitted into evidence, over the plaintiff's objection, pursuant to § 14-227b-19 of the Regulations of Connecticut State Agencies. ⁴ In support of her objection, the plaintiff maintained that Balfore's certification to operate the "Intoximeter 3000," the instrument used to measure the plaintiff's blood alcohol content, had expired prior to the plaintiff's arrest. ⁵ She contended therefore that the results of the test that Balfore had administered should be given no weight by the hearing officer. She argued in the Appellate Court, and argues in this court, that because of Balfore's lack of certification there was not substantial evidence of the plaintiff's blood alcohol content and, consequently, that it had not been demonstrated that "the ratio of alcohol [in her blood] was ten-hundredths of one per cent or more of alcohol, by weight," an essential element under § 14-227b(f) to permit the commissioner to suspend her operating privilege.

Section 14-227b(f) specifies that a hearing to suspend an operator's license or a nonresident's operating privilege for operating under the influence of intoxicating liquor shall be limited to a determination by the commissioner of the following pertinent 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 ... (2) was such person placed under arrest; (3) 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); Volck v. Muzio, 204 Conn. 507, 512, 529 A.2d 177 (1987). The hearing officer determined that all of the issues specified by the statute had been demonstrated affirmatively and ordered that the plaintiff's nonresident operating privilege be suspended for a period of ninety days.

As in any administrative appeal, the plaintiff bore the burden of proving that the commissioner's decision to suspend her nonresident operating privilege was "clearly erroneous in view of the reliable, probative and substantial evidence on the whole record." General Statutes § 4-183(j)(5); 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." (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).

There are two difficulties with the plaintiff's position. One relates to the quantum of proof required to overturn an administrative finding of fact. The other relates to our holding in Volck v. Muzio, supra, 204 Conn. at 512, 529 A.2d 177, that the governing statutes limit the issues that can be raised in an appeal from a license suspension. The plaintiff can surmount neither of these difficulties.

In support of her claim that Balfore's certification had lapsed, the plaintiff introduced only an unsigned, unsworn "single piece of paper on the letterhead of the department of health services" indicating that Balfore had last been recertified to perform breath analysis tests on September 24, 1989. Schallenkamp v. DelPonte, supra, 29 Conn.App. at 578, 616 A.2d 1157. Section 14-227a-10(c)(B) of the Regulations of Connecticut State Agencies provides that "[a]n operator's certificate [to administer breath analysis tests] shall be valid for twelve (12) months from the date of issuance." Therefore, if the information submitted by the plaintiff was correct, unless Balfore had been subsequently recertified, his certification to administer breath analysis tests would have expired on September 24, 1990, shortly before the plaintiff was arrested. ⁶ The countervailing evidence consisted of Balfore's sworn report wherein he had represented that "the analytical device [used to test the plaintiff] was operated by a certified analyst." Id.

In reviewing an administrative determination, we "must take into account [that there is] contradictory evidence in the record ... but the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence...." (Citations omitted; internal quotation marks omitted.) Samperi v. Inland Wetlands Agency, 226 Conn. 579, 588, 628 A.2d 1286 (1993). Moreover, "it is not the function of the trial court, nor of this court, to retry the cause.... [T]he determination of issues of fact are matters within its province [of the administrative agency]." (Citations omitted; internal quotation marks omitted.) Tomlinson v. Board of Education, 226 Conn. 704, 713, 629 A.2d 333 (1993). Because it is the administrative hearing officer's function to determine issues of fact, we cannot say, simply because of the existence of conflicting evidence, that the record failed to contain a substantial basis from which the hearing officer could have concluded that Balfore was certified to administer breath analysis tests on the date of the plaintiff's arrest.

Moreover, even if we were to assume that Balfore's certification had lapsed, such a lapse would not have sufficiently undermined the reliability of the test results to cause us to depart from our holding in Volck v. Muzio, supra, 204 Conn. at 512, 529 A.2d 177. In Volck, we concluded that even multiple failures on the part of an arresting officer to comply with the statutory dictates of § 14-227b ⁷ were not sufficient grounds for overturning the commissioner's determination, after a hearing, that the essential elements of the statute had been proven and that the plaintiff's operator's license should be suspended. Id., at 518, 521, 529 A.2d 177. Similarly, Balfore's alleged failure to comply with a regulation that he currently be certified to administer a breath analysis test would not be a basis for overturning the commissioner's decision in this case as long as there was evidence from which the commissioner reasonably could have...