Volck v. Muzio, 13045

• Decision Date: 28 July 1987
• Docket Number: No. 13045,13045
• Citation: 529 A.2d 177,204 Conn. 507
• Court: Connecticut Supreme Court
• Parties: Raymond A. VOLCK v. Benjamin A. MUZIO, Commissioner of Motor Vehicles.

Page 177

529 A.2d 177

204 Conn. 507

Raymond A. VOLCK v. Benjamin A. MUZIO, Commissioner of Motor Vehicles.

No. 13045.

Supreme Court of Connecticut.

Argued May 6, 1987.

Decided July 28, 1987.

Francis J. Pavetti, New London, for appellant (plaintiff).

Michael J. Lanoue, Asst. Atty. Gen., with whom, on the brief, were Joseph I. Lieberman, Atty. Gen., and Carl J. Schuman, Asst. Atty. Gen., for appellee (defendant).

Before PETERS, C.J., and SHEA, CALLAHAN, SPALLONE and NORCOTT, JJ.

SHEA, Associate Justice.

The plaintiff, Raymond A. Volck, appealed to the Superior Court from the suspension of his motor vehicle operator's license by the defendant commissioner pursuant to our implied consent statute, General Statutes § 14-227b. ¹ The suspension followed the plaintiff's refusal to submit to a blood, breath or urine test for the purpose of determining whether he had been operating a motor vehicle under the influence of intoxicating liquor or drugs. The court dismissed his appeal despite its finding that the provisions of the statute pertaining to the refusal to submit to such a test had not been satisfied in two respects: (1) the plaintiff's refusal had occurred before he was placed under arrest; and (2) the police officer's written report of such refusal had not been endorsed by a third person as a witness. ² The plaintiff has appealed from this decision, maintaining that either of these findings precludes his license suspension and also challenging a finding that the officer had properly informed him of the consequences of refusing to submit to the proffered tests. We affirm the judgment dismissing the appeal.

At the license suspension hearing, the adjudicator assigned by the commissioner relied upon reports of the Groton police department containing the following facts. On June 9, 1984, at 1:45 a.m., a Groton police officer, David Bailey, observed the plaintiff in his automobile on Broad Street in the town of Groton. The car interior dome light was on, the key was in the ignition, the motor was running and the plaintiff occupied the driver's seat. After approaching the vehicle, the officer detected a strong odor of alcohol on the plaintiff's breath and requested him to step out of the car. When the plaintiff emerged from his automobile he fell against the officer and could not stand without support. Bailey reported that the plaintiff had "refused all tests offered and was subsequently placed under arrest."

The plaintiff, who was not represented by an attorney at the license suspension hearing, although he was advised of his right to counsel, ³ raised no objection to any of the police documents presented at the hearing. Though informed of his right to remain silent, he chose to testify. He said that he had been parked at the time the officer appeared and that, because of the heat, he had wanted to use the car air conditioning system. He was "debating" whether to drive because he knew he had had a few drinks. ⁴ He remembered having refused a breath test, but did not remember any offer of a blood test. He claimed that he would have taken the test requested if he had been told his license would be suspended for failure to do so.

I

Subsections (b) and (c) of § 14-227b use mandatory language in specifying the procedures to be followed by the police prior to suspension of a motor vehicle operator's license for refusal to submit to the statutory tests for ascertaining a driver's level of intoxication. Subsection (d) nevertheless provides that the 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 while under the influence of intoxicating liquor or drug or both or while his ability to operate such motor vehicle is impaired by the consumption of intoxicating liquor; (2) was such person placed under arrest; (3) did such person refuse to submit to such test or analysis; and (4) was such person operating the motor vehicle." The department of motor vehicles adjudicator found affirmatively upon each of these four issues, and the plaintiff does not challenge those findings. In Buckley v. Muzio, 200 Conn. 1, 7, 509 A.2d 489 (1986), this court declared that "[t]he hearing is expressly limited to the four issues enumerated above" and that "the limited issue before the trial court was whether the adjudicator properly applied the statute as written to the facts of the case." (Emphasis in original.)

The plaintiff attempts to distinguish Buckley on the ground that there the police had followed the procedures specified in § 14-227b, but, nevertheless, the trial court had found that the presumably intoxicated driver did not comprehend the consequences of a refusal to submit to chemical testing after having been properly so advised by the arresting officer. Id., 7-8, 509 A.2d 489. Although we agree that, unlike the present case, the circumstances in Buckley did not include a finding of noncompliance with any express statutory requirement, we continue to adhere to our declaration that a license suspension hearing must be limited to the four issues set forth in § 14-227b(d).

A

The trial court found that "the plaintiff refused all tests before he was arrested," concluding that subsection (b) of § 14-227b "requires that he be placed under arrest before he may be requested to submit to tests." This construction is in accord with the language of § 14-227b(b) referring to an operator who "[has] been placed under arrest for operating a motor vehicle while under the influence of intoxicating liquor ... and thereafter ... refuses to submit to the designated test...." Subsection (b) expressly provides that such a person must be advised not only that his refusal to be tested will result in a license suspension but also that "evidence of such refusal shall be admissible in accordance with subsection (f) of section 14-227a and may be used against him in any criminal prosecution...." The referenced provision, General Statutes § 14-227a(f), allows, in any criminal prosecution for operating under the influence or with impaired driving ability in violation of subsections (a) or (b) of § 14-227a, the introduction of "evidence that the defendant refused to submit to a blood, breath or urine test requested in accordance with section 14-227b ... provided the requirements of subsection (b) of said section have been satisfied." ⁵

Thus it appears that the legislature has attached certain consequences to departures from the procedures specified in § 14-227b(b) and has provided a substantial incentive for the police to comply with those procedures. It is only by strictly following the statutory requirements that an operator's refusal of chemical testing can be used in a criminal prosecution against him for operating under the influence or with impaired ability. On the other hand, the restriction of a license suspension hearing to the four issues specified in subsection (d) of § 14-227b is indicative of the legislative view that the failure to comply precisely with the requirements of subsection (b) should not prevent suspension of the license of a person, arrested with probable cause for believing he was operating under the influence or with impaired ability as a result of intoxicating liquor, who has refused to submit to the prescribed tests.

The legislative genealogy of our implied consent statute supports our interpretation of § 14-227b(d) not to permit a failure of the police to comply with all the requirements of subsection (b) of that statute to vitiate the license suspension of an operator who has refused chemical testing. The first version of the statute was enacted in 1963 and provided that, if a person arrested for operating under the influence "refuses to submit to either a breath or blood test, at the option of such person the test shall not be given, but if the court or jury, upon request, finds that such person was operating such motor vehicle, the motor vehicles commissioner shall suspend or revoke his license...." Public Acts 1963, No. 616 § 2. In 1967 the statute was amended to provide that, at the conclusion of the trial on a charge of operating under the influence, the court or a jury, "upon request of the prosecuting attorney made immediately upon disposition of the case, shall make a finding concerning the following: (1) Whether or not there was probable cause for the arrest of such person; (2) whether or not the refusal to submit to the test was made knowingly and wilfully; and (3) whether such person was operating such motor vehicle." Public Acts 1967, No. 721. Both the 1963 and 1967 enactments indicate the intent of the legislature to make the issue of license suspension for refusal to submit to tests independent of the outcome of the trial of the charge of operating under the influence, although the same fact-finder was used to determine both matters.

The link between the criminal proceeding and suspension of an operator's license was further attenuated in 1980 when the statute was amended to remove a provision inserted in 1967 that had made the license suspension provisions of § 14-227b inapplicable "if the charge for which such person was arrested is nolled or changed." Public Acts 1980, No. 80-438, § 4. The amendment expressly allowed a prosecutor to request a determination of the issues relevant to license suspension even after the charge of operating under the influence had been nolled or changed. Public Acts 1980, No. 80-438, § 4. In 1981 another amendment wholly removed the initial resolution of the license suspension issues from the judicial system and created the present administrative procedure of the department of motor vehicles for determination of whether a license shall be suspended for refusing a blood, breath or urine test. Public Acts 1981, No. 81-446, § 3. This amendment imposed the restriction, now contained in subsection (d) of § 14-227b, limiting the scope...