Opinion
No. HHB CV06-4009314
October 10, 2006
MEMORANDUM OF DECISION
I. INTRODUCTION
The captioned matter is an appeal (appeal) of a decision (decision) by the commissioner of motor vehicles (commissioner), acting by his hearing officer, suspending the plaintiff's operator's license for a period of six months, pursuant to Connecticut General Statutes § 14-227b (all further section references are to the General Statutes). The appeal is brought pursuant to the Uniform Administrative Procedures Act (UAPA), §§ 4-166, et seq. For the reasons set forth below, the court finds the issues in favor of the defendant.
II. FACTS
The administrative record (record) contains substantial evidence to support the following: A police officer observed the plaintiff operating a motor vehicle on a public highway; displayed on the license plate of the motor vehicle was an expired registration sticker; because of the expired registration sticker, the officer initiated an investigatory stop of the plaintiff, who was not wearing a shirt; the temperature at the time of the stop was twenty-six degrees, and it was snowing slightly; while speaking with the plaintiff, the officer detected a strong odor of alcohol coming from the vehicle and noted that the plaintiff's eyes were glassy; the plaintiff admitted that he had been drinking earlier in the evening and stated that two or three hours had passed since his last drink of alcohol; at the officer's request, the plaintiff exited his vehicle and put on a shirt; the officer observed the plaintiff to be unsteady on his feet and walking slowly; the plaintiff refused to submit to standardized field sobriety tests; pursuant to § 14-227a, the officer arrested the plaintiff for driving under the influence of intoxicating liquor; the plaintiff was transported to the police station and was offered the opportunity to contact an attorney; the plaintiff declined the opportunity to contact an attorney and, thereafter, refused to submit to a breath test of his blood alcohol content, in violation of § 14-227b.
Pursuant to § 14-227b(g), the commissioner made the following findings of fact and conclusions of law in the decision:
Section 14-227b(g) provides, in relevant part, "The 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 any drug or both; (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."
1. The police officer had probable cause to arrest the [operator] for a violation specified in Section 14-227b of the Connecticut General Statutes.
2. The operator was placed under arrest.
3. The operator refused to submit to such test or analysis.
4. Said [operator] was operating the motor vehicle.
Additionally, the decision contains the following subordinate finding:
The argument made by [the plaintiff] through counsel that the police officer lacked probable cause to stop [the] vehicle was a strong one[;] however, due to [the] holding in Fishbein v. Kozlowski (1999)[,] that is not within the scope of this hearing. Further, the claim that a viewing of [a] post[-]arrest video can support a finding of no probable cause to arrest does not follow[,] as the facts in place at [the] time of [the plaintiff's] arrest are not the same as those displayed in [the] video.
Decision, 1/5/06.
III. POSITIONS OF THE PARTIES
The plaintiff advances two grounds for the appeal. First, he argues that there was no credible evidence from which the commissioner could have reasonably found that the officer had probable cause to arrest the plaintiff for driving under the influence. Therefore, the plaintiff asserts, the decision was clearly erroneous in view of the reliable, probative and substantial evidence on the whole record and constitutes an abuse of discretion by the commissioner. Second, he argues that the officer did not have a reasonable and articulable suspicion to justify stopping him. He notes that, in rejecting this argument, the commissioner relied on Fishbein v. Kozlowski, 252 Conn. 38, 743 A.2d 1110 (1999), in which the Supreme Court held that the question of whether the police have a reasonable and articulable suspicion to justify an investigative stop is outside the scope of the four issues to be considered in a hearing conducted pursuant to § 14-227b(g). The plaintiff contends that Fishbein "was wrongly decided and should he overruled," and that there must be a reasonable and articulable suspicion for a motorist's stop to support a finding of probable cause. (Plf. brief, p. 15.)
Sec. 14-227b(g)(1), supra.
Sec. 4-183(j) provides, in relevant part: "The court shall not substitute its judgment for that of the agency as to the weight of evidence on questions of fact. The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are . . . (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) abitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion."
In response, the department contends that there is substantial evidence in the record to support the commissioner's finding that there was probable cause for the plaintiff's arrest pursuant to § 14-227a. The department also maintains that the Fishbein holding is binding on this court.
IV. DISCUSSION Standard of Review
The standard by which the court determines whether there is substantial evidence to support an agency determination is well-settled under the UAPA:
Substantial evidence exists if the administrative record demonstrates a substantial basis of fact from which the fact in issue can be reasonably inferred . . . With regard to questions of fact, it is neither the function of the trial court nor of [the Supreme Court] to retry the case or to substitute its judgment for that of the administrative agency . . . Judicial review of conclusions of law reached administratively is also limited. The court's ultimate duty is only to decide whether, in light of the evidence, the [agency] has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion. (Citation omitted; internal citations and internal quotation marks omitted.)
Connecticut Light Power v. Dept. of Pub. Util. Ctrl, 219 Conn. 51, 57-58, 591 A.2d 1231 (1991).
Probable Cause
In Murphy v. Commissioner of Motor Vehicles, 254 Conn. 333, 757 A.2d 561 (2000), our Supreme Court defined probable cause as follows:
"Probable cause, broadly defined, comprises such facts as would reasonably persuade an impartial and reasonable mind not merely to suspect or conjecture, but to believe that criminal activity has occurred . . . Reasonable minds may disagree as to whether a particular [set of facts] establishes probable cause. Thus, the commissioner need only have a substantial basis of fact from which [it] can be inferred that the evidence in the administrative record supported a finding of probable cause with respect to the plaintiff's violation of § 14-227a." (Internal citations omitted; internal quotation marks omitted).
Id. at 343-44.
In Kirei v. Hadley, 47 Conn.App. 451, 705 A.2d 205 (1998), the court noted the distinction between the quantity of evidence required to establish probable cause and that necessary for a criminal conviction. The court stated, "To establish probable cause, it is not necessary to produce a quantum of evidence necessary to convict." Id. at 454.
The court finds that the following facts, for which there was substantial evidence in the record, support the conclusion that the police officer had probable cause for the plaintiff's arrest:
At the time of the stop, the plaintiff was not wearing a shirt, even though the weather temperature was twenty six degrees and it was snowing slightly;CT Page 18344
The officer detected a strong odor of alcohol emanating from the vehicle;
The officer observed that the plaintiff's eyes were glassy;
The plaintiff admitted that he had consumed alcohol earlier in the evening;
The officer observed the plaintiff to be unsteady on his feet and walking slowly; and,
The plaintiff refused to submit to standardized field sobriety tests.
In Pizzo v. Commissioner of Motor Vehicles, 62 Conn.App. 571, 771 A.2d 273 (2001), the Appellate Court said, "The administration of field sobriety tests, and the subsequent results, are not required by statute nor are they dispositive in finding probable cause to arrest for driving while under the influence of intoxicating liquor." Id. at 579.
At the hearing below in this case, the officer testified that the plaintiff's refusal to submit to field sobriety tests was "a very minor element to developing" probable cause for the plaintiff's arrest. (Transcript, p. 31.) However, the court finds that the plaintiff's refusal to perform field sobriety tests is a legitimate factor to be considered in the determination of probable cause. Support for this proposition can be found in Porcello v. Commissioner of Motor Vehicles, judicial district of Hartford/New Britain, Docket No. CV 96 05653622 (March 3, 1997, Maloney, J.) ("In State v. Lamme, 216 Conn. 172 (1990), our Supreme Court held that the results of a field sobriety test, performed during the course of a pre-arrest detention, may be used in the determination of probable cause for the subsequent arrest . . . It follows that the plaintiff's conduct during the course of the testing procedure, including the refusal to perform certain tests, was a factor that the police could consider in the probable cause determination"). See also State v. Sanchez, 131 N.M. 355, 358, 36 P.3d 446 (Ct.App.), cert. denied, 131 N.M. 382 (2001): "The [s]tate can use evidence of a driver's refusal to consent to the field sobriety testing to create an inference of the driver's consciousness of guilt . . . [A]n objectively reasonable officer . . . could logically infer from [the] [d]efendant's refusal to consent to the field sobriety testing that [the] [d]efendant knew he was driving under the influence of alcohol and that these tests might reveal his impairment."(Internal citations omitted). See also Summers v. State of Utah, 927 F.2d 1165, 1166, (10th Cir. 1991): "The undisputed facts regarding plaintiff's operation of his vehicle, the officer's scent of alcohol emanating from the vehicle and plaintiff's refusal to take a field sobriety test substantiate the . . . conclusion [that the officer had probable cause]." Id. at 1166.
Credibility
At the hearing below, and in his brief, the plaintiff challenged the officer's probable cause determination by attempting to impeach his credibility. Our case law makes clear that evaluating the credibility of witnesses and determining factual issues are matters solely within the province of the hearing officer:
"We reiterate here that under the limited and deferential review afforded by the substantial evidence standard, which is embodied in our legislation and case law, neither the trial court nor this court may retry the case, substitute its judgment for that of the hearing officer or engage in independent evaluation of the weight of the evidence or questions of fact. The credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency, and, if there is evidence . . . which reasonably supports the decision of the [hearing officer], we cannot disturb the conclusion reached . . ." (Citation omitted; internal quotation marks omitted).
Elf v. Department of Public Health, 66 Conn.App. 410, 433, 784 A.2d 979 (2001).
Videotape
The plaintiff has argued that a videotape of him at the police station, made subsequent to his arrest, supports his contention that there was no probable cause for his arrest. The court has viewed the videotape, which is part of the record, and is unable to conclude that it establishes, incontrovertibly, that the plaintiff was sober, either at the time it was made or at the time of his arrest.
Fishbein
As part of his challenge to the determination of probable cause, the plaintiff claims that the officer did not have a reasonable and articulable suspicion to conduct the initial investigatory stop of the plaintiff. The plaintiff acknowledges that § 14-227b(g), and our Supreme Court's interpretation of that statutory provision in Fishbein, preclude the commissioner from considering whether there was a reasonable and articulable suspicion for the officer's initial stop. Nonetheless, the plaintiff urges this court to "overrule" Fishbein and find that there was not probable cause for the plaintiff's arrest, because the officer did not have a reasonable and articulable suspicion for stopping the plaintiff.
Section 14-227b(g), supra.
In Fishbein, the court held, "[T]he legislature did not intend that the lack of a reasonable and articulable suspicion to justify an initial investigatory stop would be a basis for overturning the commissioner's decision if the commissioner finds that, subsequent to the stop, the police officer [had] probable cause to arrest the person for operating a motor vehicle while under the influence of intoxicating liquor . . . [W]e conclude that the legislature did not intend the probable cause to arrest requirement in subsection [g] to incorporate all of the procedural protections that would be available to the plaintiff in a criminal proceeding. Accordingly, we reject the plaintiff's argument that, in the context of [§ 14-227b(g)], probable cause requires a finding of a reasonable and articulable suspicion to make the initial stop." (Internal citations omitted; quotation marks omitted.) Fishbein v. Kozlowski, 252 Conn. at 49-50.
In West Hartford v. Murtha Cullina, LLP, 85 Conn.App. 15, 857 A.2d 354, cert. denied, 272 Conn. 907, 863 A.2d 700 (2004), the court observed, "It is axiomatic that the trial court and this court are without authority to overrule the decisions of our Supreme Court. In the absence of direction by our Supreme Court, inferior courts must continue to adhere to its decisions." Id. at 24.
Fishbein did not address whether our state constitution requires that a traffic stop which leads to the suspension of an operator's license must be based on a reasonable and articulable suspicion, although it did decide that no such requirement can be found in our federal constitution. Fishbein, 252 Conn. at 49-55. in Tarro v. Commissioner of Motor Vehicles, 279 Conn. 280, 901 A.2d 1186 (2006), the Supreme Court declined the invitation to decide whether our state constitution contains such a requirement. Therefore, the decision in Fishbein remains the law of Connecticut, and this court will follow it.
"Even if we were to assume, without deciding, that the commissioner was required under our statute constitution to make a determination of whether the police stop was premised on a reasonable and articulable suspicion of wrongdoing, we conclude that the plaintiff has not supplied an adequate record to support his claim and, further, that the record supplied to this court on appeal contains substantial evidence that, in fact, would support a finding that the police stop was based on such a reasonable and articulable suspicion. Because we conclude that the plaintiff's claim fails as a factual matter, we need not reach, and therefore decline to address, the plaintiff's claim that his due process rights under the constitution of Connecticut were violated by the commissioner's failure to determine whether the police had a reasonable and articulable suspicion to stop him." Tarro v. Commissioner of Motor Vehicles, 279 Conn. at 286.