Opinion
HHBCV166033233S
05-24-2017
Jenna Arcari v. Commissioner of Department of Motor Vehicles
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Sheila A. Huddleston, Judge.
The plaintiff, Jenna Arcari, appeals from the final decision of the defendant, the commissioner of the department of motor vehicles (commissioner), suspending her operator's license for forty-five days and requiring her to maintain an ignition interlock device in her vehicle for two years. The plaintiff claims that the commissioner erred by finding that the plaintiff refused, through her conduct, to submit to a chemical test. She further argues that the police should have offered her an alternative test because she suffered from asthma, which prevented her from blowing into the breathalyzer machine for a sufficient time to get a proper reading. The commissioner argues that the record substantially supports the finding of refusal by conduct, that the plaintiff never informed police that she suffered from asthma, and that the hearing officer was not required to credit the plaintiff's testimony. The court agrees with the commissioner. The appeal is therefore dismissed.
FACTS AND PROCEDURAL HISTORY
The record, including the A-44 form and the attached reports, provides substantial evidence of the following facts.
On January 1, 2016, at approximately 5:15 a.m., Newington police officers were dispatched to Griswoldville Avenue near Deming Street, the scene of an accident involving a Nissan Altima and a Mazda 3. The first officer to arrive at the scene found the operator of Mazda present, but the plaintiff, who was operating the Nissan, had left the scene and entered the house of a family friend at 98 Griswoldville Avenue. The officer thereafter escorted the plaintiff back to the scene of the accident, where she and the operator of the Mazda were interviewed by another officer, Sergeant Claude Steiner. Record (R.), p. 34.
The plaintiff claimed that the Mazda had pulled away from the curb and struck her Nissan. The Mazda's operator claimed that her vehicle had been stopped at the curb, with its flashers activated, while she was delivering newspapers. The plaintiff's Nissan had sustained heavy damage along its entire right side; the Mazda had sustained heavy damage to its left rear quarter panel, left rear tire, and bumper. R., p. 34.
When asked for her license, registration, and insurance information, the plaintiff kept trying to hand Steiner a credit card, saying that she must have left her license in the Uber car. R., p. 28. Steiner observed an odor of alcoholic beverages on her breath. R., p. 25. The plaintiff could not recite the alphabet from M to S, could not count backwards from 88 to 77, and could not perform a finger-counting test as instructed. R., p. 29. She attempted but failed to perform the standardized field sobriety tests. R., p. 25.
Steiner placed her under arrest. In a post-arrest interview, the plaintiff admitted that she had been drinking vodka from 7 p.m. to 11 p.m. the previous evening. R., p. 26. When asked what she had been doing for the " last three hours, " she said that she had been " hanging out with friends." R., p. 30. She denied that she had consumed any alcohol after the accident while in the house at 98 Griswoldville Avenue. R., p. 31.
It is unclear whether the question was intended to ask about the last three hours before the accident, which occurred at 5:15 a.m., or the last three hours before the post-arrest interview, which occurred at 6:40 a.m. The plaintiff's response--" hanging out with friends" --indicates that she was referring to the period before the accident. She was not " hanging out with friends" between 5:15 a.m. and 6:40 a.m.; she was being questioned, tested, and detained by the police.
The plaintiff was read the " Implied Consent Advisory" section of the A-44. R., pp. 26, 29. She agreed to take a breath test. Officer Yuri Branzburg administered the test. R., p. 26. The police report describes the plaintiff's conduct during the test as follows: " While taking the breath test, Jenna Arcari was blowing her breath out of the sides of her mouth repeatedly after being told the proper way to breathe through the tube. After the fourth time of doing so, the test was stopped and Arcari was told she refused by action." R., p. 31. The refusal by conduct was witnessed by Branzburg and by Sergeant Ryan Deane. R., p. 26. The plaintiff signed the report next to the line where the report identified the " witness to refusal" as Deane. R., p. 29. The plaintiff was charged with driving while intoxicated in violation of General Statutes § 14-227a and with failure to drive in the proper lane in violation of General Statutes § 14-236.
As a result of her refusal to take the breath test, the plaintiff received a suspension notice from the department. R., p. 1. She requested an administrative hearing, which was held on March 9, 2016. At the hearing, the A-44 form and attached reports were admitted without objection as Exhibit A. R., pp. 25-41. The plaintiff's driving history was admitted as Exhibit B. R., p. 42. The driving history disclosed that the plaintiff's license had been suspended in 2011 as a result of a previous arrest for driving under the influence. R., p. 42.
The plaintiff testified at the hearing that she had tried to complete the breath test but had been unable to do because she was suffering from asthma. R., pp. 46-49. She testified that she had been blowing out the side of her mouth to see if she could blow a sustained breath for the test, but the officer had told her that she had refused the test by her conduct. R., pp. 47-48. She testified that she had told the police officer that she had asthma. R., p. 48. The police report, however, indicated that the plaintiff had told the police that she was not ill and did not take medication. R., p. 26. Although the plaintiff testified at the hearing that she had used an inhaler for her asthma several times on the night before her arrest, she admitted that she did not have an inhaler with her at the time of her arrest. R., p. 49.
The plaintiff's attorney requested a continuance to subpoena medical records. The hearing officer granted a continuance to March 29, 2016, and indicated that she would also subpoena the arresting officer to testify. R., p. 49.
The hearing was continued on March 29, 2016. At that time, the hearing officer reported that the police officers had been subpoenaed, but that the subpoenas had mistakenly given the date of the hearing as April 12, 2016, and as a result, the officers were not present. The plaintiff presented two exhibits. Respondent's Exhibit 1 was a list of medications prescribed for the plaintiff between May 7, 2014, and January 8, 2015, which included a prescription for an inhaler on May 7, 2014, and a refill of the inhaler prescription on September 30, 2014. R., pp. 64-67. Respondent's Exhibit 2 consisted of a one-page record of the plaintiff's visit to a walk-in medical clinic on May 7, 2014. The record indicated that the plaintiff had been diagnosed with an upper respiratory disease and pharyngolaryngitis, for which several medications, including an antibiotic and an inhaler, had been prescribed. R., p. 67. There were no records reflecting a prescription for an inhaler after September 30, 2014. The record of the medical visit did not contain a diagnosis of asthma.
The plaintiff and her mother both testified on the second day of the hearing. The plaintiff testified that she did not need an inhaler all the time and that she sometimes uses her son's inhaler. Her mother, Leah Landrie, then testified that the plaintiff had an asthma attack on the night of December 31, 2015, or in the early morning hours of January 1, 2016. Landrie said she heard the plaintiff coughing and wheezing in bed. Landrie testified that she got up and took an inhaler, which had been prescribed for the plaintiff's son, to the plaintiff to use. Landrie testified that she then went back to sleep and did not know if the inhaler had helped the plaintiff. R., pp. 74-76. The plaintiff's attorney argued that the plaintiff's asthma had prevented her from completing the breath test and that the police had not offered her a urine test. The hearing was then closed.
On March 29, 2016, the hearing officer issued a decision, finding that (1) the police had probable cause to arrest the plaintiff for a violation specified in General Statutes § 14-227b; (2) the plaintiff was placed under arrest; (3) the plaintiff refused to submit to such a test or analysis; and (4) the plaintiff was operating a motor vehicle. The hearing officer also found, as a subordinate finding, that there was substantial evidence of the plaintiff's refusal by conduct where the plaintiff agreed to take the breath test but then during such test blew her breath out the sides of her mouth. Based upon these findings, the hearing officer ordered the plaintiff's license suspended for forty-five days and ordered that the plaintiff install and maintain an ignition interlock device for two years. R., p. 80. This appeal followed.
ANALYSIS
This appeal is brought pursuant to the Uniform Administrative Procedure Act (UAPA), General Statutes § 4-183. Judicial review of the commissioner's action is very restricted. Murphy v. Commissioner of Motor Vehicles, 254 Conn. 333, 343, 757 A.2d 561 (2000). " [R]eview 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 . . . Neither [the Supreme Court] nor the trial court may retry the case or substitute its own judgment for that of the administrative agency on the weight of the evidence or questions of fact . . . Our ultimate duty is to determine, in view of all of the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily, illegally or in abuse of its discretion." (Internal quotation marks omitted.) Id.
Section 4-183(j) provides in relevant part: " The court shall not substitute its judgment for that of the agency as to the weight of the 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: (1) In violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. If the court finds such prejudice, it shall sustain the appeal and, if appropriate, may render a judgment under subsection (k) of this section or remand the case for further proceedings."
" General Statutes § 14-227b, commonly referred to as the implied consent statute, governs license suspension hearings." Santiago v. Commissioner of Motor Vehicles, 134 Conn.App. 668, 674, 39 A.3d 1224 (2012). Section 14-227b(g) provides in relevant part that " [t]he 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 or did such person submit to such test or analysis, commenced within two hours of the time of operation, and the results of such test or analysis indicated that such person had an elevated blood alcohol content; and (4) was such person operating the motor vehicle." A license suspension hearing is expressly limited to these four issues. Buckley v. Muzio, 200 Conn. 1, 7, 509 A.2d 489 (1986). In this case, the hearing officer affirmatively found that each of these requirements was met.
The standard of proof under the UAPA is not so exacting as in a criminal case, where proof beyond a reasonable doubt is required. See O'Rourke v. Commissioner of Motor Vehicles, 33 Conn.App. 501, 508, 636 A.2d 409 (1994). In an administrative hearing, " the agency need only produce probative and reliable evidence to ensure that the proceedings are fundamentally fair." Id.
Our Supreme Court has clearly and repeatedly held that a license suspension hearing under § 14-227b is strictly limited to the four issues identified in § 14-227b(g). See, e.g., Buckley v. Muzio, 200 Conn. 1, 7-9, 509 A.2d 489 (1986) (reversing a trial court's decision sustaining an appeal of a license suspension on ground that operator did not understand the legal consequences of refusing a breath test; holding that " [t]he language of General Statutes § 14-227b[(g)] is plain and unambiguous. The hearing is expressly limited to the four issues enumerated above"); Schallenkemp v. DelPonte, 229 Conn. 31, 41-42, 639 A.2d 1018 (1994) (failure to comply with a regulation requiring certification of officer who administers breath test was not a basis for overturning commissioner's decision when the four elements required by § 14-227b are established); Fishbein v. Kozlowski, 252 Conn. 38, 47-50, 743 A.2d 1110 (1999) (lack of reasonable and articulable suspicion for investigatory stop would not be a basis for overturning license suspension if, after the stop, officer had probable cause to arrest). In Fishbein, the Supreme Court observed that it had previously " distinguished license suspension proceedings, the primary purpose of which is to promote public safety by removing those who have demonstrated a reckless disregard for the safety of others from the state's roadways, from criminal proceedings, the primary purpose of which is punishment." (Internal quotation marks omitted.) Id., 48-49. See also Charbonneau v. Commissioner of Motor Vehicles, 124 Conn.App. 556, 560, 4 A.3d 887 (2010) (following Fishbein ).
In this case, the plaintiff argues that the evidence in the record is insufficient to support a finding that her conduct amounted to a refusal. She acknowledges that the question of whether her actions amounted to a refusal is a question of fact and that a finding of refusal can be based on " an expression of unwillingness by one's actions." Pl. Br., p. 6. See Tompkins v. Commissioner of Motor Vehicles, 60 Conn.App. 830, 832, 761 A.2d 786 (2000) (" Refusal to take a breath test can occur through conduct as well as an expressed refusal").
The police report in this case contains the officer's observation that, despite having been instructed on the proper method of blowing into the tube, the plaintiff repeatedly blew out of the sides of her mouth. Relying on Bialowas v. Commissioner of Motor Vehicles, 44 Conn.App. 702, 692 A.2d 834 (1997), the plaintiff argues that a more detailed description of the conduct by which a refusal is communicated is required to provide substantial evidence of a refusal to submit to a chemical test under General Statutes § 14-227b. The commissioner argues that the description provided here was substantial evidence of the plaintiff's refusal by conduct. The court agrees with the commissioner.
In Bialowas, the narrative supplement to the A-44 stated that the plaintiff " was explained all necessary procedures but failed to give a sufficient breath sample on three separate occasions . . . therefore resulting in a refusal of the test." Bialowas v. Commissioner of Motor Vehicles, supra, 44 Conn.App. 706. The police officer completing the form indicated that the plaintiff " was very uncooperative and would not sign any necessary papers." (Internal quotation marks omitted.) Id. In that case, the plaintiff testified that after his first breath test attempt, the officer changed the intoximeter nozzle. After the second attempt, with the new nozzle, the officer told the plaintiff to " try again, " and after the third attempt, said " that's enough." Id. The court concluded that there was evidence that the plaintiff took the test and no evidence that the equipment was working properly. Under those circumstances, the court held as follows: " [W]here it is undisputed that the motorist submitted to the chemical alcohol test, the fact that he failed to provide an adequate breath sample does not automatically constitute refusal within the meaning of § 14-227b." Id., 714-15. In such a circumstance, additional evidence was needed to support a conclusion that the failure to provide sufficient breath was, in fact, a refusal to take the test. Id., 716-17.
In this case, to the contrary, the police report contains a succinct but sufficient description of the conduct that constituted the refusal: the plaintiff repeatedly blew out of the sides of her mouth rather than into the tube. R., p. 31. The plaintiff herself essentially corroborated this description when she testified that, after the officer told her that she was not blowing properly, she blew away from the machine to see if she could sustain a breath long enough to take the test. R., pp. 47-48. Although her testimony was offered to explain her conduct and she only admitted to having done it once, she did not dispute that the officer had observed her blowing out the sides of her mouth.
The plaintiff testified in relevant part as follows:
The hearing officer was entitled to credit the police report over the plaintiff's testimony. In the post-arrest interview, the plaintiff told the arresting officer that she was not ill and did not take medication. R., p. 26. She also told him that she had no physical defects. R., p. 30. There is no indication in the report that she ever told the police she had asthma; the first mention of asthma in the record is in her testimony on the first day of the hearing. The plaintiff produced medical records that did not support her claim of asthma. She was able to show that she had an upper respiratory infection, some nineteen months before her arrest, for which an inhaler and antibiotics were prescribed, but she was unable to produce medical records showing that she was ever diagnosed with asthma.
The testimony of the plaintiff's mother did not help the plaintiff's case. The plaintiff's mother testified that the plaintiff was coughing in her sleep on the night of December 31, 2015, or in the early morning hours of January 1, 2016. This testimony was completely inconsistent with the plaintiff's statements to the police. The plaintiff told the police that she was drinking vodka at Friday's from 7 to 11 p.m. on the night of December 31, 2015, and that she had been hanging out with friends for the three hours before the accident, which occurred at about 5:15 a.m. on January 1, 2016. It is not credible that the plaintiff was out drinking on New Year's Eve, then went home before midnight and went to bed, where she coughed so much that her mother brought her an inhaler, and then she got up and went to hang out with friends around two in the morning.
At oral argument in this appeal, the plaintiff's attorney suggested that the plaintiff's mother might have been confused and might have been referring to the night of December 30, 2015. There is no evidence in the record, however, to support such an inference. The plaintiff's mother was quite specific in her testimony, referring to the date of the alleged coughing spell as " the 31st, the night before the first in the morning." R., p. 74. The inconsistencies between the plaintiff's conduct, her statements to the police, and her mother's testimony provide reasons to discredit the plaintiff's testimony concerning a purported asthma attack.
This case is similar to Wolf v. Commissioner of Motor Vehicles, 70 Conn.App. 76, 797 A.2d 567 (2002), where the plaintiff attempted to rebut a finding of refusal by conduct by introducing medical evidence to support a claimed inability to perform. In Wolf, the plaintiff introduced a letter from a physician who hypothesized that the plaintiff's inability to perform the breath test could have resulted from an " acute severe bronchospasm" caused by the plaintiff's smoking, or from coughing caused by the forced expiratory movement, or by acute anxiety in encountering law enforcement officials. Id., 79. The Appellate Court nevertheless concluded that there was substantial evidence in the record to support the hearing officer's finding that the plaintiff had refused the breath test by her conduct. Id., 84-85.
The plaintiff in this case also argues that she was given inadequate opportunities to complete any type of test and that she was not advised that uncooperative conduct could amount to a refusal. This argument, however, is directly contradicted by the plaintiff's testimony on the first day of the administrative hearing, where she testified that the police told her she was not blowing right and that she had " one more chance." R., p. 47.
" The credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency, and this court cannot disturb the conclusions reached by the [hearing officer] if there is evidence that reasonably supports his decision." (Internal quotation marks omitted.) Pizzo v. Commissioner of Motor Vehicles, 62 Conn.App. 571, 578, 771 A.2d 273 (2001). " [T]he possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence." (Internal quotation marks omitted.) Frank v. Dep't of Children & Families, 312 Conn. 393, 411-12, 94 A.3d 588 (2014). In this case, the hearing officer was free to disbelieve the plaintiff's version of the events and to credit the information in the sworn police report.
Other issues raised by the plaintiff's attorney are similarly unsupported by the record. The argument that there is no evidence that the breathalyzer machine was working properly is refuted by the test strip, which indicates that the machine had been calibrated less than a year before the plaintiff's arrest. The test strip further indicates that diagnostics were run on the machine before and after the test was offered to the plaintiff, and these diagnostics indicated that the machine was " ok." See R., p. 27. The plaintiff also argues that there should be four test strips because the police report indicates that the plaintiff blew out of the sides of her mouth four times. A more reasonable inference, however, is that the police allowed the plaintiff four attempts at taking the first test before concluding that she was refusing the test by conduct.
The plaintiff's appeal, in sum, is simply an attempt to dispute the facts found by the hearing officer. The court, however, must uphold the hearing officer's findings if they are supported by substantial evidence in the record. In this case, there is substantial evidence in the record to support the hearing officer's finding that the plaintiff intentionally blew out of the sides of her mouth to avoid taking the breath test. The hearing officer was justified in finding that the plaintiff refused the breath test by her conduct. The plaintiff's appeal is therefore dismissed.
[Plaintiff's counsel] Q. The report here said that you were blowing breath out of the sides of your mouth. Were you intentionally doing that? [Plaintiff] A. No. What happened was, they gave it to me and I really tried to blow and couldn't do it long enough. And the officer was like I know what are you doing. We see this all of the time like basically saying I was trying not to take it. He said you have one more chance. So before I blew back into the breathalyzer, I kind of like was trying to see if I could blow it long enough to blow without blowing into it because I had one final chance. I kind of think like the report seems like I had it out of the side of my mouth. So that's what I was kind of intending to do with that because I wanted to take it. Q. After you did that practice run, is that when he A. He said I had to sign a refusal because they were not giving me anymore opportunities.R., pp. 47-48.