Opinion
HHBCV186045058S
07-25-2019
Kevin BLAKE v. COMMISSIONER OF DEPARTMENT OF MOTOR VEHICLES
UNPUBLISHED OPINION
Gleeson, J.
I
FACTS AND PROCEDURAL HISTORY
The plaintiff appeals from the decision of the defendant Commissioner of the Department of Motor Vehicles (commissioner or DMV) suspending his driver’s license for forty-five days, disqualifying him from operating a commercial motor vehicle for one year and requiring the use of an ignition interlock device for one year. The plaintiff claims that the commissioner lacked subject matter jurisdiction to hold the hearing or to suspend the plaintiff’s license, and that the commissioner improperly admitted the A-44 form, medical records and Division of Scientific Services report into evidence. For the reasons discussed below, the court affirms the commissioner’s decision and dismisses the appeal.
"The A-44 form is used by the police to report an arrest related to operating a motor vehicle under the influence and the results of any sobriety test administered or the refusal to submit to such tests." Roy v. Commissioner of Motor Vehicles, 67 Conn.App. 394, 396 n.3, 786 A.2d 1279 (2001).
The record reveals the following facts and relevant procedural history. On July 29, 2017, Officers Jonathan Edwards, Shawn Mendenhall, and Peter Lovermi of the Ansonia Police Department were dispatched to a motor vehicle accident on Franklin Street in Ansonia. When the officers arrived, two other Ansonia police officers, Officer Luna and Sergeant Guisto, and emergency medical services personnel (EMS) were already on the scene. The Plaintiff was driving a Honda CRV when he crashed into a legally parked, unoccupied vehicle, and was in the driver seat of the Honda when the officers and EMS arrived. Officers heard plaintiff state "I’m f- - ed" several times. As EMS attended to the Plaintiff for any potential medical issues, the plaintiff stated that he did not remember the accident. When the plaintiff exited the Honda Officers Edwards and Mendenhall smelled alcohol on the plaintiff’s breath, heard plaintiff slurring his speech and observed him swaying back and forth during questioning.
Since an airbag in the plaintiff’s car had deployed, EMS expressed concern about potential head trauma and suggested that the plaintiff be evaluated at the hospital. Consequently, the officers did not have the plaintiff perform a standardized field sobriety test before EMS transported him to Griffin Hospital.
Through his training and experience, Officer Edwards knew that Griffin Hospital took blood, urine, or breath samples in the regular course of business after an accident for diagnosis and treatment of injuries suffered in the accident. On August 16, 2017, Officer Edwards and Detective Brian Harte applied for and were granted a search warrant to obtain the plaintiff’s medical records from his treatment at Griffin Hospital on the accident date. Upon reviewing said medical records, Officers Mendenhall and Edwards initially believed that they did not contain any test results for the Plaintiff’s blood-alcohol content; however, upon review, a supervisor observed that the medical records did contain these test results in a lab report stating that the Plaintiff’s serum ethanol measurement was 258 mg/[d]L. Officer Patrick Lynch then sent the results to the Department of Emergency Services and Public Protection’s Division of Scientific Services (DSS) to convert the test results to the more familiar blood alcohol content (BAC) measurement. DSS prepared and provided to the Ansonia police department a signed report (DSS report) showing that 258 mg/dL equaled a BAC of 0.22 on the date of the accident, nearly three times the legal limit.
Based on the test results and underlying investigation reports, Officer Lynch applied for and obtained an arrest warrant charging the Plaintiff with operating under the influence in violation of General Statutes § 14-227a. The Plaintiff turned himself in at the Ansonia police department on September 12, 2017, where Officer Edward Magera, who was not involved with the investigation, arrested and processed the plaintiff.
Pursuant to the arrest, DMV issued a suspension notice to the plaintiff in accordance with General Statutes § 14-227b, which advised him of his right to request an administrative hearing to challenge the suspension.
The hearing began on October 26, 2017. At the hearing, the plaintiff was represented by counsel. When DMV sought to enter the A-44 and attachments into evidence, plaintiff’s counsel objected, stating that he needed "to voir dire" whether the proffer was the entire document received by DMV from the Ansonia Police Department. DMV then called Officer Magera to testify, but when Officer Magera testified that as the arresting officer but not the investigating officer, he was not familiar with certain details and documents of the case, DMV sought and was granted a continuance to bring the investigating officers in to testify.
The hearing resumed on November 6, 2017. DMV called Officers Edwards and Mendenhall as witnesses and submitted several exhibits into evidence. The A-44 and attachments were offered as a single exhibit but in view of the plaintiff’s continued objection; the hearing officer admitted the A-44 form for the limited purpose of "the fact of the arrest," and considered the admissibility of each attachment on a document by document basis. Among the documents admitted were the arrest warrant, the search and seizure warrant, police incident reports, the plaintiff’s medical records including blood analysis, and the DSS report. The Plaintiff did not testify or otherwise present any evidence at the hearing. After the hearing, the hearing officer issued his final decision, finding that "(1) The police officer had probable cause to arrest the above-named operator for a violation specified in Section 14-227b of the Connecticut General Statutes; (2) the operator is the holder of a commercial driver’s license; (3) the operator was placed under arrest; (4) the operator submitted to the test or analysis and the results indicated a BAC of .08% or more; (5) said person was operating the motor vehicle; and (6) blood sample obtained in accordance with C.G.S. 14-227a(k)." This appeal followed.
ANALYSIS
This appeal is brought under the Uniform Administrative Procedure Act (UAPA), General Statutes § 4-183. Accordingly, judicial review of the commissioner’s action "is very restricted ... [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." (Citations omitted; internal quotation marks omitted.) Murphy v. Commissioner of Motor Vehicles, 254 Conn. 333, 343, 757 A.2d 561 (2000).
Under General Statutes § 4-183(j) of UAPA, "the court may not substitute its judgment for that of the commissioner and must affirm the commissioner’s decision unless it is clearly erroneous in view of the reliable, probative and substantial evidence on the whole record ..." (Footnote omitted; internal quotation marks omitted.) Tompkins v. Commissioner of Motor Vehicles, 60 Conn.App. 830, 834, 761 A.2d 786 (2000).
"General Statutes § 14-227b, commonly referred to as the implied consent statute, governs license suspension hearings. 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 ..." (Citation omitted; internal quotation marks omitted.) Santiago v. Commissioner of Motor Vehicles, 134 Conn.App. 668, 674, 39 A.3d 1224 (2012).
The standard of proof under UAPA is not so exacting as in a criminal case, where proof beyond a reasonable doubt is required. O’Rourke v. Commissioner of Motor Vehicles, 33 Conn.App. 501, 508, 636 A.2d 409, cert. denied, 229 Conn. 909, 642 A.2d 1205 (1994). In an administrative hearing, "the agency need only produce probative and reliable evidence to ensure that the proceedings are fundamentally fair." (Internal quotation marks omitted.) Id.
"The substantial evidence rule governs judicial review of administrative fact-finding under the UAPA ... An administrative finding is supported by substantial evidence if the record affords a substantial basis of fact from which the fact in issue can be reasonably inferred ... The substantial evidence rule imposes an important limitation on the power of the courts to overturn a decision of an administrative agency ... It is fundamental that a plaintiff has the burden of proving that the commissioner, on the facts before him, acted contrary to law and in abuse of his discretion [in determining the issue of probable cause] ... The law is also well established that if the decision of the commissioner is reasonably supported by the evidence it must be sustained." (Citation omitted; internal quotation marks omitted.) Murphy v. Commissioner of Motor Vehicles, supra, 254 Conn. 343-44.
Hearings before administrative agencies, such as those before the commissioner of motor vehicles, are informal and are not governed by the strict or technical rules of evidence. See South Windsor v. South Windsor Police Union Local 1480, 57 Conn.App. 490, 505, 750 A.2d 465, cert. granted on other grounds, 253 Conn. 924, 754 A.2d 800 (2000). In the context of an administrative hearing, hearsay evidence is permissible and may properly be admitted without the presence of the witness at the hearing. Paquette v. Hadley, 45 Conn.App. 577, 581, 697 A.2d 691 (1997).
The plaintiff claims that the Commissioner lacked subject matter jurisdiction to hold an administrative hearing because the A-44 was incomplete when forwarded to DMV by the Ansonia police department, and therefore not in compliance with the requirements of General Statutes § 14-227b(c). Plaintiff also claims that, accordingly, the Commissioner erroneously admitted the A-44 into evidence. The defendant argues that the plaintiff’s claim that the A-44 was incomplete is based solely on representations made by plaintiff’s counsel without any evidentiary support, and that the colloquy between the parties at the hearing supports the inference that the A-44 was complete when received by DMV. The defendant also argues that a lack of compliance with General Statutes § 14-227b(c) does not implicate subject matter jurisdiction.
Plaintiff states on page 3 of his brief that "Ansonia police forwarded the A-44 form to the Commissioner without attaching a copy of the analysis of blood or urine even though someone had checked the box stating that the copy was attached. The A-44 form also did not contain a statement that Blake either refused to submit to a chemical analysis of Blake’s blood, breath, or urine or that Blake had an elevated blood alcohol content as required under General Statues § 14-227b(c)," but does not cite to any evidence that would support his statement. Plaintiff’s counsel does point to statements and arguments he personally made during the DMV hearing, but it is well established that "representations of counsel are not evidence and are certainly not proof." Martin v. Liberty Bank, 46 Conn.App. 559, 562, 699 A.2d 305 (1997); See also Cologne v. Westfarms Associates, 197 Conn. 141, 154, 496 A.2d 476 (1985) ("It is well settled that representations of counsel are not, legally speaking, ‘evidence’ "). The following colloquy occurred on the first hearing date:
Mr. Donahue [DMV Presenter]: Commissioner, I note I have original A-44 with attached documents. I would like to ask that a copy of that A-44 with those attachments be marked as State’s Exhibit A. (Emphasis added.)
Mr. Carey [Hearing Officer]: Any objection?
Mr. Hillis [Plaintiff’s Counsel]: I object. First and foremost I need to voir dire whether this is the entire document that was received by the Ansonia- by the Department of Motor Vehicles pursuant to the Ansonia Police Department.
Mr. Donahue: Did you subpoena someone here?
Mr. Hillis: No, I just add this is a record that you’re supplying, it’s the record that’s in your control; so therefore what I need to find out is whether that was the complete record that was sent to you pursuant to the statutes.
Mr. Donahue: I’m sorry, am I a witness here?
Mr. Hillis: Well, you’re bringing in the document, you are in control of the documents; because you’re in control of the documents my client has a constitutional right to know if that was the record that was sent in, because the record has to be sent in pursuant to the statute. So what I’m inquiring is you being the custodian of the record, whether that-
Mr. Donahue: I am not the custodian of the records for the Department of Motor Vehicle, Commissioner.
Mr. Hillis: May the record reflect that since we’ve been here, Commissioner, that the record has been in control of Mr. Donahue, and it was given to us as a copy of to review as the complete record ...
Mr. Carey: Do you have any other documents that you’re going to offering?
Mr. Donahue: Not that the motor vehicle has.
Mr. Carey: All right. Do you have another witness?
Mr. Donahue: Correct.
Mr. Carey: So this is a document that you have that were sent to the Motor Vehicle Department?
Mr. Donahue: Those were the documents that were sent to the Motor Vehicle Department, Commissioner. (Emphasis added.)
Although the plaintiff states repetitively in his brief that the A-44 was incomplete when submitted to DMV, this claim fails because, in light of the absence of any evidence in the record to support this contention, the gravamen of plaintiff’s argument regarding the alleged infirmity of the A-44 has been built upon the proverbial "straw man."
Even assuming that the A-44 was incomplete as alleged, the plaintiff’s claim lacks merit. Our appellate courts have consistently made clear that a license suspension hearing is "limited to the four issues set forth in [General Statutes] § 14-227b[g]." Volk v. Muzio, 204 Conn. 507, 512, 529 A.2d 177 (1987). Accord Buckley v. Muzio, 200 Conn. 1, 7 (1986); O’Rourke v. Commissioner of Motor Vehicles, 156 Conn.App. 516, 113 A.3d 88 (2015). Fitzgerald v. Commissioner of Motor Vehicles, 142 Conn.App. 361, 365, 65 A.3d 533 (2013); Santiago v. Commissioner of Motor Vehicles, supra, 134 Conn.App. 674. The four issues are: "(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." General Statutes § 14-227b(g). In Volck v. Muzio, supra, 204 Conn. 515-17, the Supreme Court rejected the appellant’s claim that deviation from the requirements of § 14-227b(c) defeated the jurisdiction of the commissioner to order the suspension of his license, stating that the statutory restriction of the license suspension hearing to the four enumerated issues "indicates that compliance with subsection (c) was not intended to be a prerequisite for a suspension." Id., 517. Accordingly, the plaintiff cannot prevail on this jurisdictional claim.
The plaintiff also claims that the hearing officer improperly admitted the allegedly incomplete A-44 into evidence. The court did not find this argument to be persuasive. Even assuming the A-44 was incomplete, it was admitted for the limited purpose of the fact of the arrest, and even assuming the plaintiff was somehow prejudiced by the admission, there was substantial independent documentary evidence and testimony from which the hearing officer could determine the statutory findings.
Plaintiff also argues that the medical records should not have been admitted because they contained "clear inconsistencies," pointing only to the officers’ initial and mistaken belief that the medical records did not include a blood alcohol test. Plaintiff, however, fails to show how that misunderstanding affected the accuracy of the record once the misunderstanding was discovered and addressed. Plaintiff also claims that the medical reports should not have been admitted because the commissioner offered no evidence that the plaintiff had consented to the blood test or that the blood was drawn pursuant to General Statutes § 14-227a(b) and (d). The defendant argues that plaintiff’s analysis on this claim was cursory, and that there is substantial evidence that the plaintiff’s blood sample was obtained by qualified medical personnel in accordance with § 14-227b(k). The court agrees. The plaintiff’s medical records, including the results of his blood tests, were obtained by a valid search warrant in which Officer Edward’s affidavit states that based on his training and experience he knew that "blood, urine or breath samples are taken in the regular course of business at the Griffin Hospital ... by a person licensed to practice medicine in this state, a qualified laboratory technician, and Emergency Medical Technician II, Registered Nurse or a Phlebotomist." Moreover, the test results are part of a report signed by the attending physician at Griffin Hospital, Dr. Indrani Datta, M.D., and the medical records indicate that Griffin Hospital medical personnel administered the blood test solely for purposes of diagnosis and treatment. Under these circumstances, the hearing officer could reasonably infer that the test was taken according to procedures sufficient to satisfy the requirements of the statutes. See Baldassari v. Commissioner of Motor Vehicles, Superior Court, judicial district of New Britain, Docket No. CV-15-6028526S, (August 14, 2015), 2015 WL 5315601.
In addition, the plaintiff claims in his brief that the A-44, DSS report and medical records were unreliable and should not have been admitted, relying in support on the Appellate Court’s decision in Do v. Commissioner of Motor Vehicles, 164 Conn.App. 616, 138 A.3d 359, cert. granted, 322 Conn. 901, 138 A.3d 931 (2016). After both parties’ briefs were filed but prior to the hearing, the Appellate Court was reversed in Do v. Commissioner of Motor Vehicles, 330 Conn. 651, 200 A.3d 681 (2019). During oral argument, plaintiff’s counsel acknowledged the reversal and declined to argue in this regard.
Plaintiff’s counsel also argued for the first time at oral argument that the police failed to mail a copy of his report to DMV within three business days as provided by General Statutes § 14-227b(c). The court rejects this argument because it was not raised before the hearing officer and is therefore not properly before the court. See Dragan v. Connecticut Medical Examining Board, 223 Conn. 618, 632, 613 A.2d 739 (1992) (cannot raise claims in an administrative appeal that were not asserted before the hearing officer). In any case, even assuming that the report was not mailed within three business days, as discussed above, it is clear that a license suspension hearing is limited to the four issues set forth in General Statutes § 14-227b(g). Volck v. Muzio, supra, 204 Conn. 507. Therefore, there is no merit to this claim.
III
CONCLUSION
For all of the foregoing reasons, the court affirms the commissioner’s decision and dismisses the appeal. Judgment may enter accordingly.