Opinion
HHBCV196051128S
10-08-2019
Peter BOVA, Jr. v. COMMISSIONER OF MOTOR VEHICLES
UNPUBLISHED OPINION
John L. Cordani, Judge.
INTRODUCTION
The plaintiff appeals a decision of the Commissioner of Motor Vehicles (Commissioner) ordering suspension of the plaintiff’s driver’s license for 45 days and requiring his use of an ignition interlock device for six months pursuant to Conn. Gen. Stat. § 14-227b.
FACTS AND PROCEDURAL HISTORY
On December 13, 2018, officers from the Orange Police Department were dispatched pursuant to a 911 call reporting an erratic driver. The officers shortly thereafter pulled the plaintiff over. The record indicates that the plaintiff had the smell of alcohol on his breath and slurred his speech. The record further indicates that the plaintiff failed the standardized field sobriety tests administered by the officers. The plaintiff was then arrested and transported to police headquarters where he was administered breath alcohol content tests that provided results approximately three times the legal limit.
On February 6, 2019, the Commissioner held an administrative hearing. At the hearing, the hearing officer admitted into evidence the A-44 report, evidence of the breath alcohol tests, and the underlying police reports. Based on the evidence introduced, the hearing officer ordered suspension of the plaintiff’s driver’s license for 45 days and required the plaintiff to use an interlock device for 6 months in accordance with the provisions of CGS § 14-227b. The plaintiff moved for reconsideration but that motion was denied by the Commissioner. The plaintiff has appealed the Commissioner’s decision to this court.
STANDARD OF REVIEW
This appeal is brought pursuant to the Uniform Administrative Procedure Act (UAPA), General Statutes § 4-183. Judicial review of an administrative decision in an appeal under the UAPA is limited. 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."
ANALYSIS
The plaintiff appeals a final decision of the Commissioner pursuant to CGS § 4-183. Specifically, the plaintiff appeals the Commissioner’s final decision dated February 7, 2019, in which the Commissioner found:
1. The police officer had probable cause to arrest the plaintiff for a violation of CGS § 14-227b.
2. The plaintiff was placed under arrest.
3. The plaintiff submitted to a test and the results indicated a BAC of 0.08% or more.
4. The plaintiff was operating a motor vehicle.
5. The plaintiff was not under 21 years of age.
6. Notwithstanding a claim by defense counsel, police report is found to be appropriately reliable to be deemed admissible.
Based on the foregoing, the hearing officer suspended the plaintiff’s driver’s license for 45 days and ordered the plaintiff to use an ignition interlock device for six months.
The hearing officer based his decision on four pieces of evidence that he admitted, namely: (i) the A-44 report, (ii) the results of the breath alcohol tests, (iii) the police report of Officer DeRubeis, and (iv) the police report of Officer Lu. The defendant challenged the admissibility of the foregoing evidence.
On appeal, the defendant takes the position that the A-44 report and its attachments should not have been admitted into evidence because the "time of stop" portion of section B of the A-44 report is blank, and because the A-44 report was signed by Officer DeRubeis, who was not the arresting officer.
The arrest was made in the field by Officer Lu based upon his observations and the standard field sobriety tests, but the breath alcohol tests were performed by Officer DeRubeis at headquarters.
In Connecticut, administrative tribunals, such as the proceeding conducted by the hearing officer in this matter, are not bound by the strict rules of evidence, provided that the evidence is reliable and probative. See Bialowas v. Commissioner of Motor Vehicles, 44 Conn.App. 702 (1997). In particular, certain hearsay, such as written police reports may be admitted as evidence without the necessity of producing the officer who prepared the report, provided the report contains indicia of reliability. Although CGS § 14-227b(c) provides that the A-44 report should be signed by the arresting officer, the point of the statute is to provide a safe harbor based upon indicia of reliability such that the report can be taken into evidence. However, the test for admissibility remains whether the report or other evidence is deemed reliable and trustworthy. In Do v. Commissioner of Motor Vehicles, 330 Conn. 651 (2019), the Connecticut Supreme Court found that discrepancies in a police report that do not go to the issues to be decided in the hearing and which do not negate the overall reliability of the report do not necessitate the exclusion of the report, but may go to the weight applied by the hearing officer.
In this matter, the A-44 form has the box for "time of stop/crash/incident" blank and was signed by Officer DeRubeis instead of the arresting officer, Officer Lu. However, the A-44 form was submitted along with the breath alcohol test results and with a separate police report from Officer DeRubeis and one from Officer Lu. Both the A-44 form and each of the separate police reports were signed under oath. Further, the alcohol test results were signed by Officer DeRubeis, the officer who administered the test. Now although CGS § 14-227b(c) does provide the arresting officer should sign the A-44 form, in this matter however, two officers were involved in the issues to be decided at the hearing. Officer Lu, the officer in the field, was primarily involved with determining probable cause, determining that the defendant was operating a motor vehicle, determining the age of the defendant, and placing the defendant under arrest. These determinations were made by Officer Lu based upon the 911 call, his observations at the scene of the stop, and his administration of the field sobriety tests. All of this evidence is reliably reported by Officer Lu under oath in his report. Officer DeRubeis was primarily involved in administering the breath alcohol tests and reporting the results. Officer DeRubeis reliably reported his evidence in his police report and the A-44 form, both of which were signed by him under oath, and in producing the breath alcohol test results which were signed by him. Thus both officers produced and signed the evidence primarily established by each.
The reports indicate that Officer Lu was also present while the defendant was processed, and when the A-44 report was produced and contributed to its production.
The time of stop on the A-44 form is blank. However from the two police reports we know that officers were dispatched at 5:48 p.m. to investigate an erratic driver as a result of a 911 call. The defendant’s vehicle was stopped by the officers shortly thereafter. At 7:10 p.m. the defendant was given an opportunity to contact a lawyer. At 7:25 p.m. the first breath alcohol test was administered. At 7:44 p.m. the second test was attempted. At 7:51 p.m. the third test was administered. Thus it is apparent that the tests were administered within two hours of the stop, which occurred shortly after 5:48 p.m. Allowing for at least a few minutes after the 911 call, which came in at 5:48 p.m., for the stop to have been executed, the stop must have been made at least several minutes after 5:48 p.m.
The first and the third tests produced results approximately three time the legal limit.
Given all of the foregoing, this court finds that the A-44 form, the alcohol test results, and the two police reports each separately and taken together possessed sufficient indicia of reliability and trustworthiness to be admitted into evidence by the hearing officer. Further, even without the A-44 form itself, the two police reports and the breathalyzer test results present substantial reliable evidence to support the hearing officer’s decision. The court finds no clear error of law or abuse of discretion in the admission of the evidence by the hearing officer.
The plaintiff has also complained that he did not give voluntary consent to the administration of the breath alcohol tests. He bases this on his request for counsel. The court notes that there was no testimony from Mr. Bova or others at the hearing. The record evidence indicates that the plaintiff was advised of his constitutional rights at 7:00 p.m. and signed indicating that he understood them at 7:05 p.m. At 7:07 p.m. the plaintiff was read aloud the Implied Consent Advisory and stated that he understood it. At 7:10 p.m. the plaintiff was given his cell phone and the opportunity to contact an attorney. He contacted a family member. Thereafter, the plaintiff stated that he would not be contacting an attorney and that the booking process could continue. The plaintiff then stated that he would submit to the breath alcohol test and signed the DUI breath test consent form. The first test was administered at 7:25 p.m. Given the foregoing record, this court finds that the plaintiff was given a reasonable opportunity to contact an attorney and that he voluntarily consented to the administration of the breath alcohol test.
A refusal to submit to the test would have resulted in same license suspension.
Although raised in the brief, this issue was not presented in oral argument.
In conclusion, the court finds that the evidence which was admitted by the hearing officer was properly admitted, that the plaintiff was given a reasonable opportunity to contact an attorney, and that he voluntarily consented to the administration of the breath alcohol test. Further this court finds that the plaintiff has failed to establish that the Commissioner’s decision was arbitrary and capricious, an abuse of discretion, or an unwarranted exercise of discretion. Lastly, this court finds no clear error of law and finds substantial evidence in the record to support the Commissioner’s decision.
ORDER
The appeal is dismissed.