Opinion
HHBCV166034201S
03-08-2017
Michael J. Flanagan, Jr. v. State of Connecticut Department of Motor Vehicles
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Sheila A. Huddleston, Judge.
The plaintiff, Michael J. Flanagan, Jr., appeals from the final decision of the defendant Department of Motor Vehicles (department) suspending his driver's license for forty-five days and requiring him to maintain an ignition interlock device in his vehicle for six months. The department acted pursuant to General Statutes § 14-227b on the basis that the plaintiff failed a chemical test of the alcohol content of his blood after having been arrested on a charge of operating a motor vehicle under the influence of alcohol. The plaintiff appeals pursuant to General Statutes § 4-183, claiming that (1) in light of his expert's opinion, there is not substantial evidence in the record to support a finding that his blood alcohol exceeded the legal limit; (2) there is inadequate evidence that the machine on which the plaintiff was tested was functioning properly; (3) the hearing officer failed to follow prior department rulings on the same issue; and (4) the hearing officer should not have considered the breath test results because the plaintiff had previously refused to take a breath test. The court finds for the defendant on all issues.
The record discloses the following relevant facts. On May 12, 2016, at approximately 12:22 a.m., Officer A. Pagliughi of the Glastonbury police department was traveling east in the left travel lane on Route 2 when a black BMW, also traveling east, drifted from the right travel lane into the left travel lane and then drifted back into the right lane and crossed the fog line. The officer slowed and followed the BMW, observing the operator drifting back and forth into the left lane, then back into the right lane and over the fog line, three more times. The officer then stopped the vehicle and asked the plaintiff for his license, registration, and insurance paperwork. The plaintiff fumbled in his wallet and handed the officer a credit card, stating that it was his license. He then fumbled with his wallet again and, with the assistance of his female passenger, gave the officer his license. Return of Record (ROR), p. 24.
The officer explained why he had stopped the vehicle. The plaintiff apologized and said he was heading home. The officer again asked for the registration and insurance information. The plaintiff said that he had recently purchased the vehicle and was not sure where the registration was. The officer could see the registration in a clear pouch that the plaintiff was holding while talking with the officer. ROR, p. 24.
The plaintiff's speech was pressured and slightly slurred. The officer could detect a strong odor of alcohol on the plaintiff's breath, and the plaintiff's eyes were bloodshot and glossy. The plaintiff admitted he had been drinking beer earlier in the evening. ROR, p. 24.
The officer had the plaintiff get out of his vehicle to perform standardized field sobriety tests. The plaintiff was unsteady on his feet and was unable to follow instruction on the horizontal gaze nystagmus test. He failed all three standardized tests. Based on the plaintiff's erratic driving, odor of alcohol, and failure of the sobriety tests, the officer arrested the plaintiff and transported him to the Glastonbury police department. The plaintiff's passenger, Dana Flanagan, was determined to be fit to drive the vehicle to remove it from the scene. ROR, p. 25.
The plaintiff was advised of his rights and afforded the opportunity to contact an attorney. He initially said he wanted to talk with an attorney but then changed his mind. He was read the implied consent advisory and refused to submit to a breath test. The refusal was witnessed by another officer. The plaintiff then phoned his wife to come pick him up. After speaking with his wife, the plaintiff decided to submit to the breath tests. The tests were conducted on a Drager Alcotest 9510 machine at 1:45 a.m., resulting in a reading of 0.2360%, and at 2:04 a.m., resulting in a reading of 0.2074%. ROR, pp. 25-26.
The department thereafter notified that his license would be suspended for forty-five days and he would be required to maintain an ignition interlock device on every vehicle he owned or operated for six months. ROR, p. 1. The plaintiff requested an administrative hearing. ROR, p. 2. The hearing was continued at the request of the plaintiff's attorney to allow him to prepare a defense. ROR, pp. 7-9. The hearing was held on June 23, 2016, before hearing officer James M. Quinn. ROR, pp. 12-17.
The department introduced as a single exhibit, without objection, copies of the A-44 form, the test reports, the Glastonbury police department incident report, a notice of rights form, and the plaintiff's appearance bond. ROR, pp. 13-14. The plaintiff then introduced an unsworn letter from James E. O'Brien, who described himself as a " Ph.D., M.D." ROR, pp. 14-15, 30. O'Brien stated that the plaintiff's blood alcohol decreased 0.0286% in the nineteen minutes between the tests. ROR, p. 30. He represented that the " normal decline" would be 0.0057% in nineteen minutes, and that a decrease in the magnitude shown in the plaintiff's tests was " most unlikely, and far beyond medical probability." Id. In his opinion, a decrease of the magnitude shown in the plaintiff's tests could " only be explained by either one or both of the tests being incorrect." Id. He stated that since the values were invalid, it was impossible to determine whether the plaintiff's blood alcohol level was at or above .08% at the time in question. Id.
The plaintiff also introduced as an exhibit several documents reflecting the maintenance and repair records for the Drager Alcotest machine used by the Glastonbury police. ROR, pp. 15, 31-36. The plaintiff's counsel argued, based on the exhibits he introduced, that the tests were invalid and did not provide substantial evidence for a suspension, and that the particular machine on which the test had been performed had required a significant repair in the prior year. ROR, pp. 14-15. The hearing was then adjourned. ROR, pp. 15-16.
On June 24, 2016, the hearing officer issued his final decision, finding that the police had probable cause to arrest the plaintiff for a violation specified in General Statutes § 14-227b; that the plaintiff was arrested; that the plaintiff submitted to a test or analysis and the results indicated a blood alcohol content of 0.08% or more; and that the plaintiff was operating a motor vehicle. The hearing officer made the following subordinate finding: " Expert toxicological report not persuasive." ROR, p. 37.
The plaintiff requested reconsideration, arguing that the department " cannot disregard the only expert evidence on an issue before it when the agency members lack their own expertise or knowledge on the subject." ROR, p. 40. He further argued that department hearing officers, including the hearing officer who presided over the plaintiff's hearing, had relied on O'Brien's opinion in a similar case to overturn a suspension order. ROR, pp. 41-42. The department's petition review committee denied the plaintiff's request for reconsideration. ROR, p. 47. 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."
" The substantial evidence rule governs judicial review of administrative factfinding under General Statutes [§ 4-183(j)]." (Internal quotation marks omitted." Bancroft v. Commissioner of Motor Vehicles, 48 Conn.App. 391, 400, 710 A.2d 807, cert. denied, 245 Conn. 917, 717 A.2d 234 (1998). " 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 . . . Such a standard of review allows less room for judicial scrutiny than does the weight of the evidence rule or the clearly erroneous rule . . . In determining whether an administrative finding is supported by substantial evidence, a court must defer to the agency's assessment of the credibility of the witnesses and to the agency's right to believe or disbelieve the evidence presented by any witness, even an expert, in whole or in part . . . Basically, an agency is not required to use in any particular fashion any of the materials presented to it so long as the conduct of the hearing is fundamentally fair." (Citations omitted; internal quotation marks omitted.) Id.
" 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. In the hearing, the results of the test or analysis shall be sufficient to indicate the ratio of alcohol in the blood of such person at the time of operation, provided such test was commenced within two hours of the time of operation." An " elevated blood alcohol content" is defined by § 14-227b(n), in relevant part, as " a ratio of alcohol in the blood of such person that is eight-hundredth of one percent or more of alcohol, by weight . . ." 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. 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." Id.
I
The plaintiff first argues that the record lacks substantial evidence that the plaintiff had an elevated blood alcohol content. Citing Tanner v. Conservation Commission, 15 Conn.App. 336, 341, 544 A.2d 258 (1988), the plaintiff asserts that an agency " cannot disregard the only expert evidence on an issue before it when the agency members lack their own expertise or knowledge on the subject." Pl. Br., p. 4. The principle stated in Tanner, however, has been superseded. Since its decision in Bancroft v. Commissioner of Motor Vehicles, supra, 48 Conn.App. 391, the Appellate Court has repeatedly held that, contrary to the decision in Tanner, a " trier of fact is not required to believe unrebutted expert testimony, but may believe all, part or none of such unrebutted expert evidence." Id., 405. A hearing officer who rejects unrebutted expert evidence is not presumed to be violating his duty to consider the case before him solely on the evidence on the record. Id. " [A] hearing officer may rely on the presumption created by the statute if he or she disbelieves expert evidence to the contrary. Additional expert evidence to rebut the plaintiff's evidence is not required in such a case." (Internal quotation marks omitted.) Id., 403-04. See also Settani v. Commissioner of Motor Vehicles, 48 Conn.App. 418, 421, 710 A.2d 816, cert. denied, 245 Conn. 916, 719 A.2d 1166 (1998) (incorporating Bancroft decision to hold that hearing officer is free to disbelieve uncontradicted expert evidence).
This case is unlike Crandlemire v. Commissioner of Motor Vehicles, 117 Conn.App. 832, 982 A.2d 212 (2009), on which the plaintiff also relies. In Crandlemire, the hearing officer had not made an express finding as to whether the breath tests were reliable. The Appellate Court nevertheless inferred from the period of suspension imposed by the hearing officer that the hearing officer had implicitly found that breath test results were not reliable. Id., 840-41. Here, however, the hearing officer left nothing open to question. He expressly stated that he did not find the plaintiff's expert report to be persuasive. He did not ignore it or overlook it; he rejected it. It was his prerogative as the trier of fact to reject evidence that he found unpersuasive and to rely on the presumption stated in § 14-227b without additional evidence. This court may not retry facts that the hearing officer expressly considered and decided on the basis of the persuasive force of the evidence before him.
II
The plaintiff next claims that there is no substantial evidence that the machine used to test the plaintiff was in working order. He presented service records to the hearing officer to show that on June 2, 2015, the machine was sent to Drager Diagnostic for repair. ROR, p. 32. It was returned from Drager on June 15, 2015. Id. The service record for June 16, 2015, states: " checked calibration and function: passed; certified for use." Id. There is, in addition, a letter from the director of the state toxicology laboratory, dated June 16, 2015, that states that the machine was checked and recertified on that date. ROR, p. 33. The letter further states that " Breath analyses instruments are examined and certified by the Department of Emergency Services and Public Protection prior to being placed in operation and after being repaired or recalibrated. There is no requirement for annual recertification." Id. Finally, the record includes a letter from the Department of Emergency Services and Public Protection, Division of Scientific Services, to the plaintiff's attorney, which states: " Our records indicate that OFC Pagliughi was certified and the annual proficiency evaluation was performed 6/22/15." ROR, p. 31.
None of the evidence introduced by the plaintiff regarding the machine's condition undermines confidence in the test results. To the contrary, both the machine and its operator were evaluated and certified less than a year before the plaintiff's arrest and breath test, which occurred on May 12, 2016. The evidentiary subject test reports indicate that the testing officer ran diagnostic programs before and after the tests with results that indicated the machine was functioning properly. ROR, pp. 21-22. There is substantial evidence in the record that the machine was functioning properly. See Dumont v. Commissioner of Motor Vehicles, 48 Conn.App. 635, 641, 712 A.2d 427, cert. denied, 245 Conn. 917, 717 A.2d 234 (1998) (certification of machine by health department supported conclusion that machine was functioning properly despite plaintiff's evidence to contrary). The plaintiff's second claim fails.
III
The plaintiff next claims that the department erred in denying his request for reconsideration, where he attached copies of suspension hearing decisions in other cases in which the hearing officer had credited similar opinions by O'Brien and had reversed suspensions based on it. He argues that the hearing officer must have relied on his own knowledge to reject O'Brien's opinion in this case. He argues that the hearing officer did not have any particular expertise in the field of toxicology and gave no notice that he would rely on technical or scientific facts. This argument fails for the reasons stated below.
First, in Bancroft and subsequent cases quoted above, the Appellate Court has clearly rejected the argument made here. " To claim, as the plaintiff does, that the hearing officer disregarded the O'Brien letter and, in effect, relied on his 'own special or expert knowledge' is to attribute to him a failure to perform his duty . . . As a public officer, the hearing officer is presumed to have acted legally and properly until the contrary appears . . . We are entitled to presume that the hearing officer considered all the evidence before him in arriving at his decision, which was limited by statute to a determination of four specific issues." (Citations omitted; emphasis in original.) Bancroft v. Commissioner of Motor Vehicles, supra, 48 Conn.App. 403-04. The Bancroft court, as discussed in part I above, clearly decided that a hearing officer is entitled to rely on the statutory presumption if he disbelieves expert evidence. Id., 407.
Bancroft involved an opinion by the same expert, James E. O'Brien, on whom the plaintiff relied in this case. In Bancroft, O'Brien wrote that the results were unreliable because the results obtained thirty-four minutes apart were identical. Bancroft v. Commissioner of Motor Vehicles, supra, 48 Conn.App. 394. The hearing officer rejected O'Brien's uncontradicted expert opinion.
Second, the hearing officer was not required to follow earlier decisions. " The Connecticut appellate courts have not yet adopted a rule requiring administrative agencies to follow their own prior decisions. It is uncertain, at best, whether they would do so. In many cases, an agency may not have the resources or ability to compare prior decisions. See also General Statutes § 4-180a(b). Many administrative decisions are heavily fact-bound or dependent on first-hand observation of the witnesses, making comparison with prior cases especially difficult. Further, an agency may have good reasons to change its course and depart from prior precedent." Commissioner, Dept. of Public Safety v. Board of Firearms Permit Examiners, Superior Court, judicial district of New Britain, Docket No. CV 09-4021751 (July 13, 2010, Schuman, J.) [50 Conn.L.Rptr. 303, ], affirmed, 129 Conn.App. 414, 21 A.3d 847, cert. denied, 302 Conn. 918, 27 A.3d 369 (2011).
General Statutes § 4-180a(b) provides: " No written order or final decision may be relied on as precedent by an agency until it has been made available for public inspection and copying. On and after October 1, 1989, no written order or final decision, regardless of when rendered, may be relied on as precedent by an agency unless it also has been indexed by name and subject."
Third, the record is insufficient to support the plaintiff's claim that this case is identical in material respects to the earlier decisions he relied upon. In his request for reconsideration, the plaintiff provided only the final decisions from the earlier cases, not the entire records of those cases. In this case, the plaintiff's blood alcohol content was measured at .2360% and .2074%. In both tests, the results were substantially more than two times higher than .08%, the legal limit. The record does not disclose what the absolute values of the breath tests were in the earlier decisions; it only discloses the difference between the test results. Even if an agency was required to follow its own precedents, the court could not compare the decisions in the earlier cases with this case without knowing all the facts considered by the hearing officers in those cases.
IV
Finally, the plaintiff argues that the hearing officer should not have considered the test results because the plaintiff had previously refused to take the test and could not rescind his refusal. He relies on O'Rourke v. Commissioner of Motor Vehicles, 156 Conn.App. 516, 113 A.3d 88 (2015), in support of his claim. In O'Rourke, the plaintiff had been stopped at 7:08 p.m. After he was arrested, he complained of chest pain and was taken to a medical clinic. While there, but not while the plaintiff was receiving treatment, the arresting officer asked the plaintiff to submit to a blood test or, alternatively, to a urine test. The plaintiff refused to submit to chemical testing three times. His wife arrived at the clinic at 8:55 p.m. She then informed the arresting officer that the plaintiff would submit to a blood test, but the officer told her that the plaintiff's opportunity to submit to chemical testing has passed. The plaintiff's license was suspended after a hearing, and the trial court dismissed his appeal. On appeal to the Appellate Court, the plaintiff argued that, as a matter of law, the Appellate Court should interpret § 14-227b to permit an operator to rescind a refusal. The Appellate Court declined to do so and held that " it was not the prerogative of the hearing officer to consider whether the plaintiff had rescinded his refusal." Id., 536.
In this case, the plaintiff argues that the hearing officer should not have considered the breath tests or anything that happened after the refusal as evidence that he had submitted to a test or analysis that indicated an elevated blood alcohol content. This argument fails for three reasons.
First, the plaintiff did not raise this argument either at the hearing or in his request for reconsideration, even though the plaintiff's hearing occurred more than a year after the Appellate Court rendered its decision in O'Rourke . A plaintiff cannot raise issues on appeal that he failed to present to the hearing officer below. See Solomon v. Connecticut Medical Examining Board, 85 Conn.App. 854, 862, 859 A.2d 932 (2004), cert. denied, 273 Conn. 906, 868 A.2d 748 (2005); see also Valente v. Commissioner of Motor Vehicles, Superior Court, judicial district of New Britain, Docket No. HHB-CV-15-6029369-S (October 19, 2015, Schuman, J.) [61 Conn.L.Rptr. 138, ], affirmed per curiam, 169 Conn.App. 908, (2016).
Second, the Appellate Court did not cite, and this court does not see, any language in § 14-227b that affirmatively prohibits an arrestee from his changing his mind about submitting to testing. O'Rourke dealt with a situation in which the arresting officers concluded that the plaintiff had refused the test by his conduct, and they then refused to allow his wife to rescind his refusal. In this case, the arresting officer did allow the plaintiff to submit to a chemical alcohol test after the plaintiff had initially refused the test. The decision in O'Rourke did not address whether an arresting officer has discretion under § 14-227b to allow an arrestee to submit to testing after an initial refusal, or whether, if such chemical testing is actually performed after an initial refusal, the results should be considered by the hearing officer.
Finally, even if O'Rourke were read to prohibit the introduction of test results if an arrestee had initially refused but then submitted to testing, the plaintiff in this case would not be aggrieved by an erroneous consideration of his breath test results. As a result of the finding about his blood alcohol content based on the breath tests, the plaintiff's license was suspended for forty-five days and he was required to maintain an ignition interlock device for six months. If he had been found to have refused the chemical test, his license still would have been suspended for forty-five days, but he would have been required to maintain the ignition interlock device for a year. See General Statutes § 14-227b(i)(2)(C)(i). The consideration of the test results reduced by half the period of time in which he is required to maintain the ignition interlock device. Indeed, that may well have been the reason that his counsel did not make an O'Rourke argument at the hearing.
CONCLUSION
For all the reasons stated above, the plaintiff has not shown that substantial rights were prejudiced by the department's decision to suspend his license for forty-five days and to require him to maintain an ignition interlock device for six months. The appeal is dismissed.