Opinion
No. CV 11 6009598S
September 21, 2011
MEMORANDUM OF DECISION
The plaintiff, Izabella Miedzinski, appeals from a February 16, 2011 final decision of the defendant department of motor vehicles (DMV) suspending her motor vehicle operator's license for a period of two years and six months after a hearing conducted by the DMV at the plaintiff's request.
As the plaintiff's license has been suspended by the DMV under § 14-227b(i)(3), she is aggrieved for purposes of § 4-183(a).
The record shows as follows. On December 12, 2010, two officers of the Hamden police department were dispatched to an address in Hamden to investigate a complaint by a resident of that address. (Return of Record, ROR, p. 12.) The complainant informed the officers that an automobile had backed out of a driveway across the street and struck her own automobile and that she had confronted her neighbor whom she believed was responsible. The officers walked to a home across the street and went up the driveway identified by the complainant. They saw the plaintiff fumbling with her keys and struggling to keep her balance as she attempted to open her garage. ( Id.)
The officers observed that the plaintiff was accompanied by her four-year-old son. She was carrying a bag that contained an empty bottle of wine as well as a nearly empty bottle of vodka. She had an odor of alcohol and bloodshot eyes. One officer asked the plaintiff's son what had happened and the child replied that "mommy just got into a little accident." (ROR, p. 13.) The other officer determined that the plaintiff was severely intoxicated and opted to forego the field sobriety tests for her own safety. ( Id.) He then placed the plaintiff in handcuffs and proceeded to take a statement from the complainant. The officer that was questioning the boy stayed with him and the plaintiff. ( Id.)
The plaintiff was placed under arrest and brought to the police department to administer a breath test. At the police station, the officer was "unable to properly communicate and reason with [the plaintiff]." (ROR, p. 14.) The plaintiff agreed to take the breath test; the result at 00:49 was .2181 BAC and at 01:09 was .2097 BAC. ( Id.)
On January 3, 2011, the DMV mailed the plaintiff a notice of suspension of her driver's license. (ROR, p. 1.) The plaintiff requested a hearing on January 7, 2011 and the DMV sent the plaintiff a summons three days later to appear for an administrative hearing on February 15, 2011. (ROR, pp. 2-3.) The plaintiff objected to the timeliness of the hearing for the first time in her motion to dismiss filed on the day of the hearing. (ROR, Transcript, pp. 1-2.)
Following the hearing, the DMV hearing officer found that the two Hamden officers had probable cause to arrest the plaintiff, that the plaintiff was placed under arrest, that she had operated a motor vehicle, that she was not under twenty-one years of age, and that she had submitted to a blood alcohol test that resulted in a BAC of .16% or more. (ROR, p. 6.) Taking into account the plaintiff's two previous suspensions within a ten-year period, the hearing officer suspended the plaintiff's license for two years and six months pursuant to § 14-227b(i)(3)(b). This appeal followed.
The Appellate Court has recently stated the applicable standard of review: "Judicial review 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 . . . 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 . . . and . . . provide[s] a more restrictive standard of review than standards embodying review of weight of the evidence or clearly erroneous action . . . [I]t is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence . . . [A]s to questions of law, [t]he 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 . . . Conclusions of law must stand if the court determines that they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts." Blinkoff v. Commission on Human Rights Opportunities, 129 Conn.App. 714, 720-21, 20 A.3d 1272 (2011).
Our appellate courts have applied this standard to an administrative appeal from final decision of a DMV hearing officer suspending an operator's license under § 14-227b. "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 . . . The law is also well established that if the decision of the commissioner is reasonably supported by the evidence, it must be sustained." (Brackets omitted; citations omitted; internal quotation marks omitted.) Murphy v. Commissioner of Motor Vehicles, 254 Conn. 333, 343-44, 757 A.2d 561 (2000); see also Charbonneau v. Commissioner of Motor Vehicles, 124 Conn.App. 556, 559, 4 A.3d 887 (2010).
The plaintiff first contends that the record does not support the hearing officer's conclusion that she was operating the motor vehicle, one of the four issues to be raised at the hearing under § 14-227b(g). She challenges her identification as the driver as it was based on a statement of her four-year-old child and an observation by the complainant from the scene of the accident at night. The police report does not indicate that either police officer saw her driving. She was arrested outside her closed garage with the vehicle parked inside and her keys in her pocketbook.
On the other hand, the hearing officer had the broad discretion to believe or disbelieve the witnesses at the hearing. See Bancroft v. Commissioner of Motor Vehicles, 48 Conn.App. 391, 400, 710 A.2d 807 (1998). Proof of operation is a factual determination. See O'Rourke v. Commissioner of Motor Vehicles, 33 Conn.App. 501, 505, 636 A.2d 409 (1994). As Murphy v. Commissioner of Motor Vehicles, supra, 254 Conn. 345, states, the substantial evidence rule applies to the totality of circumstances at the time of arrest. In Murphy, operation was found, even though her vehicle had rolled down an embankment and she was away from the location at the time of her arrest. Similarly in Kirei v. Hadley, 47 Conn.App. 451, 705 A.2d 205 (1998), the police officer found the operator's automobile in a snow bank with the vehicle's transmission control in the drive position and the inside of the automobile was warm from recent operation. The operator was found two-tenths of a mile from the vehicle walking toward his home that was less than a mile from the snowbank.
Here, the record showed that the police officer observed the plaintiff fumbling with her keys next to her garage that stored her Nissan Maxima with fresh damage on the rear passenger corner. (ROR, p. 13.) The report indicated that one of the keys that the plaintiff was holding fit the parked Nissan Maxima. The report also indicated that the damaged area of the plaintiff's vehicle coincided with the complainant's account and the statement of the son. The hearing officer did not err in finding substantial evidence of "operating."
The plaintiff secondly challenges the hearing officer's decision to make use of hearsay in finding "operation." Hearsay is not automatically disallowed in administrative proceedings. Section 4-178(1) provides that "[a]ny oral or documentary evidence may be received, but the agency shall, as a matter of policy, provide for the exclusion of irrelevant, immaterial or unduly repetitious evidence . . ." Thus, a hearing officer may rely on hearsay evidence to find that an individual was operating a motor vehicle. See Paquette v. Hadley, 45 Conn.App. 577, 697 A.2d 691 (1997); Family Garage, Inc. v. Commissioner of Motor Vehicles, 130 Conn.App. 353, 23 A.3d 752 (2011) (objection to hearsay only appropriate where deponent is untrustworthy and there is no other admissible evidence in point).
Here, the hearing officer did not err in considering the evidence of the son and the complainant. The accuracy and reliability of the reported statements were supported by the additional physical evidence on the two automobiles as well as the plaintiff's proximity and her attempt to access the automobile involved in the collision.
The plaintiff next claims that she was not afforded an opportunity to contact an attorney until after the breath test was completed. This issue has been resolved in Dalmaso v. Dept. of Motor Vehicles, 47 Conn.App. 839, 707 A.2d 1275, appeal dismissed, 247 Conn. 273, 720 A.2d 885 (1998), holding that the failure of the police officer to follow § 14-227b(b) and permit a call to an attorney is not one of the issues that may be considered by the hearing officer under § 14-227b(g). Likewise, the plaintiff's claim that the name of the officer conducting the test is given as one officer in the police report and another on the test strip has been decided in Schallenkamp v. DelPonte, 229 Conn. 31, 639 A.2 1018 (1994), and Charbonneau v. Commissioner of Motor Vehicles, supra, 124 Conn.App. 556. This claim is also precluded by § 14-227b(g).
The plaintiff also argues that the A-44 form should not be admissible as the police officer did not sign it under oath. The cases state that "so long as evidence is reliable and probative," it should be admitted. The police officer's signing under penalties of false statement is a sufficient indicia of reliability. See Bialowas v. Commissioner of Motor Vehicles, 44 Conn.App. 702, 712, 692 A.2d 834 (1997). Moreover the police officer testified at the hearing and thus corrected any defect in his signing the form. See Scott v. Salinas, Superior Court, judicial district of Hartford, Docket No. CV 98-058 1926 (November 16, 1998, Hartmere, J.).
The plaintiff's final contention is that the hearing officer erred in suspending her license because the DMV violated § 14-227b(e)(2) and § 14-227b(g). Section 14-227b(e)(2) provides in relevant part that if a person is arrested and has had within the last ten years a DWI suspension under the criminal provision, § 14-227a, the DMV on notice of arrest "may suspend any operator's license . . . effective as of the date specified in a notice of such suspension to such person. Any person whose operator's license . . . has been suspended in accordance with this subdivision shall automatically be entitled to a hearing before the commissioner . . . The commissioner shall send a suspension notice to such person informing such person that such person's operator's license . . . is suspended as of the date specified in suspension notice, and that such person is entitled to a hearing and may schedule such hearing by contacting the [DMV] not later than seven days after the date of the mailing of such suspension notice. Any suspension issued under this subdivision shall remain in effect until such suspension is affirmed or such operator's license . . . is reinstated . . ." Section 14-227b(g) provides in relevant part as follows: "If such person contacts the [DMV] to schedule a hearing, the [DMV] shall assign a date, time and place for the hearing . . . [and] with respect to a person whose operator's license . . . is suspended in accordance with subdivision (2) of subsection (e) of this section, such hearing shall be scheduled not later than thirty days after such person contacts the [DMV].
To summarize, unlike the situation where a person is arrested without a prior license suspension for DWI under the criminal statute, a person whose license was so suspended within the prior ten years is to be informed by the DMV, after the new arrest, that the license is suspended as of the date specified in the notice. The license remains suspended until a decision is made by the hearing officer on the granting or denial of the suspension. The driver must call the DMV within seven days and the hearing "shall be scheduled" within thirty days thereafter.
In this case, the plaintiff had two previous DWI criminal suspensions. Therefore, she was informed by DMV that her date of suspension was January 3, 2011. She did not drive after that date. She requested a hearing on January 7, 2011. Therefore, under § 14-227b(g), the DMV was obliged to give her a hearing by February 7, 2011. Instead, the DMV noticed her a hearing for February 15, 2011. The fact that the hearing occurred after thirty days is the basis of the plaintiff's claim that the hearing officer erroneously suspended her license.
The DMV argues that the plaintiff waived this issue by waiting until the hearing itself to raise the issue of the late hearing. The court does not decide whether waiver applies under these facts.
The plaintiff relies on the case of Pike v. Dept. of Motor Vehicles, Superior Court, judicial district of Hartford-New Britain, Docket No. 701253 (November 19, 1991, Corradino, J.). This case is distinguishable as it concerned a requirement in § 14-227b that for first offenders, the hearing must occur on a date before the suspension was to take place. When the hearing took place after the suspension date, the court in Pike voided the suspension. As seen above, in the case of repeat offenders, the suspension is, by § 14-227b(e)(2), in place before the hearing.
The plaintiff further argues that the thirty-day time period in which to hold a hearing is mandatory and as in Pike her appeal should be sustained. The Supreme Court has emphasized, however, that the "four issues" of § 14-227b(g) "expressly and narrowly limit[ ] the scope of the license suspension hearing." Fishbein v. Kozlowski, 252 Conn. 38, 46, 743 A.2d 1110 (1999). The Supreme Court has also cautioned that this limitation on the hearing officer affects the trial court's scope of review. "Having nothing more to determine, it was inappropriate for the trial court to indulge in a microscopic search for technical infirmities in the commissioner's action." (Brackets omitted, citation omitted, internal quotation marks omitted.) Buckley v. Muzio, 200 Conn. 1, 7, 509 A.2d 489 (1986). This is especially true where § 14-227b "does not provide a judicial or administrative remedy" for failure to comply with the statute. Id., 8.
Several cases have refused to find that the failure to follow statutory provisions justified sustaining the appeal, because these statutory claims were not one of the "four issues." See, e.g., Buckley v. Muzio, supra, 200 Conn. 1, involving notice of consequences of refusal to take a chemical test; Volck v. Muzio, 204 Conn. 507, 529 A.2d 177 (1987) (police officer did not comply with statute); Schallenkamp v. DelPonte, supra, 229 Conn. 31 (violation of statute, but where essential elements of statute proven, suspension appropriate, in administrative context); Charbonneau v. Commissioner of Motor Vehicles, supra, 124 Conn.App. 556 (certificate of testing officer out-of-date).
If the court were to reach the merits of the plaintiff's claim, that she is entitled to overturn the final decision on the ground that the DMV held its hearing one week late, the plaintiff would have to demonstrate that the thirty-day provision is mandatory. The law is otherwise, however, that the failure to set a timely hearing is mandatory. See Williams v. Commission on Human Rights Opportunities, 257 Conn. 258, 268, 777 A.2d 645 (2001) ("[I]f . . . provision is designed to secure order, system and dispatch in the proceedings, it is generally held to be directory . . ."); Blau v. State Board of Education, 19 Conn.App. 428, 562 A.2d 586 (1989) (trial court erred in finding mandatory a requirement that an agency issue its decision within forty-five days).
In Yanni v. DelPonte, 31 Conn.App. 350, 624 A.2d 1175 (1993), the plaintiff appealed the suspension of his license under what is now § 14-227b(g), claiming that the DMV failed to comply with a then-existing requirement that the final decision "shall" be sent by certified mail. The DMV had followed, instead, its regulation and used bulk certified mail. The court rejected his appeal, stating: "The legislature's use of the word `shall' does not in and of itself create a mandatory duty to perform an action . . . Statutes are viewed as a whole in order to ascertain the legislative intent . . . The test for determining whether a statutory requirement is mandatory or directory is whether the prescribed mode of action relates to a matter of substance or convenience . . . Provisions relating to matters of substance are mandatory, whereas provisions designed to secure order, system, and dispatch in the proceedings are generally held to be directory, especially when the requirement is stated in affirmative terms unaccompanied by negative words." Id., 354. The Appellate Court found that the requirement of certified mail had "no invalidating language that would render the commissioner's decision ineffective for failure to mail the decision by certified mail." Id.
Now both the statute and the regulation provide for bulk certified mail.
Similar to the statute in Yanni, § 14-227b(g) states that "such hearing shall be scheduled not later than thirty days after the person contacts the department." There is no invalidating language for the failure of the DMV to set the hearing by the thirty-day deadline. The court concludes that the statutory language is therefore directory.
The plaintiff claims that she was prejudiced by the failure to have the hearing within thirty days of her request. It meant that she lost her driving privileges for an additional week until the hearing was actually held. As her license was suspended for two years and six months almost immediately after the hearing was concluded, she was not prejudiced as her license was already under suspension.
The only possible claim of prejudice is that she would have the suspension of her license confirmed by the hearing officer on February 7 instead of February 15. She would have started her suspension one week earlier. The court suggests that the parties confer on allowing a one-week credit for the plaintiff to the length of her suspension.
The court has considered the claims of the plaintiff and dismisses the appeal.