Opinion
HHBCV156029931S
01-11-2016
Stephen F. Minninger v. Commissioner of Motor Vehicles
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Carl J. Schuman, Judge.
The plaintiff, Stephen F. Minninger, appeals from the decision of the defendant commissioner of motor vehicles (commissioner) suspending the plaintiff's driver's license for six months for refusal to take a breath test. For the reasons stated below, the court affirms the commissioner's decision and dismisses the appeal.
I
The record reveals the following facts. On April 3, 2015, at approximately 7:53 p.m., the plaintiff was operating a motor vehicle in Stamford when it crossed the median divider and crashed into a second vehicle that had stopped for a red light. Stamford police arrived and detected a strong odor of alcohol on the plaintiff's breath. The plaintiff admitted that he had drunk two beers. At 8:10 p.m., after the plaintiff refused to take the standard field sobriety tests, police arrested him for operating a motor vehicle under the influence of alcohol. (Return of Record (ROR), pp. 13-21.)
At police headquarters, at approximately 8:26 p.m., the police advised the plaintiff of his constitutional rights. At 8:30 p.m., the plaintiff spoke to an attorney by telephone. The police then informed the plaintiff that, under our implied consent law, if the plaintiff refused to take a chemical alcohol test, the department would suspend his driver's license for at least six months. (ROR, pp. 13-14, 16.) Sometime between 8:40 and 8:45 p.m., the police asked the plaintiff whether he would take a breath test and the plaintiff replied " No" or " No, sir." (ROR, pp. 14-16, 52, 79). The department's hearing officer found that the plaintiff refused to submit to a chemical alcohol test. The hearing officer also found that " [a]lthough a negative inference can be drawn due to subpoenaed officers intentionally not appearing at this hearing, there is substantial evidence derived from the testimony of the Respondent and a viewing of the DVD of the booking, that the Respondent refused to take the breath test." Accordingly, the department suspended the plaintiff's driver's license for six months. (ROR, p. 97.)
There were several other phone calls from attorneys during this time period, which the court addresses below.
II
The plaintiff argues on appeal that he was denied the right under General Statutes § 14-227b(b) to " [have] been afforded a reasonable opportunity to telephone an attorney prior to the performance of [a chemical alcohol] test . . ." He claims that a video of the booking process supports the following narrative. While in custody, the plaintiff attempted to telephone his civil attorney, Michael Stanton. Stanton called back at 8:36 p.m., spoke to the plaintiff, and had the plaintiff ask the booking room officer, Richard Dabrowski, if Stanton could call back again. Dabrowski then took the phone and told Stanton at 8:38 p.m.: " We are not going to wait all night, I'll give you five minutes to call back." (ROR, pp. 78-79.) Before the five-minute deadline had expired, and apparently at 8:41 p.m., officers asked the plaintiff whether he would submit to a breath test. The plaintiff answered " No, sir." (ROR, p. 79.) At 8:42 or 8:43 p.m., the plaintiff's criminal attorney, Phillip Russell, called back. (Plaintiff's brief, pp. 2, 6.) Based on these claimed facts, the plaintiff argues that the police did not keep their word to the plaintiff and grant him a five-minute period during which he could speak to a criminal attorney.
Section 14-227b(b) provides: " (b) If any such person, having been placed under arrest for operating a motor vehicle while under the influence of intoxicating liquor or any drug or both, and thereafter, after being apprised of such person's constitutional rights, having been requested to submit to a blood, breath or urine test at the option of the police officer, having been afforded a reasonable opportunity to telephone an attorney prior to the performance of such test and having been informed that such person's license or nonresident operating privilege may be suspended in accordance with the provisions of this section if such person refuses to submit to such test, or if such person submits to such test and the results of such test indicate that such person has an elevated blood alcohol content, and that evidence of any such refusal shall be admissible in accordance with subsection (e) of section 14-227a and may be used against such person in any criminal prosecution, refuses to submit to the designated test, the test shall not be given; provided, if the person refuses or is unable to submit to a blood test, the police officer shall designate the breath or urine test as the test to be taken. The police officer shall make a notation upon the records of the police department that such officer informed the person that such person's license or nonresident operating privilege may be suspended if such person refused to submit to such test or if such person submitted to such test and the results of such test indicated that such person had an elevated blood alcohol content."
The timing of the refusal is not entirely clear. The transcript of the video submitted by the plaintiff reports that the plaintiff refused at 8:40:50. But the next entry is for " 8:40:00" and has Dabrowski state: " So you're refusing at 20:45 [or 8:45]." (ROR, p. 79.)
Although the plaintiff claims in his brief that the call came from Russell, who is his counsel in this appeal, the transcript submitted by the plaintiff states that the officer " [h]ands the telephone to the [plaintiff] and tells him that it's Mr. Stanton and leaves the room." (ROR, p. 79.) Further, at the hearing Russell represented that he did not call until shortly after 8:50 p.m. (ROR, pp. 51-52.) There is also no evidence that Russell had an attorney-client relationship with the plaintiff at the time.
Even assuming these facts, 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]." Volck v. Muzio, 204 Conn. 507, 512, 529 A.2d 177 (1987). Accord Fitzgerald v. Commissioner of Motor Vehicles, 142 Conn.App. 361, 365, 65 A.3d 533 (2013). Those 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).
Accordingly, the Appellate Court, most recently in Fitzgerald v. Commissioner of Motor Vehicles, supra, 142 Conn.App. 361, has more than once explained that " the failure of the police to comply with subsection (b) of § 14-227b, which provides the right to telephone an attorney before being subjected to a chemical test, is irrelevant in a license suspension hearing because the hearing specifically, by legislation, is limited to the four issues specified in § 14-227b(g). [citing Dalmaso v. Dept. of Motor Vehicles, 47 Conn.App. 839, 707 A.2d 1275, appeal dismissed, 247 Conn. 273, 720 A.2d 885 (1998)] . . . [T]he plaintiff's alleged right to speak with an attorney before submitting to chemical testing of his breath . . . is separate from and not relevant to the four issues enumerated in § 14-227b(g) that are to be considered by the hearing officer in the license suspension hearing. See Volck v. Muzio, 204 Conn. 507, 512, 529 A.2d 177 (1987) (because hearing limited to four enumerated issues, multiple failures by arresting officer to comply with statutory dictates of § 14-227b not sufficient grounds for overturning commissioner's determination that operator's license should be suspended); Buckley v. Muzio, 200 Conn. 1, 7, 509 A.2d 489 (1986) (hearing limited to four enumerated issues and commissioner not required to determine whether subject of hearing understood consequences of refusal to submit to chemical testing before suspending license); Santiago v. Commissioner of Motor Vehicles, 134 Conn.App. 668, 674, 39 A.3d 1224 (2012) (Connecticut Supreme Court repeatedly has held that license suspension hearing is expressly limited to four issues enumerated in § 14-227b[g]). Even if the plaintiff had a right, as he claimed, to consult an attorney before submitting to the chemical test of his breath, this would not preclude the police officer, the hearing officer, the court, or this court from determining that under Dalmaso, his failure to submit to the chemical test of his breath was a refusal within the ambit of § 14-227b(g)." (Footnotes omitted.) Fitzgerald v. Commissioner of Motor Vehicles, supra, 142 Conn.App. 364-66.
The plaintiff attempts to circumvent this rule by relying on O'Rourke v. Commissioner of Motor Vehicles, 156 Conn.App. 516, 113 A.3d 88 (2015). However, the issue in O'Rourke was not whether the motorist was denied an opportunity to consult with his attorney, but rather whether there was a valid refusal to submit to the chemical test. The court held that just as " delaying one's decision to submit to chemical alcohol testing or expressly declining to consent until one has had the ability to speak with an attorney may amount to a refusal to submit to testing . . . this rationale [extends] to the case of an operator who delays his decision or declines to consent until he has had the ability to speak personally with his spouse." (Citation omitted.) Id., 531-32. Accordingly, the court, in essence, found that there was a refusal by conduct. Id., 525.
Indeed, O'Rourke specifically cited Fitzgerald and Dalmaso in recognizing the rule that the denial of an opportunity to consult with counsel is not an issue in a license suspension case: " Our case law reflects that 'regardless of the ostensible reason for the plaintiff not submitting to the chemical test, any failure to submit to the test constitutes a refusal pursuant to subdivision (3) [of § 14-227b(g)].' (Emphasis added.) Fitzgerald v. Commissioner of Motor Vehicles, 142 Conn.App. 361, 365 n.3, 65 A.3d 533 (2013); see also Dalmaso v. Dept. of Motor Vehicles, 47 Conn.App. 839, 844, 707 A.2d 1275 (court's determination that substantial evidence of refusal existed not affected by evidence that plaintiff was not afforded reasonable opportunity to contact attorney pursuant to § 14-227b[b]), appeal dismissed, 247 Conn. 273, 720 A.2d 885 (1998)." O'Rourke v. Commissioner of Motor Vehicles, supra, 156 Conn.App. 526-27. Accordingly, the plaintiff cannot circumvent the rule barring him from raising the denial of an opportunity to consult with counsel in a license suspension hearing.
The remedy for failure of the police to afford a motorist a reasonable opportunity to consult with counsel is most likely suppression, in the criminal case, of the test results or of evidence that the motorist refused to take the test. See General Statutes § 14-227a(b), (e); Fishbein v. Kozlowski, 252 Conn. 38, 48-49, 743 A.2d 1110 (2000).
The plaintiff also challenges the sufficiency of the evidence of refusal. A refusal may be by conduct or it may be express. Id., 525. In the present case, given that the plaintiff answered " No" or " No, sir" when asked whether he would submit to a breath test, the refusal was express. The evidence in the record of the plaintiff's express refusal comes from the police report (ROR, pp. 14, 16), the transcript of the video (ROR, p. 79), and the plaintiff's own admission at the hearing. (ROR, p. 52.) Accordingly, there was substantial evidence to support the hearing officer's finding of refusal, thus satisfying the standard of review. See Murphy v. Dept. of Motor Vehicles, 254 Conn. 333, 343, 757 A.2d 561 (2000).
III
The court affirms the commissioner's decision and dismisses the appeal.
It is so ordered.