Opinion
No. CV 10 6006312S
April 18, 2011
MEMORANDUM OF DECISION
The plaintiff, Suzanne Petrow, appeals from a July 14, 2010 final decision of the department of motor vehicles (DMV) suspending her license for six months for refusing to take a test for elevated blood alcohol content. See General Statutes § 14-227b(i)(1)(C).
The plaintiff is aggrieved under § 4-183(a) due to the suspension order.
The record shows the following. On June 20, 2010, a homeowner living on North Benson Road in Fairfield, Connecticut, telephoned the Fairfield police to report that, at 1:25 a.m., an automobile, driven by someone later identified as the plaintiff, had apparently swerved to the left, leaving the traveled portion of the roadway. As a result, the automobile had struck a wall on the homeowner's property and had hit some shrubbery near the wall. (Return of Record, ROR, p. 10.) A Fairfield policeman, Stalling, arrived at the scene approximately five minutes later. He found the plaintiff with her automobile, alert, but with a strong odor of alcohol, red glossy eyes, and slurred speech. ( Id.) She told the officer that she had had four to five cocktails earlier in the evening. ( Id.)
The plaintiff complained of neck pain. Officer Stalling decided that based on the plaintiff's medical complaint, he would not ask her to perform the usual field sobriety tests. (ROR, p. 6.) Instead, he called an ambulance to transport the plaintiff to St. Vincent's Hospital in Bridgeport. The ambulance removed the plaintiff to the hospital, and Officer Stalling followed the ambulance there. The officer followed the common practice of the Fairfield police in waiting at the hospital to find out if a blood sample were taken in diagnosis and treatment of an injury. (ROR, p. 11.) See §§ 14-227a(k) and 14-227b(k).
The plaintiff denies that she complained of neck pain and points out that the A-44 form also has a block checked stating that the plaintiff denied injury. On the other hand, the hearing officer is entitled to resolve this apparent contradiction and find that the police officer was justified in calling the ambulance. The officer clearly added in handwriting that the plaintiff complained of neck pain. See Goldstar Medical Services, Inc. v. Dept. of Social Services, 288 Conn. 790, 830, 955 A.2d 15 (2008) (hearing officer may credit some, all or none of evidence presented).
At 3:30 a.m., Stalling and his supervisor, Irizarry, learned that the hospital staff had released the plaintiff from their care with a discharge summary and that no blood sample had been taken from the plaintiff. As she left the hospital with a friend, she was approached by Stalling and Irizarry, who told her that she had to remain at the hospital for them to complete their investigation. She was led to a room at the hospital and her friend was asked to remain outside the room. (ROR, p. 11.)
At 3:50 a.m., the plaintiff was furnished a "notice of rights." At 3:55 a.m., she was given the opportunity to call an attorney, but was unable to make a contact at that hour. (ROR, p. 11.) She was asked to take a urine test at approximately 4 a.m. She declined, and signed a standard form of the Fairfield police department to that effect. The form shows that she and Irizarry signed at 4:08 a.m. while Stalling signed at 4:10 a.m. (ROR, p. 12.) She was given a misdemeanor citation for operating a motor vehicle while under the influence of intoxicating liquor, § 14-227a.
See § 14-227b(a): "Any person who operates a motor vehicle in this state shall be deemed to have given such person's consent to a chemical analysis of such person's blood, breath or urine."
Pursuant to § 14-227b(b), the Fairfield police department notified the DMV of the plaintiff's arrest, and a hearing on suspension of the plaintiff's license was held on July 13, 2010. At the hearing, the plaintiff made a formal objection to the proceedings to suspend her license. She did not subpoena the police officers or testify herself, and only presented testimony from her friend that had been with her at the hospital. His testimony was that Irizarry had left the room at the time that Stalling was interviewing the plaintiff.
The failure of the plaintiff to subpoena Stalling to the DMV hearing or to testify herself undercuts her claims that Stalling re-created her statements made at the scene of the accident when he completed the A-44 subsequently, that he apologized for Irizarry's actions, and that she was too emotionally distraught to understand her obligations under the per se law. The court notes that the incident occurred on June 20, 2010 and the DMV hearing was almost a month later, so the plaintiff should have been able to moderate her emotions by the date of the hearing.
The hearing officer issued his decision on July 14, 2010, concluding in the DMV's favor on the four issues before him under § 14-227b(g). He found that the police officer had had probable cause to arrest the plaintiff; that the plaintiff was placed under arrest; that the plaintiff had refused to submit to a chemical alcohol test; that the plaintiff was operating the motor vehicle; and that the plaintiff was over the age of twenty-one. He also made the following subordinate finding: "Based on signed Fairfield Police Department consent/refusal form it is found that Ms. Petrow refused testing. Fact that refusal was beyond 2 hour window does not nullify that refusal." The hearing officer ordered the plaintiff's license suspended for six months. (ROR, p. 4.) The plaintiff first moved for reconsideration and on denial, appealed to this court from the final decision.
This appeal was filed on August 9, 2010. On August 31, 2010, the plaintiff moved, pursuant to § 4-183(h), that the matter be remanded to the DMV for further hearing of evidence. After a hearing on this motion, the court ruled that the plaintiff would be allowed to present evidence to this court under § 4-183(i) that the police, when requesting the urine test, had acted indecently and/or sexually harassed the plaintiff. This hearing was held on October 14, at which time the plaintiff testified. The plaintiff's testimony is discussed below in analyzing her issue of "indecency."
The evidence given by the plaintiff outside of the specific topic set for this hearing is disallowed, as are two documents that the plaintiff attached to her brief on the merits — the discharge summary at the hospital and a DMV document on how a DWI matter proceeds at the agency. See Adriani v. Commission on Human Rights Opportunities, 220 Conn. 307, 326, 596 A.2d 426 (1991): "An appeal from an administrative tribunal should ordinarily be determined upon the record of that tribunal, and only when that record fails to present the hearing in a manner sufficient for the determination of the merits of the appeal, or when some extraordinary reason requires it, should the court hear the evidence."
After this testimony, the parties filed briefs with the court. The plaintiff raises a number of grounds on which to reverse the decision of the hearing officer. To the degree that the plaintiff has raised factual issues in challenging the hearing officer's decision, the court employs the following standard of review: "Judicial review of the commissioner's action is governed by the Uniform Administrative Procedure Act (UAPA) . . . and the scope of that review is very restricted . . . Review of an administrative appeal 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 . . . [T]he trial court may [not] 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.
"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 . . . 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). The Appellate Court approved this same rule most recently in Charbonneau v. Commissioner of Motor Vehicles, 124 Conn.App. 556, 559, 4 A.3d 887 (2010).
With regard to the matters of law raised by the plaintiff, our Supreme Court stated that this court must "invoke a broader standard of review . . . Furthermore, when a state agency's determination of a question of law has not previously been subject to judicial scrutiny . . . the agency is not entitled to special deference." (Citations omitted.) Dept. of Public Safety v. Freedom of Information Commission, 298 Conn. 703, 716, 6 A.3d 763 (2010). In this appeal, as indicated in the discussion below, the state appellate courts have scrutinized the legal bases of the DMV decision and have ruled favorably on them.
The first issue raised by the plaintiff is that the hearing officer incorrectly allowed the admission of the A-44 form and the supplementary reports of the plaintiff's arrest prepared by the Officer Stalling. As to the supplementary reports, she relies on a DMV regulation, § 14-227b-10(b), requiring that the reports be sworn to under penalty of false statement. Here Stalling signed these reports and Irizarry witnessed the signature. The forms do not include the phrase "under penalty of false statement," but the A-44 form itself states that in signing the A-44 the attached reports are signed under penalties of false statement. (ROR, p. 7.) Moreover, the regulations promulgated pursuant to § 14-227b, as opposed to the criminal statute, § 14-227a, are left to the judgment of the hearing officer to determine the degree of compliance. See Schallenkamp v. DelPonte, 229 Conn. 31, 41, 639 A.2d 1018 (1994).
With regard to the A-44 form itself, the plaintiff argues first that the form was designed for DMV use and under § 1-24(13) could not be signed under oath by a town policeman. On the other hand, under § 14-227b(c), the arresting officer is required to supply the DMV with the A-44 form; he therefore should be able to sign the form under oath.
The second argument with regard to the A-44, is that a Fairfield policeman had no authority to arrest the plaintiff in a Bridgeport hospital. The court rejects this argument based on State v. McCullough, 88 Conn.App. 110, 868 A.2d 757 (2005), an arrest for DWI by Manchester police in Coventry. The Appellate Court held that "[p]olice officers need not have lights flashing or sirens on to be in immediate pursuit; it suffices if the pursuit is conducted without undue delay and is accomplished at the earliest safe opportunity." Id., 123-24. Here the officers accomplished pursuit by immediately approaching the plaintiff after the hospital had discharged her and found her medically stable. Therefore the court concludes that the hearing officer correctly admitted the A-44 and attachments.
The court also finds persuasive the Connecticut Supreme Court's rationale in State v. Stevens, 224 Conn. 730, 740-41, 620 A.2d 789 (1993), where an injured person was transported to a Rhode Island hospital for treatment. The Court refused to suppress blood samples taken at the out-of-state hospital. "It is ludicrous to suggest that, because [the police officer] was sensitive to the defendant's medical needs in conducting his investigation of the accident, the results of that investigation must now be suppressed. [The officer] commendably did not insist that the defendant be transported to one of the more distant Connecticut hospitals for the taking of the blood samples because the dictates of public policy require . . . that police officers who have a citizen in their lawful custody be not deterred from acting to protect the well-being of such a person, particularly in circumstances arising out of an emergency." (Citation omitted.)
The second contention of the plaintiff is that the police lacked probable cause to arrest her. The standard for finding probable cause to arrest for operating under the influence was stated some years ago in Clark v. Muzio, 40 Conn.Sup. 512, 514, 516 A.2d 160 (1986): 'Probable cause exists when the facts and circumstances within the knowledge of the officer and of which he has reasonable trustworthy information are sufficient in themselves to warrant a person of reasonable caution to believe that the person arrested had committed an offense. An arrest for driving under the influence of intoxicating liquor, just as an arrest made for any other criminal offense, may properly be made on a finding of probable cause which is based on circumstantial, as well as direct evidence." The hearing officer is to consider if "the totality of the circumstances existing at the time of the plaintiff's arrest support[s] [such a finding] . . ." Murphy v. Commissioner of Motor Vehicles, supra, 254 Conn. 345.
The plaintiff argues that the record does not support the hearing officer's finding of probable cause to arrest as Officer Stalling did not administer standard field tests at the site of the plaintiff's accident. She claims that she has no recollection of neck pain, and the notation on neck pain was added by the police officer later to justify a failure to administer the field tests. According to the plaintiff, the lack of field test results compromises the finding of probable cause made by the hearing officer.
The court disagrees with this contention because the record supports the hearing officer, when considering the totality of the circumstances. Officer Stalling noted that the plaintiff had slurred speech, glossy eyes and an odor of alcohol. She also admitted to having four or five cocktails earlier in the evening prior to driving her automobile. These facts in the record are sufficient for the finding of probable cause. In addition, even if the court were to find that field tests were appropriate here, such tests constitute just one factor that the hearing officer may evaluate when making conclusions on probable cause. See Michaud v. DelPonte, Superior Court, judicial district of Hartford-New Britain at New Britain, Docket No. CV 90 0439772 (January 14, 1992, Langenbach, J.).
In her brief, the plaintiff claims that she has a medical condition that sometimes distorts her speech. But there is nothing in the record to support this. Again, to the extent that the plaintiff testified in court to this effect, the court has ruled that such testimony exceeded the questions permitted by the court under § 4-183(i).
This, of course, assumes that the court permits the plaintiff's testimony in court on this point, which it does not. Her recollections on neck pain are outside the record.
The next contention raised by the plaintiff is that she was not arrested, because she was given a misdemeanor summons at the hospital and not at the Fairfield police station. The court rejects this argument because it was not raised before the hearing officer. 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 addition, the hearing officer's finding that an arrest occurred is sustainable under the substantial evidence rule discussed above. Clearly the plaintiff was given a misdemeanor summons pursuant to § 54-1h. (ROR, p. 13.)
The court also rejects the claim of the plaintiff that she was not operating her vehicle while intoxicated. Under the substantial evidence test, the record supports the hearing officer's finding of operation. She had been driving when she struck the wall and brush, and the officer appeared on the scene within five minutes thereafter. See Finley v. Commissioner of Motor Vehicles, 113 Conn.App. 417, 424, 966 A.2d 773 (2009).
The plaintiff's next contention is that the § 14-227b(c) requirement that "[i]f the person arrested refused to submit to such test or analysis, the [A-44] report shall be endorsed by a third person who witnessed such refusal" was not met. This requirement also requires that the witnessing officer be in the physical presence of the person when the refusal takes place. See Winsor v. Commissioner of Motor Vehicles, 101 Conn.App. 674, 684, 922 A.2d 330 (2007) (third party must be able to see and hear person verbally refuse).
At the DMV hearing, the plaintiff's friend testified (ROR, p. 91) that the witness, Irizarry, was, to the best of his recollection, out of the room and was talking to him in the hallway. In addition, the plaintiff points to the Fairfield refusal form, mentioned by the hearing officer in his decision, that Irizarry had signed. The time is given on the form as 4:08 a.m. for Irizarry's signature, before the time, 4:10 a.m., that the plaintiff signed and Officer Stalling signed.
On the other hand there is no proof in the record that Officer Irizarry was not in the room at the time of the actual oral refusal. Also, the plaintiff has not shown that the times given on the refusal form indicate the time when her oral refusal took place; the form shows only that a refusal occurred and when it was signed by the parties. The A-44 form recites that the refusal took place in Irizarry's presence. (ROR, p. 7.)
The plaintiff refused the urine test at or about 4:00 a.m. and the accident was about 1:30 a.m. Her next claim is that the test was not requested within two hours of her operation so that the request was invalid. The two-hour test limit of § 14-227b(c) and (g) has been held in several decisions not to apply to a situation where the person refuses to take the test. See, e.g., Tuttle v. Commissioner of Motor Vehicles, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 95 0555532 (June 28, 1996, Maloney, J.) [ 17 Conn. L. Rptr. 231]; Farnie v. Commissioner of Motor Vehicles, Superior Court, judicial district of New Haven, Docket No. 0382368 (September 16, 1996, Maloney, J.), aff'd per curiam, 47 Conn.App. 915, 702 A.2d 671 (1997).
The plaintiff testified in this court, but not at the DMV hearing. She claims that she was too emotionally distraught to testify before the hearing officer about her reasons for refusing the test. In this court, she related that Officer Stalling's request at 4:00 a.m. that she furnish a urine test was indecent and embarrassing. According to the plaintiff, she would have had to take the test on the spot in the room in which she had been detained. On the other hand, the plaintiff admitted in her testimony to this court (ROR, October 14, 2010 transcript, p. 26) that she just assumed that, if she had agreed to take the test, Officer Stalling would not have taken steps to protect her privacy. This evidence is too weak to support a claim of invasion of privacy. Further the cases foreclose the plaintiff's constitutional claims. See Fishbein v. Koslowski, 252 Conn. 38, 46, 743 A.2d 1110 (1999) (limited issues to be considered at DMV hearing); Altschul v. Salinas, 53 Conn.App. 391, 395, 730 A.2d 1171 (1999) (fourth and fifth amendment rights regarding illegal search do not apply to request to take test). The plaintiff was furnished a notice of rights at the time that she was first requested to give her urine test.
The decision of which test to offer is one for the police officer, not the person to be tested. See McCarthy v. Goldberg, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 91 0391898 (January 22, 1992, Maloney, J.).
The plaintiff also argues that she did not refuse in fact. Although she did not testify at the DMV hearing, she related in her testimony in court that Officer Stalling urged her to refuse. She claims that she was essentially "entrapped" into refusing. As indicated above, the court will not allow the plaintiff to expand the record on the issue of refusal by use of her court testimony. The record itself shows an express refusal and this should govern over a claim of refusal by conduct. See Findley v. Commissioner of Motor Vehicles, Superior Court, judicial district of New Britain, Docket No. CV 02 0514171 (August 26, 2002, Cohn, J.) (factual issue of refusal by conduct is not applicable to express refusal situation). The evidence showed a direct oral refusal. See Sanseverino v. Commissioner of Motor Vehicles, 79 Conn.App. 856, 832 A.2d 80 (2003).
Finally the plaintiff points to various inconsistencies in the record. For example, a block on the A-44 form records an answer from the plaintiff that she neither admitted nor denied that she was drinking prior to the accident, while the supplemental record states that the plaintiff had four or five cocktails. (ROR, p. 10.) A block on the A-44 does not show injury while Stalling noted that the plaintiff stated that she had neck pain. Such disparities are, however, to be resolved by the hearing officer and this court cannot overrule his resolution of the inconsistencies. See, e.g., Bancroft v. Commissioner of Motor Vehicles, 48 Conn.App. 391, 400, 710 A.2d 807 (1998); Volck v. Muzio, 204 Conn. 507, 529 A.2d 177 (1987).
For the foregoing reasons, the administrative appeal is dismissed.