Opinion
CV176037301S
02-06-2018
Gregory POMPEI v. COMMISSIONER OF the DEPARTMENT OF MOTOR VEHICLES
UNPUBLISHED OPINION
OPINION
Tanzer, J.T.R.
The plaintiff, Gregory Pompei, appeals from the final decision of the defendant, Commissioner of the Department of Motor Vehicles (commissioner), suspending the plaintiff’s operator’s license for forty-five days and requiring him to maintain an ignition interlock device (IID) in his vehicle for one year. The plaintiff claims that the commissioner erred by (1) admitting the A-44 form and its attachments (exhibit A) and (2) finding probable cause existed to arrest the plaintiff for operation while under the influence. The commissioner argues that substantial evidence supports the hearing officer’s admission of exhibit A into evidence and the hearing officer’s finding of probable cause to arrest the plaintiff for operation while under the influence. The court agrees with the commissioner on both points, and, accordingly, the appeal is dismissed.
" The A-44 form is used by the police to report an arrest related to operating a motor vehicle under the influence and the results of any sobriety test administered or the refusal to submit to such tests." Roy v. Commissioner of Motor Vehicles, 67 Conn.App. 394, 396 n.3, 786 A.2d 1279 (2001).
FACTS AND PROCEDURAL HISTORY
The following statement of facts is taken from exhibit A, admitted over plaintiff’s objection. On December 3, 2016, at approximately 1:49 a.m., Sergeant Keith Ashbey of the Groton Town Police Department was on duty and posted stationary in his patrol vehicle observing traffic on Library Street in Mystic. While observing the intersection of Library Street and Allyn Street, Sergeant Ashbey witnessed a vehicle (later identified as operated by the plaintiff) make a prohibited right turn on Allyn Street and proceed on Allyn Street at a high rate of speed. Sergeant Ashbey heard the " tires squealing" as the vehicle accelerated. Sergeant Ashbey followed the plaintiff and found his vehicle entering the on-ramp for Interstate 95 Southbound. He then observed the plaintiff’s operation of the vehicle for about one mile. Sergeant Ashbey observed the plaintiff’s vehicle wave side to side, cross over the line separating the center lane from the far right lane, and cross the fog line marking the breakdown lane. The vehicle then headed to the exit ramp and made a right turn at the base of the off-ramp.
Sergeant Ashbey activated his vehicle’s emergency lights and followed the plaintiff as he drove slowly towards and into a Mystic Marriott parking lot. Eventually, the plaintiff’s vehicle came to a stop and pulled into a parking spot after driving through the parking lot at an extremely slow rate of speed and failing to stop immediately for Sergeant Ashbey’s lights and siren. Sergeant Ashbey approached the driver’s side of the vehicle where he began his interaction with the plaintiff. Sergeant Ashbey immediately smelled " the strong odor of an alcoholic beverage emanating from the vehicle." He observed that the plaintiff’s eyes were " glassy and bloodshot" and the plaintiff’s speech was slurred. He also observed the plaintiff’s poor motor skills as he fumbled for paperwork in the vehicle to locate the vehicle’s registration. Sergeant Ashbey asked the plaintiff how much alcohol he consumed, to which the plaintiff responded " none." Sergeant Ashbey notified the plaintiff of his observations of the plaintiff’s driving and the illegal turn from Library Street.
When the plaintiff was asked where he had been in downtown Mystic, the plaintiff refused to answer. Sergeant Ashbey proceeded to conduct two pre-exit tests. Although the plaintiff performed one as instructed, he failed the finger dexterity test by reciting the order of numbers incorrectly. Sergeant Ashbey also observed that the plaintiff " missed touching the tips of his fingers" during the back count. Two officers, including Officer Holt, arrived on scene to assist Sergeant Ashbey. The plaintiff refused to perform any field sobriety tests and became argumentative when asked to exit the vehicle. The plaintiff denied he was operating erratically and informed Sergeant Ashbey that " it was impossible to smell the odor of alcohol." Sergeant Ashbey eventually arrested the plaintiff after forcing him out of his vehicle. Officer Holt transported the plaintiff to police headquarters, where the plaintiff confused Officer Holt over Sergeant Ashbey as the arresting officer.
Around 2:17 a.m., the plaintiff was advised of his rights and signed the notice and waiver of the rights. He was also read the implied consent advisory, to which he was argumentative about and demanded a blood test although he was offered a breath test. Around 2:28 a.m., the plaintiff telephoned a lawyer, but was unable to reach one. After time passed without a return call from a lawyer, Sergeant Ashbey asked the plaintiff whether he would submit to the breath test. The plaintiff agreed and submitted to the breath test under the condition that he receives a copy of the test results. Around 2:59 a.m., the plaintiff blew for 5.8 seconds, which resulted in the first breath test result reading of 0.1289. Over twenty minutes later, around 3:22 a.m., the plaintiff blew for 9.4 seconds, which resulted in the second breath test result of 0.1262. During the booking process, the plaintiff provided " rehearsed" reasons for why he was not intoxicated, which led Sergeant Ashbey to believe this was not the plaintiff’s first arrest for driving under the influence. The plaintiff commented on his cooperation and ability to recall details to support his lack of intoxication. The plaintiff also thanked the police officers for never " mishandling him" and appeared to have forgotten how he was removed from his vehicle. Sergeant Ashbey found the plaintiff’s " overall attitude was argumentative and poor."
On February 1, 2017, the commissioner held an administrative hearing to determine whether the plaintiff’s license should be suspended for failing a chemical alcohol test pursuant to General Statutes § 14-227b. The plaintiff was represented by counsel. The plaintiff testified before James Quinn, the hearing officer, and also submitted a disc containing a copy of an audio/video camera recording, which was recorded from the vehicle he was operating on the night of the arrest. (Exhibit 1.) At the hearing, the plaintiff challenged the admissibility of the A-44 form and contested the finding of probable cause. After the conclusion of the hearing and in consideration of the evidence introduced, the hearing officer issued the following findings of fact and conclusions of law: " (1) The police officer had probable cause to arrest the above-named operator [the plaintiff] for a violation specified in § 14-227b; (2) the operator was placed under arrest; (3) the operator submitted to the test of analysis and the results indicated a BAC of .08% or more; and (4) said person was operating the motor vehicle." The hearing officer also issued the following subordinate findings: " The [plaintiff] asserted that the police lacked probable cause to arrest him for DUI. In support, he submitted video from his dashboard camera, which does show the officer’s description of the [plaintiff’s] manner of operation. The video also shows the [plaintiff] exceeded the speed limit, did not obey the officer’s command to stop, and was argumentative with the officer. The [plaintiff’s] overall testimony was found to not be credible." Based on those factual findings, the hearing officer ordered the suspension of the plaintiff’s license for a period of forty-five days and installation of an IID for one year. The plaintiff filed a petition for reconsideration, which was denied. This appeal followed.
LAW AND DISCUSSION
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 this 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." Winsor v. Commissioner of Motor Vehicles, 101 Conn.App. 674, 679-80, 922 A.2d 330 (2007). " 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 ... Substantial evidence exists if the administrative record affords a substantial basis of fact from which the fact in issue can be reasonably inferred." (Internal quotation marks omitted.) Schallenkamp v. DelPonte, 229 Conn. 31, 39, 639 A.2d 1018 (1994).
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 PLAINTIFF’S CLAIMS
A. The A-44 Form and Attachments Thereto Are Inadmissible
At the hearing, when the A-44 motor vehicle form and its attachments were offered as an exhibit (exhibit A), the plaintiff objected to the admission of " this evidence in that it’s not reliable or probative. The A-44 form was dated six days subsequent to [the plaintiff’s] arrest. In addition in the narrative portion which is signed, it’s not dated."
First, the plaintiff argues that the A-44 form and its attachments are unreliable because they do not comply with § 14-227b(c). Section 14-227b(c) provides, in pertinent part, that the arresting officer " shall prepare a report of the incident and shall mail or otherwise transmit in accordance with this subsection the report and a copy of the results of any chemical test or analysis to the Department of Motor Vehicles within three business days ... The report shall be ... subscribed and sworn to under penalty of false statement as provided in section 53a-157b ... The report shall set forth the grounds for the officer’s belief that there was probable cause to arrest such person for a violation of [General Statutes § ] 14-227a ..."
The " evident purpose [of § 14-227b(c) ] is to provide sufficient indicia of reliability so that the report can be introduced into evidence as an exception to the hearsay rule, especially in license suspension proceedings, without the necessity of producing the arresting officer." Volck v. Muzio, 204 Conn. 507, 518, 529 A.2d 177 (1987). " If the report did not include such indicia of reliability, the report would not be admissible even before an administrative tribunal of this type." Bialowas v. Commissioner of Motor Vehicles, 44 Conn.App. 702, 712, 692 A.2d 834 (1997).
" [R]elying improperly on an inadmissible report to suspend a person’s license necessarily constitutes a violation of due process." (Emphasis in original.) Winsor v. Commissioner of Motor Vehicles, 101 Conn.App. 674, 688 n.11, 922 A.2d 330 (2007). " It is axiomatic that administrative tribunals are not strictly bound by the rules of evidence. [T]hey may consider exhibits [that] would normally be incompetent in a judicial proceeding, so long as the evidence is reliable and probative ... Although evidentiary rules are considered relaxed in administrative hearings, the conduct of the hearing must be fundamentally fair and cannot violate the fundamental rules of natural justice." (Internal quotation marks omitted.) Do v. Commissioner of Motor Vehicles, 164 Conn.App. 616, 624, 138 A.3d 359, cert. granted, 322 Conn. 901, 138 A.3d 931 (2016).
The plaintiff argues that proper procedure requires that the A-44 form and all attachments thereto be sworn to by the arresting officer at the same time. The A-44 form was signed and dated by Sergeant Ashbey, under oath, administered by Lieutenant Eric Zoleski, on December 9, 2016. The plaintiff points out that the narrative bears the sergeant’s signature and a subscription by Lieutenant Zoleski but it is not dated. The plaintiff contends exhibit A is, therefore, unreliable and inadmissible. In ruling on the admissibility of exhibit A, the hearing officer stated, " I’m looking at the narrative and it says ‘entered 12-3 modified 12-9,’ which is the same date as the A-44 form is sworn to, so I’m going to overrule your objection." The plaintiff argues that the record lacks reliable evidence to support the inference that the A-44 form and the attached narrative report were signed on the same date. Evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred. See Schallenkamp v. DelPonte, supra, 229 Conn. 40. The record does show that Sergeant Ashbey started the narrative report on the evening of the plaintiff’s arrest, December 3, 2016, at 9:11 p.m. The report was modified to completion on December 9, 2016, at 12:16 a.m., which is the same date the A-44 form was signed under oath. There was substantial evidence before the hearing officer to infer that the A-44 form and the attached narrative were signed on the same date and to conclude reasonably that exhibit A was reliable and admissible.
Next, although the plaintiff has not pressed the claim that exhibit A was not completed and mailed within three business days as required by § 14-227b(c), the commissioner has briefed the point because " the plaintiff’s brief infers that the A-44 form’s failure to be completed within three business days when the report was issued six days later makes the A-44 form and attachments inadmissible." The defendant correctly asserts that the failure to meet the time requirement of § 14-227b(c) has no impact on the admissibility of the A-44 form and its attachments. In Packard v. Dept. of Motor Vehicles, Superior Court, judicial district of New London, Docket No. CV-90-0514307-S (September 18, 1991, Tamborra, J.), aff’d, 29 Conn.App. 923, 616 A.2d 1177 (1992), the court considered whether a police report failed to comply with § 14-227b(c) three-day mailing requirement. Citing the Supreme Court’s holding in Volck v. Muzio, supra, 204 Conn. 518, the court in Packard found that because the administrative hearing is limited to the four issues found in § 14-227b(g), compliance with subsection (c) was not intended to be a prerequisite for suspension and concluded that the subsection solely bears on the " ‘reliability and trustworthiness of the report’ and " failure to comply with the three-day mailing rule has no impact on the ‘indicia of reliability.’ " This line of reasoning and conclusion applies with equal force to the failure to date the narrative attached to the A-44 form. Finally, the plaintiff argues that exhibit A is unreliable because evidence exists that highlights " inaccuracies and discrepancies" within the arresting officer’s report. In essence, the plaintiff disagrees with the observations and representations of the police officer that the plaintiff’s driving was erratic, that his eyes were glassy and bloodshot, and that he failed to perform pre-exit tests successfully. The plaintiff relies on the audio/video camera recording of the incident he introduced at the hearing. (Exhibit 1.)
" Because the reliability of the A-44 form is of the utmost importance, there may be instances in which an A-44 form contains so many significant internal discrepancies and errors that it is rendered unreliable, at least in the absence of testimony by the arresting officer or other evidence that supports its reliability." Do v. Commissioner of Motor Vehicles, supra, 164 Conn.App. 627. This is not such a case. In Do, the numerous factual errors and discrepancies contained in the A-44 form, rendered it unreliable and, thus, inadmissible in the absence of corroborating evidence. See id., 622. In this case, other than a missing date on the narrative attached to the A-44 form, the " errors and discrepancies" complained of are not contained within the four corners of the exhibit but rather arise from " discrepancies" between the officer’s sworn narrative and the plaintiff’s camera recording and testimony, the resolution of which goes to weight and credibility. " The credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency ..." Pizzo v. Commissioner of Motor Vehicles, 62 Conn.App. 571, 578, 771 A.2d 273 (2001). The hearing officer’s decision to admit exhibit A was within his discretion and he did not abuse that discretion because the report was reliable and probative. See Roy v. Commissioner of Motor Vehicles, 67 Conn.App. 394, 397, 786 A.2d 1279 (2001).
" Portions of the exhibit in all likelihood pertain to the arrest of another individual ... portions of the exhibit have been altered and initialed by an unknown person, and it is unclear whether this person had personalized knowledge of the incident and swore under oath to the accuracy of the alterations." Do v. Commissioner of Motor Vehicles, supra, 164 Conn.App. 629-30.
B. There Was No Probable Cause To Arrest The Plaintiff For Operating While Under The Influence Of Alcohol
The hearing officer found " (1) the police officer had probable cause to arrest the operator, [the plaintiff], for a violation operating while under the influence of alcohol; (2) the operator was placed under arrest; (3) the operator submitted to the test of analysis and the results indicated a BAC of .08% or more; and (4) [the plaintiff] was operating the motor vehicle." The plaintiff challenges only the first finding by asserting that there was no evidence to support a finding of probable cause to arrest for operation while under the influence. The commissioner counters that exhibit A provided substantial evidence to satisfy the hearing officer’s determination of probable cause.
" [O]ur case law clearly establishes that sufficient evidence justifying the commissioner’s determination of probable cause may be found where the totality of the circumstances existing at the time of the plaintiff’s arrest support[s] [such a finding] ..." (Emphasis added; internal quotation marks omitted.) Murphy v. Commissioner of Motor Vehicles, supra, 254 Conn. 345, citing Kirei v. Hadley, 47 Conn.App. 451, 457, 705 A.2d 205 (1998).
Probable cause exists when the facts and circumstances within the knowledge of the officer and of which he has reasonably 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. See Clark v. Muzio, 40 Conn.Supp. 512, 514-15, 516 A.2d 160 (1986), aff’d, 14 Conn.App. 212, 540 A.2d 1063, cert. denied, 208 Conn. 809, 545 A.2d 1105 (1988); see also Kolakowski v. Hadley, 43 Conn.App. 636, 643, 685 A.2d 689 (1996). Most important for the probable cause finding is noting that " [t]he credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency, and this court cannot disturb the conclusions reached by the commissioner if there is evidence that reasonably supports his decision." Kirei v. Hadley, supra, 47 Conn.App. 457.
The plaintiff asserts that the police lacked probable cause to arrest him for operating under the influence of alcohol. He argues that Sergeant Ashbey’s probable cause determination was based on observations of erratic operation, an odor of alcoholic beverage, and the plaintiff’s performance on two pre-exit tests. The plaintiff relies on State v. Dalzell, 96 Conn.App. 515, 527, 901 A.2d 706 (2006), rev’d on other grounds, 282 Conn. 709, 924 A.2d 809 (2007), for the proposition that Sergeant Ashbey’s observations are indistinguishable from otherwise innocent conduct and lack a sufficient level of trustworthiness to give rise to the objective level of probable cause required to justify an arrest for violation of § 14-227a.
In Dalzell, the court held that police did not have probable cause to arrest the defendant for operating a motor vehicle while under the influence of drugs after he was stopped for a seatbelt violation. The factors for probable cause, as articulated by the arresting officer were that " the defendant’s pupils were contracted, his nose was red around the nostrils and running, it was taking more than few seconds but less than one minute for the defendant to retrieve his license, registration and proof of insurance, and there was a rolled up-dollar bill in the center console of the vehicle." Id., 529. The court held that these factors, " all of which are indistinguishable from otherwise innocent conduct," failed to provide the officer with probable cause to arrest under the totality of circumstances. Id., 530. Some similar factors are present in this case, to wit, bloodshot eyes, fumbling to retrieve a license and slow response time. Dalzell, however, is distinguishable because in this case, exhibit A and/or exhibit 1 contain evidence of much more, to wit, the plaintiff’s irregular driving speeds, belligerent manner, bloodshot eyes, slurred speech, failure to respond to the officer’s emergency signal, failure to exit from the vehicle, inability to recall events, his claim that alcohol does not have an odor, and failure in performing one of the pre-exit sobriety tests. Those factors, if believed, could provide the officer with probable cause to arrest under the totality of the circumstances.
The plaintiff also relies on his own testimony at the hearing and on the audio/video camera recording. The thrust of the plaintiff’s argument is directed at the alleged inconsistencies and discrepancies between the events reported in the narrative attached to the A-44 form and the events set forth in the contents of the camera recording. He details the discrepancies and argues that the arresting officer’s observations were highly dramatized or even fabricated. The commissioner, on the other hand, details instances in which the officer’s observations are consistent with the camera recording. The transcript of the hearing indicates that plaintiff’s counsel argued that many of the instances noted in the police officer’s report are a " bit embellished." The hearing officer stated, " the officer has exaggerated the manner of operation. Although, I did note in the video that at one point the vehicle did hit eighty-three miles per hour." In his testimony, the plaintiff attempted to explain or rebut arresting officer’s observations.
[Hearing Officer Quinn]: " [O]n the night in question did you have a drink?
Plaintiff: ... I did not have a substantial amount of alcohol.
Quinn: The question was, you were drinking?
Plaintiff: I, um, I had been at places that serve alcohol.
Quinn: Did you drink any alcohol at the places that you went to that served alcohol?
Plaintiff: No.
Plaintiff: I have constant chronic redness ... my eyes are constantly, constantly red.
Quinn: I’m supposed to be seeing this now?
Plaintiff: ... They’re always red, so
Quinn: ... I’m supposed to believe that you have red eyes even though right now I see that you don’t have red eyes?"
These excerpts from the transcript make clear that the hearing officer considered and weighed all the evidence presented including the testimony of the plaintiff and the contents of the audio/video camera recording. " An administrative agency has a right to believe or disbelieve the evidence presented by any witness ... in whole or in part." Briggs v. State Employees Retirement Commission, 210 Conn. 214, 217, 554 A.2d 292 (1989). " The credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency, and this court cannot disturb the conclusions reached by the [hearing officer] if there is evidence that reasonably supports his decision." (Internal quotation marks omitted.) Pizzo v. Commissioner of Motor Vehicles, supra, 62 Conn.App. 578. " [T]he possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence ..." (Internal quotation marks omitted.) Frank v. Dept. of Children & Families, 312 Conn. 393, 411-12, 94 A.3d 588 (2014).
The court has also viewed the video and listened to the audio, the contents of which provide a reasonable basis for a finding of probable cause by the arresting officer and ultimately by the hearing officer. Viewing the record in its totality as required, there is substantial evidence to establish probable cause to arrest the plaintiff for operating under the influence. See Pizzo v. Commissioner of Motor Vehicles, supra, 62 Conn.App. 579-80.
CONCLUSION
The commissioner did not err in admitting exhibit A. The hearing officer’s finding that there was probable cause to arrest the plaintiff for operating while under the influence was supported by substantial evidence. See Murphy v. Commissioner of Motor Vehicles, supra, 254 Conn. 343-45. The plaintiff has failed to meet his burden of proving, under § 4-183(j), that any substantial right was violated by the agency’s findings and decision. Accordingly, the plaintiff’s appeal is dismissed.