Opinion
No. HHB CV 07 4014109 S
November 8, 2007
MEMORANDUM OF DECISION
I
The petitioner, Paul Carroccia, a Connecticut motorist, appeals this decision of the Commissioner of Motor Vehicles, suspending Carroccia's motor vehicle license for ninety days, and also his opportunity to operate a commercial vehicle for one year. The Commissioner's actions were based on Carroccia's having been stopped April 20, 2007, at approximately 10:35 P.M. by Officer Blaerski of the Plainville, Connecticut police department. After the officer performed field sobriety tests, he arrested Carroccia and transported him for further processing to the Plainville police department.
Officer Blajerski, in his written report, stated two tests were substantially over the legal limit, but he failed to report the results of three additional tests. Subsequently, on April 27, 2007, Carroccia was notified that his Connecticut motor vehicle license was suspended for ninety days and his commercial license would be revoked for a year. Through his counsel, Carrocia sought a hearing before the Commissioner, which was convened on May 16, 2007, before Attorney T.R. Paulding. During this administrative hearing, the record discloses that only two tests were reported by the police and admitted into evidence over the objection of Carroccia. No mention was made in the police officer's affidavit/reports of the results of the other tests.
The hearing Officer noted that the record revealed difficulties with the operation of the intoxilyzer and specifically that Officer Blajerski, in his written report submitted under oath, did not mention any problems with the operation of the equipment, which Attorney Paulding described as "misleading aspects of seme of the [police] reports." Additionally, the hearing officer noted, "I do have to indicate that I would be taking administrative notice of the fact that I have an awareness of the workings of the machine. Mr. Thompson [counsel for Canoccia] probably knows that I was a prosecutor for many years. I do know, they obviously had problems here . . ." The hearing officer noted his personal familiarity with the workings of the intoxilyzer and further observed, "What I know about these intoxilizers is that if these tests do not fall within that range, the machine aborts and it will not test your breath." While the hearing officer determined that it was "troubling" that no mention of these additional [tests] was made in the police report, he concluded that these license suspensions were legally proper.
II
Two issues raised by Carroceia's appeal are first, whether the hearing officer's admission of the chemical test results was appropriate, and second, whether the hearing officer's reference, both during the hearing and in his written decision to his personal knowledge of the workings of the blood alcohol testing machine was proper.
General Statutes § 14-227b(c) requires that, following an arrested person's consent or refusal to submit to a blood alcohol test, "[t]he police officer shall prepare a written report of the incident and shall mail 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 made on a form approved by the Commissioner of Motor Vehicles and shall be subscribed and sworn to under penalty of false statement as provided in [General Statutes § 153a-157b by the arresting officer." (Emphasis added.)
Section 14-227b-19 of the Regulations of Connecticut State Agencies, concerning admissibility of police reports and chemical test results at the Motor Vehicle Department hearing, provides that "[t]he written report filed by the arresting officer shall be admissible into evidence at the hearing if it conforms to the requirements of subsection (c) of Section 14-227b of the General Statutes . . . The chemical test results in the form of the tapes from a breath analyzer or other chemical testing device submitted contemporaneously with the written report shall be admissible into evidence at the hearing if they conform to the requirements of subsection (c) of Section 14-227b of the General Statutes."
This regulation has been interpreted to imply its negative, that is, if a police report or chemical test does not comply with the provisions of subsection (c) of General Statutes § 14-227b, it will be found to be inadmissible at a hearing before the department. Winsor v. Commissioner of Motor Vehicles, 101 Conn.App. 674, 680, 922 A.2d 330 (2007). In Winsor, at issue was the provision of General Statutes § 14-277b(c) requiring that "[i]f the person arrested refused to submit to [a blood alcohol test], the report shall be endorsed by a third person who witnessed such refusal." The Appellate Court found that the endorser, who watched the refusal via closed circuit television, had not properly witnessed the refusal, and that therefore, the police report was not prepared in compliance with subsection (c), and was therefore not admissible at the hearing. Id., 687-88. The court stated that "[c]ompliance with General Statutes § 14-227b(c) is designed to provide sufficient indicia of reliability so that the report can be introduced in evidence as an exception to the hearsay rule, especially in license suspension proceedings, without the necessity of producing the arresting officer . . . If the report [does] not include such indicia of reliability, the report [is not] admissible even before an administrative tribunal . . ." (Internal quotation marks omitted.) Id., 687.
Here, Attorney Paulding found that the police report, with attachment of only two of the five results, did not comply with the requirements of General Statutes § 14-227b(c) and he made reference to this failure in his subordinate findings. See ROR, p. 36. However, in his consideration of the unprovided chemical tests, he stated: "However, if one objectively assesses the two tests leading to results, the requisite indicia of reliability can be found." ROR, p. 36. Section 14-227b-19 of the Regulations of Connecticut State Agencies makes clear that a hearing officer should not parse a police report or chemical test result that does not comply with General Statutes § 14-227b(c) for some indicia of reliability, but rather, must not consider it at all. In this matter, Carroccia objected to the admission of the chemical test results, but was overruled.
Before the court is the independent introduction of evidence by the hearing officer himself. Following Carroccia's presentation of evidence, Attorney Paulding stated: "I appreciate your argument. There are certainly some issues here which have to be described as troubling, and that is the misleading aspect of some of the reports. What I do want the record to reflect, just so Mr. Carroccia is also aware, I'm, I guess in year 27 of doing this now. I do have to indicate that I would be taking administrative notice of the fact that I have an awareness of the workings of the machine. Mr. Thompson [petitioner's counsel] probably knows I was a prosecutor for many years. I do know, they obviously had problems here. But when they finally go to the point whether this machine worked, what occurs is that the operator runs a liquid through the machine, which is provided by the state lab, and it precisely points .100. And then the machine has to test that liquid anywhere within range of .095 to .105. If it falls within that range, those are what Mr. Thompson and I refer to as external standard, which have to be performed before and after each test. What I also know about these intoxilizers is that if those tests do not fall within that range, the machine aborts and it will not test your breath. So that on the one hand I have to look at as evidence of a machine which purportedly functioning properly. On the other hand, Attorney Thompson has now raised some substantial issues. It is correct to state I would have like to see something in the report about these three extra printouts." ROR, pp. 19-20.
Carroccia argues that this procedure was improper because he did not receive notice of the hearing officer's adoption, and thus, Carroccia did not have an opportunity to contest all of the test results. "Agency members are prohibited from relying on nonrecord material facts about a dispute before them . . ."; Wasfi v. Dept. of Public Health, 60 Conn.App. 775, 782, 761 A.2d 257 (2000). This record is bereft of any evidence that Carroccia received any opportunity to respond to the hearing officer's use of administrative notice. — The noticed material was discussed and adopted at the very end of the hearing. ROR, p. 20. The failure to give a party the opportunity to respond to a finding of administrative notice is sufficient ground for remand to the agency. West Hartford v. Freedom of Information Commission, 218 Conn. 256, 264-65 A.2d 1368 (1991).
Upon our review of the entire record, and after oral argument, we conclude that the admission of the A-44 Report and chemical tests did not comply with General Statutes § 14-277b(c) and was thus inadmissible under § 14-277b-19 of the Regulations of Connecticut State Agencies. Bialowas v. Commissioner of Motor Vehicles, 44 Conn.App. 702, 712-17 (1997). There is error and an order of remand for further proceedings not inconsistent with this opinion may enter.
SO ORDERED.