Opinion
HHBCV156030194S
01-20-2016
Larry Chiagouris v. Commissioner of Motor Vehicles
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Carl J. Schuman, Judge
The plaintiff, Larry Chiagouris, appeals from the decision of the defendant commissioner of motor vehicles (commissioner) suspending the plaintiff's driver's license for forty-five days and requiring that he maintain an ignition interlock device for one year based on his refusal to take a breath test. For the reasons stated below, the court sustains the appeal and reverses the commissioner's decision.
I
The record reveals the following historical facts. (Return of Record (ROR), Officers OUI Report and attachments.) On July 2, 2015, at approximately 7:15 p.m., an employee of the McDonald's in Clinton observed a man, later identified as the plaintiff, in an inebriated condition waiting in line at the counter. Another employee asked him if he was driving and he said " no, " swaying while he spoke to her. Customers observed the plaintiff eating at a table and then having difficulty attempting to leave the restaurant. At 7:37 p.m., a customer called 911 when she observed the plaintiff, whom she described as " really drunk" and " wreaking of alcohol, " walk outside and get into a blue BMW.
Unfortunately, the record is not Bates-stamped.
Police arrived at 7:42 p.m. and observed the plaintiff in the vehicle without the engine on or the keys in the ignition. For the next nineteen minutes, the police attempted to have the plaintiff open the door, roll down his window, or produce his keys. The plaintiff failed in these attempts, repeatedly asked for his keys, and kept putting his finger to his ear, motioning that he was having difficulty hearing. Finally, the police informed the plaintiff that they would have to break one of the windows to gain access. At that point, the plaintiff opened the car door and stumbled out of the vehicle, emitting a strong odor of alcohol.
The officer asked the plaintiff how long he was at McDonald's but the plaintiff could not recall. When asked how he got to McDonald's, the plaintiff replied: " I drove." The officer then found the keys to the car under the driver's seat. The plaintiff refused to answer whether he would submit to field sobriety testing.
The officer placed the plaintiff under arrest for operating under the influence. The plaintiff nonetheless attempted to walk away from the scene and then screamed when an officer held him by the arm. The plaintiff's wife arrived and claimed that she was with him " 40 minutes prior" at a picnic and that she had three cans of diet sprite in a cooler in her car.
In the police cruiser, the plaintiff screamed that an officer had hit him in the head. The plaintiff refused to leave the vehicle at the police station and screamed when the officers assisted him in that process. At the booking area, the officer attempted to read the plaintiff his rights. The plaintiff kept interrupting and stated that he could not hear. He claimed that he had a hearing aid, but the officer did not see one in his ear. The plaintiff refused to let the officer read him anything. As a result, according to the officer's report, the officer could not successfully read him his rights or " move forward with the A-44 form which also provided him an opportunity to call an attorney."
Around this time, which was approximately 9:15 p.m., a police sergeant attempted to read the plaintiff the Miranda rights. The plaintiff repeated his claim that he could not hear and also continued to argue and change the subject. The sergeant stood next to the plaintiff and yelled the rights into his ear. The plaintiff responded by asking " why are you yelling?" and complained that the sergeant was squeezing his arm. The plaintiff finally indicated that he understood his Miranda rights and agreed to be processed and tested further. However, the sergeant, according to his report, then " attempted to ask [the plaintiff] if he would try to submit to sobriety testing or the A-44 process but he refused."
The officers soon learned that the plaintiff had urinated on the floor of his cell and had spit water from a fountain all over the floor. An attorney for the plaintiff then arrived and he had a normal conversation with the plaintiff. The plaintiff had no issues hearing. After that meeting, the sergeant asked the plaintiff in a normal tone to stand for a photograph and the plaintiff did so without any complaints that he could not hear.
After a hearing, a hearing officer for the department of motor vehicles (department) found that the police had probable cause to arrest the plaintiff for operating under the influence, that the plaintiff was placed under arrest, that the plaintiff refused a chemical test, and that the plaintiff was operating the motor vehicle. The hearing officer made the following subordinate finding: " The [plaintiff] admitted to driving his vehicle to McDonald's. Time of operation is not an issue and the respondent refused to submit to a test to measure BAC. The police report documents the respondent's lack of cooperation throughout all contact with the police officers." (ROR, department decision.) Accordingly, the department suspended the plaintiff's driver's license for forty-five days and ordered that the plaintiff maintain an ignition interlock device for one year.
Effective July 1, 2015, General Statutes § 14-227b provides in relevant part: " (i)(1) The commissioner shall suspend the operator's license or nonresident operating privilege of a person who did not contact the department to schedule a hearing, who failed to appear at a hearing, or against whom a decision was issued, after a hearing, pursuant to subsection (h) of this section, as of the effective date contained in the suspension notice, for a period of forty-five days. As a condition for the restoration of such operator's license or nonresident operating privilege, such person shall be required to install an ignition interlock device on each motor vehicle owned or operated by such person and, upon such restoration, be prohibited from operating a motor vehicle unless such motor vehicle is equipped with a functioning, approved ignition interlock device, as defined in section 14-227j, for the longer of either (A) the period prescribed in subdivision (2) of this subsection for the present arrest and suspension, or (B) the period prescribed in subdivision (1), (2) or (3) of subsection (g) of section 14-227a for the present arrest and conviction, if any . . .
The plaintiff appeals.
II
Under the Uniform Administrative Procedure Act (UAPA), General Statutes § 4-166 et seq., judicial review of an agency decision is " very restricted." (Internal quotation marks omitted.) MacDermid, Inc. v. Dept. of Environmental Protection, 257 Conn. 128, 136-37, 778 A.2d 7 (2001). Section 4-183(j) of the General Statutes provides as follows: " 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."
Stated differently, " [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 [the appellate] 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." (Internal quotation marks omitted.) Okeke v. Commissioner of Public Health, 304 Conn. 317, 324, 39 A.3d 1095 (2012). " It is fundamental that a plaintiff has the burden of proving that the [agency], on the facts before [it], acted contrary to law and in abuse of [its] discretion." (Internal quotation marks omitted.) Murphy v. Commissioner of Motor Vehicles, 254 Conn. 333, 343, 757 A.2d 561 (2000).
III
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).
The plaintiff challenges the hearing officer's findings on all but the second issue on appeal. The court first addresses the fourth issue concerning operation. " An accused operates a motor vehicle within the meaning of . . . § 14-227a(a) when, while under the influence of alcohol or any drug and while in the vehicle and in a position to control its movements, he manipulates, for any purpose, the machinery of the motor or any other machinery manipulable from the driver's position that affects or could affect the vehicle's movement, whether the accused moves the vehicle or not." (Citations omitted; internal quotation marks omitted.) State v. Roth, 104 Conn.App. 248, 251 n.3, 932 A.2d 1071 (2007). " [M]ere insertion of the key into the ignition is an act . . . which alone or in sequence will set in motion the motive power of the vehicle . . . and, therefore, itself constitutes operation of the vehicle." (Internal quotation marks omitted.) Sengchanthong v. Commissioner of Motor Vehicles, 281 Conn. 604, 610-11, 917 A.2d 942 (2007).
The definition of " operating" is the same for both § 14-227a and § 14-227b. Id., 611.
Under these standards, there can be no valid claim--and the commissioner makes none--that the plaintiff was operating the vehicle when the police discovered him in the driver's seat at McDonald's, as the engine was not running and the keys were not in the ignition. To establish operation, the commissioner instead relies on the plaintiff's own admission that he drove to McDonald's. The plaintiff's admission to operation constitutes substantial evidence to support the hearing officer's finding of operation, thus satisfying the standard of review on this issue. See Murphy v. Dept. of Motor Vehicles, 254 Conn. 333, 343, 757 A.2d 561 (2000) (" 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 . . ."). [Internal quotation marks omitted.] See also id., 347 (" The absence of witnesses to the plaintiff's operation of the vehicle is not dispositive on the issue of operation").
The real question in this case is not the fourth issue of operation in and of itself but rather the first issue of whether there is substantial evidence of probable cause to arrest the plaintiff for operating a motor vehicle while under the influence. In order for probable cause to exist in this situation, there must be a " temporal nexus between liquor and operation." Murphy v. Commissioner of Motor Vehicles, 54 Conn.App. 127, 132, 733 A.2d 892 (1999), rev'd, 254 Conn. 333, 757 A.2d 561 (2000). To be sure, " there is no requirement that the fact of operation be established by direct evidence"; Murphy v. Commissioner of Motor Vehicles, supra, 254 Conn. 345; and " [t]he absence of witnesses to the plaintiff's operation of the vehicle is not dispositive on the issue of operation." Id., 347. However, " [a]lthough the police officer may draw any reasonable, logical inferences from the facts observed, he may not resort to mere speculation or conjecture, particularly . . . where there is no evidence of a temporal nexus between liquor and operation." Murphy v. Commissioner of Motor Vehicles, supra, 54 Conn.App. 132. See also State v. Grant, 286 Conn. 499, 511, 944 A.2d 947 (2008) (" Probable cause, broadly defined, [comprises] such facts as would reasonably persuade an impartial and reasonable mind not merely to suspect or conjecture, but to believe that criminal activity has occurred"). [Internal quotation marks omitted.]
Although our Supreme Court reversed the Appellate Court's decision in Murphy, it did so by applying the same " temporal nexus" standard. Murphy v. Commissioner of Motor Vehicles, supra, 254 Conn. 347.
The commissioner claims that the hearing officer's finding on the first issue should stand, and that the requisite temporal nexus exists, because there was sufficient evidence that the plaintiff drove himself to McDonald's under the influence. In making this claim, however, the commissioner crosses the border from the permissible area of making reasonable inferences into the prohibited zone of resorting to speculation. It is true that there was sufficient evidence that the plaintiff drove himself to McDonald's, and there was overwhelming evidence that the plaintiff was under the influence while at McDonald's as of 7:15 p.m. However, at the time of the plaintiff's arrest there was no evidence of the time--even approximately--when the plaintiff drove to McDonald's. While several witnesses saw the plaintiff at McDonald's, no one saw him arrive. No witness saw the plaintiff drive or alight from his vehicle or walk from his vehicle to the car. It would be sheer speculation or conjecture, on which the court cannot rely; Murphy v. Commissioner of Motor Vehicles, supra, 54 Conn.App. 132; to say that the plaintiff arrived shortly before he appeared in line at the restaurant at 7:15 p.m. From the evidence at the time of the arrest, it is just as plausible to believe that the plaintiff arrived hours earlier, turned off his car, and sat and drank.
The commissioner points to the fact that the plaintiff's wife told the police that she was with the plaintiff " 40 minutes prior" at a picnic. Even if this comment could provide evidence as to when the plaintiff drove to McDonald's, the court cannot consider it. Our 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. Because the wife's comment occurred after the time of the plaintiff's arrest, it cannot support the hearing officer's decision on this issue. In sum, there was a lack of substantial evidence to support the hearing officer's finding that there was probable cause to arrest the plaintiff for operating under the influence.
The police reports do not note the exact time of arrest, but they do reveal that it had to occur at least nineteen minutes after the police arrived at 7:42 p.m., which would mean after 8:01 p.m. " 40 minutes prior" to this point would place the plaintiff's arrival at McDonald's at approximately 7:20 p.m. or later. While this evidence is somewhat in conflict with the employee's statement that she saw the plaintiff in line at approximately 7:15 p.m., the wife's statement does suggest that the plaintiff's drive to McDonald's was a recent occurrence.
IV
Although it is perhaps unnecessary to address the issue of refusal, the court will do so briefly in the event of further proceedings. A refusal to take a chemical test may be by conduct or it may be express. See O'Rourke v. Commissioner of Motor Vehicles, 156 Conn.App. 516, 525, 113 A.3d 88 (2015). In this case, there was sufficient evidence to support the hearing officer's finding of a refusal by conduct based on the plaintiff's " lack of cooperation throughout all contact with police officers." The plaintiff relies on the fact that the police apparently did not complete the informed consent advisory and inform the plaintiff of which test they wanted him to take. However, just as a motorist cannot manipulate the process by delaying his decision indefinitely; see id., 532; a motorist should not control the process by boorish behavior. Here, the plaintiff's conduct in interrupting the officers, screaming, arguing, pretending that he could not hear, and feigning injury prevented the officers from providing him the information that he now contends he should have received. The plaintiff should not benefit from this sort of disruptive performance by avoiding the consequences of a refusal. Instead, the plaintiff should bear the responsibility for his own actions. Accordingly, the hearing officer reasonably concluded that the plaintiff refused a chemical test by conduct.
III
The court sustains the appeal and reverse the commissioner's decision.
It is so ordered.
(2)(C) a person, regardless of age, who refused to submit to a test or analysis shall install and maintain an ignition interlock device for the following periods: (i) For a first suspension under this section, one year; (ii) for a second suspension under this section, two years; and (iii) for a third or subsequent suspension, under this section, three years."