Opinion
HHBCV176040477S
10-31-2018
Samara LAYLA v. COMMISSIONER OF MOTOR VEHICLES
UNPUBLISHED OPINION
Gleeson, J.
I
FACTS AND PROCEDURAL HISTORY
The plaintiff, Samara Layla, appeals from the decision of the defendant, the Commissioner of the Department of Motor Vehicles (commissioner), suspending the plaintiff’s driver’s license for forty-five days and requiring the use of an ignition interlock device for six months for operating a motor vehicle while under the influence of drugs or alcohol. The sole issue raised is the validity of the blood alcohol test results. For the reasons set forth below, the court affirms the commissioner’s decision and dismisses the appeal.
The record reveals the following facts and relevant procedural history. On September 22, 2017, at approximately 2:13 a.m., Viamares Kowalczyk, a Connecticut State Trooper, was dispatched to a single-car accident that occurred on Saybrook Road in the town of Haddam. When Trooper Kowalczyk arrived on the scene, she observed a blue Honda Civic with front-end damage parked off of Saybrook Road in the right shoulder area. The Honda had struck and taken down a lighted street sign that was located off of the roadway at the intersection of Saybrook Road and Route 81.
Upon approaching the vehicle, Trooper Kowalczyk spoke to a female seated in the driver’s seat, who was identified by her driver’s license to be the plaintiff. Trooper Kowalczyk identified a female in the passenger seat as Leah Kent (Kent). The plaintiff stated that it was Kent’s birthday and that they were coming from a party in Middletown when "they" drove over a curb. At that time, Trooper Kowalczyk observed that the plaintiff’s eyes were glossy and detected an odor of alcohol on the plaintiff’s breath as she spoke. The plaintiff initially denied drinking alcohol that night, and stated that Kent was the one driving when the accident occurred, but that they had switched seats prior to the police officer’s arrival at the scene. Trooper Kowalczyk then asked Kent to clarify the incident and Kent began to cry and act emotional. The plaintiff repeated that they had been at a party and then admitted that she had consumed two to three alcoholic beverages earlier that night.
Trooper Kowalczyk then approached the passenger side and asked Kent to exit the vehicle to speak with her. When speaking with Kent, Trooper Kowalczyk smelled an odor of alcoholic beverage, and observed that Kent’s eyes were glossy and that her speech was slurred. When Trooper Kowalczyk advised Kent that she wanted to administer a standardized field sobriety test, Kent asked why she was being tested when she was not driving at the time of the accident, and identified the plaintiff as the driver. Trooper Kowalczyk again asked the plaintiff if she was driving and the plaintiff admitted "fine fine yes I was the one driving" at the time of the accident. Upon the plaintiff’s exiting the Honda, Trooper Kowalczyk again asked the plaintiff if she was sure that she was the one driving, and she responded "yes yes." The plaintiff also stated that she was sorry, repeated that she was the one driving, and agreed to take the field sobriety test.
Additionally, Kent told Trooper Haroian, the other trooper at the scene, that she, Kent, had driven to the party, but that the plaintiff had driven from the party and that the plaintiff was driving the Honda when the accident occurred.
Trooper Kowalczyk administered three standardized field sobriety tests- the horizontal gaze nystagmus test, the walk and turn test, and the one leg stand test- to the plaintiff on Saybrook Road in an area that was flat, dry, free of obstruction, and illuminated by the low beams of Trooper Kowalczyk’s vehicle. The plaintiff failed all three standardized field sobriety tests and was placed under arrest for driving under the influence of alcohol or drugs. During transport to Troop F, the plaintiff became argumentative, yelling that she was disappointing her father and that she was not the one driving. The plaintiff tried to put her feet on the dashboard and yelled, asking why the trooper did not just leave them alone.
The plaintiff was also charged with failure to maintain proper lane, in violation of General Statutes § 14-236. That charge is not at issue in this appeal.
Upon arrival at Troop F, the plaintiff was read her notice of rights at 3:23 a.m., which she then signed and indicated that she understood. The plaintiff declined the opportunity to speak with an attorney and was read the implied consent advisory, which she stated she understood. The plaintiff then submitted to two breathalyzer tests administered by Trooper Kowalczyk using an Alcotest 9510 machine (machine). The tests yielded blood alcohol levels of 0.1612 at 3:35 a.m. and 0.1549 at 3:56 a.m. The test strip indicated "DIAGNOSTIC OK" at both the commencement of the testing at 3:29 a.m. and at the conclusion of the testing at 3:57 a.m. Trooper Kowalczyk reported that while in custody, the plaintiff "was very argumentative, disrespectful and would raise her voice." The report states that during a post-arrest interview, the plaintiff admitted that she smoked marijuana that morning and that she consumed two whiskey and coke drinks after not having eaten anything the entire day.
The plaintiff was processed, issued a court date, and released on a $1,000 nonsurety bond. Hours following her release from custody, the plaintiff returned to Troop F and voluntarily submitted a signed affidavit changing her story again, stating that she was not the operator of the motor vehicle at the time of the accident. The affidavit stated in relevant part: "Due to both of us drinking that night we panic[k]ed and we were not sure what we were doing."
The plaintiff does not contest the hearing officer’s finding of operation under General Statutes § 14-227b(g) in this appeal.
Thereafter, the commissioner issued a suspension notice to the plaintiff for failing a chemical alcohol test pursuant to General Statutes § 14-227b, and offered her a hearing. On October 27, 2017, the commissioner held an administrative hearing to determine whether the plaintiff’s license should be suspended. The plaintiff was present and was represented by counsel. Trooper Kowalczyk was present under the plaintiff’s subpoena and testified at the hearing. At the hearing, the plaintiff’s counsel objected to the admission of the test results strip on the ground that the bottom of the strip stated "TEST ABORTED. REALTIME CLOCK ERROR." The commissioner’s hearing officer entered Trooper Kowalczyk’s Form A-44 and attachments (report), which included the test strip, into evidence over the objection. The hearing officer also admitted, at the plaintiff’s request, a copy of a cover from a manual, entitled "Alcotest 9510 Technical Manual, Washington State, Version 3.2, For Use by Washington State Breath Test Program for training and legal purposes," together with a four-page excerpt therefrom, entitled "Troubleshooting Table, Alcotest 9510 software status code/error table for Washington."
"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).
The plaintiff called Kent as her sole witness. Kent was represented at the hearing by her father, Attorney Dave Kent, who objected to a number of the questions directed to Kent on fifth amendment grounds.
Kent’s testimony was not relevant to the sole issue in this appeal.
The hearing officer issued a decision in which he made the following five findings: that the police officer had probable cause to arrest the plaintiff for a violation specified in § 14-227b; that the operator was placed under arrest; that the operator submitted to a test or analysis and the results indicated a blood alcohol content of 0.08 percent or more; that the plaintiff was operating the motor vehicle; and that the plaintiff was not under twenty-one years of age. In addition, the hearing officer made the following subordinate finding: "Notwithstanding a claim to the contrary, results printed on the test strip are found to be reliable. As to [the] issue of operation, [the] respondent is found to be the operator based upon her admission at the time of accident to Trooper Kowalczyk." The plaintiff appeals. The sole issue raised is the reliability of the blood alcohol test results.
II
ANALYSIS
This appeal is brought under General Statutes § 4-183 of the Uniform Administrative Procedure Act (UAPA). Accordingly, "[j]udicial review of the commissioner’s action ... is very restricted ... [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 Connecticut Supreme 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." (Citation omitted; internal quotation marks omitted.) Murphy v. Commissioner of Motor Vehicles, 254 Conn. 333, 343, 757 A.2d 561 (2000).
Under § 4-183(j) of UAPA, "the court may not substitute its judgment for that of the commissioner and must affirm the commissioner’s decision unless it is clearly erroneous in view of the reliable, probative and substantial evidence on the whole record ..." (Internal quotation marks omitted.) Tompkins v. Commissioner of Motor Vehicles, 60 Conn.App. 830, 834, 761 A.2d 786 (2000).
"General Statutes § 14-227b, commonly referred to as the implied consent statute, governs license suspension hearings. Section 14-227b(g) provides in relevant part that [t]he hearing shall be limited to a determination of the following issues: (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 ... [A] license suspension hearing is expressly limited to [these] four issues ..." (Internal quotation marks omitted.) Santiago v. Commissioner of Motor Vehicles, 134 Conn.App. 668, 674, 39 A.3d 1224 (2012).
In this case, the hearing officer affirmatively found that each of these requirements was met. The standard of proof under UAPA is not so exacting as in a criminal case, where proof beyond a reasonable doubt is required. O’Rourke v. Commissioner of Motor Vehicles, 33 Conn.App. 501, 508, 636 A.2d 409, cert. denied, 229 Conn. 909, 642 A.2d 1205 (1994). In an administrative hearing, "the agency need only produce probative and reliable evidence to ensure that the proceedings are fundamentally fair." (Internal quotation marks omitted.) Id.
"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 [in determining the issue of probable cause] ... The law is also well established that if the decision of the commissioner is reasonably supported by the evidence it must be sustained." (Citations omitted; internal quotation marks omitted.) Murphy v. Commissioner of Motor Vehicles, supra, 254 Conn. 343-44.
"In determining whether an administrative finding is supported by substantial evidence, a court must defer to the agency’s right to believe or disbelieve the evidence presented by any witness, even an expert, in whole or in part." (Internal quotation marks omitted.) Lomen v. Commissioner of Motor Vehicles, 61 Conn.App. 213, 218, 763 A.2d 676 (2000).
The plaintiff’s sole argument is that the breathalyzer results were invalid because a message printed on the test strip, "TEST ABORTED. REALTIME CLOCK ERROR," means that the test was ended before completion, requiring Trooper Kowalczyk to seek a technician to proceed with the test. In support of this argument, the plaintiff relies on a dictionary definition of "aborted" and the troubleshooting chart from the Alcotest 9510 Technical Manual for Washington State.
The commissioner argues that the plaintiff’s brief does not cite to the four-part test set forth in § 14-227b(g) and is merely a recital of the complaint, which offers no authority or substantive discussion in support of her claim that the test results are unreliable. The commissioner points to the testimony of Trooper Kowalczyk as substantial evidence that the breathalyzer test results were reliable and argues that the Alcotest 9510 Technical Manual for Washington State does not apply to the state of Connecticut.
Courts have interpreted the inadequate briefing of an issue to constitute its abandonment. See Connecticut Light & Power Co. v. Dept. of Public Utility Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003) ("We repeatedly have stated that [w]e are not required to review issues that have been improperly presented to this court through an inadequate brief ... Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly ... Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned ... These same principles apply to claims raised in the trial court." [Citation omitted; internal quotation marks omitted.] )
The record reflects that Trooper Kowalczyk testified that she attended the police academy, was trained on how to administer a breath test, and was trained and certified to operate the Alcotest 9510. She testified that the machine self-calibrates before and after each breath test, which results in messages indicating that the machine was working properly. She denied that the test was aborted and indicated that she completed two tests, each of which indicated an elevated blood alcohol content. Trooper Kowalczyk testified based on her training and experience that if there was a problem with the machine, an error message would appear on the computer screen during the testing. Trooper Kowalczyk testified that she was familiar with these error messages and was trained to address errors that came up on the machine. She testified that no such error message appeared during the testing, and if it had, she would not have continued the test. She was unfamiliar with the Washington State training manual and had never seen the Washington troubleshooting table before.
The court agrees that the plaintiff’s brief provided only a cursory analysis at best, and the court did not find the plaintiff’s argument to be persuasive. Trooper Kowalczyk testified that the machine was working properly and that she completed the two tests. The test strip admitted at the hearing demonstrated that the Alcotest 9510 gave results indicating "DIAGNOSTIC OK" both before and after the samples given by the plaintiff, in keeping with Trooper Kowalczyk’s testimony that the machine self-calibrates before and after every test, indicating that the machine was working properly. The two blood alcohol content results were consistent with each other, as were the times of administration, and the times indicated were consistent with the time of the plaintiff’s arrival at Troop F. In addition, there was ample other evidence of the plaintiff’s intoxication to support the reliability of the tests, including her accident, her glossy eyes, the odor of alcohol, her behavior, her verbal and written admissions to drinking, and her poor performance on the field sobriety tests. Moreover, the plaintiff offered no expert testimony to contradict the reliability of the test results, and there is no evidence in the record to suggest that the error codes contained in the Washington State troubleshooting table are applicable to the machine used by the Connecticut state trooper in this case. Finally, the hearing officer was entitled to credit Trooper Kowalczyk’s testimony over the information contained in the Washington State troubleshooting table submitted by the plaintiff in determining that the test results were reliable. See Lomen v. Commissioner of Motor Vehicles, supra, 61 Conn.App. 218.
III
CONCLUSION
For the reasons stated above, there is substantial evidence in the record to support the commissioner’s finding that the alcohol test results were reliable. Accordingly, the court affirms the commissioner’s decision and dismisses the appeal. Judgment may enter accordingly.