Opinion
HHBCV175018201S
09-01-2017
Keval Patel v. Commissioner of Department of Motor Vehicles
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Sheila A. Huddleston, Judge.
The plaintiff, Keval Patel, appeals from the final decision of the defendant, commissioner of the department of motor vehicles (commissioner), suspending his operator's license for forty-five days and requiring him to maintain an ignition interlock device in his vehicle for one year. The plaintiff claims that the commissioner erred by finding that the plaintiff refused a chemical alcohol test. He also argues that he did not fail a chemical alcohol test because he submitted to only one urine test. The commissioner argues that substantial evidence supports the commissioner's finding. The commissioner further argues that the standard cited by the plaintiff for the admissibility of chemical alcohol test results applies only to criminal charges under General Statutes § 14-227a, not to administrative proceedings under General Statutes § 14-227b. The court agrees with the commissioner on both points, and accordingly, the appeal is dismissed.
FACTS AND PROCEDURAL HISTORY
Evidence in the administrative record supports the following factual summary: The plaintiff was arrested on October 15, 2016, after the vehicle he was operating rear-ended another vehicle near the intersection of Westfield and Broad Streets in Meriden, Connecticut, at approximately 4:09 p.m. Record (R.), p. 8. The person whose vehicle was struck by the plaintiff's vehicle told police that the vehicle that had struck her had driven around her into an intersection and a passenger had exited the plaintiff's vehicle and " took off across the street." R., p. 14. A police officer located the plaintiff's vehicle parked across the westbound lane on an angle near the intersection. It had sustained minor front end damage. The vehicle was running and the plaintiff, whom the officer recognized, was the operator of the vehicle. R., p. 14. The police officer approached the vehicle and smelled a strong odor of marijuana coming from within the vehicle. He could also see green leafy pieces resembling marijuana in the vehicle. The plaintiff was exhibiting a number of signs of being under the influence of marijuana, including blood-shot and glossy eyes, difficulty in concentrating and explaining his actions, and confusion and nervousness. R., p. 14. Although the plaintiff denied using marijuana or other drugs, the police officer, with the plaintiff's permission, looked in the center console of the vehicle and found a marijuana grinder with marijuana residue and an aftermarket ash tray with portions of two marijuana cigarettes in it. R., pp. 14-15.
The A-44 and police reports use military time, reporting the time of the accident as 1609, the time of the first urine test as 1710, and the time of refusal of the second test as 1739. See R., pp. 8-9. The court has converted all times to civilian time.
Based on the plaintiff's appearance and the apparent marijuana found in the vehicle, the police officer administered field sobriety tests, which the plaintiff failed. He was then placed under arrest for driving while impaired and other charges and taken to the Meriden police station. R., pp. 8, 15.
At the station, after being advised of his rights and offered an opportunity to call an attorney, the plaintiff was provided the A-44 form, and the arresting officer read the " implied consent" section to him. The plaintiff then read the A-44 form himself and stated that he would take a urine test. R., pp. 8, 15. The officer escorted him to a toilet, where he urinated into the toilet and then into the cup at about 5:19 p.m. He was advised to save some urine because he would have to repeat the test within a short time. R., pp. 8, 15.
After giving the first urine sample, the plaintiff was placed in a temporary cell with a telephone book so he could continue to look for an attorney if he wished to do so. When he was removed from the cell, he made a call to an attorney but was unable to reach one. He was then asked to provide a second urine sample. After initially stating he did not have to urinate, the plaintiff agreed to try, but in fact simply stood there with the container in his hand, making no effort. After about ten minutes, the officer advised him that he had to take the second test or his conduct would be considered a refusal. A second officer was called into the cell. The plaintiff insisted that he was not refusing but was unable to urinate. He was then offered water from two different water fountains, which he finally accepted. He was advised to run water over his fingers, which he did, but he stated that it did not help. After another ten minutes, he was advised that it was " now or never" and that his conduct would be put down as a refusal. He stated that he could not do it. A second officer witnessed his refusal on the A-44 form. The time of the second test was reported as 5:39 p.m. R., pp. 8, 15. A test of the first urine sample was positive for cannabinoids. R., p. 10.
The plaintiff subsequently requested an administrative hearing, which was held on December 6, 2016. R., p. 23. The plaintiff appeared without counsel. The A-44 packet, including the police report, was introduced into evidence. R., p. 24.
The plaintiff testified at the hearing, disputing many of the statements in the police report. As to the report concerning the second urine test, the plaintiff testified that he did not refuse but was unable to urinate. He testified that he asked for water but was told that the officer could not give him water. He testified that the second officer told him he could drink soiled toilet water and said " that's the only water you're getting." R., p. 30. He claimed that the officer did not allow him to take a second urine test because he did not have all day to wait for the plaintiff. R., p. 31.
After the hearing, the hearing officer issued a ruling, finding that (1) the police officer had probable cause to arrest the plaintiff for a violation specified in General Statutes § 14-227b; (2) the plaintiff was placed under arrest; (3) the plaintiff refused to submit to chemical test or analysis; and (4) the plaintiff was operating the vehicle. R., p. 22. He ordered the plaintiff's operator's license suspended for 45 days and ordered an ignition interlock device to be installed and maintained in the plaintiff's vehicle for a year. R., p. 22. The plaintiff requested reconsideration, which was denied. R., pp. 34-35, 36. This appeal followed.
ANALYSIS
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 [the 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." (Internal quotation marks omitted.) Id.
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."
" General Statutes § 14-227b, commonly referred to as the implied consent statute, governs license suspension hearings." Santiago v. Commissioner of Motor Vehicles, 134 Conn.App. 668, 674, 39 A.3d 1224 (2012). 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. Buckley v. Muzio, 200 Conn. 1, 7, 509 A.2d 489 (1986). In this case, the hearing officer affirmatively found that each of these requirements was met.
The standard of proof under the UAPA is not so exacting as in a criminal case, where proof beyond a reasonable doubt is required. See O'Rourke v. Commissioner of Motor Vehicles, 33 Conn.App. 501, 508, 636 A.2d 409 (1994). In an administrative hearing, " the agency need only produce probative and reliable evidence to ensure that the proceedings are fundamentally fair." Id.
Our Supreme Court has clearly and repeatedly held that a license suspension hearing under § 14-227b is strictly limited to the four issues identified in § 14-227b(g). See, e.g., Buckley v. Muzio, 200 Conn. 1, 7-9, 509 A.2d 489 (1986) (reversing a trial court's decision sustaining an appeal of a license suspension on ground that operator did not understand the legal consequences of refusing a breath test; holding that " [t]he language of General Statutes § 14-227b[(g)] is plain and unambiguous. The hearing is expressly limited to the four issues enumerated above"); Schallenkemp v. DelPonte, 229 Conn. 31, 41-42, 639 A.2d 1018 (1994) (failure to comply with a regulation requiring certification of officer who administers breath test was not a basis for overturning commissioner's decision when the four elements required by § 14-227b are established); Fishbein v. Kozlowski, 252 Conn. 38, 47-50, 743 A.2d 1110 (1999) (lack of reasonable and articulable suspicion for investigatory stop would not be a basis for overturning license suspension if, after the stop, officer had probable cause to arrest).
In this appeal, the plaintiff relies on Bialowas v. Commissioner of Motor Vehicles, 44 Conn.App. 702, 692 A.2d 834 (1997), the plaintiff argues the record lacks substantial evidence of a refusal to submit to a chemical test under General Statutes § 14-227b. The department disagrees, arguing that the police report attached to the A-44 form adequately describes conduct that the hearing officer could reasonably construe as a refusal to take the second test. The court agrees with the defendant.
In Bialowas, the narrative supplement to the A-44 stated that the plaintiff " was explained all necessary procedures but failed to give a sufficient breath sample on three separate occasions . . . therefore resulting in a refusal of the test." Bialowas v. Commissioner of Motor Vehicles, supra, 44 Conn.App. 706. The police officer completing the form indicated that the plaintiff " was very uncooperative and would not sign any necessary papers." (Internal quotation marks omitted.) Id. In that case, the plaintiff testified that after his first breath test attempt, the officer changed the intoximeter nozzle. After the second attempt, with the new nozzle, the officer told the plaintiff to " try again, " and after the third attempt, said " that's enough." Id. The court concluded that there was evidence that the plaintiff took the test and no evidence that the equipment was working properly. Under those circumstances, the court held as follows: " [W]here it is undisputed that the motorist submitted to the chemical alcohol test, the fact that he failed to provide an adequate breath sample does not automatically constitute refusal within the meaning of § 14-227b." Id., 714-15. In such a circumstance, additional evidence was needed to support a conclusion that the failure to provide sufficient breath was, in fact, a refusal to take the test. Id., 716-17.
In this case, unlike Bialowas, there is a description of the conduct from which the hearing officer could infer a refusal to take the second test. The arresting officer reported, in a sworn incident report, that the plaintiff was advised to save some urine for a second test when he took the first test. After producing the first sample, he was then placed in a cell and spent some time looking through a telephone directory for an attorney. He then was allowed to attempt a call to an attorney before he was asked to produce a second urine sample. When first asked for the second sample, he said that he did not have to urinate. He stood in front of a toilet for approximately ten minutes without making an effort to urinate. He was then warned that failing to produce a second sample would be construed as a refusal. A second officer then entered the cell to observe. The plaintiff said that he was not refusing but did not need to urinate. He was offered water from two different fountains. He initially refused to drink but later accepted water. He then simply stood there without making an attempt to urinate. He was advised to run his fingers under water, which he did, but he claimed that did not help. After another ten minutes or longer, he was advised that it was now or never. He stated that he could not do it. His statement was then recorded as a refusal and witnessed by the second officer. R., pp. 15-16.
The plaintiff's account was quite different from that in the A-44 form. He claimed that he was initially refused water and then offered only soiled toilet water to drink. He claimed that he did not refuse but simply could not produce a second urine sample. R., p. 30. He had also testified inconsistently with the police report on many other points, claiming that there was not a strong odor of marijuana coming from the car, that he did not smell of marijuana, that he did not consent to a search of the car, that he was not under the influence of any drugs, and that the officer did not find small pieces of green plant-like substances in the car. R., pp. 26-29. In addition to the officer's contradictory sworn narrative report, however, the record also included a toxicology report indicating that the first urine specimen contained cannabinoids and a list of evidence seized during the plaintiff's arrest, including but not limited to pieces of two marijuana cigarettes, a marijuana grinder with residue, a bag of very small black bands, and $1,094 in cash. R., pp. 10-13. This evidence supported the police officer's written account of the arrest.
Whether a plantiff's actions constituted a refusal to submit to a chemical alcohol test presents a question of fact, and this court's review is therefore limited to determining whether substantial evidence supported the hearing officer's finding. O'Rourke v. Commissioner of Motor Vehicles, 156 Conn.App. 516, 524, 113 A.3d 88 (2015). " 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, 62 Conn.App. 571, 578, 771 A.2d 273 (2001). " [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. Dep't of Children & Families, 312 Conn. 393, 411-12, 94 A.3d 588 (2014). In this case, the hearing officer was free to disbelieve the plaintiff's version of the events and to credit the information in the sworn police report.
It is clear, moreover, that a refusal to take a second test, even when a person has submitted to a first test, constitutes a refusal for purposes of General Statutes § 14-227b. See Ellam v. Commissioner of Motor Vehicles, 47 Conn.App. 509, 514-16, 704 A.2d 257 (1998) (evidence that plaintiff refused second breath test by uncooperative conduct provided substantial evidence to support a finding of refusal under § 14-227b).
The plaintiff further argues that the police prevented him from providing a second sample by refusing to wait longer. The Appellate Court has held, however, that " [n]othing in General Statutes § 14-227b . . . stands for the proposition that, following operation, an operator must be afforded two hours in which to determine whether to submit to chemical alcohol testing or that, absent an express refusal, it is unreasonable to conclude that a refusal has occurred prior to the expiration of such time period." O'Rourke v. Commissioner of Motor Vehicles, supra, 156 Conn.App. 532. In light of O'Rourke, and in light of the evidence in the police report in this case, the court is not persuaded by the plaintiff's argument that he was subjected to an arbitrary time limit.
The plaintiff also argues that the toxicology report was inadmissible. Although he purports to cite General Statutes § 14-227b(b), in fact the long block quotation on page seven of his brief is a quotation from General Statutes § 14-227a(b), which governs the admissibility of evidence of alcohol or drugs in a defendant's blood or urine " in any criminal prosecution." General Statutes § 14-227b, which governs administrative proceedings concerning license suspensions, contains no such restriction. It is governed by the more relaxed standards of the UAPA, which allows evidence that would not be admissible in a criminal prosecution. See General Statutes § 14-227b(c) (authorizing commissioner to accept a police report produced in accordance with requirements of that section); see also General Statutes § 4-178(3) and (4) (permitting use of written and documentary evidence in administrative proceedings). The Supreme Court has recognized that § 14-227b, not § 14-227a, governs the admissibility of evidence in an administrative license suspension hearing. See Schallenkemp v. DelPonte, supra, 229 Conn. at 41-43.
Finally, at oral argument in this appeal, the plaintiff argued that he should have been required to maintain an ignition interlock device for only six months because the results of the first test indicated the presence of marijuana in his system. Compare General Statutes § 14-227b(i)(2)(A)(ii) (for first suspension based on evidence of elevated blood alcohol content, ignition interlock device required for six months) with General Statutes § 14-227b(i)(2)(C)(i) (for first suspension based on refusal to submit to test, ignition interlock device required for one year). The short answer to this novel argument is that the hearing officer found that the plaintiff refused the second test and therefore properly required the plaintiff to maintain an ignition interlock device for one year pursuant to § 14-227b(i)(2)(C)(i). In any event, the plaintiff did not make this argument to the hearing officer or in his brief on appeal, and this argument is therefore unpreserved for appellate review. See Solomon v. Connecticut Medical Examining Board, 85 Conn.App. 854, 862, 859 A.2d 932 (2004), cert. denied, 273 Conn. 906, 868 A.2d 748 (2005) (plaintiff cannot make claim on appeal that was not presented to agency below).
CONCLUSION
The commissioner's finding that the plaintiff refused the second urine test was supported by substantial evidence. The plaintiff has failed to meet his burden of proving, under General Statutes § 4-183(j), that any substantial right was violated by the agency's findings and decision. Accordingly, the plaintiff's appeal is dismissed.