Opinion
HHBCV176036681S
01-08-2018
Christopher THOMPSON v. CONNECTICUT DEPARTMENT OF MOTOR VEHICLES
UNPUBLISHED OPINION
OPINION
Sheila A. Huddleston, Judge
The plaintiff, Christopher Thompson, appeals from the final decision of the defendant, the Department of Motor Vehicles (department), suspending his driver’s license for forty-five days and ordering him to maintain an ignition interlock device in his vehicle for one year in accordance with General Statutes § 14-227b. The plaintiff was arrested when a state trooper responded to a report of a one-car accident and found the plaintiff sitting in his vehicle, which had crashed into a fixed object. The plaintiff challenges the department’s findings that he operated a motor vehicle and that there was probable cause to arrest him for operating a motor vehicle under the influence of alcohol. The department argues that substantial evidence in the record supports the findings. For the reasons discussed below, the court concludes that substantial evidence in the record supports the department’s findings, and accordingly, the appeal is dismissed.
PROCEDURAL HISTORY
The plaintiff was arrested in the early morning hours of December 18, 2016, when a state trooper, responding to an anonymous report of an accident on Route 8, found the plaintiff in his vehicle, which had crashed into a fixed object at exit 21 on Route 8 northbound in Seymour. The trooper determined that the plaintiff was intoxicated and arrested him for violations of General Statutes § 14-227a (operating a motor vehicle under the influence of drugs or alcohol) and General Statutes § 14-236 (failure to maintain proper lane). The department subsequently advised the plaintiff that his license would be suspended for forty-five days and he would be required to maintain an ignition interlock device in every vehicle he owned or operated for one year. The plaintiff requested an administrative hearing to challenge the suspension. The hearing was held on January 18, 2017. The plaintiff was represented by counsel. The department introduced the A-44 form and attached reports. The plaintiff did not object to the evidence submitted by the department. There was no testimony at the hearing. After the department submitted the A-44 form, the plaintiff’s counsel argued that the evidence did not support findings of operation or probable cause to arrest. On January 19, 2017, the department, through its hearing officer, issued its final decision, 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 a chemical alcohol test; and (4) the plaintiff was operating the motor vehicle. The plaintiff then brought this appeal, claiming that the record lacks substantial evidence to support the department’s findings of operation and probable cause.
" 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 tests 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
The following summary of facts is drawn from the A-44 form and the attached investigation and crash reports, which constituted all of the evidence before the hearing officer. Return of Record (ROR), pp. 21-31, and Supplemental Record.
The record as originally filed omitted the second page of the A-44 report. The plaintiff did not object to the department’s motion to supply the second page of the A-44 as a supplement to the record.
At approximately 4:35 a.m. on December 18, 2016, Troop I dispatch received a 911 call regarding a red SUV that was allegedly traveling all over the road on Route 8 northbound near the Exit 21 ramps. ROR, p. 24. A " short moment later, " Troop I received a 911 call regarding a possible one-car accident on Route 8 northbound at the Exit 21 area in Seymour, Connecticut. ROR, pp. 24, 29. Trooper Roman Gray was dispatched to investigate the possible accident. ROR, p. 24. While he was traveling to the accident scene, Troop I informed him that the red SUV might have stopped in the left lane near the Exit 22 off ramp. Gray did not locate the red SUV and continued on to the scene of the reported accident. ROR, p. 24.
Gray arrived at the accident scene at approximately 4:48 a.m. ROR, p. 24. He saw a white Nissan Rogue at rest in the right gore area of Exit 21 of Route 8 northbound. He observed that the conditions were dark, the road was wet, traffic was light, and visibility was clear with intermittent light rain. ROR, p. 24. The road was level and straight. ROR, p. 30. The Nissan had sustained moderate damage to its front end and its right rear tail light was hanging on wires. ROR, p. 24. The vehicle had struck a fixed object. ROR, p. 30.
A " gore area" is " [t]he paved triangular area between the through lane and the exit lane, plus the graded area beyond the gore nose." Connecticut Department of Transportation Highway Design Manual (2003 Ed.), Glossary, GL-12 (page 612 of 630), item 26, found at http://www.ct.govidot/lib/dotidocuments/dpublicationsihighway/cover.pdf (last visited January 8, 2018).
The evidence before the hearing officer did not identify the " fixed object" but indicated that the collision caused disabling damage to the front end of the plaintiff’s vehicle. ROR, p. 30.
Gray approached the Nissan on the driver’s side, where he observed a male, later identified as the plaintiff, sitting in the driver’s seat. ROR, p. 24. Gray detected a strong odor of alcohol and observed that the plaintiff’s eyes were bloodshot and glossy. ROR, p. 24. Gray asked the plaintiff what had happened, but the plaintiff appeared to be very intoxicated and his speech was heavily slurred. ROR, p. 24. The plaintiff was slow to respond to a request for his license and registration. ROR, p. 24. Gray asked the plaintiff where he was coming from. The plaintiff stated that he was coming from New Haven. ROR, p. 24. Gray then asked the plaintiff what he was doing in New Haven, and the plaintiff said that he had been at a Christmas party. ROR, p. 24. He admitted that he had been drinking and said that he had had two or three beers. ROR, p. 24.
A Seymour police officer, Officer McCabe, and Gray’s duty supervisor, Sergeant Prusinowski, separately arrived at the accident scene. ROR, pp. 23, 25. Gray conducted three field sobriety tests, each of which the plaintiff failed. When Gray instructed the plaintiff not to move his head during the horizontal gaze nystagmus test, the plaintiff said that he could not do it because he was drunk and he had been drinking. After conducting the sobriety tests, Gray placed the plaintiff under arrest at approximately 5:17 a.m. A tow truck was called to tow the Nissan from the scene. ROR, pp. 25-27.
The plaintiff was advised of his rights, then transported to Troop I. ROR, p. 26. At Troop I, he was again advised of his rights, which he acknowledged in writing. He was read the implied consent advisory section on the A-44 form and then was asked if he wanted to speak to an attorney. The plaintiff said yes but contacted his mother and did not call his lawyer. ROR, p. 27. He then refused to take the chemical alcohol test. His refusal was witnessed by Gray and Trooper Henriques, who also asked the plaintiff if he refused the test. The plaintiff repeatedly stated that he refused to take the test. ROR, p. 27.
SCOPE OF REVIEW
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 the facts required under § 14-227b(g) for a license suspension.
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, cert. denied, 229 Conn. 909, 642 A.2d 1205 (1994). In an administrative action, " the agency need only produce probative and reliable evidence to ensure that the proceedings are fundamentally fair." (Internal quotation marks omitted.) Id.
DISCUSSION
A
Operation
The plaintiff’s first claim on appeal is that the record lacks substantial evidence to support the finding that he operated the motor vehicle. As our appellate courts have repeatedly held, proof of operation is a question of fact to be decided on a case-by-case basis. See Murphy v. Dept. of Motor Vehicles, supra, 254 Conn. 344; O’Rourke v. Commissioner of Motor Vehicles, supra, 33 Conn.App. 505. " [T]here is no requirement that the fact of operation be established by direct evidence. On the contrary, 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] ..." (Footnote omitted; internal quotation marks omitted.) Murphy v. Dept. of Motor Vehicles, supra, 254 Conn. 345. " The absence of witnesses to the plaintiff’s operation of the vehicle is not dispositive on the issue of operation." Id., 347. " [I]t is often the case that police officers investigate § 14-227a violations after an intoxicated driver has ceased operating the vehicle." Id.
The plaintiff argues that none of the indicia of operation customarily discussed in such cases is present here. He argues that Gray did not witness him operating the vehicle and the vehicle was inoperable when Gray arrived on the scene. The evidence does not indicate that the engine was on when Gray arrived, or that the hood of the car was warm, or that the key was in the ignition.
What the plaintiff overlooks is the circumstantial evidence observed by the trooper. It is undisputed that the plaintiff was alone in the vehicle when Gray arrived at the scene. Gray observed that the plaintiff was seated in the driver’s seat. The plaintiff’s vehicle had struck a fixed object and sustained disabling damage to the front end. It can reasonably be inferred that the plaintiff was operating the vehicle when the accident occurred that rendered his vehicle inoperable. See O’Rourke v. Commissioner of Motor Vehicles, supra, 33 Conn.App. 508 (defendant could reasonably infer that the plaintiff had been operating his vehicle at the time of the accident that left his vehicle immobilized and in need of a tow); Schuh v. Commissioner of Motor Vehicles, 48 Conn.App. 547, 549-50, 711 A.2d 743, cert. denied, 245 Conn. 924, 718 A.2d 21 (1998) (sufficient evidence of operation on a public highway when plaintiff was discovered in driver’s seat of stopped vehicle on grassy slope five or six feet off main travel portion of highway). In this case, substantial evidence in the record supports the department’s finding that the plaintiff was operating the vehicle when it crashed into a fixed object.
B
Probable Cause
The plaintiff also claims that the finding that there was probable cause for his arrest is unsupported by substantial evidence. He does not deny that there was substantial evidence of his intoxication; rather, he asserts that there no evidence as to when his accident occurred and therefore whether there was a temporal nexus between his consumption of intoxicating liquor and his operation of the vehicle. At the administrative hearing, the plaintiff’s counsel argued that the plaintiff could have had his accident considerably earlier and then sat in the disabled car and drank. ROR, p. 16.
On appeal, the plaintiff focuses on a single paragraph in the police report, which stated: " At approximately 0435 hours, Troop I dispatch received a 911 call regarding a red SUV that was traveling all over the road on Route 8 Northbound near the Exit 21 ramps. A short moment later Troop I received a 911 call regarding a possible one-car accident on Route 8 northbound, Exit 21 area. Troop I dispatched me to the call. While traveling to the accident scene, Troop I informed me that the red SUV might have stopped in the left lane near the Exit 22 off ramp. I did not located the red SUV and proceeded to the accident scene. By this information I determined that the Nissan Rogue bearing CT registration [redacted] was at the accident scene for no longer than 5 minutes before the passer-by called 911." ROR, p. 24.
The plaintiff argues that the information provided by the anonymous 911 callers could not properly be considered reasonably trustworthy evidence; that the information regarding the 911 calls is too contradictory and ambiguous to lead to any rational conclusion; and that other evidence in the record is insufficient to support a reasonable inference as to the time of the accident. The department argues, in response, that the evidence in the record supports an inference that other travelers on the road were calling in traffic conditions on Route 8 as they occurred, and that the officer could reasonably conclude that the plaintiff’s accident occurred shortly before it was called in. The department further argues that other substantial evidence in the record supports the finding of probable cause, without reference to the 911 calls.
" 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 ..." (Internal quotation marks omitted.) Murphy v. Commissioner of Motor Vehicles, supra, 254 Conn. 343.
" 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." (Internal quotation marks omitted.) Id., 343-44.
Our Supreme Court has stated that " [p]robable 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 ... Reasonable minds may disagree as to whether a particular [set of facts] establishes probable cause." (Internal quotation marks omitted.) Id., 344. " To establish probable cause, it is not necessary to produce a quantum of evidence necessary to convict." (Internal quotation marks omitted.) Kirei v. Hadley, 47 Conn.App. 451, 456, 705 A.2d 205 (1998).
" Probable cause exists when there are facts and circumstances within the officer’s knowledge, and of which he has trustworthy information, sufficient to justify the belief of a reasonable person that an offense has been or is being committed ... The probable cause test then is an objective one ... While probable cause requires more than mere suspicion ... the line between mere suspicion and probable cause is often fine and that line necessarily must be drawn by an act of judgment formed in the light of the particular situation and with account taken of all the circumstances ... The process [of determining probable cause] does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusions about human behavior; jurors as factfinders are permitted to do the same- and so are law enforcement officers. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement." (Citations omitted; internal quotation marks omitted.) State v. Pierog, 33 Conn.App. 107, 115, 634 A.2d 301, 304-05 (1993), cert. denied, 228 Conn. 920, 636 A.2d 851 (1994).
The plaintiff relies on State v. DeCoster, 147 Conn. 502, 504-05, 162 A.2d 704 (1960), to support his claim that there is insufficient evidence of the temporal nexus between his intoxication and his operation of the vehicle. In DeCoster, the defendant was found slumped over the steering wheel of his car, intoxicated, on a public street. The engine was turned off; there was damage to the car on the right side and both tires on that side were flat. No one had seen the defendant operating his car, and there was no evidence as to how long the car had been standing in the place where it was found. The Supreme Court observed that " [t]ime was an element of importance. The state assumed the burden of proving not only that the defendant was operating the car but also that he was under the influence of liquor at the time. This element was not satisfied by showing that he was intoxicated when he was found by the officer." Id., 505. DeCoster, however, was a criminal case in which the state bore the burden of proving guilt " beyond a reasonable doubt, that is, by such proof as precludes every reasonable hypothesis except that which it tends to support." Id. But administrative actions are not criminal cases. As the Appellate Court held, in declining to extend DeCoster, an agency is not required to prove each element beyond a reasonable doubt, but " need only produce probative and reliable evidence to ensure that the proceedings are fundamentally fair." O’Rourke v. Commissioner of Motor Vehicles, supra, 33 Conn.App. 508.
The plaintiff also relies on Prendergast v. Commissioner of Motor Vehicles, 172 Conn.App. 545, 160 A.3d 1087 (2017), and Chiagouris v. Commissioner of Motor Vehicles, Superior Court, judicial district of New Britain, Docket No. CV-15-6030194-S (January 20, 2016, Schuman, J.) (61 Conn.L.Rptr. 686). In Prendergast, the Appellate Court held that substantial evidence supported a finding of probable cause that the plaintiff had operated his vehicle under the influence of alcohol when the plaintiff was found, asleep and intoxicated, in a vehicle that matched the description of a vehicle that had been involved in an accident some two hours earlier. Prendergast v. Commissioner of Motor Vehicles, supra, 172 Conn.App. 552-53. The evidence included the plaintiff’s intoxication when he was found, his admission that he had traveled from Meriden to Hamden, and the fact that his car had damage that was consistent with a description of damage to a vehicle that had sideswiped another car some two hours earlier. In Chiagouris, the plaintiff was seen in an intoxicated state in a McDonald’s restaurant, and then was observed getting in a car by a concerned customer who called the police. When the police arrived, the plaintiff was seated in his vehicle but the engine was not on and the keys were not in the ignition. There was no evidence as to when the plaintiff had arrived at the McDonald’s. The trial court concluded that there was no evidence of the temporal nexus between the plaintiff’s ingestion of alcohol and his operation of his car, and sustained the plaintiff’s appeal on the ground that there was no probable cause for his arrest.
Neither Prendergast n or Chiagouris compels the conclusion that the evidence was insufficient for a finding of probable cause in this case. In Prendergast, the plaintiff’s own statements were considered in determining that there was sufficient evidence of probable cause. In Chiagouris, there was no evidence as to whether the plaintiff had ingested alcohol before operating his vehicle, which had not been involved in an accident.
In this case, the plaintiff contends that the only evidence relative to the temporal nexus of his intoxication and his operation of the vehicle is in the paragraph which discusses the 911 calls. That paragraph is not as ambiguous as the plaintiff contends. It indicates that at least two separate 911 calls, and possibly a third, were made by travelers on Route 8 within a few minutes of each other. The first caller reported a red SUV that was allegedly driving erratically near the Exit 21 ramps on Route 8 northbound. A second caller, a " short moment later, " reported a possible one-car accident at the Exit 21 ramp on Route 8 northbound. While the trooper was on his way to the accident scene, he received further information that the red SUV might have stopped in the left lane near Exit 22 northbound. The report does not state whether this additional information came from the first 911 caller or a subsequent caller. The trooper did not see a red SUV as he proceeded on to the accident scene, but he did find the plaintiff’s vehicle, disabled from its accident, at the site described in the second 911 call. The trooper appears to have inferred that the plaintiff’s accident had not yet occurred when the first 911 call reported the red SUV near Exit 21 but occurred between the first 911 call and the second 911 call, which were only " a short moment" apart.
As the plaintiff argues, the trooper was not able to corroborate the information provided by the first 911 caller concerning the red SUV. The plaintiff acknowledges that questions regarding anonymous informants usually arise in the context of criminal cases, where the court must determine whether an investigatory stop was supported by a reasonable and articulable suspicion as required by Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and State v. Lamme, 216 Conn. 172, 194, 579 A.2d 484 (1990), a question not at issue in this case. The plaintiff nevertheless argues that the insufficiently corroborated information provided by an anonymous caller is inherently unreliable and cannot constitute the substantial evidence needed to support a finding of probable cause. The department argues, to the contrary, that the hearing officer could reasonably infer that other travelers on Route 8 that morning were calling in traffic conditions in real time. The department further argues that our Supreme Court rejected the premise that the failure to have a reasonable and articulable suspicion justifying a traffic stop should invalidate a license suspension where, after an improper stop, the arresting officer had probable cause to arrest for operating under the influence of alcohol. See Fishbein v. Kozlowski, 252 Conn. 38, 743 A.2d 1110 (1999). " The legislature did not intend that the lack of a reasonable and articulable suspicion to justify an initial investigatory stop would be a basis for overturning the commissioner’s decision if the commissioner finds that, subsequent to the stop, the police officer [had] probable cause to arrest the person for operating a motor vehicle while under the influence of intoxicating liquor ..." (Internal quotation marks omitted.) Id., 49.
The evidence of the 911 calls, standing alone, is at best weakly supportive of a finding of probable cause. But the determination of probable cause must be based on the totality of the circumstances shown by the evidence before the hearing officer, not on a single paragraph in the police report. In this case, the evidence also included the plaintiff’s own statements, his condition at the scene of the accident, and the circumstances of his accident. When the trooper first arrived at the scene and asked the plaintiff what had happened, the plaintiff was essentially nonresponsive. His speech was heavily slurred, his eyes were bloodshot and glossy, and he was slow to respond to a request for his license and registration. The plaintiff told the trooper he was coming from the New Haven area, where he had been at a Christmas party. He said that he had been drinking and that he could not perform one of the sobriety tests because he was drunk. While the plaintiff’s statements do not provide conclusive evidence that he drank at the party before driving, the arresting trooper was permitted to draw " common sense conclusions about human conduct" that were based not on certainties, but on probabilities. See State v. Pierog, supra, 33 Conn.App. 115. Relying on his experience in law enforcement, the plaintiff’s condition and statements, and the circumstances of his accident, the trooper could reasonably infer that the plaintiff got into his vehicle in New Haven, after drinking at a party, and while driving north on a straight and level stretch of Route 8, failed to maintain control of his vehicle and collided with a fixed object near Exit 21. Similarly, relying on the totality of circumstances described in the entire record, the hearing officer could reasonably infer that the plaintiff operated his vehicle after drinking at a party and while intoxicated to an extent that impaired his ability to keep his vehicle within his lane. The totality of the circumstances in the evidence was sufficient to establish the temporal nexus required for probable cause to believe that the plaintiff had operated his motor vehicle while under the influence of alcohol.
CONCLUSION
For the reasons stated above, there is substantial evidence in the record to support the findings that the plaintiff operated his vehicle and that there was probable cause to believe that he operated it while under the influence of alcohol. The plaintiff’s appeal is dismissed. Judgment may enter accordingly without costs to any party.