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APPEAL CASES
Appeals From the Administrative Hearing
- Where to Begin
- The Administrative Per Se Hearing
I know you have heard this before, but you begin your appeal when you start preparing for the per se hearing. Some attorneys do this consciously and others do it subconsciously. When you go into the per se hearing you have interviewed the client, your questions with regard to his case were answered, your questionnaire was completed along with your research, you went to the arrest site, taken pictures and retained the services of experts to assist you. So, when you go into the per se hearing it is safe to assume that you know the facts and the law that governs the issues in your case. If the decision is a suspension then you know where to begin.
- Know Your Case
The better you know the details the better off you are. The devil is always in the details. You apply the facts to the law.
- Objections to the A44 Report
We often do not object to the introduction of the A44 by the hearing officer. And when we do object the hearing officer overrules it claiming that the objection does not go to admissibility but to the weight of the evidence. I think it is best to object. When you do not object the following is the first paragraph in the State’s Brief:
First, the principal evidence offered at the administrative hearing in support of the defendant’s decision was the written A-44 police report which includes the police narrative supplemental report prepared by Police Officer (Name of Officer) in accordance with the provisions of Section 14-227b(c). However, the plaintiff did not object to the police report being admitted into evidence at the hearing. Record, September 16, 2004, transcript, pp. 4, 5.
No objection having been raised at the administrative hearing to the admission of the police report as to the field sobriety tests, probable cause and refusal, these issues that the plaintiff now seeks to litigate are simply not properly before the Court: “Where hearsay evidence is admitted without objection, the trier of facts may give such weight to it as he deems it is worth.” Cutlip v. Connecticut Motor Vehicles Commissioner, 168 Conn. 94, 98, 357 A.2d 918 (1975). See also, Volck v. Muzio, 204 Conn. 507, 518, 529 A.2d 177 (1987).
The AG will then slam you with Balch Pontiac-Buick, Inc. v. Commissioner of Motor Vehicles, 165 Conn. 559, 570 and argue that it is too late to argue error after allowing the A44 into evidence without objection.
- The Substantial Evidence Rule
You have to deal with this theory of the law every time you handle a per se case and especially when you handle an appeal.
You will have to deal with the case of Murphy vs. Commissioner of Motor Vehicles, 254 Conn. 333. I urge you to read it because it tells you what your facing in an appeal. There are other cases with regard to substantial evidence theories but this one gets cited all of the time. It is easy reading! This case tells me that in the vast majority of these DUI appeals, they win and we lose!
Here is a brief excerpt from the Supreme Court’s decision:
Page 343
Our analysis begins with the appropriate standard of review. "[J]udicial review of the commissioner's action is governed by the Uniform Administrative Procedure Act [(UAPA), General Statutes §§ 4-166 through 4-189], and the scope of that review is very restricted." (Internal quotation marks omitted.) Bancroft v. Commissioner of Motor Vehicles, 48 Conn. App. 391, 399, 710 A.2d 807 (1998). "[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 this 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." (Citations omitted; internal quotation marks omitted.) Dolgner v. Alander, 237 Conn. 272, 280, 676 A.2d 865 (1996).
"The substantial evidence rule governs judicial review of administrative fact-finding under the UAPA. [See] General Statutes § 4-183 (j) (5) and (6). 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 . . . ." (Citations omitted; internal quotation marks omitted.) Id., 281.
"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
Page 344
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." (Citation omitted.) Demma v. Commissioner of Motor Vehicles, 165 Conn. 15, 16-17, 327 A.2d 569 (1973).
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Well, what do you think? Perhaps it isn’t that bad, but the Court does go onto say with regard to one of the issues that the Court will look at things on a “case by case basis.” Does this help?
And if Murphy is not enough, they will come out with the case of Alvord v. Commissioner of Motor Vehicles, 84 Conn. App. 302 (2004), which indicates that in a case where the hearing officer ruled that the operator’s tests results indicated a BAC of .07% or more, “substantial evidence existed to support the defendant’s conclusion that the plaintiff operated a motor vehicle while he had an elevated blood alcohol content.” Supra, p. 306. How do you overcome this when .07% is clearly below .08%.
- To Have Testimony or Not to Have Testimony
I often have testimony especially where you are challenging the credibility of the police officer on the issue of refusal. This is where your investigation of the facts is so important. I am doing this with regard to an appeal.
You may have a case where the client tells you that no one witnessed his refusal. If this is the case, then you may want the client to testify. If he testifies and just contradicts the officer’s narrative statement the hearing officer could believe your client. However, in many cases the hearing officer will not say, “OK I believe you, license restored.” The officer may subpoena the LEO (Law Enforcement Officer).
In some cases you may be pleasantly surprised as when the witnessing officer testifies that he did not witness the refusal. If that is the case you win and do not have to go any further. However, if the officer is present and you decide not to put him/her on the stand the hearing officer can and then it could hurt you and ruin your potential appeal. That is why most cases go forward without the testimony of LEO.
When you think about an appeal you have to understand that you often have to project out into the future. Think ahead—appeal!
- Motions, Briefs and Memos of Law
Come prepared with motions and legal memos challenging probable cause, etc. I think that most of the hearing officers are interested in the law and this is a good tool to use. Your research of the various legal issues in your case should be put on the record. If you appeal, you then have a lot of your research completed.
You know what the issues are in your case. So, formulate your arguments and accordingly. Sometimes, you may object to certain hearsay matters in the Narrative Supplements to the A44. The hearing officer may sustain your objection in part by redacting a portion of it or if you really get luck he may sustain your objection in its entirety.
- Your Client
May sure your client goes over the A44 and tells you what LEO did not put in the report. You may find out that the arresting LEO did not prepare the A44 or that no one was in the room when your client refused the breath test or that the attempted to blow into the breath machine but could not because he suffers from Asthma, etc. Remember, get the details. When you do, research the issue and you are likely to find a case that explains the law with regard to your issue.
- Your Argument
Be practical and stand on your opinion of the law. Don’t be obnoxious with regard to the hearing process. Know when “you’re licked!” Remember, you are not a magician and you are limited to the four (4) statutory issues at the hearing.
- Your Exhibits
I often introduce exhibits with regard to my case for help in the appeal, if necessary. You should always introduce medical reports and pictures as exhibits. Remember, “a picture is worth a thousand words.” Pictures are often used to show a steep incline so as to depict that it was impossible to do the Standard Field Sobriety Tests (SFSTs). You know, too steep, etc. You are building your case for an appeal.
- Remember this is Administrative (Civil) and Not Criminal
This is important, because the hearing officer will always tell you this and the Courts will reaffirm this to let you know that we are not dealing with the criminal law here and that this is a civil matter.
- Expert Witnesses
Doctors, nurses, physical therapists can all be used as experts in a variety of ways. You may use experts in law enforcement to show that the SFSTs were not given properly or to show that your client has HGN without having alcohol in his system.
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