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Appeal Cases
Appeal Cases p.2
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APPEAL CASES
- THE ADMINISTRATIVE HEARING OFFICER’S DECISION
- What It Looks Like
I attach a copy of a decision so that you know what it looks like because I always attach it to the Superior Court Appeal. See Exhibit 1.
- What Does it Say and What Should it Say
It either says your client’s license is restored or suspended. Sometimes, the hearing officer will give a statement as to subordinate findings. This is done to better explain and justify the decision no matter what the ruling is. It could be important because if the license is not restored his subordinate findings could impact your appeal. The subordinate findings better explain the decision.
- What You Hope it Doesn’t Say
Often times you make the argument that the first breath test was not given within 2 hours of operation. However, you hope the hearing officer does not issue subordinate findings spelling out how he calculated that the breath test was given within 2 hours of operation. Things like that hurt you with regard to an appeal. Or, on a parking lot issue you hate to see a subordinate finding as to how the hearing officer concluded that the parking lot held 10 or more cars.
- Who Cares What it Says as Long as it Says “License Restored”
You know, if you win, who cares what it says.
- THE REQUEST FOR RECONSIDERATION
- The Form
The following is a reprint of a Request For Reconsideration:
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STATE OF CONNECTICUT
DEPARTMENT OF MOTOR VEHICLES
ADMINISTRATIVE PER SE UNIT
WETHERSFIELD, CONNECTIUCT
IN RE: (NAME OF RESPONDENT)CASE NO. 03000000
DATE: (INSERT MONTH, DAY, YEAR)
REQUEST FOR RECONSIDERATION
- On April 17, 2003, the Hearing Officer found nothing in the negative regarding the above-captioned matter
- The Hearing Officer, without objection from the respondent, entered the A-44 as an Exhibit.
- The A-44 Report indicates that the second breath test was not taken at least 30 minutes after the first test. In fact, the hearing officer's decision states that "there was substantial compliance with regulations by administering second test twenty minutes after completion of the first test."
- CGS 14-227b(k) makes reference to CGS 14-227a (c)(5) regarding the second test, which is to be performed "at least thirty minutes after the initial test was performed…" Since Mr. RESPONDENT consented to the taking of the test it must be given in accordance with the statutes of regulations governing this area. Regulation 14-227b-2 gives further credence that the second test must be given at least 30 minutes after the first test. 14-227b-2 (a) states: "Any person who operates a motor vehicle in this state is deemed to have given his consent to a chemical analysis for determination of the alcohol or drug content, or both, of this blood." Mr. RESPONDENT complied with this. 14-227b-2 (c) states: "Chemical analysis for the purpose of determining the amount of alcohol in the blood of any person shall be performed in accordance with the applicable provision of Sections 14-227a-1 through 14-227a-10, inclusive of the Regulations of Connecticut State Agencies." There is no twenty (20) minute rule in these regulations.
- The failure to perform the second test within the required period of time means that there is no evidence that the operator had an elevated blood alcohol content and therefore the hearing officer should not have made a finding of suspension.
WHEREFORE, the Respondent requests that this matter be reconsidered and that the license of the RESPONDENT be restored.
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THE RESPONDENT,
MR. RESPONDENT
BY:
Steven A. Tomeo, Esq.
29 Kearney Road
Pomfret Center, CT 06259-0184
ATTORNEY FOR MR. RESPONDENT
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I hereby certify that a copy of the foregoing was mailed to the Administrative Per Se Unit, Department of Motor Vehicles, Administrative Per Se Unit, 60 State Street, P. O. Box 290661, Wethersfield, CT 06129-0861, on (INSERT DATE).
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Steven A. Tomeo
Commissioner of Superior Court |
- The Statutes
§ 4-180
General Statutes
TITLE 4 Management of State Agencies
Chapter 54 Uniform Administrative Procedure Act
4-180 Contested cases
Sec. 4-180. Contested cases. Final decision. Application to court upon agency failure.
- Each agency shall proceed with reasonable dispatch to conclude any matter pending before it and, in all contested cases, shall render a final decision within ninety days following the close of evidence or the due date for the filing of briefs, whichever is later, in such proceedings.
- If any agency fails to comply with the provisions of subsection (a) of this section in any contested case, any party thereto may apply to the superior court for the judicial district of Hartford for an order requiring the agency to render a final decision forthwith. The court, after hearing, shall issue an appropriate order.
- A final decision in a contested case shall be in writing or orally stated on the record and, if adverse to a party, shall include the agency's findings of fact and conclusions of law necessary to its decision. Findings of fact shall be based exclusively on the evidence in the record and on matters noticed. The agency shall state in the final decision the name of each party and the most recent mailing address, provided to the agency, of the party or his authorized representative. The final decision shall be delivered promptly to each party or his authorized representative, personally or by United States mail, certified or registered, postage prepaid, return receipt requested. The final decision shall be effective when personally delivered or mailed or on a later date specified by the agency.
Sec. 4-181a. Contested cases. Reconsideration. Modification
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- Unless otherwise provided by law, a party in a contested case may, within fifteen days after the personal delivery or mailing of the final decision, file with the agency a petition for reconsideration of the decision on the ground that:
- An error of fact or law should be corrected;
- new evidence has been discovered which materially affects the merits of the case and which for good reasons was not presented in the agency proceeding; or
- other good cause for reconsideration has been shown. Within twenty-five days of the filing of the petition, the agency shall decide whether to reconsider the final decision. The failure of the agency to make that determination within twenty-five days of such filing shall constitute a denial of the petition.
- Within forty days of the personal delivery or mailing of the final decision, the agency, regardless of whether a petition for reconsideration has been filed, may decide to reconsider the final decision.
- If the agency decides to reconsider a final decision, pursuant to subdivision (1) or (2) of this subsection, the agency shall proceed in a reasonable time to conduct such additional proceedings as may be necessary to render a decision modifying, affirming, or reversing the final decision.
- On a showing of changed conditions, the agency may reverse or modify the final decision, at any time, at the request of any person or on the agency's own motion. The procedure set forth in this chapter for contested cases shall be applicable to any proceeding in which such reversal or modification of any final decision is to be considered. The party or parties who were the subject of the original final decision, or their successors, if known, and intervenors in the original contested case, shall be notified of the proceeding and shall be given the opportunity to participate in the proceeding. Any decision to reverse or modify a final decision shall make provision for the rights or privileges of any person who has been shown to have relied on such final decision.
- The agency may, without further proceedings, modify a final decision to correct any clerical error. A person may appeal that modification under the provisions of section 4-183 or, if an appeal is pending when the modification is made, may amend the appeal.
(P.A. 88-317, S. 21, 107; P.A. 89-174, S. 4, 7.)
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