Appeal Cases

MR. S VS COMMISSIONER OF THE DEPARTMENT OF MOTOR VEHICLES:

JUDICIAL DISTRICT OF

NEW BRITAIN

JULY 13, 2004

TO ANY PROPER OFFICER:
BY AUTHORITY OF THE STATE OF CONNECTICUT, you are hereby commanded to summon the STATE OF CONNECTICUT DEPARTMENT OF MOTOR VEHICLES, 60 State Street, Wethersfield, Connecticut, to appear before the Superior Court with and for the Judicial District of New Britain, Connecticut on the 17TH day of August, 2004, the appearance to be made by the STATE OF CONNECTICUT DEPARTMENT OF MOTOR VEHICLES or the OFFICE OF THE ATTORNEY GENERAL, by filing a written statement of appearance with the Clerk of the court on or before the second day following the return date, then and there to answer unto the foregoing Appeal of MR. S by leaving with, or at the office of, said Defendant STATE OF CONNECTICUT DEPARTMENT OF MOTOR VEHICLES at 60 Street, Wethersfield, Connecticut, and/or with the OFFICE OF THE ATTORNEY GENERAL for the State of Connecticut, 55 Elm Street, Hartford, Connecticut, a true and attested copy of said Appeal and of this Summons and Citation and Demand for Relief at least twelve (12) days before said return date.

Andrea M. Castano is recognized in the amount of $250.00 to prosecute this appeal to effect and comply with the orders and decrees of this Court.

Hereof fail not, but of this Summons and Citation, Petition and Demand for Relief, due service and return make.

Dated at Pomfret, Connecticut this 13th day of July, 2004.

BY_____________________
Attorney Steven A. Tomeo
29 Kearney Road
P.O. Box 184
Pomfret Center, CT 06259
Tel No.: (860) 963-7441
Juris No.: 063913

MR. S VS COMMISSIONER OF THE DEPARTMENT OF MOTOR VEHICLES

JUDICIAL DISTRICT OF

NEW BRITAIN

JULY 13, 2004

1. The Petitioner-Appellant, MR. S, resides in Manchester, Connecticut and is the holder of a valid Connecticut motor vehicle operator’s license.
2. On May 30, 2004, the Appellant was taken into custody for operating while under the influence in violation of Connecticut General Statutes §14-227a by a member of the East Lyme, Connecticut Police Department.
3. On May 30, 2004, the Appellant was asked and agreed to submit to two chemical alcohol breath tests.
4. On Wednesday, July 7, 2004 the State of Connecticut Department of Motor Vehicles held a hearing pursuant to General Statutes §14-227b(f) in respect to FAILING A CHEMICAL ALCOHOL TEST.
5. The purpose of said hearing was to determine whether the Appellant’s motor vehicle operator’s license should be suspended.
6. At said hearing, the State introduced Exhibit A consisting of a copy of a form A-44.
7. At the conclusion of the hearing, the Hearing Officer made “Findings of Fact and Conclusions of Law” indicating, inter alia, The police officer had probable cause to arrest the above-named operator for a violation specified in Section (g) of C.G.S. 14-227b; that the operator was placed under arrest; that the operator submitted to the test or analysis and the results indicated a BAC of .08% or more; that said person was operating the motor vehicle. And in Subordinate Findings stated: “The officer had probable cause to arrest the respondent after finding him asleep behind the wheel of his motor vehicle parked along side I 95 with the key on the ignition and the wiper and heater running. The respondent had been drinking earlier and was very lost.” A copy of the July 7, 2004 Findings of Fact and Conclusions of Law is attached hereto as Exhibit B.
8. The July 7, 2004 decision of the Hearing Officer is a final decision by the STATE OF CONNECTICUT DEPARTMENT OF MOTOR VEHICLES that aggrieves the Appellant MR. S and leaves him no other available administrative remedies.
9. MR. S brings this appeal to this Court requesting that the final decision of the STATE OF CONNECTICUT DEPARTMENT of MOTOR VEHICLES be corrected because substantial rights of the Appellant have been prejudiced because of the administrative findings, inferences, conclusions or decision which are clearly erroneous in view of the reliable, probative and substantial evidence on the whole record and because the decision was arbitrary or capricious and characterized by abuse of discretion and clearly unwarranted exercise of discretion and violation of constitutional or statutory provisions.
10. Said decision was contrary to law and fact on the following grounds:
    a. There was no probable cause to arrest MR. S;
    b.MR. S was not operating the motor vehicle;
    c. That the breath test was not given within 2 hours of the time of operation;
    c.The Subordinate Findings are contrary to law and the facts in that the facts of being asleep behind the wheel of his motor vehicle parked along side I 95 with the key on the ignition and the wiper and heater running along with drinking earlier and the respondent being very lost do not give rise to probable cause to arrest but have more to do with whether or not the Respondent was operating the vehicle.

WHEREFORE, the Appellant claims:

1. A reversal of the findings of the STATE OF CONNECTICUT DEPARTMENT OF MOTOR VEHICLES that the Appellant was operating the motor vehicle; and, that the breath test analysis and the results indicated a BAC of .08% or more because the breath test was not given within two hours of operation;
2. the reinstatement of the Appellant’s operator’s license;
3. Such other relief as the Court may deem appropriate.

BY_____________________
Attorney Steven A. Tomeo
29 Kearney Road
P.O. Box 184
Pomfret Center, CT 06259
Tel No.: (860) 963-7441
Juris No.: 063913

MR. S VS COMMISSIONER OF THE DEPARTMENT OF MOTOR VEHICLES:

JUDICIAL DISTRICT OF NEW BRITAIN

JULY 13, 2004

The Petitioner-Appellant respectfully requests that the court grant his Ex Parte Motion to Stay the execution of the suspension of his license by the Respondent in respect to his alleged failure of a chemical alcohol test. Said stay is requested pending the outcome of this action. In support of this motion, the Petitioner-Appellant states:

1. That a suspension of his operator’s license pursuant to Connecticut General Statutes §14-227b for a period of NINETY (90) DAYS would result in great personal and financial hardship;
2. That the Petitioner-Appellant’s petition for appeal is meritorious;
3. That should this suspension not be stayed and the Petitioner-Appellant prevail in his appeal, a grave injustice would occur;
4. That this incident did not involve a motor vehicle accident nor personal injury to any person; and
5. That the Petitioner-Appellant was never the subject of a previous alcohol related suspension of his motor vehicles license or privileges to drive in this or any other state.

WHEREFORE, the Petitioner-Appellant requests that this court grant his Ex Parte Motion to Stay.

BY_____________________
Attorney Steven A. Tomeo
29 Kearney Road
P.O. Box 184
Pomfret Center, CT 06259
Tel No.: (860) 963-7441
Juris No.: 063913

The foregoing Motion having been presented it is hereby ORDERED:

GRANTED/DENIED

BY THE COURT

Dated:__________________________

Clerk/Ass’t Clerk/Judge

THIS IS TO CERTIFY that a copy of the foregoing was sent by regular U. S. Mail, postage prepaid on

JULY   , 2004, to the following:

State of Connecticut Department of Motor Vehicles, 60 State Street, Wethersfield,

Attorney Priscilla J. Green, Assistant Attorney General, Juris No. 85143, 55 Elm Street
P. O. Box 120, Hartford, CT 06141-0120, Tel. (860) 808-5090.

____________________________________
Steven A. Tomeo
Commissioner of Superior Court

MR. S VS COMMISSIONER OF THE DEPARTMENT OF MOTOR VEHICLES

JUDICIAL DISTRICT OF NEW BRITAIN

JULY 13, 2004

The Petitioner-Appellant respectfully requests that the court grant his Motion to Stay the execution of the suspension of his license by the Commissioner of Motor Vehicles in respect to his alleged operation of the motor vehicles and failure of a chemical alcohol test. Said stay is requested pending the outcome of this action. In support of this motion, the Petitioner-Appellant states:

1. That a suspension of his operator’s license pursuant to Connecticut General Statutes §14-227b for a period of nine months would result in great personal and financial hardship;
2. That the Petitioner-Appellant’s petition for appeal is meritorious;
3. That should this suspension not be stayed and the Petitioner-Appellant prevail in his appeal, a grave injustice would occur;
4. That this incident did not involve a motor vehicle accident nor personal injury to any person;
5. And that the Petitioner-Appellant has never had an alcohol related suspension of his motor vehicle license or privilege to drive in any state.
   WHEREFORE, the Petitioner-Appellant requests that this court grant his Motion to Stay.

The foregoing Motion having been presented it is hereby ORDERED:

GRANTED/DENIED

BY THE COURT

Dated: ___________________________

Clerk/Ass’t Clerk/Judge

THIS IS TO CERTIFY that a copy of the foregoing was sent by regular U. S. Mail, postage prepaid on JULY , 2004 to the following:

State of Connecticut
Department of Motor Vehicles
60 State Street
Wethersfield, Connecticut 06019

Attorney Priscilla J. Green
Assistant Attorney General
Juris No. 85143
55 Elm Street
P. O. Box 120
Hartford, CT 06141-0120
Tel. (860) 808-5090

____________________________________
Steven A. Tomeo
Commissioner of Superior Court

MR. S VS COMMISSIONER OF THE DEPARTMENT OF MOTOR VEHICLES:

JUDICIAL DISTRICT OF NEW BRITAIN

The attached Motion having been presented to the Court, it is hereby Ordered that a hearing be held on the 26th day of July, 2004 at 9:30 AM in courtroom 3F of the Superior Court, Judicial District of New Britain, 20 Franklin Square, New Britain, Connecticut.

It is further ordered that the Petitioner-Appellant give notice to the Respondent of the pendency of this Motion and of the time when it will be heard by causing a true and attested copy of the Motion and this Order to be served upon the Respondent by some proper officer on or before the 20th day of July, 2004 and that due return of service be made to this Court.

Dated at New Britain, Connecticut this 16th day of JULY , 2004.

_____________________
Judge/Clerk

JUDICIAL DISTRICT OF NEW BRITAIN

JULY 13, 2004

1. I am over the age of eighteen years and understand and believe in the obligations of an oath.
2. I am a resident of Manchester, Connecticut and am the Petitioner in this matter.
3. I was arrested on May 30, 2004 by a member of the East Lyme, Connecticut Police Department and subsequently charged with violation of Connecticut General Statutes §14-227a.
4. That the suspension of my license will cause an undue hardship and financial burden upon me because I live in Manchester and work in Hartford, Connecticut and need my license for work because of my shift hours and drive time.
5. This incident did not involve personal injury to any person.
6. This incident did not involve a motor vehicle accident.
7. I do not have a prior 14-227b suspension and I have had no prior 14-227a suspensions in Connecticut or any other state.

Signed under the penalties of perjury this day 15 day of July, 2004 at Hartford, Connecticut.

)ss. Hartford, July 15 , 2004

COUNTY OFHARTFORD )

Personally appeared before me, MR. S, signer of the foregoing affidavit and acknowledged the same to be truthful and accurate and his free act and deed before me.