Connecticut DUI Attorney - CT DMV Hearing - Connecticut Drunk Driving

Appeal Cases - Page 7

6. Has your client ever had a prior alcohol related suspension?
   1. Why this is important
      
      If your client has no prior alcohol related suspension you may be able to prevail upon the Superior Court to stay the suspension of his driver’s license.
7. The Office of the Attorney General
   1. Their Attorney:
      
      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
      
      (Most of my appeals have been with Priscilla Green.)
8. Service, the Marshal, Fees, the Court
   
   I generally use Marshal Brian F. Zito, P. O. Box 290001, Wethersfield, CT 06109-0001, Telephone: (860) 520-0002. You have him serve the Commissioner of Motor Vehicles and the Attorney General. I listed AAG Green’s address above.
   
   Remember, this is a civil matter and your return is to: The Clerk, Superior Court, New Britain Judicial District, 20 Franklin Square, New Britain, CT 06051, Telephone: (860) 515-5180, Fax: (860) 515-5185.
   
   The Court Filing Fee is $225.00 made payable to Clerk, Superior Court.
9. The Petition—See a copy of one listed above.
10. Ex Parte Motion for Stay—See a copy of one listed above.
11. Motion for Stay Pending Outcome of Appeal---See a copy of one listed above.
12. Order for Hearing on Motion for Stay---See a copy of one listed above.
13. Affidavit---See a copy of one listed above.
14. Scheduling Orders
    
    When you have your papers prepared with regard to your appeal to the Superior Court, I recommend that you drive them to New Britain and go to the Third Floor, Room 310 of the Court House and present them to the Secretary for Administrative Hearings/Tax Appeals. She will review them. If they are in order, she will see that they are presented to Judge Levine. He will rule on your Motion To Stay and issue a date for a hearing with regard to the Motion For Stay. He may issue an ex parte order. At the hearing scheduling orders will be issued. My experience is that the matter will be over within 120 days of initiating the appeal.
    
    Once the documents are reviewed and/or signed by the Judge, someone will take you to the JD Clerk’s Office where you will be given a Case Number. You will pay the filing fee ASAP--$225.00. The original documents will be given back to you so that you can issue service. Once the Marshal makes his return to you, you will return them to the Court.
    
    The Telephone Number for this Administrative Appeal Office is (860) 515-5145.
15. The Record/Transcript
    1. It is free!
       
       I always order one of my own; however, you will be provided a transcript of the administrative proceedings.
16. Your Brief
    
    The following is a brief in a case I handled:
    
    

    DOCKET NO. CV 04-4000310-S:SUPERIOR COURT MR. S:JUDICIAL DISTRICT OF Plaintiff VS:NEW BRITAIN at NEW BRITAIN COMMISSIONER OF THE DEPARTMENT OF MOTOR VEHICLES:SEPTEMBER 3, 2004 Defendant MEMORANDUM IN SUPPORT OF APPEAL FACTS On May 30, 2004 at approximately 3:20 a.m., MR. S was taken into custody for operating while under the influence of alcohol in violation of Conn. Gen. Stat. §14-227a. (Form A-44, State’s Exhibit A) East Lyme Police Officer LEO was traveling southbound on Interstate-95 when he noticed a vehicle stopped in the rough shoulder between exits 72 and 73. The vehicle’s left turn signal was flashing. The driver, MR. S, was reclined backwards in the driver’s seat. Mr. S. did not respond to Officer LEO’s spotlight. Officer LEO pulled in behind Mr. S.’s vehicle. Mr. S.’s windshield wipers were running, although it was not raining. Officer LEO heard the heater blower motor running and could see that the key was in the ignition and it was turned to the “on” position. After knocking very hard on the driver’s window, Officer LEO roused Mr. S. and arrested him for DUI after smelling alcohol on his breath and administering field sobriety tests. Mr. S. was transported to Troop E where he submitted to chemical breath testing commencing at 4:16 a.m. After a July 7, 2004 hearing in front of Hearing Officer James Quinn, the Commissioner found that the police officer had probable cause to arrest Mr. S. for operating a motor vehicle while under the influence of alcohol; that Mr. S. was placed under arrest; that Mr. S. submitted to the test and the results indicated a BAC of .08% or more, and that Mr. S. was operating the motor vehicle. As a subordinate finding, the Commissioner determined “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.” Mr. S.’s license was suspended for ninety days. (Decision in Case No. 04004827 dated July 8, 2004). See Exhibit A. Mr. S. has appealed from the decision of the Commissioner of Motor Vehicles and argues that there was no substantial evidence as to probable cause to arrest him, that he was not operating the motor vehicle, that the breath test was not given within two hours of the time of operation; and that the Subordinate Findings are contrary to law and the facts in that the determination of being asleep behind the wheel of the motor vehicle parked alongside 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 Mr. S. was operating the vehicle. STANDARD FOR REVIEW OF ADMINISTRATIVE AGENCY “In this type of an administrative appeal, the plaintiff bears the burden of proving that the commissioner’s decision to suspend a motor vehicle operator’s license was clearly erroneous in view of the reliable, probative and substantial evidence on the whole record.” Scott v. Salinas, 46 Conn. Sup. 337, 340, aff’d 57 Conn. App. 649 (2000). Administrative fact-finding is governed by the substantial evidence rule. “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.” Bancroct v. Comm. Of Motor Veh., 48 Conn. App. 391, 400 (1998). However, an administrative agency may not act unreasonably, arbitrarily or illegally or abuse its discretion. Id. at 401. LEGAL ARGUMENT No Probable Cause Existed to Arrest Mr. S. Because There is No Evidence that He Operated a Motor Vehicle. There was no basis to arrest Mr. S. in that it was impossible for the police to determine whether Mr. S. was operating his motor vehicle at any time that he had an elevated blood alcohol content. The Connecticut appellate courts have defined “operate” within the DUI statutes. The most recent case stated: Our Supreme Court … approved the following jury instruction in State v. Swift, 125 Conn. 399, 402-403, 6 A.2d 359 (1939): "[T]he statute [in question] refers to persons who shall operate a motor vehicle, and is not confined to persons who shall drive a motor vehicle. A person operates a motor vehicle within the meaning of this statute, when in the vehicle he intentionally does any act or makes use of any mechanical or electrical agency which alone or in sequence will set in motion the motive power of the vehicle." State v. Ducatt, 22 Conn. App. 88, 90-91 (1990). In Ducatt, the defendant was unconscious or sleeping in his parked, running vehicle with his arm wrapped around the steering wheel and his fingers curled around the gear shift lever. [T]he controls of a car capable of immediate powered movement are under the control of an intoxicated motorist, which is precisely the evil the legislature sought to avoid through 14-227a (a). We conclude, therefore, that the statute does not require the state to prove that the defendant intended to move the vehicle in order to prove operation under 14-227a (a). Id. at 93. The court concluded: An accused operates a motor vehicle within the meaning of General Statutes 14-227a (a) when, while under the influence of alcohol or any drug and while in the vehicle and in a position to control its movements, he manipulates, for any purpose, the machinery of the motor or any other machinery manipulable from the driver's position that affects or could affect the vehicle's movement, whether the accused moves the vehicle or not. Id. See also State v. Marquis, 24 Conn. App. 467 (1991)(defendant sitting in parked vehicle with head on steering wheel and engine running was “operating” a motor vehicle). Mr. S. was discovered by Officer LEO at about 3:20 in the very early morning. Mr. S. was in a very deep sleep. There is no evidence that Mr. S. manipulated any machinery that could affect his vehicle’s movement. Mr. S. was in a reclining position. The engine was not running. Mr. S. was not doing – or touching – anything that could engage any item of the car to cause it to operate, to move forward, to move. Mr. S. was not operating a motor vehicle at the time he was discovered by Officer LEO. Chemical Breath Tests Flawed The State must establish that Mr. S. was operating a motor vehicle while intoxicated or with an elevated blood alcohol content. "Elevated blood alcohol content" means a ratio of alcohol in the blood of such person that is eight-hundredths of one per cent or more of alcohol, by weight. Conn. Gen. Stat. § 14-227a. At Troop E, Mr. S. submitted to an initial chemical breath test at 4:16 a.m. that showed a blood alcohol content of .168. A second chemical breath test at 4:54 a.m. showed a blood alcohol content of .144. Conn. Gen. Stat. §14-227a (b) permits the introduction of chemical analysis of the defendant’s breath if all of the following requirements are met: The defendant was afforded a reasonable opportunity to telephone an attorney prior to the performance of the test and consented to the taking of the test upon which such analysis is made; a true copy of the report of the test result was mailed to or personally delivered to the defendant within twenty-four hours or by the end of the next regular business day, after such result was known, whichever is later; the test was performed by or at the direction of a police officer according to methods and with equipment approved by the Department of Public Safety and was performed in accordance with the regulations adopted under subsection (d) of this section; the device used for such test was checked for accuracy in accordance with the regulations adopted under subsection (d) of this section; an additional chemical test of the same type was performed at least thirty minutes after the initial test was performed …; and evidence is presented that the test was commenced within two hours of operation. There is no evidence that the requirements of subsection (3), (4) or (6) were met. 1.Breath Test was Not in Accordance With Regulations Regulations of Connecticut State Agencies Sec. 14-227a-10 (c) requires the following: Any operator who conducts a breath analysis test shall utilize the following procedures: Sample collection The expired breath sample shall be air which is alveolar in composition. The breath sample shall be collected only after the subject has been under continuous observation for at least fifteen (15) minutes prior to the collection of each sample. During this observation period the subject must not have ingested any alcoholic beverages or food, regurgitated, or smoked. There is nothing in the police report from which it can be inferred that Mr. S. was under continuous observation for fifteen minutes prior to his first test. Furthermore, there is no indication that Officer LEO has been properly trained and certified to administer breathalyzer tests in accordance with the requirements of Conn. Gen. Stat. §14-227a (b). Device was not checked for accuracy Nothing in the police report indicates that the Intoxilyzer device was checked for accuracy. In Cerrigione v. Commissioner of Motor Veh., 1995 Ct. Sup. 4648, Docket No. CV 94 070 54 06, J.D. of Hartford/New Britain at Hartford (May 3, 1995)(Maloney, J.), the court found that a breathalyzer test administered by an officer who did not execute the Form A-44 lacked sufficient indicia of reliability and should be disregarded. In reaching its decision, the court noted that although the intoximeter paper tapes showed that the machine was working correctly, “[t]he flaw here is that if the machine itself is not in good working order, its self-checking mechanism is presumably likewise suspect.” Also, there was no evidence that the testing officer was certified to perform the test. Those factors, in turn, brought into question the ultimate finding concerning the plaintiff’s blood alcohol level, since the determination was based on the results of the intoximeter tests. The regulatory scheme governing the administration of the breath test is precise and detailed. [citations omitted] General Statutes § 14-227b(1) requires the commissioner to adopt appropriate regulations. Section 14-227b-2(c), promulgated by the defendant commissioner of motor vehicles, provides that the provisions of §§ 14-227a-1 through 14-227a-10 of the regulations, promulgated by the department of health and addiction services, apply to the administration of blood alcohol testing performed for purposes of General Statutes § 14-227b. Section 10 of those regulations requires that the operator of the testing device be certified as competent to do so by the department of health and addiction services; it requires that the machine be certified as accurate by the department; and it requires that the machine be checked for accuracy at the beginning and again at the end of each work day. …. The obvious purpose of the requirements in the regulations is to ensure the integrity and accuracy of the breath testing procedure conducted by the police. In this case, the administrative hearing officer had no evidence that the police had complied with those regulations and there was some reasonable basis for inferring that they had not done so. There was, furthermore, no other evidence at the hearing to indicate that the testing procedure would produce reliable results. Under these circumstances, the court holds that the results of the breath test conducted by the police are not sufficiently reliable to support a finding by the hearing officer that the alcohol level in the subject's blood exceeded the legal level. Chemical Test was Not Given Within Two Hours of Operation There is no evidence that chemical breath testing commenced within two hours of operation, as required by subsection (6). There is no evidence as to when Mr. S. pulled his vehicle over to rest, other than Mr. S.’s recollection that he had left New Britain around 9:00 or 10:00 p.m. Even Officer LEO acknowledges that “The accused was found parked on the shoulder more than 5 hours after he headed for home.” (emphasis added). Thus, giving a generous one hour to travel from New Britain to East Lyme, Mr. S. could have been napping for up to four hours at the time Officer LEO came upon him. The State of Connecticut presents no evidence from which it can be determined whether Mr. S. had been napping for four minutes or four hours. In State v. DeCoster, 147 Conn. 502 (1960), a defendant was found slumped unconscious on a steering wheel in a car with the engine off. The court found that with no evidence showing when the defendant had last operated the car, a conclusion that he had operated the car while under the influence of liquor would “invade the realm of speculation and conjecture.” Without knowing how long Mr. S. had been stopped on the shoulder of Interstate-95, the State cannot establish that chemical breath testing commenced within two hours of operation. Findings of the Hearing Officer are Clearly Erroneous as No Substantial Evidence of Operation or Elevated BAC Because Mr. S. was not in a position to manipulate the vehicle controls, and was, in fact, reclined away from them, the State cannot prove operation. When the time of operation – the time at which Mr. S. pulled over onto the side of I-95 – cannot be determined, it cannot be concluded that chemical testing commenced within two hours of operation. In addition, the administration of the chemical breath tests were so outside the scope of the statutory and regulatory directives that they should not be relied upon. CONCLUSION The Hearing Officer erred in finding that probable cause to arrest Mr. S. existed. Mr. S. was not operating a motor vehicle when the police came upon him. The Hearing Officer further erred in considering the chemical breath tests as evidence of intoxication when their administration was so flawed as to render them useless. The breath analysis tests were not commenced within two hours of operation and otherwise fail to meet statutory requirements. The State failed to demonstrate that Mr. S. operated a motor vehicle with an elevated blood alcohol content. For these reasons, this administrative appeal should be sustained. PETITIONER-APPELLANT BY__________________________________ Attorney Steven A. Tomeo 29 Kearney Road P.O. Box 184 Pomfret Center, CT 06259 Tel No.: (860) 963-7441 Juris No.063913 CERTIFICATION THIS IS TO CERTIFY that a copy of the foregoing was mailed postage prepaid on September 3, 2004 to: Priscilla J. Green Assistant Attorney General State of Connecticut Office of The Attorney General 55 Elm Street Hartford, CT 06106 ____________________________________ Steven A. Tomeo Commissioner of Superior Court

17. The Brief of the State of Connecticut
    1. Standard Recitations to be aware of
    See the attached Copy of the State’s Brief. See Exhibit 4.
18. Reply Brief
    
    I have never filed one. You can. So, in anticipation of filing one you should make that a part of your scheduling orders to give you time.
19. Oral Argument
    
    My experience is that they are short. If you have a bad case Judge Levine will ask: “So, why are we hear today, Mr. Tomeo?”
20. The Decision
    You generally know the Court’s decision on the day you argue. You will get a notice in the mail, also.

Return to Appealing Decisions

Previous | Page 7 of 10 | Next