Connecticut DUI Attorney - CT DMV Hearing - Connecticut Drunk Driving

Appeal Cases - Page 9

TO BE ARGUED BY:

STEVEN A. TOMEO, ESQ.
29 KEARNEY ROAD
POMFRET, CT 06249
TEL. NO.: 860-983-2684
FAX NO.: 860-963-7441
JURIS #: 063913

TABLE OF CONTENTS	Page
Statement of Principal Issues	ii
Table of Authorities	iii
Statement of the Nature of the Proceeding and of the Facts of the Case	1
Argument
WHETHER SUBSTANTIAL EVIDENCE IN THE RECORD SUPPORTED THE COMMISSIONER OF MOTOR VEHICLES’ FINDINGS OF FACT.	4 - 6
THE TRIAL COURT CORRECTLY DETERMINED THAT THE HEARING OFFICER’S FINDINGS OF FACT PROHIBITED SUSPENSION OF THE PLAINTIFF’S MOTOR VEHICLES’ LICENSE.	6 - 7
Conclusion and Statement of Relief Requested	8
Signature	8
Certification	9
Appendix
Conn. Gen. Stat. § 4-183	A - 1
Conn. Gen. Stat. § 14-227a	A - 4
Conn. Gen. Stat. § 14-227b	A - 8
Public Act. No. 03-154	A - 13
STATEMENT OF PRINCIPAL ISSUES	Page
I.WHETHER SUBSTANTIAL EVIDENCE IN THE RECORD SUPPORTED THE COMMISSIONER OF MOTOR VEHICLES’ FINDINGS OF FACT.	5 - 23
II.WHETHER THE TRIAL COURT CORRECTLY DETERMINED THAT THE HEARING OFFICER’S FINDINGS OF FACT PROHIBITED SUSPENSION OF THE PLAINTIFF’S MOTOR VEHICLES’ LICENSE.	24 - 27
TABLE OF AUTHORITIES Cases	Page
Buckley v. Muzio, 200 Conn. 1, 3, 509 A.2d 489 (1986)	4
C & H Enterprises, Inc. v. Commissioner of Motor Vehicles, 176 Conn. 11, 12, 404 A.2d 864 (1978)	4
DiBenedetto v. Commissioner of Motor Vehicles, 168 Conn. 587, 589, 362 A.2d 840 (1975)	4
Murphy v. Commissioner of Motor Vehicles, 254 Conn. 333, 343, 757 A.2d 561 (2000)	5
O’Rourke v. Commissioner of Motor Vehicles, 33 Conn. App. 501, 506, 636 A.2d 409 (1994)	4
Statutes
Connecticut General Statutues § 4-15	5
Connecticut General Statutes § 4-183	2, 5, 7, 8
Connecticut General Statutes § 14-227a	1, 6
Connecticut General Statutes § 14-227b	1, 4, 6, 8
Public Act 03-154	6

1. NATURE OF THE PROCEEDINGS
   The defendant Commissioner of the Department of Motor Vehicles is appealing from a judgment of the Superior Court. This matter arises from plaintiff Justin Alvord’s arrest for driving under the influence. After a hearing at the Department of Motor Vehicles, the plaintiff’s motor vehicle operator’s license was suspended for a period of nine months in accordance with Conn. Gen. Stat. § 14-227b. The Hearing Officer had determined that the plaintiff had an elevated blood alcohol content in excess of .07%. Conn. Gen. Stat. § 14-227b, however, requires a finding that the elevated blood alcohol content be at least .08%. The plaintiff filed an appeal in Superior Court, Judicial District of New Britain and the Honorable George Levine sustained plaintiff Justin Alvord’s appeal. The defendant appeals from that ruling.
2. STATEMENT OF THE FACTS
   On January 5, 2003, the plaintiff Justin Alvord was taken into custody for operating while under the influence in violation of Conn. Gen. Stat. § 14-227a by Troop D Connecticut State Police Trooper Bavosi. The plaintiff submitted to two chemical alcohol breath tests taken with an Intoxilyzer Model 5000EN operated by Trooper Bavosi. Those test results indicated a BAC of .152 at 6:04 p.m. and .126 at 6:35 p.m. (Jan. 5, 2003 Form A-44 for Case Number DES030001053; hereafter “Form A-44” and set forth in Defendant-Appellant’s Appendix as pp. 10a-15a)
   
   On Friday, February 14, 2003 the State of Connecticut Department of Motor Vehicles held a hearing pursuant to Conn. Gen. Stat. § 14-227b (f) in respect to the alleged failure of a chemical alcohol test. (Feb. 14, 2003 Transcript of Hearing at State of Connecticut Department of Motor Vehicles In the Matter of Justin Alvord; hereafter “Hearing Transcript” and set forth in Defendant-Appellant’s Appendix at pp. 5a-9a)
   
   The hearing was to determine whether the plaintiff’s motor vehicle operator’s license should be suspended. At that hearing both Trooper Bovosi and the plaintiff testified. Trooper Bovosi testified that he stopped the plaintiff after he observed swerving within his lane “it looked a little tight and deliberate.” (Hearing Transcript, p. 6)(emphasis added) The plaintiff testified that Trooper Bovosi was not in a good position to observe his driving and that he had not an alcoholic drink in a number of hours. (Hearing Transcript, p. 11)
   
   Exhibit A, consisting of a copy of a form A-44 and photocopies of the two Intoxilyzer test tapes, were introduced as evidence at the Hearing. (Hearing Transcript)
   
   At the conclusion of the hearing, the Hearing Officer made “Findings of Fact and Conclusions of Law” indicating, inter alia, “the operator submitted to the test or analysis and the results indicated a BAC of .07% or more” (emphasis added) and suspended the plaintiff’s driver’s license for nine months. (Case No. 03000001 Decision dated Feb. 14, 2003; hereafter “DMV Decision” and set forth in Defendant-Appellant’s Appendix at p. 17a)
   
   Pursuant to Conn. Gen. Stat. § 4-183, the plaintiff filed an appeal in the Superior Court for the Judicial District of New Britain seeking judicial review of the suspension decision of the Commissioner.
   
   On June 9, 2003, after receiving briefs and hearing argument of counsel, the trial court, the Honorable George Levine presiding, sustained the plaintiff’s appeal on the basis that the hearing officer made a finding of fact that the results indicated a “BAC of .07% or more.” (Superior Court Transcript of June 9, 2003 for Docket No. CV03-0520447S; hereafter “Court Transcript” and set forth in Defendant-Appellant’s Appendix at pp. 20a-27a)
   
   The defendant Commissioner then filed this appeal in the Appellate Court, seeking a reversal of the trial court’s decision.

ARGUMENT

1. WHETHER SUBSTANTIAL EVIDENCE IN THE RECORD SUPPORTED THE COMMISSIONER OF MOTOR VEHICLES’ FINDINGS OF FACT
   1. Standard of Review
      
      The Uniform Administrative Procedure Act (“UAPA”) governs judicial review of the Commissioner of Motor Vehicles’ action in suspending an operator’s license under Conn. Gen. Stat. § 14-227b. The scope of judicial review is very restricted. Buckley v. Muzio, 200 Conn. 1, 3, (1986); O’Rourke v. Commissioner of Motor Vehicles, 33 Conn. App. 501, 506 (1994). Neither a trial court nor an appellate court is to retry the case or to substitute its judgment for that of the commissioner. Buckley v. Muzio, supra.; C & H Enterprises, Inc. v. Commissioner of Motor Vehicles, 176 Conn. 11, 12 (1978).
      
      “The credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency, and, if there is evidence … which reasonably supports the decision of the commissioner, … [the court] cannot disturb the conclusion reached by him.” DiBenedetto v. Commissioner of Motor Vehicles, 168 Conn. 587, 589 (1975).
      
      The plaintiff who appeals under the UAPA must prove that his substantial rights were prejudiced because the administrative decision was, inter alia, clearly erroneous in view of the reliable, probative and substantial evidence on the whole record, or arbitrary, capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. See Conn. Gen. Stat. § 4-183 (j); Murphy v. Commissioner of Motor Vehicles, 254 Conn. 333, 343 (2000).
   2. Substantial Evidence Supports the Hearing Officer’s Finding of Blood Alcohol Content
      
      The defendant appears to believe that because the Intoxilyzer indicated an elevated blood alcohol content, the Hearing Officer must rely upon those results. This is not true. Intoxilyzer machines may malfunction for any number of reasons, and the substantial decrease in BAC in just thirty minutes may have indicated to the Hearing Officer that the Intoxilyzer results were not reliable.
      
      The testimony she heard from both the plaintiff and the State Trooper may have reinforced her feeling that the Intoxilyzer results were off, given that someone with the BAC indicated on the Intoxilyzer strips would have had great difficulty performing any field sobriety test correctly. The Form A-44 submitted as evidence indicated that the plaintiff correctly recited the alphabet, correctly performed the Walk-Turn test, and failed the One Leg Stand only because he put his foot down three times. He had no other conditions usually exhibited by intoxicated individuals who attempt the One Leg Stand.
      
      If the Hearing Officer found the plaintiff’s testimony credible, found the field sobriety test results credible, and found the Intoxilyzer test results un-credible, she could reasonably find that the plaintiff had an elevated blood alcohol content that did not reach the statutory prescribed minimum of .08%. Her Subordinate Findings emphasize that the State Trooper did have probable cause to arrest, but she did not validate the Intoxilyzer test results.
      
      Thus, substantial evidence exists in the record to support a finding that the plaintiff had a “BAC of .07% or more” without requiring a finding that the results were .08% or more. The trial court correctly determined that substantial evidence in the record supported the Commissioner of Motor Vehicles’ findings of fact.
2. WHETHER THE TRIAL COURT CORRECTLY DETERMINED THAT THE HEARING OFFICER’S FINDINGS OF FACT PROHIBITED SUSPENSION OF THE PLAINTIFF’S MOTOR VEHICLES’ LICENSE.
   
   Public Act 03-154, effective October 1, 2003, provides in relevant part that “[t]he meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.
   
   

   The relevant portions of Conn. Gen. Stat. § 14-227b are clear: … The hearing shall be limited to a determination of the following issues; did the police officer have probable cause to arrest the person for operating a motor vehicle while under the influence of intoxicating liquor or drug or both; was such person placed under arrest; … 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 was such person operating the motor vehicle. … If, after such hearing, the commissioner finds on any one of the said issues in the negative, the commissioner shall reinstate such license or operating privilege. Conn. Gen. Stat. § 14-227a (a) defines "elevated blood alcohol content" as being a rate “that is eight-hundredths of one per cent [.08%] or more of alcohol, by weight.” On appeal, the court was bound by the requirements of Conn. Gen. Stat. § 4-183 (j), which 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: In violation of constitutional or statutory provisions; in excess of the statutory authority of the agency; made upon unlawful procedure; affected by other error of law; clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or 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.

   As discussed above, the court could not substitute its judgment for the Hearing Officer’s conclusion, based on the evidence, that the plaintiff’s BAC was in excess of .07%. Given that finding of fact, which is supported by substantial evidence in the record, the court had to find for the plaintiff because the decision to suspend the plaintiff’s license was “in violation of constitutional or statutory provisions” that require a finding that the BAC be .08% or more. The substantial rights of the plaintiff were prejudiced by the decision that was in violation of the statutory provisions. Conn. Gen. Stat. § 4-183 (j) mandated that the court sustain the plaintiff’s appeal. The court correctly determined that the Hearing Officer’s findings of fact prohibited the suspension of the plaintiff’s motor vehicles’ license.

CONCLUSION AND STATEMENT OF RELIEF REQUESTED

The procedure for suspending an individual’s motor vehicles’ operator license for driving under the influence is set forth in detail in Conn. Gen. Stat. § 14-227b. A court reviewing the decision of the Commissioner of Motor Vehicles is similarly bound by statutory authority set forth Conn. Gen. Stat. § 4-183 (j) that narrowly limits its review of determinations made pursuant to Conn. Gen. Stat. § 14-227b.

In following the requisite statutes, the trial court correctly determined that substantial evidence in the record supported the Hearing Officer’s finding of fact that the plaintiff had a BAC of .07% or more. The trial court then correctly found that the specific finding of a BAC of .07 % or more rendered the Commissioner’s decision to suspend the plaintiff’s license invalid, because the governing statutes require a specific finding of .08% or more BAC.

For all the reasons set forth above, the decision of the trial court should be sustained.

PLAINTIFF-APPELLEE,
JUSTIN ALVORD

BY_____________________
STEVEN A. TOMEO, Esq.
29 KEARNEY ROAD
POMFRET, CT 06249
Tel. No.: 860-983-2684
Fax No.: 860-963-7441
Juris #: 063913

CERTIFICATION

I hereby certify that the Plaintiff-Appellee’s Brief and Appendix complies with all the provisions of Connecticut Practice Book § 67-2. A copy of the brief and appendix was mailed to the following on November , 2003.

Richard Blumenthal
Attorney General

Priscilla J. Green
Assistant Attorney General
Office of the Attorney General
55 Elm Street, PO Box 120

 

 

Hartford, CT 06141-0120

Honorable George Levine
Superior Court
20 Franklin Square
New Britain, CT 06051

__________________________________________
Steven A. Tomeo

Return to Appealing Decisions

Previous | Page 9 of 10 | Next