Moore v. Commissioner of Motor Vehicles , 172 Conn. App. 380 ( 2017 )


Menu:
  • ******************************************************
    The ‘‘officially released’’ date that appears near the
    beginning of each opinion is the date the opinion will
    be published in the Connecticut Law Journal or the
    date it was released as a slip opinion. The operative
    date for the beginning of all time periods for filing
    postopinion motions and petitions for certification is
    the ‘‘officially released’’ date appearing in the opinion.
    In no event will any such motions be accepted before
    the ‘‘officially released’’ date.
    All opinions are subject to modification and technical
    correction prior to official publication in the Connecti-
    cut Reports and Connecticut Appellate Reports. In the
    event of discrepancies between the electronic version
    of an opinion and the print version appearing in the
    Connecticut Law Journal and subsequently in the Con-
    necticut Reports or Connecticut Appellate Reports, the
    latest print version is to be considered authoritative.
    The syllabus and procedural history accompanying
    the opinion as it appears on the Commission on Official
    Legal Publications Electronic Bulletin Board Service
    and in the Connecticut Law Journal and bound volumes
    of official reports are copyrighted by the Secretary of
    the State, State of Connecticut, and may not be repro-
    duced and distributed without the express written per-
    mission of the Commission on Official Legal
    Publications, Judicial Branch, State of Connecticut.
    ******************************************************
    LARRY A. MOORE v. COMMISSIONER
    OF MOTOR VEHICLES
    (AC 38146)
    DiPentima, C. J., and Beach and Danaher, Js.
    Argued January 9—officially released April 18, 2017
    (Appeal from Superior Court, judicial district of New
    Britain, Schuman, J.)
    Roy S. Ward, for the appellant (plaintiff).
    Charles H. Walsh, assistant attorney general, with
    whom, on the brief, was George Jepsen, attorney gen-
    eral, for the appellee (defendant).
    Opinion
    BEACH, J. The plaintiff, Larry A. Moore, appeals from
    the judgment of the Superior Court dismissing his
    appeal from the decision of the defendant, the Commis-
    sioner of Motor Vehicles (commissioner). The decision
    ordered, pursuant to General Statutes § 14-227b (c),1 a
    six month suspension of the plaintiff’s license to operate
    a motor vehicle because of his refusal to submit to
    chemical alcohol testing following his arrest for driving
    under the influence. The plaintiff claims that (1) the
    hearing officer’s finding that he refused to submit to the
    chemical alcohol test was not supported by substantial
    evidence and (2) his due process right to present a
    defense was violated. We disagree and, accordingly,
    affirm the judgment of the court.
    The record reflects that following the plaintiff’s arrest
    for operating a motor vehicle while under the influence
    of alcohol on August 17, 2014, Trooper Peter Appiah
    of the state police prepared a report that stated the
    following. At approximately 2:24 a.m., the plaintiff was
    traveling at a rate of eighty-six miles per hour on a
    portion of Interstate 95 near Westport that had a posted
    speed limit of fifty-five miles per hour. Appiah stopped
    the car, and, after detecting a strong odor of alcohol
    on the plaintiff’s breath, attempted to administer field
    sobriety tests. The plaintiff began to perform the hori-
    zontal gaze nystagmus test, which he did not perform
    to standard, and then refused to continue performing
    the test. After removing his shoes and socks, and com-
    plaining of an existing injury to a toe, the plaintiff
    refused to perform the walk and turn test, and then
    refused to perform the one-leg stand test. Appiah placed
    the plaintiff under arrest for driving under the influence
    of alcohol in violation of General Statutes § 14-227a and
    reckless driving in violation of General Statutes § 14-
    222. After the plaintiff was transported to the state
    police barracks in Bridgeport, he refused to submit to
    a chemical alcohol test. He further refused to sign any
    documents or to participate any further in the pro-
    cessing procedure. The plaintiff began to yell loudly,
    exhibited mood swings and engaged in erratic behavior,
    which included, at one point, performing push-ups in
    his cell.
    Pursuant to § 14-227b (c), Appiah completed an A-
    442 form detailing that the plaintiff was read the implied
    consent advisory section of the A-44 form and refused
    to take a chemical alcohol test. Appiah further indicated
    in the A-44 form that state police Trooper Thomas Ehret
    witnessed the refusal.
    The commissioner notified the plaintiff that his
    license was to be suspended for a period of six months
    and that he was entitled to a hearing. The plaintiff
    availed himself of his statutory right to contest the
    suspension at an administrative hearing. At the plain-
    tiff’s request, the hearing was continued from Septem-
    ber 10, 2014, to September 17, 2014. The hearing took
    place on September 17, October 8 and October 15, 2014.
    At the September 17, 2014 hearing, Appiah testified
    that he did not bring police video recordings of the
    plaintiff that had been requested in a subpoena duces
    tecum because he recently had been on vacation and
    had been working the midnight shift; he, therefore, had
    not had an opportunity to obtain the video recordings,
    but he said that he would make an effort to do so. He
    further testified that the contents of the A-44 form were
    true. Ehret testified that he had been present when
    the plaintiff was being processed, but that he did not
    directly witness the implied consent advisory being read
    to the plaintiff. He said that he had been processing
    another prisoner and that the reading of the advisory
    could have happened during that time. He testified,
    however, that he witnessed the plaintiff’s refusal to
    submit to chemical alcohol testing. He stated that the
    petitioner ‘‘was very belligerent, yelling and screaming.
    My recollection was, he was in the group cell when he
    was asked to take the breath test, at which point he
    refused. He refused to sign anything. He refused to
    participate in anything.’’
    At the October 8, 2014 hearing, Appiah said that he
    had tried to obtain the video recording sought in the
    subpoena duces tecum but that it had been destroyed
    thirty days after the August 17, 2014 arrest in accor-
    dance with the policy of the state police. On October
    15, 2014, the plaintiff testified that he had asked Appiah
    for a breath test at the scene, in the police cruiser
    and while he was in the state police barracks, but that
    Appiah did not read the implied consent advisory to
    him and refused to administer a chemical alcohol test.
    The plaintiff did not ask the hearing officer to draw an
    adverse inference from the spoliation of the video
    recording.
    On October 16, 2014, the hearing officer issued a
    decision finding that (1) the arresting officer had proba-
    ble cause to arrest the plaintiff, (2) the plaintiff was
    arrested, (3) the plaintiff refused to submit to chemical
    alcohol testing, (4) the plaintiff was operating a motor
    vehicle and that (5) the plaintiff was not younger than
    twenty-one years of age. The hearing officer made the
    subordinate finding that ‘‘Trooper Ehret did not testify
    that he did not witness refusal and, per report (section
    J of A-44), it is found that refusal was witnessed as
    required by General Statutes § 14-227b (c).’’ The hearing
    officer ordered that the plaintiff’s driver’s license be
    suspended for six months.
    The plaintiff appealed to the Superior Court from
    the commissioner’s decision suspending his operator’s
    license. He claimed that the hearing officer’s finding
    that the plaintiff refused the breath test was not sup-
    ported by substantial evidence and that the plaintiff’s
    right to due process was violated by Appiah’s lack of
    compliance with the subpoena duces tecum requesting
    the production of a video recording of the plaintiff’s
    alleged refusal to submit to chemical alcohol testing.
    See General Statutes § 4-183. On July 17, 2015, the court
    issued a written memorandum of decision in which it
    found that there was substantial evidence to support
    the hearing officer’s finding of refusal. Applying the
    factors enunciated in State v. Asherman, 
    193 Conn. 695
    ,
    724, 
    478 A.2d 227
     (1984), cert. denied, 
    470 U.S. 1050
    ,
    
    105 S. Ct. 1749
    , 
    84 L. Ed. 2d 814
     (1985), pertaining to
    due process, the court found that the record did not
    require the conclusion that the hearing officer should
    have inferred from the spoliation of the video recording
    that the recording contained information favorable to
    the plaintiff. The court dismissed the appeal.3 This
    appeal followed.
    We begin by setting forth the standard applicable
    to our review of administrative decisions. ‘‘[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. . . . [R]eview of an
    administrative agency decision requires a court to deter-
    mine whether there is substantial evidence in the admin-
    istrative 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 evi-
    dence, whether the agency, in issuing its order, acted
    unreasonably, arbitrarily, illegally or in abuse of its dis-
    cretion.’’ (Citation omitted; internal quotation marks
    omitted.) Murphy v. Commissioner of Motor Vehicles,
    
    254 Conn. 333
    , 343, 
    757 A.2d 561
     (2000).
    Section 14-227b, commonly referred to as the implied
    consent statute, governs license suspension hearings.
    Section 14-227b (g) provides in relevant part: ‘‘The hear-
    ing shall be limited to a determination of the following
    issues: (1) Did the police officer have probable cause
    to arrest the person for operating a motor vehicle while
    under the influence of intoxicating liquor or any drug
    or both; (2) was such person placed under arrest; (3)
    did such person refuse to submit to such test or analysis
    or 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
    (4) was such person operating the motor vehicle. . . .’’
    ‘‘In the context of a license suspension under the
    implied consent law, if the administrative determination
    of the four license suspension issues set forth in § 14-
    227b [g] is supported by substantial evidence in the
    record, that determination must be sustained.’’ Schal-
    lenkamp v. DelPonte, 
    29 Conn. App. 576
    , 581, 
    616 A.2d 1157
     (1992), aff’d, 
    229 Conn. 31
    , 
    639 A.2d 1018
     (1994).
    ‘‘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 over-
    turn a decision of an administrative agency . . . and
    . . . provide[s] a more restrictive standard of review
    than standards embodying review of weight of the evi-
    dence or clearly erroneous action. . . . The United
    States Supreme Court, in defining substantial evidence
    . . . has said that it is something less than the weight
    of the evidence, and the possibility of drawing two
    inconsistent conclusions from the evidence does not
    prevent an administrative agency’s finding from being
    supported by substantial evidence.’’ (Internal quotation
    marks omitted.) Spitz v. Board of Examiners of Psy-
    chologists, 
    127 Conn. App. 108
    , 115–16, 
    12 A.3d 1080
    (2011).
    I
    The plaintiff claims that the court improperly
    affirmed the hearing officer’s finding that the plaintiff
    refused to submit to chemical alcohol testing and that
    the hearing officer’s finding was not supported by sub-
    stantial evidence in the record. We disagree.
    ‘‘Whether the plaintiff’s actions constituted a refusal
    to submit to [a chemical alcohol] test presents a ques-
    tion of fact . . . and, therefore, our review is limited
    to determining whether the hearing officer’s finding
    was supported by substantial evidence.’’ (Citations
    omitted.) Altschul v. Salinas, 
    53 Conn. App. 391
    , 397,
    
    730 A.2d 1171
    , cert. denied, 
    249 Conn. 931
    , 
    761 A.2d 751
     (1999). ‘‘[R]efusing to take a breath test may be
    accomplished by a failure to cooperate as well as by
    an expressed refusal.’’ (Internal quotation marks omit-
    ted.) 
    Id.
    There was substantial evidence in the record to sup-
    port the hearing officer’s finding that the plaintiff
    refused to submit to chemical alcohol testing. The A-
    44 form indicated that the plaintiff refused to submit
    to chemical alcohol testing. Under ‘‘Section F: Chemical
    Alcohol Test Data,’’ the box, ‘‘test refusal,’’ was
    checked. Ehret signed the section for chemical alcohol
    test refusal, which stated, ‘‘[t]he operator named above
    refused to submit to such test or analysis when
    requested to do so. The refusal occurred in my presence
    and my endorsement appears below.’’ The results of
    the breath test indicated, ‘‘test aborted refusal,’’ and
    was signed by Appiah. The form also indicated that the
    plaintiff was read the implied consent advisory. Appiah
    signed under oath to the accuracy of the statements in
    the A-44 form. Appiah also testified at the administrative
    hearing to the truth of the contents of the A-44 form.
    Appiah stated in his investigation report that at
    ‘‘[a]pproximately 0318 hours, [the plaintiff] was read
    the implied consent advisory section of the A-44. After
    being read the implied consent advisory section, [the
    plaintiff] refused to take the selected breath [test] and
    indicated that he refused to sign any documents or
    participate in the processing procedure any further.
    Trooper Ehret . . . witnessed the refusal.’’ Ehret testi-
    fied that he witnessed the plaintiff’s refusal to submit
    to chemical alcohol testing.
    The plaintiff argues that the statements on the A-44
    form that he was read the implied consent advisory and
    refused the test, and that his refusal was witnessed,
    were contradicted by Ehret’s testimony. He further
    argues that Ehret’s credibility was diminished because
    his testimony was internally contradictory, in that he
    testified to two different locations where the plaintiff
    refused the test: the holding cell, and the booking area
    where Ehret was processing another arrestee. He
    argues that the refusal could not have occurred simulta-
    neously in two different locations so that it was not
    possible to know from Ehret’s testimony whether he
    refused. The plaintiff contends that his own testimony
    indicated that he repeatedly asked for a breath test, and
    that it would not be logical for the plaintiff repeatedly to
    request a breath test prior to booking only to refuse
    the test once he was at the state police barracks where
    the test could be performed.
    The claims that Ehret’s testimony was not credible,
    and that the hearing officer should have credited the
    plaintiff’s testimony, are not claims on which the plain-
    tiff can prevail.4 It was within the province of the hearing
    officer to resolve credibility determinations. ‘‘The credi-
    bility of witnesses and the determination of factual
    issues are matters within the province of the administra-
    tive agency, and this court cannot disturb the conclu-
    sions reached by the commissioner if there is evidence
    that reasonably supports his decision.’’ (Internal quota-
    tion marks omitted.) Dumont v. Commissioner of
    Motor Vehicles, 
    48 Conn. App. 635
    , 640, 
    712 A.2d 427
    ,
    cert. denied, 
    245 Conn. 917
    , 
    717 A.2d 234
     (1998).
    We conclude that the hearing officer’s finding that
    the plaintiff refused to submit to chemical alcohol test-
    ing was supported by substantial evidence.
    II
    The plaintiff next claims that the court erred in failing
    to conclude that his due process right to present a
    defense was violated by Appiah’s failure to preserve
    and to produce video recordings that may have shown
    whether he refused to submit to chemical alcohol test-
    ing. The court determined that the spoliation test pre-
    scribed in State v. Asherman, supra, 
    193 Conn. 695
    ,
    governed this case and that the plaintiff could not pre-
    vail under that test. The plaintiff argues that the court
    erred in applying Asherman, and should have instead
    utilized the spoliation test enunciated in Beers v. Bay-
    liner Marine Corp., 
    236 Conn. 769
    , 775, 
    675 A.2d 829
    (1996), on the reasoning that Beers is to be applied in
    civil matters.
    The Asherman balancing test is used to determine
    ‘‘whether the failure of the police to preserve potentially
    useful evidence had deprived a criminal defendant of
    due process of law under . . . [our] state constitution’’
    and requires the following factors to be weighed: ‘‘the
    materiality of the missing evidence, the likelihood of
    mistaken interpretation of it by witnesses or the jury,
    the reason for its nonavailability to the defense and the
    prejudice to the defendant caused by the unavailability
    of the evidence.’’ (Citations omitted.) State v. Morales,
    
    232 Conn. 707
    , 719–20, 
    657 A.2d 585
     (1995).
    In Beers v. Bayliner Marine Corp., supra, 
    236 Conn. 769
    , our Supreme Court ‘‘adopt[ed] the rule of the
    majority of the jurisdictions that have addressed the
    issue [of spoliation of evidence] in a civil context, which
    is that the trier of fact may draw an inference from the
    intentional spoliation of evidence that the destroyed
    evidence would have been unfavorable to the party that
    destroyed it. . . . To be entitled to this inference
    [under the Beers test], the victim of spoliation must
    prove that: (1) the spoliation was intentional, in the
    sense that it was purposeful, and not inadvertent; (2)
    the destroyed evidence was relevant to the issue or
    matter for which the party seeks the inference; and (3)
    he or she acted with due diligence with respect to the
    spoliated evidence. . . . We emphasized that the
    adverse inference is permissive, and not mandatory
    . . . .’’ (Emphasis omitted; internal quotation marks
    omitted.) Williams v. State, 
    124 Conn. App. 759
    , 767, 
    7 A.3d 385
     (2010).
    The plaintiff argues that he satisfied the Beers test
    and thus was entitled5 to receive the benefit of an infer-
    ence that information contained in the destroyed evi-
    dence would have been helpful to him. He argues that
    if an adverse inference had been drawn, then ‘‘the accu-
    racy and/or truthfulness of the police report, A-44 and
    the officers’ testimony would have been eviscerated,
    requiring a reversal of the suspension order.’’ We need
    not decide which standard is appropriately applied in
    the circumstances of this case because the plaintiff
    cannot prevail under either standard.
    The conclusions made by the court regarding the
    third prong of the Asherman test are dispositive of the
    plaintiff’s inability to meet the Beers standard. The third
    prong of the Asherman test concerns the reasons why
    the evidence was not available. This factor examines
    ‘‘the motives behind the destruction of evidence [and
    can include] such factors as whether the destruction
    was deliberate and intentional rather than negligent
    . . . .’’ (Citations omitted.) State v. Grillo, 
    23 Conn. App. 50
    , 56, 
    578 A.2d 677
     (1990). The court noted that
    evidence in the record supported the conclusion that
    Appiah’s failure to obtain the video, prior to its destruc-
    tion under standard police policy, was negligent rather
    than intentional. The court noted Appiah’s testimony
    to the effect that he did not know how long the police
    retained videos until it was too late, and it noted that
    the destruction was not directed at the plaintiff but
    rather was the result of standard police policy.
    Under the first factor of Beers, the plaintiff must
    prove that the spoliation was intentional rather than
    inadvertent. The court determined that the record sup-
    ported the conclusion that the destruction of the evi-
    dence was a result of Appiah’s negligence, but was not
    intentional. Because the plaintiff did not satisfy the
    first Beers factor, he was not entitled to a permissive
    inference in any event.6 See, e.g., Williams v. State,
    supra, 
    124 Conn. App. 767
    .
    The record does not compel a finding that the Beers
    standard was satisfied and the plaintiff has not chal-
    lenged the court’s conclusion that he cannot prevail
    under the Asherman test. Accordingly, the plaintiff can-
    not prevail on his claim.
    The judgment is affirmed.
    In this opinion the other judges concurred.
    1
    General Statutes § 14-227b provides in relevant part: ‘‘(a) Any person
    who operates a motor vehicle in this state shall be deemed to have given
    such person’s consent to a chemical analysis of such person’s blood, breath
    or urine and, if such person is a minor, such person’s parent or parents or
    guardian shall also be deemed to have given their consent. . . .
    ‘‘(c) If the person arrested refuses to submit to such test or analysis . . .
    the police officer, acting on behalf of the Commissioner of Motor Vehicles,
    shall immediately revoke and take possession of the motor vehicle operator’s
    license . . . . The police officer shall prepare a report of the incident and
    shall mail or otherwise transmit in accordance with this subsection the
    report . . . to the Department of Motor Vehicles . . . . The report shall
    contain such information as prescribed by the Commissioner of Motor Vehi-
    cles and shall be subscribed and sworn to under penalty of false statement
    as provided in section 53a-157b by the arresting officer. If the person arrested
    refused to submit to such test or analysis, the report shall be endorsed by
    a third person who witnessed such refusal. The report shall set forth the
    grounds for the officer’s belief that there was probable cause to arrest such
    person for a violation of section 14-227a or 14-227m or subdivision (1) or
    (2) of subsection (a) of section 14-227n and shall state that such person
    had refused to submit to such test or analysis when requested by such police
    officer to do so . . . .’’
    2
    ‘‘The A-44 form is used by the police to report an arrest related to
    operating a motor vehicle under the influence and the results of any sobriety
    tests administered or the refusal to submit to such tests.’’ Roy v. Commis-
    sioner of Motor Vehicles, 
    67 Conn. App. 394
    , 396 n.3, 
    786 A.2d 1279
     (2001).
    3
    The court stayed the suspension of the plaintiff’s operator’s license
    pending the present appeal. See General Statutes § 4-183 (f).
    4
    Ehret’s testimony was not necessarily contradictory. He testified that
    he was in the booking room when Appiah was processing the plaintiff and
    that it was his recollection that the plaintiff was in the group cell when he
    was asked to take the breath test and refused. Ehret testified that it was
    ‘‘possible’’ that the plaintiff was read the implied consent advisory when he
    was in the group cell but that he ‘‘was dealing with another prisoner at the
    time as well.’’ He stated that the petitioner ‘‘was very belligerent, yelling
    and screaming. My recollection was, he was in the group cell when he was
    asked to take the breath test, at which point he refused. He refused to sign
    anything. He refused to participate in anything.’’
    Even if there were inconsistencies in the evidence, however, the finding
    of the hearing officer that the plaintiff refused to submit to chemical alcohol
    testing may still be held to be supported by substantial evidence. See Schal-
    lenkamp v. DelPonte, 
    229 Conn. 31
    , 41, 
    639 A.2d 1018
     (1994) (‘‘In reviewing
    an administrative determination, we must take into account [that there is]
    contradictory evidence in the record . . . but the possibility of drawing
    two inconsistent conclusions from the evidence does not prevent an adminis-
    trative agency’s finding from being supported by substantial evidence . . . .
    Moreover, it is not the function of the trial court, nor of this court, to retry
    the cause. . . . [T]he determination of issues of fact are matters within
    [the] province [of the administrative agency].’’ [Citation omitted; internal
    quotation marks omitted.]).
    5
    We note that if the Beers factors are satisfied, the finder of fact may draw
    an adverse inference. Intentional spoliation does not necessarily compel
    judgment against the spoliator; rather, a permissive inference results. Beers
    v. Bayliner Marine Corp., supra, 
    236 Conn. 774
    –77.
    6
    Neither party has contested the court’s perusal of the record to determine
    whether an adverse inference was available to the plaintiff. We merely note
    that the court considered no evidence outside the return of record, and it
    dealt with the substance of the plaintiff’s claim regarding the adverse infer-
    ence. In these circumstances, the reasoning of the court may be deemed
    to support the ultimate determination of whether the hearing officer could
    have reasonably and logically reached his conclusions. See, e.g., Church
    Homes, Inc. v. Administrator, Unemployment Compensation Act, 
    250 Conn. 297
    , 303, 
    735 A.2d 805
     (1999).
    We also are unable to discern from the record whether the hearing officer
    actually did employ an adverse inference, but found that the evidence none-
    theless compelled a result unfavorable to the plaintiff, whether the officer
    simply decided not to employ the inference, although he could have, or
    whether he believed that he could not lawfully use the inference. Because
    the result is supported by substantial evidence in any event, and there is
    nothing in the record to suggest that the decision was unreasonably or
    unlawfully reached, the hearing officer’s conclusions must stand.
    

Document Info

Docket Number: AC38146

Citation Numbers: 160 A.3d 410, 172 Conn. App. 380

Filed Date: 4/18/2017

Precedential Status: Precedential

Modified Date: 1/12/2023