Gary Warren Lawson v. Commissioner of Motor Vehicles (2011)

MEMORANDUM OF DECISION

The plaintiff, Gary Warren Lawson, appeals from a reconsideration dated September 29, 2009, of a final decision of the department of motor vehicles (DMV) suspending his motor vehicle license for six months.   The DMV hearing officer concluded that the six-month sanction was appropriate because he found that the plaintiff refused to take a test under the “implied consent” law of General Statutes § 14–227b.

The record shows as follows.   On July 1, 2009, Derby police officer Iacuone was dispatched on a “report of [a] man slumped over the steering wheel.”   It is undisputed that the man was the plaintiff.  (Return of Record, ROR, p. 10.)   Sergeant Lajeunesse arrived first and found the plaintiff sitting in the driver's seat of his vehicle with the vehicle in “drive.”  Id. He asked the plaintiff to put the vehicle in “park” and the plaintiff advised the sergeant that he believed the vehicle was already in “park.”  Id. Sergeant Lajeunesse repeated his instruction to put the vehicle in “park.”  Id.

At that point, Officer Iacuone arrived at the scene and spoke to the plaintiff.   In speaking to the plaintiff, the officer noticed an odor of alcohol, slurred speech and glossy eyes.  Id. As a result, Officer Iacuone asked the plaintiff to perform field sobriety tests.  Id. With regard to the horizontal gaze nystagmus test, Officer Iacuone “observed a lack of smooth pursuit in both eyes,” the “onset of Nystagmus prior to 45 degrees in both eyes” and a “distinct Nystagmus at maximum deviation.”  Id. The plaintiff also declined to take the one leg stand and the walk and turn test.  Id.

Officer Iacuone then arrested the plaintiff for driving a motor vehicle while under the influence of alcohol.  (ROR, p. 11.)   The plaintiff was transported to the Derby police station where he was processed and informed both of his constitutional rights and of the chemical alcohol testing requirements of the implied consent law.   The plaintiff refused the test.  Id.

The Derby police department forwarded a written report of the arrest and refusal to the defendant DMV. As a result, the DMV initiated a license suspension proceeding against the plaintiff.   The plaintiff requested an administrative hearing.   At the scheduled hearing of August 11, 2009, hearing officer Riscassi noted that the plaintiff was going to arrange for subpoenas to issue to officers Iacuone and Lajeunesse.   Therefore the hearing was continued.  (Second Supplemental Return of Record, p. 2.)

On August 28, 2009, DMV hearing officer Carey held the continued administrative hearing.   At that hearing the plaintiff explained that he had failed to execute the subpoenas to the two police officers as he was not an attorney and not able to sign the subpoenas.   He asked the hearing officer to sign the subpoenas.   The hearing officer told the plaintiff that the DMV could arrange for the signing of the subpoenas.   The plaintiff asked:  “So you would be able to sign a subpoena for me and postpone the hearing?”   The hearing officer replied:  “So long as you understand I would like you to re-execute the waiver [relating to the time for the decision to be completed by the hearing officer].”   Again the plaintiff mentioned that an officer of the court must sign the subpoenas, and the hearing officer responded that he believed the DMV had a procedure for issuing subpoenas, “particularly, if there is a financial difficulty involved.”  (ROR, pp.19–20.)

The plaintiff then suggested that the hearing “proceed a little way into the hearing.”   The hearing officer refused, saying, “I can't do that.”   The hearing officer offered to continue the hearing for three weeks.   At this point the plaintiff replied:  “Why don't we just proceed ․ No we'll go ahead and proceed.”  (ROR, p. 20.)

On August 28, 2009, after hearing the evidence, the hearing officer made the requisite findings of § 14–227b(g) against the plaintiff—that the police had probable cause for the plaintiff's arrest, that the plaintiff was arrested, that the plaintiff refused the requested test, and that he was operating his motor vehicle when arrested.   The hearing officer therefore suspended the plaintiff's license for six months as required by § 14–227b(i)(C).  (ROR, p. 6.)

On September 14, 2009, the plaintiff moved for reconsideration pursuant to § 4–181a(a).  (ROR, pp. 34–35.)   On September 29, 2009, the plaintiff's motion was denied.  (ROR, p. 36).   On September 29, 2009, the DMV mailed the denial to the plaintiff by bulk certified mail.   On November 12, 2009, the plaintiff filed a recognizance bond at the Ansonia–Milford Superior Court, but did not file his administrative appeal or leave a copy of his appeal with the clerk.¹  On November 24, 2009, the plaintiff moved for indigent status, that was subsequently granted.   This administrative appeal was filed on November 27, 2009.

Pursuant to § 4–183(a), the plaintiff has filed his appeal to this court.   He makes the following claims:  (1) the hearing officer erred in not allowing him to subpoena the two Derby police officers;  (2) the officer's notice to the plaintiff of the implied consent law was vague;  (3) the plaintiff was relying on his constitutional rights in refusing the test;  (4) the police lacked probable cause to arrest;  and (5) the arrest was politically motivated.

Before reaching the plaintiffs issues, the court must consider subject matter jurisdiction.   Based upon the DMV's mailing of the denial of the reconsideration, pursuant to § 4–183(c)(2), the plaintiff had to file his administrative appeal within forty-five days of September 29, 2009.   See Glastonbury Volunteer Ambulance Assn. v. Freedom of Information Commission, 227 Corm. 848, 852, 633 A.2d 305 (1993).   This operative date was November 13, 2009.   The plaintiff filed a bond at the Superior Court on November 12, 2009, and left neither an original nor copy of a complaint with the clerk.   He subsequently filed a request on November 24, 2009 for indigency status pursuant to § 4–183(m).  Although the indigency request was granted, it was filed outside of the forty-five–day period and is irrelevant to the determination of jurisdiction.

The court concludes that the filing of the bond did not constitute a “filing” with the clerk of court.   This conclusion follows from Hefti v. Commission on Human Rights & Opportunities, 61 Conn.App. 270, 763 A.2d 688 (2001).   In Hefti, the complaint was filed, but the filing fee was not paid.   The Appellate Court affirmed the Superior Court's dismissal of the complaint, as timely payment of the filing fee was an integral part of the required forty-five–day “filing.”   Administrative appeals exist only under statutory authority, and “[a] statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created.”   (Emphasis in original.)  Id., 273.   This court thus lacks subject matter jurisdiction, when, as here, only a bond has been timely filed.

Even if the court were to consider the plaintiff's case on the merits,² it must do so under the standard of review set by the Uniform Administrative Procedure Act. “Our analysis begins with the appropriate standard of review.   [J]udicial review of the commissioner's action is governed by the Uniform Administrative Procedure Act ․ and the scope of that review is very restricted ․ [R]eview of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative 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 evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily, illegally or in abuse of its discretion ․ The substantial evidence rule governs judicial review of administrative fact-finding under the UAPA ․ 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 overturn a decision of an administrative agency ․ It is fundamental that a plaintiff has the burden of proving that the commissioner, on the facts before him, acted contrary to law and in abuse of his discretion [in determining the issue of probable cause] ․ The law is also well established that if the decision of the commissioner is reasonably supported by the evidence it must be sustained.”  (Citations omitted;  internal quotation marks omitted.)  Murphy v. Commissioner of Motor Vehicles, 254 Conn. 333, 343–44, 757 A.2d 561 (2000).

The first issue raised is the plaintiff's claim that the hearing officer erred in not signing his tendered subpoenas and hearing testimony from the two police officers.   The plaintiff claimed at oral argument to this court that he had been denied a chance to make his case.   But the transcript clearly indicates that hearing officer Carey, once the waiver was signed again, would have made sure that the subpoenas were executed and that a new hearing would have taken place three weeks later.   It was the plaintiff's election not to have any more continuances that led the hearing to proceed on August 28, 2009.   There was no error by the DMV in not authorizing the subpoenas.   See Fromer v. Freedom of Information Commission, 90 Conn.App. 101, 110, 875 A.2d 590 (2005).

The plaintiff's second issue is that the police officer's notice to him of the implied consent law was vague.   The notice was taken from the form A–44, and the plaintiff orally acknowledged that it was read to him.  (ROR, p. 11.)   The notice adequately indicates to the plaintiff his options under the implied consent law.  “Notice ․ is not required to contain an accurate forecast of the precise action which will be taken on the subject matter referred to in the notice.   It is adequate if it fairly and sufficiently apprises those who may be affected of the nature and character of the action proposed” so that an “intelligent” decision may be made.  Goldstar Medical Services, Inc. v. Dept. of Social Services, 288 Conn. 790, 823, 955 A.2d 15 (2008).

The plaintiff's third issue is that he was entitled to refuse the test because he had invoked his right to remain silent and his other “Miranda ” rights.   This issue, in the context of a § 14–227b administrative appeal, is not one which our Supreme Court designated as one which may be raised on an appeal from a DMV hearing officer's determination.   See Fishbein v. Kozlowski, 252 Conn. 38, 743 A.2d 1110 (1999).   In addition, the Appellate Court has held that a person may not refuse to comply with the request to take a breathalyzer test on the ground of self-incrimination.   Such a test is similar to a request for physical evidence.   See Altschul v. Salinas, 53 Conn.App. 391, 730 A.2d 1171, cert. denied, 249 Conn. 931, 761 A.2d 751 (1999).

The plaintiff's fourth issue is that the police lacked probable cause for arrest.   He claims that he was stopped at the side of the road because an empty can had lodged under his accelerator.   He also states that the automobile was filled with empty cans that once contained alcohol that he was taking to a recycling station.   This explains the odor of alcohol.   He has medication that causes his eyes to tear and look red.   He walks with a cane, so he could not take two of the field tests offered by the police at the scene.   The A–44 report and police report contain errors as they show that the police arrived at the same time as a call to the police department that he was “slumped” over his wheel.   The first police officer only commented on his failure to put the automobile in park, while the second officer found that he had failed the field tests and was not sober.

On the other hand, the Supreme Court has stated that the hearing officer is to resolve the issue of “probable cause” at the hearing under § 14–227b based on the “totality of the circumstances” existing at the time of the plaintiff's arrest.   See Murphy v. Commissioner of Motor Vehicles, supra, 254 Conn. 345.   Here the evidence showed a failure of the nystagmus test, the odor on plaintiff's person of alcohol, and slurred speech.  (ROR, p. 10.)   Regardless of who asked, the plaintiff was confused on whether his car was in park or not.   The hearing officer properly concluded that substantial evidence in the record supported a finding of probable cause to arrest.

The plaintiff's final issue is that the motive for his arrest was political.   The hearing officer did not believe the plaintiff's evidence on this point, as he was free to do.  “An administrative agency is not required to believe any witness, even an expert ․ Questions of whether to believe or to disbelieve a competent witness are beyond our review.”  Goldstar Medical Services, Inc. v. Dept. of Social Services, supra, 288 Conn. 830.

Therefore the plaintiff's appeal is dismissed.

Henry S. Cohn, Judge

FOOTNOTES

FN1. Affidavit of plaintiff, February 28, 2011.  FN1. Affidavit of plaintiff, February 28, 2011

FN2. The court proceeds to consider the merits here as it should indulge the plaintiff if possible by finding jurisdiction.   Also there is no question of aggrievement here, based on the six-month suspension imposed by the DMV..  FN2. The court proceeds to consider the merits here as it should indulge the plaintiff if possible by finding jurisdiction.   Also there is no question of aggrievement here, based on the six-month suspension imposed by the DMV.

Cohn, Henry S., J.