Clinton Graton v. Commissioner of the Department of Motor Vehicles (2013)

MEMORANDUM OF DECISION

This is an administrative appeal brought by the plaintiff, Clinton Graton, challenging a decision by the Department of Motor Vehicles (“DMV”) to suspend his operator's license for six months following his arrest for driving a motor vehicle while under the influence of alcohol or drugs.   This appeal raises the following issues:  (1) whether the Hearing Officer abused his discretion by proceeding with the hearing in the absence of the arresting officer, by not specifically asking the plaintiff if he objected to the admission of Form A–44 and its attachments, or by not admitting potentially relevant evidence mentioned but not offered by the plaintiff;  and (2) whether the Hearing Officer abused his discretion by admitting the Form A–44 and its attachments into evidence.   For the reasons set forth below, the court concludes that the Hearing Officer did not abuse his discretion, and that the Form A–44 and its attachments were properly admitted into evidence.

I. FACTS AND PROCEDURAL HISTORY

The record discloses the following facts.   On April 12, 2013 at approximately 5:30 PM, Ansonia Police Officer Jonathan Edwards and a second officer were dispatched to 16 Meadow Street to investigate a disorderly conduct complaint.   At the scene, Samantha Tiano complained that her neighbor, the plaintiff, had driven his car on the lawn of her residence.   The officers found the plaintiff sitting in his Toyota Echo with the engine running, parked on the street.   Officer Edwards began to question the plaintiff and smelled alcohol on his breath.   Officer Edwards then administered three field sobriety tests.   In the first test, in which the plaintiff was asked to follow the officer's finger with his eyes, he lost focus and looked into the officer's eyes instead of at his finger.   In the second test, the plaintiff was asked to stand on one leg and count.   The plaintiff counted to 15 before placing his foot back on the ground to regain balance, and he swayed side to side throughout the test.   In the third test, the plaintiff failed to walk heel to toe and needed to raise his arms for balance.   Officer Edwards arrested the plaintiff for driving under the influence.   The plaintiff was transported to the Derby police department, where he refused to submit to a chemical alcohol test.   He was not cooperative during the booking process.

At 8:52 PM, Samantha Tiano gave a sworn written statement to Ansonia police.   She explained that she had experienced many problems with the plaintiff in the past, and that earlier that evening she had found the plaintiff parked in her yard.   Ms. Tiano stated that she and her mother had gotten into a verbal altercation with the plaintiff over the parking situation, and that he moved the car back onto the street after she called 911.

Officer Edwards prepared an A–44 form ¹ describing the incident and arrest.   The A–44 form was forwarded to the DMV in accordance with C.G.S. § 14–227b.

The following day, Tiano's mother, Jacqueline Brickett, gave a statement to the Ansonia Police Department.   Brickett corroborated her daughter's account of the incident.

On April 29, 2013 the DMV suspended the plaintiff's operator's license for a period of six months.   At the plaintiff's request, DMV held a hearing on May 21, 2013.   The plaintiff did not have an attorney at the hearing.   Despite having been issued a subpoena by the DMV, arresting officer Jonathan Edwards was absent from the hearing.   Following the hearing, the Hearing Officer concluded that Officer Edwards had probable cause to arrest the plaintiff for driving under the influence.   The Hearing Officer ordered the plaintiff's operator's license suspended for six months.²  The plaintiff appealed the DMV's decision to Superior Court.   Further facts are set forth below as necessary to address the claims of the parties.

II. STANDARD OF REVIEW

“Judicial review 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 ․ 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.”   (Citations and internal quotation marks omitted.)  Cadlerock Properties Joint Venture, L.P. v. Commissioner of Environmental Protection, 253 Conn. 661, 676, 757 A.2d 1, 11 (2000).

“The erroneous admission of evidence will not invalidate an administrative order unless substantial prejudice is affirmatively shown ․ The burden is on the plaintiff to prove that the evidentiary ruling of an administrative hearing officer is arbitrary, illegal[,] or an abuse of discretion.”  Griffin v. Muzio, 10 Conn.App. 90, 94, 521 A.2d 607, 609 (1987), cert denied, 203 Conn. 805 (1987).

III. ANALYSIS

A. The plaintiff's self-represented status did not excuse his obligation to make objections, offer evidence and seek a continuance.

The plaintiff claims that he was denied his constitutional right to due process at the suspension hearing.   In support of this claim, the plaintiff cites to three instances in which he argues that the Hearing Officer should have been more solicitous of his self-represented status.

First, the plaintiff argues that the Hearing Officer should have explicitly asked him if he objected to the admission of the Form A–44 and its attachments.   The plaintiff contends that “[a]n attorney likely would have objected to the documents on several grounds.”

“It is the established policy of the Connecticut courts to be solicitous of pro se litigants and when it does not interfere with the rights of other parties to construe the rules of practice liberally in favor of the pro se party.”  Rosato v. Rosato, 53 Conn.App. 387, 390, 731 A.2d 323, 325 (1999).   The plaintiff cites no authority, however, for the proposition that an adjudicator must explicitly ask a self-represented party if he objects to the admission of specific evidence.   Self-represented parties must still comply with rules of practice and procedure.  Id. By failing to object, a self-represented party risks having admitted evidence which he or she believes is not admissible.   Second, the plaintiff argues that the Hearing Officer denied him procedural due process by not admitting certain documents into evidence.   Specifically, the plaintiff argues that the Hearing Officer did not admit medical records documenting the plaintiff's torn ligament in his knee or the tendency of his eyes to twitch, conditions which may have hindered his performance in field sobriety tests.   Additionally, the Hearing Officer did not admit a statement from the plaintiff's coworker which may have shown the plaintiff had been working long hours and was extremely tired at the time of his arrest.

It is significant, however, that although the plaintiff referred to these documents in his testimony, he never actually attempted to introduce them into evidence.³  Consequently, the Hearing Officer never ruled on their admissibility.   In the absence of such an evidentiary proffer and ruling, this court cannot ascertain whether the Hearing Officer abused his discretion or denied the plaintiff procedural due process by not admitting the documents.   Just as the Hearing Officer did not have an affirmative duty to solicit objections from the plaintiff, neither did he have an affirmative duty to ask the plaintiff to offer his exhibits.

Third, the plaintiff argues that the Hearing Officer improperly proceeded with the suspension hearing despite the absence of the arresting officer Jonathan Edwards.   Officer Edwards had been issued a subpoena to appear at the hearing.   The record, however, does not disclose whether the hearing officer issued the subpoena at the request of the plaintiff ⁴ or because he believed that the testimony of the arresting officer appeared “necessary to make a proper finding on one or more of the issues stated in subsection (f) of Section 14–227b of the General Statutes.”  Regs, Conn. State Agencies § 14–227b–18.   In addition, the record is not clear whether Officer Edwards received the subpoena or that it was served on him not less than seventy-two hours prior to the designated time of the hearing as required by General Statutes § 14–227b(g).

In any event, the record is silent as to why Officer Edwards did not attend and the Hearing Officer did not have an affirmative duty to continue the hearing based only on the plaintiff's remark “I wouldn't mind sitting here speaking with ․ Officer Edwards if he were here.”   This ambiguous remark does not qualify as a motion for continuance.   Even if it did, DMV's regulations make clear that the arresting officer's failure to appear does not automatically require a continuation of the hearing:  “A person arrested for [driving under the influence] may at his own expense and by his own solicitation summon to the hearing the arresting officer and any other witness to give oral testimony.   The failure to appear at the hearing of any witness summoned by the person arrested shall not be grounds for such person to request a continuance or dismissal of the hearing.”  Regs., Conn. State Agencies § 14–227b–18.

Although the plaintiff has a right to procedural due process, he also has a responsibility to introduce his own evidence, subpoena his own witnesses, and make his own objections.   The plaintiff's right to procedural due process is not a guarantee that the adjudicator will advocate on his behalf.   In conclusion, the Hearing Officer did not abuse his discretion or violate procedural due process by refraining from postponing the hearing, soliciting objections, or inviting the plaintiff to introduce documents into evidence.

B. The Form A–44 and its attachments were admissible despite discrepancies in when they were sworn and subscribed to by the arresting officer.

The plaintiff did not object to the introduction of the Form A–44 and its attachments into evidence.   Nevertheless, he argues that the Hearing Officer improperly admitted the A–44 report.   But given his pro se appearance at the suspension hearing and the obvious importance of these documents, this court will still evaluate whether the Hearing Officer erred in admitting these documents.   Even if had properly preserved this claim, the court concludes that the Hearing Officer did not abuse his discretion by admitting the document.   See Burnham v. Adm'r, Unemployment Comp. Act, 184 Conn. 317, 322–23, 439 A.2d 1008, 1011 (1981) (“the leniency traditionally afforded to inexperienced pro se parties may justify belated consideration of claims not fully explored in earlier proceedings”).

The plaintiff argues that the Form A–44 and its attachments are unreliable because of “discrepancies regarding the dates when the A–44 and narrative were signed.”   The record shows that the Form A–44 was signed on April 12, but one page of the Supplementary Case/Incident Report form arguably appears to be subscribed and sworn to on April 10.   The other pages are all dated and sworn to on April 12th.   The handwriting is difficult to read and it is difficult to tell whether it reads April 10th or April 12th, but given the dates on the other pages it is reasonable to construe the handwriting as reading April 12th.   However, even if it is read as a “10,” instead of “12,” the Court finds that this was a mere scrivener's error because the plaintiff was not arrested until April 12th.   This minor discrepancy does not render the Form and its attachments unreliable.   See State v. Thompson, 307 Conn. 567, 580, 57 A.3d 323 (2012).

The plaintiff also argues that the Statement of Jacqueline Brickett dated April 13th, which was attached to the A–44, and another supplemental report dated April 15th, could not have been sworn and subscribed to by Officer Edwards on April 12th and thus are inadmissible.   The court concludes, however, that these documents were independently admissible at the suspension hearing, regardless of whether they were sworn and subscribed to by the arresting officer.   Brickett's statement and the supplemental report, however, were made under oath, and this alone lends them an indicia of reliability.   Indeed, the plaintiff conceded at oral argument that these documents would have been admissible had they been introduced separately instead of as attachments to the Form A–44.

Even if these documents were improperly admitted by the hearing officer, the A–44 and the supplemental report dated April 12th, which were properly admitted without objection, contain more than enough facts to constitute substantial evidence to support the conclusion that there was probable cause to arrest the defendant for driving while intoxicated.   The agency's regulations provide that an A–44 Report is admissible without the presence of the arresting officer at the hearing:  “The written report filed by the arresting officer shall be admissible into evidence at the hearing if it conforms to the requirements of Section 14–227b of the General Statutes ․” Regs., Conn. State Agencies § 14–227b–19.  “Compliance with § 14–227b(c) is designed to provide “sufficient indicia of reliability so that the report can be introduced in evidence as an exception to the hearsay rule, especially in license suspension proceedings, without the necessity of producing the arresting officer.”   Volck v. Muzio, 204 Conn. 507, 518, 529 A.2d 177 (1987).

“Probable cause, broadly defined, comprises such facts as would reasonably persuade an impartial and reasonable mind not merely to suspect or conjecture, but to believe that criminal activity has occurred ․ In determining whether there was probable cause to arrest for operating a motor vehicle while under the influence of liquor, the court may consider, just as in an arrest for any other criminal offense, circumstantial as well as direct evidence ․ To establish probable cause, it is not necessary to produce a quantum of evidence necessary to convict ․ The credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency, and this court cannot disturb the conclusions reached by the [hearing officer] if there is evidence that reasonably supports his decision.”  (Citations omitted;  internal quotation marks omitted.)  Pizzo v. Commissioner of Motor Vehicles, 62 Conn.App. 571, 588, 771 A.2d 273 (2001).   Probable cause is to be determined by the totality of the circumstances.  Id.

In the present case, there is more than substantial evidence to support the Hearing Officer's probable cause determination.   The Hearing Officer could have reasonably found from the evidence that the plaintiff had erratically driven his vehicle onto a neighbor's yard.   The odor of alcohol was emanating from his breath and he was off balance and swaying when he exited his vehicle.   These facts alone are more than sufficient to establish probable cause for his arrest.⁵

IV. CONCLUSION

For the reasons set forth above, the Hearing Officer did not abuse his discretion or deny the plaintiff procedural due process by failing to be more solicitous to the plaintiff's self-represented status or by admitting the Form A–44 and its attachments into evidence.   Accordingly, the DMV's decision is affirmed.   Judgment shall enter accordingly.

Hon. Eliot D. Prescott

FOOTNOTES

FN1. “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. Commissioner of Motor Vehicles, 67 Conn.App. 394, 396 n.3, 786 A.2d 1279, 1281 n.3 (2001)..  FN1. “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. Commissioner of Motor Vehicles, 67 Conn.App. 394, 396 n.3, 786 A.2d 1279, 1281 n.3 (2001).

FN2. Pursuant to General Statutes § 14–227b(g) and (h), the Commissioner shall suspend an individual's right to operate if he concludes that the following four issues have been established:  (1) the police officer had probable cause to arrest the person for operating a motor vehicle while under the influence of intoxicating liquor or drugs, or both;  (2) the person placed under arrest;  (3) the person refused to submit to a blood, breath or urine test to determine their blood alcohol content;  and (4) the person was operating the motor vehicle..  FN2. Pursuant to General Statutes § 14–227b(g) and (h), the Commissioner shall suspend an individual's right to operate if he concludes that the following four issues have been established:  (1) the police officer had probable cause to arrest the person for operating a motor vehicle while under the influence of intoxicating liquor or drugs, or both;  (2) the person placed under arrest;  (3) the person refused to submit to a blood, breath or urine test to determine their blood alcohol content;  and (4) the person was operating the motor vehicle.

FN3. For instance, the plaintiff said “I do have medical reports from six years ago to as early as three months ago of a completely torn ligament in my knee.”   But he never attempted to read from the reports, show the reports to the Hearing Officer, or ask that they be included in the record.   The plaintiff also testified that “I have a statement from a gentleman that I was working with three days prior that I was working twelve hours a day with him.”   Similarly, however, he only mentioned the existence of the statement;  he did not attempt to introduce it into evidence..  FN3. For instance, the plaintiff said “I do have medical reports from six years ago to as early as three months ago of a completely torn ligament in my knee.”   But he never attempted to read from the reports, show the reports to the Hearing Officer, or ask that they be included in the record.   The plaintiff also testified that “I have a statement from a gentleman that I was working with three days prior that I was working twelve hours a day with him.”   Similarly, however, he only mentioned the existence of the statement;  he did not attempt to introduce it into evidence.

FN4. Because he is not an attorney, the plaintiff could not have issued a subpoena himself..  FN4. Because he is not an attorney, the plaintiff could not have issued a subpoena himself.

FN5. The plaintiff also failed all three standard roadside sobriety tests..  FN5. The plaintiff also failed all three standard roadside sobriety tests.

Prescott, Eliot D., J.