Opinion
HHBCV156029663S
01-28-2016
Hart Prendergast v. Commissioner of Motor Vehicles
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Carl J. Schuman, Judge, Superior Court.
The plaintiff, Hart Prendergast, appeals from the decision of the defendant commissioner of motor vehicles (commissioner) suspending the plaintiff's driver's license for one year based on his refusal to take a breath test. For the reasons stated below, the court affirms the commissioner's decision and dismisses the appeal.
I
The administrative record reveals the following facts. (Return of Record (ROR), Investigation Report; 5/27/15 transcript pp. 4-6, 11, 14, 16-17, 19-20.) On March 27, 2015, at approximately 10:46 p.m., Trooper Josue Dorelus of the Connecticut State Police responded to a two-car collision on the southbound side of Route 15, near Exit 61 in Hamden. En route, he learned that one of the vehicles had left the scene. Upon arrival, Dorelus observed damage to the right side of the remaining vehicle. The driver of that vehicle told Dorelus that his vehicle was sideswiped by what he believed to be a blue sedan.
Unfortunately, the record is not Bates-stamped.
Shortly before midnight that night, Hamden police received a call about a suspicious vehicle on Marietta Street. A neighbor had seen the car " come in and park." Hamden police responded and observed the car with four flat tires, parked in the middle of the road with the driver asleep at the wheel.
When Hamden police put out a dispatch about the car, the state police responded and the officers concluded that they had located a vehicle matching the description of the evading vehicle from the earlier accident. Dorelus received a state police dispatch about the matter at 12:11 a.m. At approximately 12:30 a.m., Dorelus arrived at the scene, which was the intersection of Marietta Street and Dixwell Avenue in Hamden, a location " right off" route 15. Upon Dorelus's arrival, Hamden police informed him that they had found a blue Nissan Altima which seemed to have been in a recent collision. They added that the operator, who appeared to be incapacitated and under the influence of alcohol, was sitting in the driver's seat with a key " fob" in his pocket. However, the vehicle was not running at the time.
Dorelus observed that the damage to the vehicle was consistent with the description provided by the accident victim. The car was in a stopped position facing southbound. The person in the driver's seat, later identified as the plaintiff, told Dorelus that he was traveling from Meriden and arrived at that location.
The plaintiff subsequently failed one standardized field sobriety test and declined to take two others. At approximately 12:45 a.m., Dorelus placed the plaintiff under arrest for operating a motor vehicle under the influence of alcohol. At the police station, the plaintiff verbally refused to submit to a breath test for alcohol.
On May 6 and May 27, 2015, the department conducted a hearing to determine whether to suspend the plaintiff's license. On May 27, 2015, the hearing officer rendered a written decision finding that the plaintiff was operating a motor vehicle, that there was probable cause to arrest the plaintiff for operating under the influence, and that the plaintiff refused a chemical test. Based on these findings, and the fact that the plaintiff had a prior license suspension, the hearing officer suspended the plaintiff's license for one year. See General Statutes § 14-227b(i )(2)(C) (Rev. to 2013).
Effective July 1, 2015, Public Acts 2014, No. 14-228, § 6, amended the statute to provide for a maximum suspension of forty-five days followed by a variable period during which the driver must install an ignition interlock device. See General Statutes § 14-227b( i ) (Rev. to 2015).
The plaintiff appeals, claiming that there was insufficient evidence of operation, insufficient evidence of a temporal nexus between operation and being under the influence, and a violation of due process when the hearing officer continued the hearing in order to subpoena the arresting officers.
II
Our appellate courts have consistently made clear that a license suspension hearing is " limited to the four issues set forth in [General Statutes] § 14-227b[g]." Volck v. Muzio, 204 Conn. 507, 512, 529 A.2d 177 (1987). Accord Fitzgerald v. Commissioner of Motor Vehicles, 142 Conn.App. 361, 365, 65 A.3d 533 (2013). Those four issues are: " (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." General Statutes § 14-227b(g).
The plaintiff initially challenges the finding on the fourth issue of operation. " An accused operates a motor vehicle within the meaning of . . . § 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." (Citations omitted; internal quotation marks omitted.) State v. Roth, 104 Conn.App. 248, 251 n.3, 932 A.2d 1071 (2007). " [M]ere insertion of the key into the ignition is an act . . . which alone or in sequence will set in motion the motive power of the vehicle . . . and, therefore, itself constitutes operation of the vehicle." (Internal quotation marks omitted.) Sengchanthong v. Commissioner of Motor Vehicles, 281 Conn. 604, 610-11, 917 A.2d 942 (2007).
The definition of " operating" is the same for both § 14-227a and § 14-227b. Id., 611.
Under these standards, there can be no valid claim--and the commissioner makes none--that the plaintiff was operating the vehicle when the police discovered him in the driver's seat in Hamden, as the engine was not running and there is no evidence that the keys were in the ignition. To establish operation, the commissioner instead relies on the plaintiff's own admission that he drove to Hamden. The plaintiff's admission to operation constitutes substantial evidence to support the hearing officer's finding of operation, thus satisfying the standard of review on this issue. See Murphy v. Dept. of Motor Vehicles, 254 Conn. 333, 343, 757 A.2d 561 (2000) (" 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 . . .") [Internal quotation marks omitted.]
Although Hamden police found the plaintiff with the key fob in his pocket, there was no evidence that the plaintiff had pushed an ignition switch to start the engine. Thus, the plaintiff had not taken the " first act in a sequence of steps necessary to set in motion the motive power of a vehicle that has been equipped with a remote starter." State v. Cyr, 291 Conn. 49, 58, 967 A.2d 32 (2009). (Return of Record (ROR).) Therefore, there was no operation at that point. However, the key fob does provide evidence that the plaintiff operated the vehicle at an earlier time, as mentioned below.
There was also passing mention in the testimony that the person who called the Hamden police " saw him come in and park." (ROR, 5/27/15 transcript, p. 17.)
The real question in this case is not whether the plaintiff was operating but when. This question arises under the first issue of whether there is substantial evidence of probable cause to arrest the plaintiff for operating a motor vehicle while under the influence. In order for probable cause to exist in this situation, there must be a " temporal nexus between liquor and operation." Murphy v. Commissioner of Motor Vehicles, 54 Conn.App. 127, 132, 733 A.2d 892 (1999), rev'd, 254 Conn. 333, 757 A.2d 561 (2000). To be sure, " there is no requirement that the fact of operation be established by direct evidence"; Murphy v. Commissioner of Motor Vehicles, supra, 254 Conn. 345; and " [t]he absence of witnesses to the plaintiff's operation of the vehicle is not dispositive on the issue of operation." Id., 347. However, " [a]lthough the police officer may draw any reasonable, logical inferences from the facts observed, he may not resort to mere speculation or conjecture, particularly . . . where there is no evidence of a temporal nexus between liquor and operation." Murphy v. Commissioner of Motor Vehicles, supra, 54 Conn.App. 132. See also State v. Grant, 286 Conn. 499, 511, 944 A.2d 947 (2008) (" 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"). [Internal quotation marks omitted.]
Although our Supreme Court reversed the Appellate Court's decision in Murphy, it did so by applying the same " temporal nexus" standard. Murphy v. Commissioner of Motor Vehicles, supra, 254 Conn. 347.
Applying these standards, there was substantial evidence to support the hearing officer's finding on this issue. There was evidence that the damage to the vehicle found on Marietta Street was consistent with the description of the damage to the car sideswiped off Route 15. There was additional evidence that the blue vehicle found on Marietta Street matched the description of the evading vehicle from the earlier accident. The location of Marietta Street and Dixwell Avenue was " right off" route 15, which is consistent with the theory that the plaintiff drove there from the accident scene on route 15. The plaintiff's admission that he traveled from Meriden to Hamden, which can be judicially recognized as southbound, is consistent with the fact that the accident took place on route 15 in the southbound direction. Dorelus found the plaintiff in the driver's seat of the suspect vehicle with a key fob in his pocket.
From this evidence, it is a reasonable inference, and not a matter of speculation, that the plaintiff was operating the motor vehicle that caused the accident on route 15 at approximately 10:46 p.m. The fact that the plaintiff caused an accident and left the scene leads to the inference that he was under the influence of alcohol at that time. Supporting that inference is the fact that the police found the plaintiff in an intoxicated condition at approximately 12:30 a.m. There was thus substantial evidence to support the hearing officer's finding that there was a temporal nexus between liquor and operation.
The other issue raised by the plaintiff arises from the procedure before the hearing officer. An initial hearing took place on May 6, 2015 in which only the hearing officer and counsel for the plaintiff were present. The hearing officer, on behalf of the department of motor vehicle (department), introduced the police reports. He then stated: " All right. You're up." (ROR, 5/6/15 transcript, p. 2.) Plaintiff's counsel thereupon argued that there was insufficient evidence of a nexus between operation and intoxication. The hearing officer responded: " So what the department wants us to do in these situations is to give the officer one opportunity to come in and sort of clarify his report when these type of questions come up; so I'm going to have to continue the hearing. We will on our side subpoena the officer." (ROR, 5/6/15 transcript, p. 4.) The plaintiff objected, but a second day of hearings took place on May 27, 2015 at which Dorelus and the two Hamden officers testified. (ROR, 5/27/15 transcript.)
Even though an appeal under § 14-227b is normally limited to the four issues stated above, it is implicit under the Uniform Administrative Procedure Act that the court can review " irregularities in procedure before the agency . . ." General Statutes § 14-227b(i ).
The plaintiff renews his objection, claiming that the hearing officer's continuation of the case after the state had rested violated due process of law. The court finds no merit to this claim. " Hearings before administrative agencies . . . are informal and are not governed by the strict and technical rules of evidence." Santiago v. Commissioner of Motor Vehicles, 134 Conn.App. 668, 673, 39 A.3d 1224 (2012). Unlike the situation in criminal cases, in administrative proceedings there is no rule that prevents or limits an agency from presenting further evidence after it has concluded its case. Cf. State v. Dunbar, 51 Conn.App. 313, 721 A.2d 1229 (1998), cert. denied, 247 Conn. 962, 724 A.2d 1126 (1999); Practice Book § 42-35(3).
The plaintiff was not denied due process of law. See Pet v. Dept. of Health Services, 228 Conn. 651, 661, 638 A.2d 6 (1994) (" the procedures required by the [Uniform Administrative Procedure Act, General Statutes § 4-166 et seq.] exceed the minimal procedural safeguards mandated by the due process clause"). [Internal quotation marks omitted.] On the contrary, § 14-227b(g) provides that " [a]t the request of [the motorist] or the hearing officer and upon a showing of good cause, the commissioner may grant one or more continuances." Similarly, the department's regulations specifically address this situation by stating that " [a]t the hearing the commissioner shall not require the presence and testimony of the arresting officer, or any other person, but the hearing officer may make an appropriate order, as authorized by Section 14-110 of the General Statutes, to obtain the testimony of such arresting officer or other witness, if the same appears 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(a). The plaintiff has not challenged the constitutionality of this regulation. Although this regulation may prove inconvenient for the motorist and his attorney, it serves the valid purpose of allowing the hearing officer to learn from the motorist's counsel about the nature of the contested issues and subpoena the police officers only if necessary to determine the validity of those issues. The hearing officer in this case did precisely what the regulation allows.
Section 14-110(a) provides that " [t]he commissioner . . . in the performance of his duties, may . . . issue subpoenas." The regulation has an outdated reference to subsection (f) of § 14-227b, which is now provided for in subsection (g).
III
The court affirms the commissioner's decision and dismisses the appeal.
It is so ordered.