Nandabalan v. Commissioner of Motor Vehicles ( 2021 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears 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 reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
KIRSHAN NANDABALAN v. COMMISSIONER
OF MOTOR VEHICLES
(AC 43691)
Bright, C. J., and Cradle and Suarez, Js.
Syllabus
The plaintiff, who had been charged with the crime of operating a motor
vehicle while under the influence of intoxicating liquor, appealed to the
trial court from the decision of the defendant Commissioner of Motor
Vehicles suspending his motor vehicle operator’s license for forty-five
days and requiring the use of an ignition interlock device in his motor
vehicle for one year, pursuant to statute (§ 14-227b), for his refusal to
submit to a breath test to determine his blood alcohol content. The trial
court rendered judgment dismissing the plaintiff’s appeal, from which
the plaintiff appealed to this court. Held that the judgment of the trial
court dismissing the plaintiff’s appeal was affirmed; the trial court did
not err in concluding that the administrative record contained substantial
evidence to support the hearing officer’s finding that the plaintiff know-
ingly refused to submit to the breath test; the totality of the evidence,
including a police report, a Form A-44, a breath test strip that read ‘‘test
aborted refusal,’’ and the testimony of the arresting officer and the
plaintiff at the hearing, provided reliable, probative, and substantial
evidence that the plaintiff refused to submit to a breath test; moreover,
although the officer did not provide a narrative to describe the plaintiff’s
words or actions that constituted a refusal, as required by Form A-44,
the officer’s testimony at the hearing about the plaintiff’s express verbal
refusal cured any defects in the Form A-44.
Argued January 11—officially released May 4, 2021
Procedural History
Appeal from the decision of the defendant suspending
the plaintiff’s motor vehicle operator’s license, brought
to the Superior Court in the judicial district of New
Britain and tried to the court, Cordani, J.; judgment
dismissing the appeal, from which the plaintiff appealed
to this court. Affirmed.
Devin W. Janosov, with whom was Donald A. Papcsy,
for the appellant (plaintiff).
Christine Jean-Louis, assistant attorney general,
with whom were Eileen Meskill, assistant attorney gen-
eral and, on the brief, William Tong, attorney general,
for the appellee (defendant).
Opinion
SUAREZ, J. The plaintiff, Kirshan Nandabalan,
appeals from the judgment of the trial court dismissing
his appeal from the decision of the defendant, the Com-
missioner of Motor Vehicles, ordering a forty-five day
suspension of his license to operate a motor vehicle and
requiring him to employ an ignition interlock device,
pursuant to General Statutes § 14-227b, for his refusal
to submit to a chemical alcohol test. The plaintiff claims
that the court erred in concluding that the administra-
tive record contained substantial evidence to support
the hearing officer’s finding that he knowingly refused
to submit to the chemical alcohol test.1 We disagree
and affirm the judgment of the trial court.
The following facts and procedural history are rele-
vant to this appeal. We begin by restating the trial court’s
recitation of the facts surrounding the suspension of
the plaintiff’s license. ‘‘On May 7, 2019, Officer [Dimitar]
Sadiev of the Guilford Police Department was dis-
patched in response to a 911 call indicating that a red
Porsche with a specified license plate was operating
erratically.2 Officer Sadiev located the Porsche, noticed
that it was driving about [fifteen miles per hour] in a
[thirty mile per hour] zone and pulled it over. As he
approached the operator, later identified as the plaintiff,
the officer detected the odor of alcohol. Upon ques-
tioning, the plaintiff informed Officer Sadiev that he
was coming from KC’s Pub and that he had consumed
a glass of wine.3 Officer Sadiev noticed that the plaintiff
spoke slowly and slurred his words. Sergeant [Martina]
Jakober and Officer Potter then arrived to assist. The
plaintiff had some difficulty in reciting portions of the
alphabet and counting [backward] and was asked to
exit his car.
‘‘Officer Sadiev then administered standard field
sobriety tests to the plaintiff. The plaintiff failed some
of the standard field sobriety tests and was placed under
arrest at approximately 10:20 p.m. The plaintiff was
then transported to Guilford police headquarters. At
approximately 10:54 p.m., the plaintiff was read his
rights and signed a form indicating that he understood
them. The plaintiff was read the Implied Consent Advi-
sory and allowed to contact an attorney at 11:13 p.m.
The plaintiff made a call. At 11:23 p.m. the plaintiff was
read the Test Consent Form but refused to consent to
a Breathalyzer test. The plaintiff was again read the
Test Consent Form and again refused to consent to the
test.’’ (Footnotes in original.)
On May 22, 2019, the defendant sent a notice to the
plaintiff to inform him of the suspension of his license
pursuant to § 14-227b.4 On June 7, 2019, pursuant to
subsection (g) of § 14-227b, an administrative hearing
was held before a hearing officer to determine if the
plaintiff’s license should be suspended for refusal of a
chemical alcohol test. At the hearing, Officer Sadiev
and the plaintiff testified about the plaintiff’s arrest and
his alleged refusal to take the breath test. A copy of
Form A-445 with its attachments was admitted into evi-
dence. The plaintiff maintained that he did not refuse
to take the breath test. In support thereof, he relied
upon Officer Sadiev’s failure to document on the A-44
form the exact language he used when he asked the
plaintiff to submit to a chemical alcohol test, along with
Officer Sadiev’s hearing testimony that he ‘‘[did not]
remember the specific words that [he] used’’ to make
this request. Officer Sadiev testified at the hearing that,
although he could not remember what he asked the
plaintiff, the plaintiff ‘‘said no to [his] request for a . . .
breath sample . . . .’’
On June 13, 2019, the hearing officer issued a decision
with the following findings of fact and conclusions of
law: ‘‘(1) The police officer had probable cause to arrest
the [plaintiff] for a violation specified in [§] 14-227b
. . . . (2) The [plaintiff] was placed under arrest. (3)
The [plaintiff] refused to submit to such test or analysis.
(4) [The plaintiff] was operating the motor vehicle. (5)
[The plaintiff] was not under [twenty-one] years of age.’’
The hearing officer also made the following subordinate
finding: ‘‘Based upon sworn, credible testimony of . . .
Officer Sadiev and testimony of [the plaintiff], it is found
that there was a refusal to participate in testing.’’ On
the basis of these facts, the hearing officer ordered that
the plaintiff’s license be suspended for forty-five days
and that an ignition interlock device be installed and
maintained in the plaintiff’s vehicle for one year.
On August 6, 2019, the plaintiff appealed from the
hearing officer’s decision to the Superior Court pursu-
ant to General Statutes § 4-183.6 In the complaint, the
plaintiff alleged, among other things, that the decision
was ‘‘clearly erroneous in light of the reliable, probative,
and substantial evidence produced at the hearing’’ and
that ‘‘the hearing officer abused his discretion in finding
that . . . the state submitted ‘substantial evidence’ of
[the plaintiff’s] refusal to take a [chemical alcohol] test
. . . .’’ This decision, the plaintiff alleged, was ‘‘arbi-
trary and capricious,’’ ‘‘[constituted] an abuse of discre-
tion,’’ and ‘‘was clearly an unwarranted exercise of dis-
cretion.’’ Both parties submitted briefs and a hearing
was held before the trial court on December 2, 2019.
On December 3, 2019, the court rendered judgment
dismissing the appeal and issued a memorandum of
decision. After setting forth its findings, the court con-
cluded that ‘‘the record contain[ed] substantial evi-
dence to support the hearing officer’s finding that the
plaintiff knowingly refused the test,’’ and that ‘‘the hear-
ing officer’s decision was not clearly erroneous, arbi-
trary and capricious, or an abuse of discretion in view
of the reliable, probative and substantial evidence on
the whole record.’’ The court pointed to three pieces
of evidence in the record that supported the hearing
officer’s finding: ‘‘(1) the A-44 report and its attach-
ments; (2) Officer Sadiev’s hearing testimony; and (3)
the plaintiff’s hearing testimony.’’ The court stated that,
‘‘given the reports, the testimony of Officer Sadiev and
the testimony of the plaintiff himself, it is clear that (1)
the plaintiff was requested by the officers to take the
test; (2) the plaintiff understood that the officers were
requesting that he take the test; and (3) that the plaintiff
refused.’’7
Lastly, the court determined that ‘‘the plaintiff . . .
failed to establish on appeal that the [defendant’s] deci-
sion was (1) in violation of constitutional or statutory
provisions; (2) in excess of the statutory authority of
the agency; (3) made upon unlawful procedure; (4)
affected by other error of law; (5) clearly erroneous in
view of the reliable, probative, and substantial evi-
dence on the whole record; or (6) arbitrary or capricious
or characterized by abuse of discretion or clearly
unwarranted exercise of discretion.’’ (Emphasis
added.) This appeal followed. Additional facts and pro-
cedural history will be set forth as necessary.
On appeal, the plaintiff claims that the court erred
in concluding that the administrative record contained
substantial evidence to support the hearing officer’s
finding that he knowingly refused to submit to the chem-
ical alcohol test. We disagree.
We begin by setting forth the standard of review.
‘‘The determination of whether the plaintiff’s actions
constituted a refusal to submit to a Breathalyzer test
is a question of fact for the hearing officer to
resolve. . . .
‘‘In an administrative appeal, the plaintiff bears the
burden of proving that the commissioner’s decision to
suspend a motor vehicle operating privilege was clearly
erroneous in view of the reliable, probative and substan-
tial evidence on the whole record. . . . 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 find-
ings of basic fact and whether the conclusions drawn
from those facts are reasonable. . . . Substantial evi-
dence exists if the administrative record affords a sub-
stantial basis of fact from which the fact in issue can
be reasonably inferred. . . . The evidence must be sub-
stantial enough to justify, if the trial were to a jury, a
refusal to direct a verdict when the conclusion sought
to be drawn from it is one of fact for the jury. . . . [I]f
the administrative record provides substantial evidence
upon which the hearing officer could reasonably have
based his finding . . . the decision must be upheld.
. . . The obvious corollary to the substantial evidence
rule is that a court may not affirm a decision if the
evidence in the record does not support it.’’ (Citation
omitted; internal quotation marks omitted.) Fernschild
v. Commissioner of Motor Vehicles, 177 Conn. App.
472, 476–77, 172 A.3d 864 (2017), cert. denied, 327 Conn.
997, 175 A.3d 564 (2018).
‘‘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 deter-
mine, in view of all of the evidence, whether the agency,
in issuing its order, acted unreasonably, arbitrarily, ille-
gally or in abuse of its discretion.’’ (Internal quotation
marks omitted.) Ives v. Commissioner of Motor Vehi-
cles, 192 Conn. App. 587, 595, 218 A.3d 72 (2019).
‘‘[D]ifficulties [are] inherent in ascertaining when a
person is ‘refusing’ to submit to the breath test. ‘Refusal’
is difficult to measure objectively because it is broadly
defined as occurring whenever a person ‘remains silent
or does not otherwise communicate his assent after
being requested to take a blood, breath or urine test
under circumstances where a response may reasonably
be expected.’ Regs., Conn. State Agencies § 14-227b-5.
. . . Refusal to submit to a blood alcohol test may be
established by one’s actions or by verbally expressing
one’s unwillingness.’’ (Citation omitted; internal quota-
tion marks omitted.) Fernschild v. Commissioner of
Motor Vehicles, supra, 177 Conn. App. 477.
In the present case, the hearing officer considered
the following evidence relevant to the issue of refusal.
First, a police report prepared by Officer Sadiev states:
‘‘[The plaintiff] refused to the two breath tests8 which
were requested at 2323 hours. Sergeant Jakober . . .
asked if he would consent to the breath tests to which
[he] declined once again.’’ (Footnote added.) Second,
section F9 of the A-44 form completed by Officer Sadiev
on May 8, 2019, indicates that Officer Sadiev twice asked
to administer a breath test to the plaintiff, and that the
plaintiff refused both requests. Section H10 of the form
indicates that the plaintiff’s refusal was verbal. In this
section, Officer Sadiev gave the following narrative
description of the plaintiff’s refusal: ‘‘The 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.’’ Sargent
Jakober also signed the A-44 form as a witness to the
refusal.11 Third, a Breathalyzer test strip was imprinted
with the phrase ‘‘test aborted refusal.’’ Fourth, Officer
Sadiev and the plaintiff testified under oath at the hear-
ing and were cross-examined. Officer Sadiev testified
that the plaintiff ‘‘said no to [his] request for a Breatha-
lyzer, breath sample . . . .’’ Officer Sadiev then testi-
fied, however, that he ‘‘[did not] remember the specific
words that [he] used’’ to ask the plaintiff to take the
test. The plaintiff testified that he did not recall what
he said when Officer Sadiev asked him to take the
breath test. When asked whether, at any point, he com-
municated to Officer Sadiev that he would take the
breath test, he responded: ‘‘I don’t [think] so.’’ The plain-
tiff’s counsel interjected on multiple occasions during
this colloquy.12
The plaintiff argues that this evidence was not suffi-
cient to support the hearing officer’s conclusion that
he expressly refused to take the breath test. Specifically,
he asserts that Officer Sadiev’s narrative description in
section H of the A-44 form contains only a conclusory
statement that the plaintiff expressly refused the test,
but does not contain facts to support this conclusion.
He further argues that Officer Sadiev’s testimony before
the hearing officer ‘‘did not go far enough to correct
the volume of errors’’ with the narrative description.
The plaintiff principally relies on Fernschild v. Com-
missioner of Motor Vehicles, supra, 177 Conn. App. 472,
arguing that the present case is factually similar, and,
thus, we should reverse the judgment for lack of evi-
dence of refusal. In Fernschild, a police officer com-
pleted an A-44 form, on which the box ‘‘test refusal’’
was checked. Id., 478. A witnessing officer attested to
a printed statement on the form stating: ‘‘[T]he operator
named above refused to submit to [a breath] test . . .
when requested to do so . . . . [T]he refusal occurred
in my presence and my endorsement appears below
. . . .’’ Id. The hearing officer found that the A-44 form,
a Breathalyzer test strip with the words ‘‘test aborted
refusal,’’ and a case incident report in which the police
officer stated that the plaintiff ‘‘refused to submit to
the breath test,’’ supported a finding of refusal. Id.On appeal to this court, the plaintiff in Fernschild
argued that ‘‘the record contained only mere conclu-
sions of refusal without any underlying facts as to the
plaintiff’s verbal expressions or conduct supporting the
conclusion of the hearing officer that the plaintiff had
refused to submit to the Breathalyzer test.’’ Id., 477–78.
This court agreed, stating: ‘‘The evidence before the
hearing officer . . . was . . . bereft of underlying fac-
tual information. It included only conclusions by [the
police officers] that the plaintiff refused the breath test.
The record contains no description, however brief, of
the behavior, conduct or words of the plaintiff that led
the officers to conclude that there had been a refusal,
either expressly or by conduct. Without any underlying
evidentiary basis to support the inference of a refusal,
we are constrained to conclude that there was not sub-
stantial evidence in the record to support the determina-
tion of the hearing officer that there had been a refusal.’’
(Footnote omitted.) Id., 479.
In the present case, the plaintiff raised a similar argu-
ment before the trial court. The court rejected it, stating:
‘‘Given the actual hearing testimony of Officer Sadiev
and the plaintiff himself, this matter is clearly distin-
guished from the plaintiff’s interpretations of
Fernschild v. Commissioner of Motor Vehicles, [supra,
177 Conn. App. 472] . . . . The refusal of the plaintiff
here was confirmed as factually found by the hearing
officer, by the live hearing testimony of the arresting
officer and the plaintiff himself. As noted, the finding
of a refusal is a finding of fact.’’13 (Citation omitted.)
The defendant argues that the present case is distin-
guishable from Fernschild for reasons similar to those
articulated by the trial court. In addition, the defendant
points to Adams v. Commissioner of Motor Vehicles,
Superior Court, judicial district of New Britain, Docket
No. CV-XX-XXXXXXX-S (March 7, 2017) (reprinted at 182
Conn. App. 169, 189 A.3d 633), aff’d, 182 Conn. App.
165, 189 A.3d 629, cert. denied, 330 Conn. 940, 195 A.3d
1134 (2018), which, the defendant contends, is factually
similar to the present case because it involves an
express refusal. The defendant further contends that
Adams is distinguishable from Fernschild ’’because
Fernschild concerned a refusal that left open for inter-
pretation whether it occurred by behavior, conduct or
words.’’
In Adams, the plaintiff, who was arrested for
operating a vehicle under the influence of drugs or
alcohol, claimed that there was insufficient evidence
to support a finding that he refused to submit to a urine
test. Adams v. Commissioner of Motor Vehicles, supra,
Superior Court, Docket No. CV-XX-XXXXXXX-S. In Adams,
a police report indicated that after a police officer
requested a urine sample from the plaintiff, ‘‘the plaintiff
attempted unsuccessfully to reach an attorney and then
‘spoke with a family member and elected to refuse a
urine sample.’ ’’ Id. The trial court concluded that this
evidence was sufficient to support a finding of express
refusal. In reaching this conclusion, the trial court in
Adams distinguished the case from Bialowas v. Com-
missioner of Motor Vehicles, 44 Conn. App. 702, 692
A.2d 834 (1997), which ‘‘stands for the proposition that
when a person refuses a test by conduct . . . the police
must document the conduct that constitutes the
refusal.’’ Adams v. Commissioner of Motor Vehicles,
supra, Superior Court, Docket No. CV-XX-XXXXXXX-S. The
trial court held that where there is an express refusal,
as opposed to a refusal by conduct, ‘‘no further descrip-
tion of the refusal is required.’’ Id. This court adopted
the opinion of the trial court. Adams v. Commissioner
of Motor Vehicles, 182 Conn. App. 165, 168, 189 A.3d
629, cert. denied, 330 Conn. 940, 195 A.3d 1134 (2018).14
We agree with the trial court and the defendant that
the present case is distinguishable from Fernschild and
more like Adams. As the plaintiff notes, after
Fernschild, the Department of Motor Vehicles revised
section H of the A-44 form to include the following
instructions: ‘‘Use narrative to describe the operator’s
words or actions that constituted a refusal.’’ Officer
Sadiev did not do so. Unlike in Fernschild, however,
the hearing officer was presented with testimony about
the plaintiff’s express verbal refusal that cured any
defects in the A-44 form, namely, the testimony from
Officer Sadiev indicating that the plaintiff said ‘‘no’’
when he was asked to take a breath test.
The court stated in its memorandum of decision that
the plaintiff’s ‘‘initial testimony, along with his counsel’s
objections, concerning whether he refused to take the
test can be characterized as evasive.’’ Our review of
the hearing transcripts leads us to the same conclusion.
At the administrative hearing, the plaintiff testified that
he ‘‘[did not] recall’’ what he said to Officer Sadiev. He
further testified that he did not think he communicated
to Officer Sadiev that he would not take the breath test.
The plaintiff’s responses to the defendant’s counsel’s
questions were not definitive. His testimony indicated
that he was uncertain about the events surrounding
his alleged refusal. Officer Sadiev testified that, even
though he could not remember the exact question he
asked the plaintiff, the plaintiff expressly refused to
submit to a chemical alcohol test. It was within the
hearing officer’s province as the finder of fact to find
Officer Sadiev’s testimony credible.
Furthermore, Officer Sadiev’s indication on the A-44
form that the plaintiff’s refusal was verbal, along with
his testimony that the plaintiff responded ‘‘no’’ when
asked to take a breath test, support the finding that the
plaintiff’s refusal was an express verbal one, rather than
one expressed through ambiguous conduct. In Adams,
the trial court relied solely on the description in the
police report in concluding that there was sufficient
evidence to find that the plaintiff expressly refused to
take a urine test. Adams v. Commissioner of Motor
Vehicles, supra, Superior Court, Docket No. CV-16-
6033742-S. This description did not contain the words
that the police officer used to request the test, nor did
it contain the words that the plaintiff used to respond.
Id. Thus, in comparison to the hearing officer in Adams,
the hearing officer in the present case had even more
evidence about the plaintiff’s express refusal upon
which to rely. This evidence supported its ultimate deci-
sion.
The totality of the evidence, including the police
report, the A-44 form, the Breathalyzer test strip, and the
testimony of Officer Sadiev and the plaintiff, provides
reliable, probative, and substantial evidence that the
plaintiff refused to submit to a breath test. The plaintiff
has not met his burden of proving that the hearing
officer erred in concluding that there existed sufficient
evidence of refusal.
The judgment is affirmed.
In this opinion the other judges concurred.
1
In his principal brief to this court, the plaintiff raises three issues, all of
which are related to his alleged refusal. These issues are the same in sub-
stance, and we have reframed them as the single issue set forth herein.
2
‘‘The 911 caller reported that the red Porsche was traveling on the wrong
side of the road and nearly collided with the caller’s car head-on. The caller
further reported that she observed the Porsche repeatedly crossing the
double yellow line and driving on the grassy shoulder of the road. Lastly,
the caller noted that the Porsche was driving unusually slowly.’’
3
‘‘Later during processing, the plaintiff indicated that he had a glass
of scotch.’’
4
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.
‘‘(b) If any such person, having been placed under arrest for a violation
of section 14-227a or 14-227m or subdivision (1) or (2) of subsection (a)
of section 14-227n, and thereafter, after being apprised of such person’s
constitutional rights, having been requested to submit to a blood, breath or
urine test at the option of the police officer, having been afforded a reason-
able opportunity to telephone an attorney prior to the performance of such
test and having been informed that such person’s license or nonresident
operating privilege may be suspended in accordance with the provisions of
this section if such person refuses to submit to such test . . . and that
evidence of any such refusal shall be admissible in accordance with subsec-
tion (e) of section 14-227a and may be used against such person in any
criminal prosecution, refuses to submit to the designated test, the test shall
not be given . . . . The police officer shall make a notation upon the records
of the police department that such officer informed the person that such
person’s license or nonresident operating privilege may be suspended if
such person refused to submit to such test . . . .
‘‘(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 and a copy of the results of any chemical test or analysis to the
Department of Motor Vehicles within three business days. . . . 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 subdivi-
sion (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 . . . .’’
5
This form is entitled: ‘‘Officer’s OUI Arrest and Alcohol Test Refusal or
Failure Report.’’ ‘‘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 (2001).
6
General Statutes § 4-183 (j) 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, con-
clusions, or decisions are: (1) In violation of constitutional or statutory
provisions; (2) in excess of the statutory authority of the agency; (3) made
upon unlawful procedure; (4) affected by other error of law; (5) clearly
erroneous in view of the reliable, probative, and substantial evidence on
the whole record; or (6) 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 and, if appropriate, may render
a judgment under subsection (k) of this section or remand the case for
further proceedings.’’ (Emphasis added.) We interpret the plaintiff’s claim
to implicate subdivision (5) of this subsection.
7
The trial court noted: ‘‘The plaintiff’s own testimony establishes that he
understood the officers wanted him to take the test and that he never
communicated his consent to take the test.’’
8
In light of Officer Sadiev’s testimony, it is reasonable to interpret this
portion of his report to state that the plaintiff was asked and refused to
submit to a breath test twice.
9
Section F is entitled ‘‘Chemical Alcohol Test Data.’’ In this section, there
are boxes for an officer to indicate the type of test selected, the dates and
times that the first and second tests were offered, and the result of each
test. In the present case, Officer Saidev wrote ‘‘refused’’ for the result of
each test.
10
Section H is entitled ‘‘Chemical Alcohol Test Refusal’’ and must be
completed when an operator refuses testing. An officer must indicate
whether the test refusal was verbal or through conduct and ‘‘[u]se [a] narra-
tive to describe the operator’s words or actions that constituted a refusal.’’
A second officer must provide his or her name and signature indicating that
he or she witnessed the refusal.
11
At the administrative hearing, the plaintiff’s counsel asked Officer
Sadiev: ‘‘And the refusal wasn’t witnessed by a Sergeant Jakober; is that
correct?’’ Officer Sadiev responded: ‘‘Yes, sir.’’ Shortly after, the plaintiff’s
counsel asked: ‘‘[Y]our testimony . . . is that you in some way requested
that [the plaintiff] do a test, the Breathalyzer or otherwise, and he said no;
is that correct?’’ Officer Sadiev responded: ‘‘And someone asked him if he
would do it. He said, no. And Sergeant Jakober also asked him.’’ Additionally,
the police report stated ‘‘Sergeant Jakober . . . asked if [the plaintiff] would
consent to the breath tests to which [he] declined once again. The refusal
was witnessed by Sergeant Jakober.’’
On the basis of this evidence, it is reasonable to interpret the evidence
such that Sergeant Jakober signed the A-44 form as a witness to the refusal
because she asked the plaintiff to take the breath test for a third time and,
thus, witnessed this refusal.
12
At one point during the administrative hearing, the defendant’s counsel
asked the plaintiff: ‘‘So isn’t it true that when asked to take a breath test
you said, no?’’ The plaintiff’s counsel objected to this question and interjected
when the defendant’s counsel attempted to repeat the question. The plaintiff
then answered: ‘‘I don’t recall probably what I said. But I do recall, I do
remember . . . .’’ Before the plaintiff could finish this response, his counsel
interrupted, stating: ‘‘You don’t have to answer more than that. I don’t want
you to speculate.’’
13
The trial court stated: ‘‘In this regard, the hearing officer made a specific
subsidiary finding, noting: ‘Based upon sworn, credible testimony of . . .
Officer Sadiev and testimony of [the plaintiff], it is found that there was a
refusal to participate in testing.’ As the finder of fact, the hearing officer
was in the position to assess and weigh the evidence, determine credibility
and make findings of fact which are supported by substantial evidence, as
this finding was.’’
14
We note that the trial court in Adams issued its decision before this
court issued its decision in Fernschild. Because this court adopted the trial
court’s decision in Adams as its own, it did not address Fernschild. This
court’s decision in Fernschild, however, was issued approximately three
months before Adams was argued before this court, and approximately
seven months before this court issued its decision in Adams. On the basis
of the timeline of these decisions, we conclude that the court in Adams
concluded that the express verbal refusal in that case distinguished it from
the factual situations in Fernschild.