Marshall v. Commissioner of Motor Vehicles ( 2022 )

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MARSHALL V. COMMISSIONER OF MOTOR VEHILCES—DISSENT
PRESCOTT, J., dissenting. In a driver’s license sus-
pension proceeding conducted by the Department of
Motor Vehicles (department), the department’s hearing
officer typically, and often exclusively, relies on an A-
44 report prepared by one or more police officers to
determine whether the driver’s privilege to operate a
motor vehicle should be suspended pursuant to General
Statutes § 14-227b.1 Under our regulatory scheme, the A-
44 report is admissible without providing to the accused
driver any practical opportunity to cross-examine the
author of the report. I continue to have concerns with
the admission and reliability of some A-44 reports, par-
ticularly in light of the operator’s lack of any practical
opportunity to cross-examine the author of the report
concerning the accuracy of the information contained
in it. Furthermore, our Supreme Court has indicated in
two cases that A-44 reports that fail to comply with the
admissibility requirements set forth in General Statutes
§ 14-227b (c) are not admissible. Do v. Commissioner
of Motor Vehicles, 330 Conn. 651, 669, 200 A.3d 681(2019); Volck v. Muzio, 204 Conn. 507, 518, 529 A.2d
177 (1987). In light of these concerns, I respectfully
dissent from the decision of the majority affirming the
hearing officer’s admission of the A-44 report despite
its undisputed failure to comply with the requirements
of § 14-227b (c).
An A-44 report ‘‘shall be admissible into evidence at
[a license suspension] hearing if it conforms to the
requirements of subsection (c) of [§] 14-227b . . .
[which] provides that the report, to be admissible, must
be submitted to the department within three business
days, be subscribed and sworn to by the arresting offi-
cer under penalty of false statement, set forth the
grounds for the officer’s belief that there was probable
cause to arrest the driver, and state whether the driver
refused to submit to or failed a blood, breath or urine
test.’’ (Emphasis omitted; internal quotation marks
omitted.) Do v. Commissioner of Motor Vehicles, supra,
330 Conn. 668. Indeed, one of the plain and unambigu-
ous requirements imposed by § 14-227b (c) is that ‘‘[t]he
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 within three business days.’’ (Emphasis
added.) General Statutes § 14-227b (c).
There is no dispute in the present case that the A-44
report was neither created nor sent to the department
within the three day period required by § 14-227b (c).2
As the majority correctly states, the report was pre-
pared five days after the incident giving rise to the
plaintiff’s arrest and was not transmitted to the depart-
ment until nine days after the incident. Our Supreme
Court has explained, ‘‘the admissibility requirements
set forth in [§ 14-227b (c)] provide sufficient indicia
of reliability so that the [A-44] report can be introduced
in evidence as an exception to the hearsay rule, espe-
cially in license suspension proceedings, without the
necessity of producing the arresting officer.’’ (Empha-
sis added; internal quotation marks omitted.) Do v.
Commissioner of Motor Vehicles, supra, 330 Conn. 678.
In my view, the three day requirement imposed by § 14-
227b (c) exists, at least in part, to heighten the reliability
of A-44 reports, because it requires a police officer to
prepare the report while his or her recollection of the
incident is most fresh. According to prior appellate
precedent and, now, in accordance with the majority’s
decision in this case, an A-44 report is admissible, even
if the report contains significant and obvious factual
errors; see id., 656; and even though it fails to comply
with the admissibility requirements set forth by statute.
See General Statutes § 14-227b (c).
It is important to emphasize that, under the existing
regulatory scheme, a report is admissible without pro-
viding the accused individual with any practical oppor-
tunity to cross-examine the author of the report con-
cerning the reliability of the information contained
therein. The lack of the opportunity to cross-examine
the author of the report is the result of § 14-227b-18 of
the Regulations of Connecticut State Agencies, which
is titled ‘‘Attendance of arresting officer at hearing,’’
and provides in relevant part: ‘‘(b) A person arrested
for an enumerated offense may at such person’s own
expense and by such person’s own solicitation summon
to the hearing the arresting officer and any other wit-
ness 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. . . .’’
(Emphasis added.)
As I stated in Do v. Commissioner of Motor Vehicles,
164 Conn. App. 616, 626–27, 138 A.3d 359 (2016), rev’d,
Do v. Commissioner of Motor Vehicles, 330 Conn. 651,
200 A.3d 681 (2019), ‘‘[a]lthough § 14-227b-18 of the
Regulations of Connecticut State Agencies permits a
person arrested for violating § 14-227a . . . to summon
the arresting officer to the administrative hearing, if
the subpoenaed arresting officer does not appear, the
person arrested is not entitled to a continuance or a
dismissal. Thus, even though an arrested person can
subpoena the arresting officer, if the officer does not
appear, the arrested person is deprived of his or her
ability to cross-examine the officer regarding any errors
in the A-44 form.’’ (Footnote omitted.) Indeed, on the
basis of my prior experience serving as the presiding
judge of the tax and administrative appeals session of
the Superior Court, it is my experience that the author
of an A-44 report rarely testifies in these proceedings. I
remain concerned that the confluence of this regulatory
scheme, the Supreme Court’s decision in Do, and the
majority’s decision in the present case risk depriving
operators of fundamental fairness before they lose the
privilege to drive. ‘‘This court is aware of the carnage
associated with drunken drivers. . . . Nevertheless, in
our endeavor to rid our roads of these drivers . . . we
cannot trample on the constitutional rights of other
citizens. They are entitled to a fair hearing. . . . An
operator’s license is a privilege that the state may not
revoke without furnishing the holder of the license due
process as required by the fourteenth amendment.’’
(Citations omitted; internal quotation marks omitted.)
Bialowas v. Commissioner of Motor Vehicles, 44 Conn.
App. 702, 718, 692 A.2d 834 (1997). I also am of the
view that, under existing law, including this court’s
decision today, police officers have become disinceti-
vized to ensure that A-44 reports comply with § 14-
227b (c).
With these concerns in mind, it is important to focus
on two cases decided by our Supreme Court that have
stated that an A-44 report that fails to comply with the
admissibility requirements set forth in § 14-227b (c) will
not be admissible. In Volck v. Muzio, supra, 204 Conn.
507, the plaintiff was arrested for operating a motor
vehicle under the influence of intoxicating liquor or
drugs. Id., 508–10. At the plaintiff’s license suspension
hearing, the hearing officer considered various police
documents, including a police report that documented
that the plaintiff had refused to submit to a blood,
breath, or urine test on the day of the incident. Id.,509–10. The plaintiff did not object to the admission
of any of the documents introduced at the hearing,
including the police report. Id., 510–11. Following the
hearing, the hearing officer determined that there was
probable cause to arrest the plaintiff, that the plaintiff
had been arrested, that he had refused to submit to a
blood, breath, or urine test, and that he was operating a
motor vehicle. Id., 511–12. Accordingly, the department
suspended the plaintiff’s license. Id., 508.
The plaintiff appealed the suspension of his license
to the Superior Court, arguing, inter alia, that the report,
which documented the plaintiff’s refusal to submit to
testing, was not ‘‘endorsed by a third [party who] wit-
ness[ed]’’ the refusal. Id., 509–10; see also General Stat-
utes § 14-227b (c). Although the court agreed with the
plaintiff that the report failed to comply with the admis-
sibility requirements in § 14-227b (c) because it had not
been endorsed by a third-party witness to the refusal,
the court nonetheless dismissed the plaintiff’s appeal
because it determined that the nonconformity did not
negate the hearing officer’s findings. Volck v. Muzio,
supra, 204 Conn. 516.
On appeal, our Supreme Court stated: ‘‘The absence
of the endorsement of a third person who witnessed
the [plaintiff’s] refusal of testing would have rendered
[the police officer’s] report inadmissible if the plaintiff
had objected thereto. No objection was raised, however,
to its use at the license suspension hearing.’’ (Emphasis
added.) Id., 518. Thus, the Supreme Court indicated
that, had the plaintiff objected to the admission of the
police report, it would have been inadmissible because
it failed to comply with one of the admissibility require-
ments set forth in § 14-227b (c). See id. Because the
‘‘hearsay statements . . . c[a]me into [the] case with-
out objection’’ by the plaintiff, ‘‘they [could] be relied
upon by the trier, in proof of the matters stated therein,
for whatever they were worth on their face.’’ (Internal
quotation marks omitted.) Id. Accordingly, the hearing
officer’s findings were ‘‘not flawed [despite] his reliance
upon the unwitnessed report of the police officer.’’ Id.
In Do v. Commissioner of Motor Vehicles, supra, 330
Conn. 651, the Supreme Court likewise indicated that
a report that fails to comply with the admissibility
requirements contained in § 14-227b (c) should not be
admissible. The plaintiff in Do was arrested for
operating a motor vehicle under the influence of intox-
icating liquor or drugs. Id., 658. The arresting officer
prepared an A-44 report, documenting the incident, and
sent a copy to the department. Id., 657–58. The report
complied with the admissibility requirements set forth
in § 14-227b (c). Id., 658.
At the plaintiff’s license suspension hearing, the plain-
tiff objected to the admission of an exhibit which con-
tained the A-44 report, a police investigation report,
and the results of the plaintiff’s breath analysis test
from the night of the incident. Id., 658–59. The plaintiff
argued that the exhibit was unreliable because it con-
tained the following internal discrepancies: ‘‘(1) the A-
44 form state[d] that, at the time of her arrest, the
plaintiff was driving a 2007 Audi A4 with Massachusetts
license plates whereas the investigation report state[d]
that the plaintiff was driving a 2006 Mercedes-Benz S28
with Connecticut license plates; (2) after [the arresting
officer] had subscribed and sworn to the information
contained in the A-44 form, [his supervisor] altered . . .
that form by crossing out . . . the date of the incident
and writing in [a different date]; (3) [the supervisor]
. . . crossed out the name [of] . . . a person who wit-
nessed the plaintiff’s [alleged] refusal to perform a
breath analysis test [although the results of the plain-
tiff’s breath analysis test were included in the exhibit];
and (4) . . . the investigation report . . . state[d] that
the plaintiff informed [the arresting officer] that she
was wearing contact lenses whereas the summary of
the plaintiff’s . . . test results in the same report
state[d] that the plaintiff performed th[e] test with and
without her glasses on.’’ (Footnote omitted; internal
quotation marks omitted.) Id., 659. The hearing officer
overruled the plaintiff’s objection, determining that the
discrepancies went to the weight to be given to the
exhibit, not to its admissibility, and admitted the exhibit
into evidence. Id., 660. The hearing officer ultimately
determined that there was probable cause to arrest the
plaintiff, that the plaintiff had been arrested, that she
had submitted to a test and the results indicated a blood
alcohol content of 0.08 percent or more, and that she
was operating a motor vehicle. Id. Consequently, the
department suspended the plaintiff’s license. Id.
The plaintiff appealed the suspension of her license
to the Superior Court. Id., 661. The court determined
that the hearing officer did not abuse his discretion by
admitting the exhibit into evidence because the exhibit
complied with the requirements of § 14-227b (c). Id.
The plaintiff appealed to this court; see id., 663; and
this court reversed the judgment of the Superior Court,
concluding that the ‘‘A-44 form contain[ed] so many
significant internal discrepancies and errors that it
[wa]s rendered unreliable, at least in the absence of
testimony by the arresting officer or other evidence
that support[ed] its reliability.’’ (Emphasis added.) Do
v. Commissioner of Motor Vehicles, supra, 164 Conn.
App. 627.
Our Supreme Court reversed the decision of this
court, concluding that the plaintiff had failed to demon-
strate that the hearing officer had abused his discretion
by admitting the exhibit and relying on the exhibit to
support his findings. Do v. Commissioner of Motor
Vehicles, supra, 330 Conn. 668. Our Supreme Court
determined that the exhibit met each of the require-
ments set forth in § 14-227b (c): ‘‘[I]t was submitted
to the department within three business days; it was
subscribed and sworn to by the arresting officer; it set
forth the grounds for the officer’s belief that there was
probable cause to arrest the plaintiff; and it stated
whether the plaintiff submitted to a blood test.’’ Id., 669.
Because it complied with the admissibility requirements
set forth in § 14-227b (c) and set forth evidence to sup-
port the hearing officer’s findings, the exhibit was
admissible. See id., 669, 680. The factual discrepancies
within the exhibit ‘‘[went] to the weight to be accorded
the exhibit by the hearing officer, not to its admissibil-
ity.’’ Id., 671.
Importantly, our Supreme Court in Do noted that
‘‘[n]either [our Supreme Court] nor [this court] has ever
recognized any basis for excluding a police report from
evidence at a license suspension hearing other than
the failure to comply with § 14-227b (c). Indeed, [our
Supreme Court] ha[s] rejected claims that a report
should be excluded for any other reason.’’ (Emphasis
added.) Id., 669. The Supreme Court cited Volck, noting
that, in that case, ‘‘[the] arresting officer’s failure to
comply with [the] statutory dictates of § 14-227b [b]
provided [an] insufficient ground for overturning [the]
[C]ommissioner [of Motor Vehicle’s] suspension of [the
plaintiff’s] license, but [the] absence of [the] endorse-
ment of [a] third person to [the] plaintiff’s refusal to
submit to [a] breath analysis test as required by § 14-
227b [c] would be [a] ground for [the] exclusion of [the]
report . . . .’’ (Emphasis added.) Id. Thus, the Supreme
Court has indicated for a second time that an A-44
report’s noncompliance with the admissibility require-
ments set forth in § 14-227b (c) renders the report inad-
missible, at least in the absence of testimony by the
arresting officer.
I recognize that the statements by our Supreme Court
in Volck and Do are arguably dicta. Nonetheless, I am
persuaded, in light of my concerns for fundamental
fairness, that this court should adhere to the Supreme
Court’s statement in two cases that the A-44 reports,
in the absence of testimony by the author of the report,
are not admissible if they fail to comply with the stric-
tures of § 14-227b (c). If the Supreme Court ultimately
disavows its statements in Volck and Do, and holds that
an A-44 report is admissible even if it does not comply
with the statutory requirements and the author is not
subject to cross-examination, I, of course, am duty
bound to follow that decision. Accordingly, I conclude
that the hearing officer improperly admitted the A-44
report because it failed to comply with § 14-227b (c)
and would reverse the judgment of the Superior Court
affirming the decision with direction to sustain the
plaintiff’s appeal.
In light of the foregoing considerations, I respectfully
dissent.
1
General Statutes § 14-227b provides in relevant part: ‘‘If [a] person
arrested [for operating a motor vehicle under the influence of intoxicating
liquor or any drug or both in accordance with General Statutes § 14-227a]
refuses to submit to [a blood, breath, or urine] test or analysis or submits
to such test or analysis . . . and the results of such test or analysis indicate
that such person has an elevated blood alcohol content, 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 . . . for
a twenty-four-hour period. . . . [U]pon receipt of [a police] report [docu-
menting the incident giving rise to the arrest], the Commissioner of Motor
Vehicles may suspend any operator’s license . . . effective as of a date
certain, which date shall be not later than thirty days after the date such
person received notice of such person’s arrest by the police officer. Any
person whose operator’s license or nonresident operating privilege has been
suspended in accordance with this subdivision shall automatically be entitled
to a hearing before the commissioner . . . .’’
2
Because the majority opinion accurately sets forth the facts and proce-
dural history of this case, I see no need to repeat them here.