Glanz v. Commissioner of Motor Vehicles ( 2022 )

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ADAM GLANZ v. COMMISSIONER
OF MOTOR VEHICLES
(AC 44189)
Bright, C. J., and Alvord and Norcott, Js.
Syllabus
The plaintiff, who had been arrested for operating a motor vehicle while
under the influence of intoxicating liquor in violation of statute (§ 14-
227a), appealed to the trial court from the decision of the defendant,
the Commissioner of Motor Vehicles, suspending the plaintiff’s motor
vehicle operator’s license and requiring the installation of ignition inter-
lock devices on his motor vehicles pursuant to statute (§ 14-227b). Fol-
lowing the plaintiff’s arrest, a police officer administered a breath alcohol
test on him four times. Although the second test yielded a higher blood
alcohol content result than the first, it was invalidated. Only the first
and fourth tests yielded valid results, the fourth producing a lower
result than the first. At the administrative hearing before the defendant’s
hearing officer, the plaintiff presented the testimony of an expert, P,
that the second test had been scientifically valid and that the plaintiff’s
blood alcohol content had been rising from the time he operated his
motor vehicle to the time when the tests were performed. The hearing
officer found that P’s testimony was informative but not persuasive.
The plaintiff appealed to the trial court, claiming that the hearing officer
improperly relied on the presumption in § 14-227b (g) that the results
of blood alcohol tests commenced within two hours of operation of a
motor vehicle were sufficient to indicate blood alcohol content at the
time of operation and that the hearing officer had ignored the exception
in the criminal statute, § 14-227a (b), that, if the results of a second
blood alcohol test indicated that the ratio of alcohol in the blood was
0.1 percent or less and was higher than the results of the first test,
the defendant was required to show that the test results and analysis
accurately reflected the plaintiff’s blood alcohol content at the time of
the alleged offense. The trial court rendered judgment dismissing the
appeal, and the plaintiff appealed to this court. Held:
1. The plaintiff could not prevail on his claim that his right to procedural
due process was violated by the administrative procedures contained
in § 14-227b (g) regarding evidence of blood alcohol content in the
context of a license suspension hearing: the hearing officer, having
considered and found unpersuasive P’s opinion that the results of the
tests were unreliable, properly applied the permissive presumption that
the breath alcohol test results were sufficient to indicate the plaintiff’s
blood alcohol content at the time of operation without the need for
additional evidence; moreover, the state’s interest in promoting traffic
safety and performing license suspension hearings in an expeditious
manner comported with the presumption in § 14-227b (g), and the plain-
tiff, as the subject of a license suspension hearing, was not entitled to
all of the procedural protections available in a criminal proceeding,
thus, the rising blood alcohol content exception in § 14-227a (b) was
not applicable to the plaintiff; furthermore; substantial evidence in the
record consisting of the plaintiff’s valid breath alcohol test results dem-
onstrated that his blood alcohol content was falling, not rising.
2. The trial court properly determined that § 14-227b and not § 14-227a
applied to the plaintiff’s administrative license suspension hearing; §14-
227a (b) expressly provides that it applies to criminal prosecutions, and
the plaintiff was the subject of a civil administrative license suspension
hearing, which was governed by § 14-227b.
Argued October 18, 2021—officially released February 8, 2022
Procedural History
Appeal from the decision of the defendant suspending
the plaintiff’s motor vehicle operator’s license and
requiring the installation of ignition interlock devices
on the plaintiff’s vehicles, 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.
Morgan Paul Rueckert, for the appellant (plaintiff).
John M. Russo, Jr., assistant attorney general, with
whom, on the brief, was William Tong, attorney gen-
eral, for the appellee (defendant).
Opinion
NORCOTT, J. The plaintiff, Adam Glanz, appeals from
the judgment of the Superior Court rendered in favor
of the defendant, the Commissioner of Motor Vehicles
(commissioner), dismissing his appeal from the deci-
sion of the commissioner suspending his motor vehicle
operator’s license for forty-five days, pursuant to Gen-
eral Statutes § 14-227b, and requiring ignition interlock
devices in his motor vehicles for six months. On appeal,
the plaintiff claims that (1) the presumption in § 14-227b
(g) that the results of blood alcohol tests commenced
within two hours of operation shall be sufficient to
indicate blood alcohol content at the time of operation
violates his right to due process under the federal con-
stitution because it does not include an exception
requiring the submission of additional evidence to prove
the accuracy of the blood alcohol test results in the
event that such test results reveal that the operator’s
blood alcohol level was rising, and (2) the court erred
in concluding that the rising blood alcohol exception
in the criminal statute for operating a motor vehicle
while under the influence of intoxicating liquor or
drugs, General Statutes § 14-227a (b), did not apply to
his administrative license suspension hearing. We
affirm the judgment of the Superior Court.
In its memorandum of decision, the court found the
following facts. ‘‘On December 1, 2019, Officer [Kevin]
Geraci of the South Windsor Police Department
observed a vehicle speeding, crossing the solid yellow
center line of the road, and revving its engine thereby
creating loud exhaust noise. The officer pulled the vehi-
cle over at 12:47 a.m. and identified the plaintiff as
its operator. The officer smelled the odor of alcohol
emanating from inside the vehicle. The plaintiff then
admitted to recently drinking two beers. As a result of
all of the foregoing, the officer asked the plaintiff to
exit the vehicle so that the officer could administer the
standard field sobriety tests. During the conduct of the
field sobriety tests, the plaintiff then admitted to
recently drinking four beers. The plaintiff failed the
standard field sobriety tests.
‘‘In light of the foregoing, the officer arrested the
plaintiff for violating . . . § 14-227a and transported
the plaintiff to police headquarters. At the police head-
quarters, the plaintiff was read his Miranda rights [pur-
suant to Miranda v. Arizona, 384 U.S. 436, 478–79, 86
S. Ct. 1602, 16 L. Ed. 2d 694 (1966)] and the implied
consent advisory. The plaintiff was allowed time to
contact his attorney. The plaintiff initially refused to
submit to the breath alcohol test, but then changed
his mind and consented. The officer administered the
breath test four times to the plaintiff. The first test was
administered at 1:41 a.m. and yielded a result of 0.1066.
The second test was administered at 2 a.m. and yielded
a result of 0.1068, but was invalidated in the final calibra-
tion check of the equipment because of the presence
of alcohol in the ambient air, apparently because the
officer used hand sanitizer. The third test, administered
at 2:03 a.m., did not produce a result because the exter-
nal standard used to calibrate the equipment failed. The
fourth test, administered at 2:12 a.m., produced a result
of 0.0999.’’
On December 10, 2019, the plaintiff was issued a
notice informing him of the suspension of his operator’s
license pursuant to § 14-227b unless he requested an
administrative hearing.1 The plaintiff requested such a
hearing, and one was held before the commissioner’s
hearing officer on January 3, 2020, to determine whether
the plaintiff’s operator’s license should be suspended.
At the hearing, an A-44 form,2 the breath alcohol test
results, a narrative police report, and the plaintiff’s driv-
ing history were admitted into evidence. The plaintiff
also offered the testimony of Robert Powers, who has
a Ph.D. in biochemistry, and a report from Powers.
Powers testified that, on the basis of his assessment of
the blood alcohol tests, the plaintiff’s blood alcohol was
rising from the time when he was operating his motor
vehicle to the time when the tests were performed. He
further stated that the second test was scientifically
valid. After considering all the evidence, the hearing
officer found the following: the police officer had proba-
ble cause to arrest the plaintiff; the plaintiff was
operating a motor vehicle; the plaintiff was placed
under arrest; and the plaintiff submitted to blood alco-
hol tests, the results of which indicated a blood alcohol
content of 0.08 or more. The hearing officer also found
that the expert testimony of Powers was informative
but was not persuasive under § 14-227b. The hearing
officer suspended the plaintiff’s operator’s license for
forty-five days and required the installation of ignition
interlock devices for six months.
The plaintiff appealed the decision of the hearing
officer to the Superior Court. In his brief filed in the
Superior Court, the plaintiff argued that the hearing
officer improperly relied on the presumption in § 14-
227b (g) to establish blood alcohol content at the time
of operation and ignored the rising blood alcohol excep-
tion in the criminal statute for operating a motor vehicle
under the influence of intoxicating liquor or drugs, § 14-
227a (b). The court issued a memorandum of decision
dismissing the appeal. The court reasoned that the crim-
inal statute, § 14-227a (b), which governs prosecutions
for operating a motor vehicle while under the influence
of intoxicating liquor or drugs, did not apply. The court
concluded that ‘‘[t]he statutory presumption provided
for in § 14-227b (g) applies and, as a result the alcohol
test results are representative of the blood alcohol con-
tent of the plaintiff at the time he was operating his
motor vehicle.’’ The court further determined that the
record contains substantial evidence to support the
hearing officer’s findings, including that the plaintiff’s
blood alcohol content was 0.08 or more at the time he
was operating his motor vehicle. This appeal followed.
‘‘[J]udicial review of the commissioner’s action is
governed by the Uniform Administrative Procedure Act
[(UAPA), General Statutes §§ 4-166 through 4-189], 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 evi-
dence in the administrative record to support the
agency’s findings of basic fact and whether the conclu-
sions drawn from those facts are reasonable. . . . Nei-
ther this court nor the trial court may retry the case or
substitute its own judgment for that of the administra-
tive 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.’’ (Citation omitted; internal
quotation marks omitted.) Murphy v. Commissioner of
Motor Vehicles, 254 Conn. 333, 343, 757 A.2d 561 (2000).
I
The plaintiff claims that the hearing officer’s reliance
on § 14-227b (g) violated his right to due process under
the fourteenth amendment to the United States consti-
tution because his blood alcohol test results indicated
that he had a rising blood alcohol content, thereby
showing that he had a lower blood alcohol content at
the time of operation. He contends that the presumption
in § 14-227b (g), that the results of blood alcohol tests
commenced within two hours of operation are suffi-
cient to demonstrate blood alcohol content at the time
of operation, is unconstitutional because it does not
contain an exception like its criminal statutory counter-
part, § 14-227a (b).3 We are not persuaded.
Although the plaintiff does not specify whether he is
making a substantive or procedural due process claim,
we interpret his claim, which concerns the constitution-
ality of the procedures in license suspension hearings,
to invoke principles of procedural due process. Whether
the plaintiff was deprived of his right to due process
is a question of law over which our review is plenary.
See McFarline v. Mickens, 177 Conn. App. 83, 100, 173
A.3d 417 (2017), cert. denied, 327 Conn. 997, 176 A.3d
557 (2018). ‘‘The fourteenth amendment to the United
States constitution provides that the [s]tate [shall not]
deprive any person of life, liberty, or property, without
due process of law . . . . In order to prevail on his
due process claim, the plaintiff must prove that: (1) he
has been deprived of a property interest cognizable
under the due process clause; and (2) the deprivation
of the property interest has occurred without due pro-
cess of law. . . . A driver’s license, as a property inter-
est, may not be suspended or revoked without due
process of law. . . . [D]ue process . . . is not a tech-
nical conception with a fixed content unrelated to time,
place and circumstances. . . . [D]ue process is flexible
and calls for such procedural protections as the particu-
lar situation demands. . . .
‘‘In Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct.
893, 47 L. Ed. 2d 18 (1976), the Supreme Court indicated
that to determine the level of procedural due process
necessary, we must consider three factors: (1) the pri-
vate interest that will be affected by the official action,
(2) the risk of an erroneous deprivation of such interest
through the procedure used and the probable value, if
any, of additional substitute procedural safeguards and
(3) the state’s interest, including the function involved
and the fiscal and administrative burdens that the addi-
tional or substitute procedural requirements would
entail.’’ (Citations omitted; internal quotation marks
omitted.) Kostrzewski v. Commissioner of Motor Vehi-
cles, 52 Conn. App. 326, 336–37, 727 A.2d 233, cert.
denied, 249 Conn. 910, 733 A.2d 227 (1999). ‘‘One who
challenges the constitutionality of a statute bears the
heavy burden of overcoming the presumption of its
constitutional validity and of establishing the statute’s
invalidity beyond a reasonable doubt.’’ (Internal quota-
tion marks omitted.) Dumont v. Commissioner of
Motor Vehicles, 48 Conn. App. 635, 643, 712 A.2d 427,
cert. denied, 245 Conn. 917, 717 A.2d 234 (1998).
Section 14-227b (g) provides in relevant part that
administrative hearings before the commissioner ‘‘shall
be limited to a determination of the following issues
. . . (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 alco-
hol content . . . . In the hearing, the results of the test
or analysis shall be sufficient to indicate the ratio of
alcohol in the blood of such person at the time of opera-
tion, provided such test was commenced within two
hours of the time of operation. . . .’’4
The plaintiff argues that the application of § 14-227b
(g) violated his right to due process because it contains
an ‘‘irrebutable, irrational, illogical and thus unconstitu-
tional’’ mandatory presumption that the hearing officer
find that the results of a blood alcohol test, if com-
menced within two hours of operation, is indicative of a
plaintiff’s blood alcohol content at the time of operation
without providing for a rising blood alcohol content
exception. He contends that the statutory scheme in
the parallel criminal proceeding for operating a motor
vehicle while under the influence includes such a rising
blood alcohol content exception in § 14-227a (b) when
it provides that it is a ‘‘rebuttable presumption that the
results of such chemical analysis establish the ratio of
alcohol in the blood of the defendant at the time of
the alleged offense, except that if the results of the
additional test indicate that the ratio of alcohol in the
blood of such defendant is ten-hundredths of one per
cent or less of alcohol, by weight, and is higher than
the results of the first test, evidence shall be presented
that demonstrates that the test results and the analysis
thereof accurately indicate the blood alcohol content
at the time of the alleged offense.’’ General Statutes
§ 14-227a (b). He argues that this exception is constitu-
tionally required in license suspension proceedings
because, without it, the state can deprive the plaintiff
of a vested right based on a presumption that is ‘‘illogical
and mandatory.’’ 5
Applying the Matthews v. Eldridge, 424 U.S. 335, cri-
teria to the present case, we conclude that, although
the plaintiff has a significant private interest in the use
and enjoyment of his operator’s license, the risk of
erroneous deprivation from the proper application of
the presumption in § 14-227b (g) is low. In particular,
we determine, in the exercise of our plenary review
over issues of statutory interpretation; see Ives v. Com-
missioner of Motor Vehicles, 192 Conn. App. 587, 595,
218 A.3d 72 (2019); that the presumption in § 14-227b
(g) that the test results ‘‘shall be sufficient’’ to indicate
the operator’s blood alcohol content at the time of oper-
ation is not, as the plaintiff contends, mandatory.
Rather, the statute, by its plain and unambiguous lan-
guage that the test results ‘‘shall be sufficient,’’ permits,
but does not require, the hearing officer to infer a plain-
tiff’s blood alcohol content at the time of operation
from the blood alcohol test results alone, without the
need for additional evidence. See General Statutes § 14-
227b (g). As a result, the statute creates a permissive
presumption. See, e.g., Bancroft v. Commissioner of
Motor Vehicles, 48 Conn. App. 391, 401–403, 710 A.2d
807 (permissive inference or presumption allows but
does not require trier of fact to infer elemental fact
from proof by prosecutor), cert. denied, 245 Conn. 917,
717 A.2d 234 (1998); see also Reid v. Landsberger, 123
Conn. App. 260, 283, 1 A.3d 1149 (where words of statute
are plain and unambiguous, intent of drafters derived
from words used), cert. denied, 298 Conn. 933, 10 A.3d
517 (2010). The presumption may be overcome if the
hearing officer determines that the chemical alcohol
test results are unreliable. See Crandlemire v. Commis-
sioner of Motor Vehicles, 117 Conn. App. 832, 844–45,
982 A.2d 212 (2009). In the present case, the record
reflects that the hearing officer considered and found
unpersuasive Powers’ opinion that the results of the
chemical alcohol tests were unreliable. Thus, the hear-
ing officer properly applied the permissive presumption
that the test results accurately reflected the plaintiff’s
blood alcohol content at the time of operation.
Finally, the state has a significant interest in promot-
ing public safety and in performing license suspension
hearings in an expeditious manner. By permitting the
results of blood alcohol tests performed within two
hours of operation to be sufficient to indicate the opera-
tor’s blood alcohol content at the time of operation
without requiring the presentation of additional evi-
dence of blood alcohol content and without creating a
rebuttable presumption that requires additional evi-
dence to be submitted to prove the accuracy of the
blood alcohol tests under certain circumstances, the
administrative statutory scheme promotes the state’s
interest in removing potentially dangerous drivers from
the roadways through expeditious license suspension
hearings. Although the plaintiff argues that the rising
blood alcohol exception in the criminal statute counter-
part should apply in civil license suspension hearings,
this argument ignores the different purposes of the civil
and criminal proceedings relating to operation of a
motor vehicle while under the influence of intoxicating
liquor or drugs. There are several procedural protec-
tions that are expressly included in the criminal coun-
terpart, § 14-227a (b),6 that are not included in the civil
statute, however, ‘‘a license suspension hearing is not
a criminal proceeding and . . . the subject of such a
hearing is not entitled to all of the procedural protec-
tions that would be available in a criminal proceeding.
. . . [T]he legislative history of § 14-227b reveals that
a principal purpose [of] the enactment of the statute was
to protect the public by removing potentially dangerous
drivers from the state’s roadways with all dispatch com-
patible with due process. . . . [L]icense suspension
proceedings, the primary purpose of which is to pro-
mote public safety by removing those who have demon-
strated a reckless disregard for the safety of others
from the state’s roadways [are distinguishable] from
criminal proceedings, the primary purpose of which
is punishment.’’ (Citations omitted; internal quotation
marks omitted.) Do v. Commissioner of Motor Vehicles,
330 Conn. 651, 679, 200 A.3d 681 (2019). The presump-
tion in § 14-227b (g), which allows the results of blood
alcohol tests alone to be sufficient evidence of the oper-
ator’s blood alcohol content at the time of operation,
comports with the state’s interest in license suspension
hearings, which is not punishment but, rather, the pro-
motion of traffic safety with all dispatch compatible
with due process. It also promotes the state’s interest
in traffic safety by allowing for the suspension of the
driver’s licenses of dangerous drivers who, immediately
upon ingesting intoxicating liquor that will render them
unable to drive safely for several hours, attempt to
drive to their destination quickly before the alcohol is
absorbed fully. Accordingly, the plaintiff has not demon-
strated that the statute facially violates his right to pro-
cedural due process in a license suspension hearing.
The plaintiff also argues that the statutory presump-
tion in § 14-227b (g) is unconstitutional as applied to
him because the hearing officer failed to apply the rising
blood alcohol content exception in his case. As noted
previously in this opinion, the hearing officer consid-
ered Powers’ testimony regarding the reliability of the
test results. The hearing officer simply found Powers’
testimony not persuasive. Thus, the record does not
reflect that the hearing officer treated the test results
as mandating a finding regarding the plaintiff’s blood
alcohol content at the time of operation or that he
disregarded out of hand the purported evidence that
the plaintiff’s blood alcohol content was rising.
Furthermore, there was substantial evidence in the
record that the valid test results do not indicate a rising
blood alcohol content. The first test yielded a result of
0.1066, but the second test, on which the plaintiff relies
to demonstrate a rising blood alcohol content, was
invalidated. The third test did not produce a result, and
the fourth test yielded a blood alcohol content result
of 0.0999, which is lower than the result obtained from
the first test. Accordingly, because the valid test results
from the first and fourth tests indicate a falling blood
alcohol content, the facts underlying the plaintiff’s as
applied challenge to § 14-227b (g) do not exist.7 For the
foregoing reasons, we conclude that the plaintiff’s right
to procedural due process was not violated by the
administrative procedures that are set forth in § 14-227b
(g) regarding evidence of blood alcohol content in the
context of a suspension hearing.
II
Alternatively, the plaintiff claims that the court erred
in concluding that the rising blood alcohol exception
in the criminal statute, § 14-227a (b), did not apply to
his administrative license suspension hearing.8 We dis-
agree.
The criminal statute, § 14-227a (b), expressly pro-
vides that it applies ‘‘in any criminal prosecution’’ for
violation of § 14-227a (a), which mandates that ‘‘[n]o
person shall operate a motor vehicle while under the
influence of intoxicating liquor or any drug or both.’’
(Emphasis added.) The present case is not a criminal
prosecution under § 14-227a (a), but rather involves a
civil administrative license suspension hearing, which
proceedings are governed by § 14-227b. ‘‘[T]he legisla-
tive scheme [of §§ 14-227a and 14-227b] establishes two
separate and distinct proceedings. The administrative
suspension of an operator’s license is under the jurisdic-
tion of the [D]epartment of [M]otor [V]ehicles and the
prosecution of the underlying offense of driving while
intoxicated falls within the jurisdiction of the criminal
justice system. . . . It is clear that the legislative
scheme of §§ 14-227a and 14-227b intended two sepa-
rate and distinct proceedings, each under the jurisdic-
tion of a different governmental branch.’’ (Citations
omitted; internal quotation marks omitted.) State v.
Gracia, 51 Conn. App. 4, 10–11, 719 A.2d 1196 (1998).
We conclude that the court properly determined that
§ 14-227b applies in the present case and properly
decided that there was substantial evidence in the
record to support the hearing officer’s conclusion that
the plaintiff had an elevated blood alcohol content at
the time of operation.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The plaintiff was arrested pursuant to the criminal statute, § 14-227a,
for driving under the influence, and his driver’s license was suspended
pursuant to the civil statute, § 14-227b.
2
‘‘The A-44 report form is a form approved by the [D]epartment of [M]otor
[V]ehicles for processing individuals arrested for driving while under the
influence of intoxicating liquor.’’ Paquette v. Hadley, 45 Conn. App. 577,
579 n.5, 697 A.2d 691 (1997). ‘‘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.’’ (Internal quotation marks omitted.) Nandabalan v. Commissioner
of Motor Vehicles, 204 Conn. App. 457, 461 n.5, 253 A.3d 76, cert. denied,
336 Conn. 951, 251 A.3d 618 (2021); see also General Statutes § 14-227b (c).
3
The plaintiff also claims that his right to due process under article first,
§ 8, of the Connecticut constitution was violated. Because the plaintiff has
not provided a separate state constitutional analysis, we deem this claim
abandoned. See, e.g., State v. Courchesne, 296 Conn. 622, 635 n.20, 998 A.2d
1 (2010). ‘‘In any event, [o]ur Supreme Court has repeatedly held that, as a
general rule, the due process clauses of both the United States and Connecti-
cut constitutions have the same meanings and impose similar limitations.’’
(Internal quotation marks omitted.) Kostrzewski v. Commissioner of Motor
Vehicles, 52 Conn. App. 326, 335 n.6, 727 A.2d 233, cert. denied, 249 Conn.
910, 733 A.2d 227 (1999).
4
For purposes of § 14-227b, ‘‘elevated blood alcohol content’’ is defined
as ‘‘a ratio of alcohol in the blood of such person that is eight-hundredths
of one per cent or more of alcohol, by weight . . . .’’ General Statutes § 14-
227b (n) (1).
5
As the plaintiff notes, the rising blood alcohol exception was incorpo-
rated in the administrative proceedings under § 14-227b (g) until 2009, when
the legislature, in amending the statute, removed such language. Public Acts
2009, No. 09-187, § 63.
6
General Statutes § 14-227a (b) provides: ‘‘Except as provided in subsec-
tion (c) of this section, in any criminal prosecution for violation of subsection
(a) of this section, evidence respecting the amount of alcohol or drug in
the defendant’s blood or urine at the time of the alleged offense, as shown
by a chemical analysis of the defendant’s breath, blood or urine shall be
admissible and competent provided: (1) The defendant was afforded a rea-
sonable opportunity to telephone an attorney prior to the performance of
the test and consented to the taking of the test upon which such analysis
is made; (2) a true copy of the report of the test result was mailed to or
personally delivered to the defendant within twenty-four hours or by the
end of the next regular business day, after such result was known, whichever
is later; (3) the test was performed by or at the direction of a police officer
according to methods and with equipment approved by the Department of
Emergency Services and Public Protection and was performed in accordance
with the regulations adopted under subsection (d) of this section; (4) the
device used for such test was checked for accuracy in accordance with the
regulations adopted under subsection (d) of this section; (5) an additional
chemical test of the same type was performed at least ten minutes after
the initial test was performed or, if requested by the police officer for
reasonable cause, an additional chemical test of a different type was per-
formed to detect the presence of a drug or drugs other than or in addition
to alcohol, provided the results of the initial test shall not be inadmissible
under this subsection if reasonable efforts were made to have such additional
test performed in accordance with the conditions set forth in this subsection
and such additional test was not performed or was not performed within
a reasonable time, or the results of such additional test are not admissible
for failure to meet a condition set forth in this subsection; and (6) evidence
is presented that the test was commenced within two hours of operation.
In any prosecution under this section it shall be a rebuttable presumption
that the results of such chemical analysis establish the ratio of alcohol in
the blood of the defendant at the time of the alleged offense, except that
if the results of the additional test indicate that the ratio of alcohol in the
blood of such defendant is ten-hundredths of one per cent or less of alcohol,
by weight, and is higher than the results of the first test, evidence shall be
presented that demonstrates that the test results and the analysis thereof
accurately indicate the blood alcohol content at the time of the alleged
offense.’’
7
Although the plaintiff argues that the unrebutted evidence from his
expert, Powers, reveals that the second test was scientifically valid, the
hearing officer did not find Powers to be credible. ‘‘The hearing officer is
not required to believe unrebutted expert testimony, but may believe all,
part or none of such unrebutted expert evidence.’’ (Internal quotation marks
omitted.) Dumont v. Commissioner of Motor Vehicles, supra, 48 Conn.
App. 641.
8
The plaintiff further argues that, in the court’s alternative analysis, in
which it determined that, even if the criminal statute were to apply then
the rising blood alcohol exception contained therein nonetheless is not
applicable, the court erred when it rounded rather than truncated the results
of the second test in noting that the results of the second test were lower
than the results of the first test. Because we determine that the criminal
statute does not apply, we need not address this argument.