Fernschild v. Commissioner of Motor Vehicles , 177 Conn. App. 472 ( 2017 )

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MATTHEW FERNSCHILD v. COMMISSIONER OF
MOTOR VEHICLES
(AC 39418)
Sheldon, Beach and Mihalakos, Js.
Syllabus
The plaintiff, who had been arrested for 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 the plaintiff’s motor vehicle operator’s license for a period
of six months, pursuant to the applicable 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 record did not
contain substantial evidence to support the finding by a hearing officer
that the plaintiff had refused to submit to a chemical analysis of his
breath; the record did not include the necessary factual recitation to
support a conclusion that the suspension of the plaintiff’s motor vehicle
operator’s license was based on substantial evidence, as the evidence
before the hearing officer supporting a finding of refusal included only
conclusions by the police officers that the plaintiff refused the breath
test, and the record contained no description 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.
Argued May 25—officially released October 24, 2017
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, Schuman, J.; judgment
dismissing the appeal, from which the plaintiff appealed
to this court. Reversed; judgment directed.
Devin W. Janosov, with whom was Donald A. Papcsy,
for the appellant (plaintiff).
Drew S. Graham, assistant attorney general, with
whom, on the brief, was George Jepsen, attorney gen-
eral, for the appellee (defendant).
Opinion
BEACH, J. The plaintiff, Matthew Fernschild, appeals
from the judgment of the Superior Court dismissing his
appeal from the decision of the defendant, the Commis-
sioner of Motor Vehicles (commissioner), ordering a
six month suspension of his license to operate a motor
vehicle, pursuant to General Statutes § 14-227b,1 for his
refusal to submit to a chemical alcohol test. The plaintiff
claims that the trial court improperly concluded that
there was substantial evidence in the record to support
the finding of the hearing officer that the plaintiff
refused to submit to a chemical analysis of his breath.
We agree and reverse the judgment of the trial court.
The following facts and procedural history are rele-
vant to the disposition of the appeal. On February 19,
2015, the plaintiff was arrested and charged with
operating a motor vehicle while under the influence of
intoxicating liquor in violation of General Statutes § 14-
227a.2 Following the incident, Officer Brian Hamm of
the Stratford police department prepared a report that
included the following information. When Hamm
arrived on the scene, the plaintiff’s vehicle was disabled
in a snowbank. Upon asking the plaintiff to place the
vehicle in park and step out of the vehicle, Hamm
observed that the plaintiff appeared confused. He asked
Hamm and Sergeant Rosenbaum several times where he
was. Hamm had to lean the plaintiff against his vehicle
because of the plaintiff’s inability to stand safely on his
own. The plaintiff said that he had been playing tennis
and, when asked where he was going, he responded,
‘‘tennis.’’ Hamm noted that the plaintiff appeared to be
under the influence of alcohol or drugs. Neither he nor
Rosenbaum were able to detect an odor of alcohol at
that time because of the cold weather.
Hamm and Rosenbaum then asked the plaintiff if he
had any medical issues, and the plaintiff responded
that he might be a diabetic. The plaintiff was ‘‘very
disoriented,’’ and said that he did not know where he
was. Because of the plaintiff’s inability to answer ques-
tions, Hamm requested that Stratford fire and emer-
gency medical services respond to the scene. Another
officer went to the plaintiff’s residence to determine if
his family was aware of any medical conditions affect-
ing the plaintiff; the response was that the plaintiff had
no known medical condition. The plaintiff was placed
in the rear of the patrol vehicle to stay warm. After
Hamm and Rosenbaum sat in the patrol vehicle for a few
minutes, they were able to detect the odor of alcoholic
beverages. Stratford fire and emergency medical ser-
vices arrived at the scene and, after evaluating the plain-
tiff, ‘‘cleared [him] of any medical emergency.’’ The
plaintiff refused medical treatment.
Hamm did not conduct any field sobriety tests
because of the inability of the plaintiff to stand and the
plaintiff’s failure to cooperate in answering questions.
The plaintiff was arrested and transported to the Strat-
ford police station, where he was processed. According
to Hamm’s report, the plaintiff ‘‘refused to waive his
rights and also refused to answer any questions in the
postarrest interview. . . . [The plaintiff] was afforded
the opportunity to call an attorney at [2:24 a.m.]. [The
plaintiff] refused to submit to the breath test.’’
Pursuant to § 14-227b (c), Hamm completed an A-44
form.3 He checked a box indicating that the plaintiff
had refused to perform field sobriety tests and had
refused to answer whether he had any physical illness or
injury preventing him from performing the field sobriety
tests. Hamm noted on the form that probable cause to
arrest was based on the motor vehicle crash and the
odor of alcoholic beverages on the plaintiff’s breath.
The second page of the form, as filled out by Hamm,
indicated that the plaintiff had refused to answer ques-
tions or to take a breath test. Sergeant Anthony Rhew
swore to a printed statement on the form that the plain-
tiff ‘‘refused to submit to such test or analysis when
requested to do so. The refusal occurred in my presence
and my endorsement appears below.’’ A Breathalyzer
test strip included in its printout the words ‘‘test
aborted refusal.’’
On February 24, 2015, the commissioner sent a notice
to the plaintiff to inform him of the suspension of his
license pursuant to § 14-227b. On March 17, 2015, an
administrative hearing was held before a hearing officer
pursuant to § 14-227b (g). On the same day, the hearing
officer issued a decision finding, in its entirety, that (1)
the arresting officer had probable cause to arrest the
plaintiff, (2) the plaintiff was arrested, (3) the plaintiff
refused to submit to chemical alcohol testing, (4) the
plaintiff was operating a motor vehicle and (5) the plain-
tiff was not younger than twenty-one years of age. The
hearing officer ordered that the plaintiff’s driver’s
license be suspended for six months.
The plaintiff appealed to the Superior Court from
the commissioner’s decision suspending his operator’s
license. In a written memorandum of decision, the court
found that there was substantial evidence to support
the hearing officer’s finding of refusal. The court rea-
soned that although the ‘‘evidence does not provide
detail as to the conversation between the officer and
the plaintiff, there is no such requirement. . . . The
fact that the record contains four separate references
to the plaintiff’s refusal [to submit to chemical alcohol
testing], albeit without great detail, provides a substan-
tial and corroborated basis to conclude that the plaintiff
did, in fact, refuse, and that the references to his refusal
are not fabricated or erroneous.’’ The court also stated
that the plaintiff’s claim that a physical condition ren-
dered a test inadvisable was inadequately briefed and,
in any event, had no effect on the question of whether
the hearing officer’s conclusion was based on substan-
tial evidence. The court dismissed the appeal.4 This
appeal followed.
‘‘The determination of whether the plaintiff’s actions
constituted a refusal to submit to a Breathalyzer test
is question of fact for the hearing officer to resolve.’’
Wolf v. Commissioner of Motor Vehicles, 70 Conn. App.
76, 81, 797 A.2d 567 (2002).
‘‘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.’’ (Citations
omitted; internal quotation marks omitted.) Bialowas
v. Commissioner of Motor Vehicles, 44 Conn. App. 702,
708–709, 692 A.2d 834 (1997).
‘‘[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.’’
Winsor v. Commissioner of Motor Vehicles, 101 Conn.
App. 674, 684, 922 A.2d 330 (2007). ‘‘Refusal to submit
to a blood alcohol test may be established by one’s
actions or by verbally expressing one’s unwillingness.’’
Pizzo v. Commissioner of Motor Vehicles, 62 Conn.
App. 571, 581, 771 A.2d 273 (2001).
The plaintiff claims that the hearing officer’s determi-
nation that the plaintiff had refused to submit to a
chemical alcohol test was not supported by substantial
evidence. He argues that the record contained only
mere conclusions 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.5 We agree.
The evidence before the hearing officer supporting
a finding of refusal consisted, in its entirety, of the
following: (1) the printout from the breath test, which
reads ‘‘test aborted refusal,’’ (2) the A-44 form, on which
the box ‘‘test refusal’’ was checked in the section enti-
tled ‘‘Chemical Alcohol Test Data,’’ (3) the signature of
Rhew, the witnessing officer, on the section of the A-
44 form which reads ‘‘[t]he operator named above
refused to submit to such test or analysis when
requested to do so . . . [and] [t]he refusal occurred in
my presence and my endorsement appears below,’’ and
(4) the case incident report, in which Hamm states that
the plaintiff ‘‘refused to submit to the breath test.’’
This case is governed by principles expressed in Win-
sor v. Commissioner of Motor Vehicles, supra, 101
Conn. App. 674. In Winsor, the officer who had signed
the statement on the A-44 form witnessing a refusal to
submit to a chemical test testified before the hearing
officer that she ‘‘witnessed’’ the refusal only on closed-
circuit television. Id., 678. This court held that, in the
absence of any legislative clarification, a witness had
to be physically present in order to satisfy the require-
ment of the governing statute; thus, the A-44 form was
inadmissible. Id., 682–88. There were three possible
remaining sources to support the conclusion that the
plaintiff in Winsor had refused to submit to the test:
the printout reading ‘‘test refused,’’ the officer’s testi-
mony that she ‘‘witnessed’’ the event via television, and
the officer’s narrative statements in his reports that the
plaintiff refused to take the breath test. Id., 689.
In Winsor, this court observed that ‘‘[a]lthough all of
these three sources of evidence indicate that the plain-
tiff refused to submit to the breath test, none provide
any information about the circumstances supporting
that conclusion. [No officer] described what behavior
on the part of the plaintiff led [him or her] to infer that
[the plaintiff] was refusing the breath test. Without any
facts or details to buttress that inference, we have no
basis on which to conclude that substantial evidence
supports the hearing officer’s determination.’’ Id. Analo-
gizing the case to Bialowas v. Commissioner of Motor
Vehicles, supra, 44 Conn. App. 702, this court held that
there had to be some factual recitation, rather than
opinion or conclusion, to support a reviewing court’s
conclusion that the suspension was based on substan-
tial evidence. Winsor v. Commissioner of Motor Vehi-
cles, supra, 689–90.
The evidence before the hearing officer in the present
case was similarly bereft of underlying factual informa-
tion. It included only conclusions by Hamm and Rhew
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.6 Without any underlying evi-
dentiary basis to support the inference of a refusal, we
are constrained to conclude that there was not substan-
tial evidence in the record to support the determination
of the hearing officer that there had been a refusal.
The judgment is reversed and the case is remanded
with direction to render judgment sustaining the appeal
of the plaintiff.
In this opinion the other judges concurred.
1
Although § 14-227b was the subject of amendments in 2016; see Public
Acts 2016, No. 16-55, §§ 6 and 7; Public Acts 2016, No. 16-126, § 17; those
amendments have no bearing on the merits of this appeal. In the interest
of simplicity, we refer to the current revision of the statute.
2
General Statutes § 14-227a was amended by No. 16-126, § 3, of the 2016
Public Acts, which made changes to the statute that are not relevant to this
appeal. In the interest of simplicity, we refer to the current revision of
the statute.
3
‘‘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. Commis-
sioner of Motor Vehicles, 67 Conn. App. 394, 396 n.3, 786 A.2d 1279 (2001).
4
The court denied the plaintiff’s motion to stay the suspension of his
operator’s license pending the outcome of the present appeal. See General
Statutes § 4-183 (f).
5
The plaintiff raises several arguments in support of his appeal. Because
we agree with this argument, we need not address the remaining arguments.
6
The only significant factual difference between the present case and
Winsor is that in Winsor the A-44 form had been excluded, and in the
present case the form may be considered by the reviewing court. The analysis
in Winsor, however, is grounded in the necessity for some factual informa-
tion, and the attestation of the witness to a statement on the form provides
no greater level of factual support.
We note that the required level of evidentiary detail need not necessarily be
voluminous; depending on the circumstances, brief description may suffice.