Adams v. Commissioner of Motor Vehicles ( 2018 )

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APPENDIX
NICHOLAS ADAMS v. COMMISSIONER
OF MOTOR VEHICLES*
Superior Court, Judicial District of New Britain
File No. CV-16-6033742-S
Memorandum filed March 7, 2017
Proceedings
Memorandum of decision on plaintiff’s appeal from
decision by defendant suspending the plaintiff’s motor
vehicle operator’s license. Appeal dismissed.
Jonathan Ross Sills, for the plaintiff.
Drew S. Graham, assistant attorney general, for
the defendant.
Opinion
HUDDLESTON, J. The plaintiff, Nicholas Adams,
appeals from the decision of the defendant Commis-
sioner of Motor Vehicles (commissioner) suspending
his driver’s license for forty-five days and requiring him
to install and maintain an ignition interlock device for
one year for operating a motor vehicle under the influ-
ence of drugs or alcohol. The plaintiff asserts that the
hearing officer violated his right to due process, that
the record lacks substantial evidence that he was
operating a motor vehicle, that there was no probable
cause for his arrest, and that there is insufficient evi-
dence to support the finding that he refused a urine
test. Most of these claims were not asserted in the
hearing and therefore are not properly before the court.
Even if they had been properly preserved, the plaintiff’s
claims are not supported by the record. The plaintiff’s
appeal is dismissed.
FACTS AND PROCEDURAL HISTORY
At about 4:44 a.m. on May 14, 2016, the Stonington
police were dispatched to investigate a report that a
motor vehicle had struck a telephone pole and then left
the scene. Officer Ryan Armstrong immediately
responded and began checking the area. He came upon
two vehicles on Pawcatuck Avenue. One was a disabled
vehicle with significant front end damage consistent
with hitting a telephone pole. The other was operated
by a witness who had followed the first vehicle after the
accident occurred. Armstrong approached the vehicle
with front end damage. The plaintiff was standing out-
side it. Armstrong asked whether he needed medical
assistance, and he stated that he did not. When Arm-
strong asked what had happened, the plaintiff stated
that he struck a traffic cone in the roadway when he
turned from Mechanic Street onto Clark Street. He
denied having hit the telephone pole on Mechanic Street
even after Armstrong remarked that a traffic cone
would not cause the damage to his vehicle that was
evident. Armstrong asked the plaintiff why he had fled
the accident scene, and he replied that he had attempted
to stop but his brakes had malfunctioned. Armstrong
observed that the location of the accident was about a
half mile from the location where the plaintiff’s car was
found with several stretches of uphill grades between
the two locations. Armstrong asked the plaintiff when
the accident occurred. He replied that it happened at
approximately 4:45 a.m. Supp. Return of Record1 (ROR),
A-44, narrative, pp. 1–2.
Armstrong observed that the plaintiff appeared very
drowsy, with droopy eyelids. His movements were very
slow and he spoke in a low, raspy voice. Armstrong
told the plaintiff that he was going to conduct field
sobriety tests, and the plaintiff ‘‘immediately volun-
teered’’ to take a Breathalyzer test. The plaintiff denied
having used alcohol or drugs of any kind. ROR, A-44,
narrative, p. 2.
Armstrong administered three standardized field
sobriety tests. In administering the horizontal gaze nys-
tagmus test, Armstrong noted that the pupils of the
plaintiff’s eyes were constricted, which Armstrong rec-
ognized as a sign of narcotic use. After the plaintiff
failed all three sobriety tests, Armstrong placed him
under arrest and transported him to the police station.
ROR, A-44, narrative, pp. 2–4.
Before leaving the scene, Armstrong spoke with the
witness, who said she was sitting in her residence when
she heard a loud crash and the power went out. She
looked outside her window and saw the plaintiff’s vehi-
cle traveling down Pawcatuck Avenue. She followed
his vehicle. When it stopped and she made contact with
the plaintiff, he asked her not to notify the police. ROR,
A-44, narrative, p. 4.
At the police station, the plaintiff was advised of his
Miranda rights2 and offered the opportunity to contact
an attorney, which he declined. He denied alcohol or
drug use and elected to submit to a breath test. The
first sample, taken at 5:50 a.m., showed a 0.000 percent
blood alcohol content. Armstrong then asked the plain-
tiff to provide a urine sample. The plaintiff said he
wanted to speak with an attorney. After several failed
attempts to reach an attorney, he spoke with a family
member and then elected to refuse to provide a urine
sample. ROR, A-44, narrative, p. 4.
After the breath test, the plaintiff stated that he was
having difficulty breathing and complained of chest
pains. An ambulance responded to the booking room,
examined the plaintiff, and suggested that he be trans-
ported to the hospital for further evaluation. He refused
transport to the hospital. ROR, A-44, narrative, p. 5.
The plaintiff was charged with operating under the
influence of alcohol or drugs in violation of General
Statutes § 14-227a and with other motor vehicle viola-
tions. Id. The Department of Motor Vehicles (depart-
ment) thereafter notified the plaintiff that his license
would be suspended for forty-five days, and he would
be required to install and maintain an ignition interlock
device in his vehicle. ROR, Item 1. The plaintiff
requested an administrative hearing, which was held
on June 8, 2016. The plaintiff appeared with counsel.
At the hearing, the A-44 form, with attached reports,
was introduced as an exhibit without objection. ROR,
transcript, p. 2. The plaintiff’s counsel commented that
the copy of the A-44 he had received before the hearing
had not been notarized, but he acknowledged that the
copy introduced into evidence was notarized. ROR,
transcript, pp. 3–4. He argued to the hearing officer
that ‘‘they have not proven operation; number one. And
number two, they can’t prove the time of operation as
to whether it was if in two hours or not.’’ ROR, tran-
script, p. 4. He argued that his client had been disori-
ented by the collision and that his client was
cooperating with the police. Despite evidence that the
plaintiff had refused transport to a hospital, his attorney
asserted that the plaintiff had to go to the hospital and
commented that there were no hospital records of a
‘‘drug tox.’’ ROR, transcript, pp. 4–5. The plaintiff then
testified that when he was at the police station, he was
not able to reach his lawyer by telephone and did not
recall speaking to any family member. ROR, transcript,
p. 8. The hearing then concluded.
The hearing officer subsequently found that the
police had probable cause to arrest the plaintiff for a
violation specified in General Statutes § 14-227b, the
plaintiff was placed under arrest, he refused to submit
to a test, and he was operating a motor vehicle. In a
subordinate finding, the hearing officer found that
‘‘[t]he police report supports an affirmative finding on
all four issues of fact.’’ ROR, p. 3. This appeal followed.
ANALYSIS
This appeal is brought pursuant to the Uniform
Administrative Procedure Act (UAPA), General Stat-
utes § 4-183.3 Judicial review of the commissioner’s
action is very restricted. Murphy v. Commissioner of
Motor Vehicles, 254 Conn. 333, 343, 757 A.2d 561 (2000).
‘‘[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 [the Supreme 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.) Id.
‘‘General Statutes § 14-227b, commonly referred to as
the implied consent statute, governs license suspension
hearings.’’ Santiago v. Commissioner of Motor Vehi-
cles, 134 Conn. App. 668, 674, 39 A.3d 1224 (2012). Sec-
tion 14-227b (g) provides in relevant part that ‘‘[t]he
hearing shall be limited to a determination of the follow-
ing issues: (1) Did the police officer have probable cause
to arrest the person for operating a motor vehicle while
under the influence of intoxicating liquor or any drug
or both; (2) was such person placed under arrest; (3)
did such person refuse to submit to such test or analysis
or did such person submit to such test or analysis,
commenced within two hours of the time of operation,
and the results of such test or analysis indicated that
such person had an elevated blood alcohol content; and
(4) was such person operating the motor vehicle. . . .’’
A license suspension hearing is expressly limited to
these four issues. Buckley v. Muzio, 200 Conn. 1, 7,
509 A.2d 489 (1986). In this case, the hearing officer
affirmatively found that each of these requirements
was met.
The standard of proof under the UAPA is not so
exacting as in a criminal case, where proof beyond a
reasonable doubt is required. O’Rourke v. Commis-
sioner of Motor Vehicles, 33 Conn. App. 501, 508, 636
A.2d 409, cert. denied, 229 Conn. 909, 646 A.2d 1205
(1994). In an administrative hearing, ‘‘the agency need
only produce probative and reliable evidence to ensure
that the proceedings are fundamentally fair.’’ (Internal
quotation marks omitted.) Id.
I
The plaintiff first argues that there is insufficient
proof that he was operating the vehicle because none
of the officers involved in his arrest observed him
operating the vehicle at any time and the lay witness
who followed his vehicle did not give a sworn state-
ment. The court disagrees. Even without the statement
of the lay witness, the plaintiff’s own admissions, as
reported by the arresting officer, provide substantial
evidence of his operation of the vehicle.
‘‘The absence of witnesses to the plaintiff’s operation
of the vehicle is not dispositive on the issue of opera-
tion.’’ Murphy v. Commissioner of Motor Vehicles,
supra, 254 Conn. 347. In addition, the standard of proof
is not so exacting as in a criminal case, where proof
beyond a reasonable doubt is required. O’Rourke v.
Commissioner of Motor Vehicles, supra, 33 Conn. App.
508. In an administrative hearing, ‘‘the agency need only
produce probative and reliable evidence to ensure that
the proceedings are fundamentally fair.’’ (Internal quo-
tation marks omitted.) Id.
The narrative portion of the police report indicates
that the arresting officer, Armstrong, found the plaintiff
standing beside a vehicle with substantial front end
damage and asked the plaintiff what had happened.
The plaintiff said that he had been traveling south on
Mechanic Street, then turned onto Clark Street and
struck a traffic cone in the roadway. He denied having
hit a telephone pole on Mechanic Street even though
a traffic cone could not have caused the damage to his
vehicle. When asked why he did not stop when he had
the accident, he said that he attempted to stop but his
brakes malfunctioned. The plaintiff’s own statements
to Armstrong are substantial evidence that he was
operating his vehicle until it stopped in the location
where Armstrong found him.
II
The plaintiff argues that the police lacked probable
cause to arrest him for operating under the influence
of drugs or alcohol because there was insufficient evi-
dence of intoxication and insufficient evidence of a
temporal nexus between any intoxication and the oper-
ation of the vehicle. In support of this argument, the
plaintiff claims that Armstrong did not suspect the plain-
tiff of alcohol use because the report does not mention
an odor of alcohol or other typical symptoms of alcohol
intoxication, such as slurred speech, confusion, or bal-
ancing issues. He argues that Armstrong suspected nar-
cotics use but used field sobriety tests designed solely
to test alcohol use. He further argues that there is no
evidence that Armstrong was trained in administering
the field sobriety tests or administered them properly.
The plaintiff made only one of these arguments to
the hearing officer, and then only in an incoherent form.
His counsel at the hearing (not the counsel on appeal)
argued ‘‘they have not proven operation; number one.
And number two, they can’t prove the time of the opera-
tion as to whether it was if in two hours or not.’’ ROR,
transcript, p. 4. He did not offer any evidence or make
any arguments at the hearing that the tests given
were inappropriate.
A plaintiff cannot raise issues on appeal that he failed
to present to the hearing officer below. See Solomon
v. Connecticut Medical Examining Board, 85 Conn.
App. 854, 862, 859 A.2d 932 (2004), cert. denied, 273
Conn. 906, 868 A.2d 748 (2005); see also Valente v.
Commissioner of Motor Vehicles, Superior Court, judi-
cial district of New Britain, Docket No. CV-15-6029369-
S (October 19, 2015) (Schuman, J.) (61 Conn. L. Rptr.
138), aff’d, 169 Conn. App. 908, 155 A.3d 328 (2016).
The plaintiff’s arguments are unconvincing as well
as unpreserved. Under Connecticut law, ‘‘[i]t is funda-
mental that a plaintiff has the burden of proving that
the commissioner, on the facts before him, acted con-
trary to law and in abuse of his discretion [in determin-
ing the issue of probable cause]. . . . The law is also
well established that if the decision of the commissioner
is reasonably supported by the evidence it must be
sustained.’’ (Internal quotation marks omitted.) Murphy
v. Commissioner of Motor Vehicles, supra, 254 Conn.
343–44. ‘‘Probable cause, broadly defined, comprises
such facts as would reasonably persuade an impartial
and reasonable mind not merely to suspect or conjec-
ture, but to believe that criminal activity has occurred.
. . . In determining whether there was probable cause
to arrest for operating a motor vehicle while under the
influence of liquor, the court may consider, just as in
an arrest for any other criminal offense, circumstantial
as well as direct evidence.’’ (Internal quotation marks
omitted.) Pizzo v. Commissioner of Motor Vehicles, 62
Conn. App. 571, 578, 771 A.2d 273 (2001). ‘‘To establish
probable cause, it is not necessary to produce a quan-
tum of evidence necessary to convict. . . . The credi-
bility of witnesses and the determination of factual
issues are matters within the province of the administra-
tive agency, and this court cannot disturb the conclu-
sions reached by the [hearing officer] if there is
evidence that reasonably supports his decision.’’ (Inter-
nal quotation marks omitted.) Id. ‘‘[O]ur case law clearly
establishes that sufficient evidence justifying the com-
missioner’s determination of probable cause may be
found where the totality of the circumstances existing
at the time of the plaintiff’s arrest support[s] [such a
finding] . . . .’’ (Internal quotation marks omitted.)
Murphy v. Commissioner of Motor Vehicles, supra, 345.
In this case, under ‘‘probable cause to arrest’’ on
the A-44 form, Armstrong checked the boxes ‘‘motor
vehicle crash’’ and ‘‘standardized field sobriety tests.’’
Armstrong’s narrative report included evidence that the
plaintiff had reportedly struck a telephone pole and his
vehicle had sustained major front end damage consis-
tent with striking a telephone pole; the plaintiff insisted
that he had hit a traffic cone even though a traffic cone
could not have caused the damage to his front end; the
plaintiff said that he tried to stop at the accident scene
but his brakes malfunctioned, even though there were
several stretches of uphill grade between the location
of the accident and the point where his vehicle stopped;
the plaintiff appeared very drowsy and moved very
slowly; his pupils were constricted, his eyelids were
drooping, and the conjunctiva of his eyes were
reddened.
The plaintiff relies on State v. Dalzell, 96 Conn. App.
515, 901 A.2d 706 (2006), rev’d in part, 282 Conn. 709,
924 A.2d 809 (2007), overruled in part by Blumberg
Associates Worldwide, Inc. v. Brown & Brown of Con-
necticut, Inc., 311 Conn. 123, 162 n.34, 84 A.3d 840
(2014), to argue that the symptoms observed by the
officer—drowsiness, droopy eyelids, red eyes with con-
stricted pupils—were all consistent with innocent
explanations, such as fatigue or shock. In Dalzell, the
arresting officer saw the defendant driving a 1991 Ford
Escort without a shoulder harness type of seatbelt. Id.,
518. He followed the defendant for about a mile, during
which time the defendant observed all traffic rules.
Id. When he stopped the defendant for the seatbelt
violation, he noted that the defendant’s eyes were con-
tracted and his nose was red and running. Id., 519. The
defendant was not wearing sunglasses and it was about
noon on a clear, sunny day. Id. The defendant fumbled
for a few seconds before retrieving his license and regis-
tration information. Id., 519–20. The officer saw a rolled
dollar bill in the center console of the defendant’s car
and suspected him of using narcotics. Id., 520. The
defendant refused to submit to field sobriety tests. After
arresting the defendant for operating under the influ-
ence of narcotics, the officer searched the car, found
narcotics, and added drug charges. Id., 520–21. The
defendant moved to suppress the evidence of the drugs
on the ground that there was not probable cause to
arrest him for operating under the influence. Id., 531.
The Appellate Court agreed. It reasoned as follows:
‘‘A driver operating a motor vehicle while under the
influence of a drug is one whose mental, physical or
nervous processes have become so affected that he
lacked to an appreciable degree the ability to function
properly in the operation of his vehicle. . . . Typical
indicia of the inability to function as a driver because
of the intoxicating effect of drugs or alcohol include
whether a defendant smells of the drug, has slurred
speech, fumbles in retrieving paperwork, has glassy and
bloodshot eyes, admits that he has, while driving, been
using drugs or fails sobriety tests. . . . Most import-
antly, the main indicia of intoxication relates to the
ability to operate the vehicle without committing traffic
violations.’’ (Citations omitted.) Id., 528–29. In Dalzell,
the court observed that the defendant ‘‘used his signals
correctly and observed all posted signs, speed limits,
traffic control signals and markings. . . . To arrive at
the conclusion that probable cause existed, one must
ignore the fact that, except for the seat belt violation,
the defendant operated his motor vehicle in a manner
consistent with that of an ordinary, careful and prudent
driver over a considerable distance on multiple city
roads.’’ Id., 529–30.
The same cannot be said for the plaintiff here. He
clearly had not been able to operate his vehicle in a
manner consistent with that of an ordinary, careful and
prudent driver. Although he denied striking the tele-
phone pole, he had clearly struck something substantial,
sustaining major front-end damage to his car, and then
left the scene of his accident. Moreover, his eyes were
bloodshot and his pupils constricted, not at noon on a
sunny day, but before five o’clock in the morning. He
failed all three field sobriety tests. He lost his balance
while trying to walk, stopped repeatedly to steady him-
self, was uneasy on his feet, and his legs were shaking.
This substantial circumstantial evidence supported the
hearing officer’s finding that there was probable cause
to arrest the plaintiff for a violation of § 14-227a, as
required for a license suspension under § 14-227b.
Nor is there any merit to the plaintiff’s claim that
there was an insufficient temporal nexus between intox-
ication and operation. The police received the report
of a vehicle crashing into a telephone pole at approxi-
mately 4:44 a.m. and Armstrong responded to the dis-
patch ‘‘immediately.’’ ROR, narrative, p. 1. Armstrong
located the plaintiff beside his stopped, damaged car,
and the plaintiff told Armstrong that his accident had
occurred at approximately 4:45 a.m. ROR, narrative, p.
2. Armstrong interviewed the plaintiff, conducted the
field tests, and arrested the plaintiff by 5:14 a.m. ROR,
narrative, p. 3. The evidence clearly supports a temporal
nexus between the operation and the intoxication.
III
The plaintiff argues that there is no substantial evi-
dence that he refused to submit to the second form of
chemical testing. His argument is based on three claims:
first, that the refusal is inadequately described in the
police report; second, that the plaintiff’s refusal was
not properly witnessed; and third, that there was no
reasonable basis for requiring a urine test after the
plaintiff passed the breath test. None of these claims
were brought to the attention of the hearing officer
and therefore are not properly before the court. See
Solomon v. Connecticut Medical Examining Board,
supra, 85 Conn. App. 862. Even if these claims had
been preserved, the plaintiff has not met his burden
of proving that the hearing officer acted arbitrarily,
illegally, or in abuse of her discretion in rejecting them.
A
As to the first claim, there is substantial evidence in
the record that the plaintiff refused the urine test. The
police report indicates that after Armstrong told the
plaintiff he was requesting a urine sample, the plaintiff
attempted unsuccessfully to reach an attorney and then
‘‘spoke with a family member and elected to refuse a
urine sample.’’
The plaintiff cites Bialowas v. Commissioner of
Motor Vehicles, 44 Conn. App. 702, 714–15, 692 A.2d 834
(1997), for the proposition that a conclusory statement
alone is not sufficient to provide substantial evidence
of refusal where there is no corroborating evidence,
and only contradictory evidence, of refusal. Bialowas,
however, does not apply here. In Bialowas, the police
report stated that the accused ‘‘was explained all neces-
sary procedures but failed to give a sufficient breath
sample on three separate occasions . . . [t]herefore
resulting in a refusal of the test.’’ (Internal quotation
marks omitted.) Id., 706. The Appellate Court concluded
that ‘‘where it is undisputed that the motorist submitted
to the chemical alcohol test, the fact that he failed to
produce an adequate breath sample does not automati-
cally constitute refusal within the meaning of § 14-
227b.’’ Id., 714–15. In such a circumstance, additional
explanation was needed to support a conclusion that
a failure to provide sufficient breath was, in fact, a
refusal to take the test. Id., 716–17.
Bialowas thus stands for the proposition that when
a person refuses a test by conduct—such as purporting
to take the breath test but blowing improperly after
repeated instructions—the police must document the
conduct that constitutes the refusal. Here, however, the
plaintiff expressly refused. Where the refusal is express,
as here, no further description of the refusal is required.
See Fonville-Smith v. Commissioner of Motor Vehicles,
Superior Court, judicial district of New Britain, Docket
No. 15-6029440-S (October 28, 2015) (Schuman, J.).
B
The plaintiff further argues that there is no substantial
evidence that the refusal was witnessed by a third party.
Section 14-227b (c) provides in relevant part: ‘‘If the
person arrested refuses to submit to such test or analy-
sis . . . [t]he police officer shall prepare a report of
the incident . . . . The report shall contain such infor-
mation as prescribed by the Commissioner of Motor
Vehicles and shall be subscribed and sworn to under
penalty of false statement as provided by section 53a-
157b by the arresting officer. 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 subsection (a) of section
14-227a . . . and shall state that such person had
refused to submit to such test or analysis when
requested by such police officer to do so . . . .’’
In Mailhot v. Commissioner of Motor Vehicles, 54
Conn. App. 62, 66, 733 A.2d 304 (1999), the court held
that a refusal requires the presence of three persons:
the accused, the arresting officer, and a third-party wit-
ness. In Winsor v. Commissioner of Motor Vehicles,
101 Conn. App. 674, 684–86, 922 A.2d 330 (2007), the
court further held that all three persons—the accused,
the arresting officer, and the third-party witness—must
be physically present in the same room at the time
of refusal.
The plaintiff’s claim here that the refusal was not
properly witnessed is based on the fact that in section
F of the A-44 form, ‘‘Chemical Alcohol Test Data,’’ the
arresting officer wrote the date ‘‘5/19/2016’’ on the line
indicating that the second test was a urine test, offered
at 7:07 a.m., and the result was ‘‘refusal.’’ Because the
plaintiff was arrested on May 14, 2016, he argues that
there is no evidence that the refusal was witnessed or
that the witness was physically present.
If the plaintiff had raised this claim before the hearing
officer, the hearing officer could have continued the
hearing to subpoena the officer to explain the discrep-
ancy. See Prendergast v. Commissioner of Motor Vehi-
cles, Superior Court, judicial district of New Britain,
Docket No. CV-15-6029663-S (January 28, 2016) (Schu-
man, J.) (61 Conn. L. Rptr. 733) (rejecting claim that
hearing officer abused discretion in continuing hearing
to obtain officer’s testimony). The plaintiff’s failure to
raise the claim at the hearing below is a sufficient
ground to reject it.
On the merits of the claim, the court is not persuaded
that the hearing officer abused her discretion in finding
substantial evidence of refusal. It is of course important
that police officers complete A-44 forms with sufficient
care that the report can be deemed to be reliable. See
Volck v. Muzio, 204 Conn. 507, 518, 529 A.2d 177 (1987)
(evident purpose of § 14-227b [c] is to ‘‘provide suffi-
cient indicia of reliability so that the report can be
introduced in evidence as an exception to the hearsay
rule, especially in license suspension proceedings, with-
out the necessity of producing the arresting officer’’).
In some cases, errors on an A-44 form may be so sub-
stantial and irreconcilable as to render the report unreli-
able, and thus inadmissible, if a proper objection is
made at the hearing. See Do v. Commissioner of Motor
Vehicles, 164 Conn. App. 616, 627, 138 A.3d 359, cert.
granted, 322 Conn. 901, 138 Conn. 931 (2016). In this
case, however, internal evidence in the A-44 form and
attached reports indicate that all relevant events,
including the refusal, occurred in the early morning
hours of May 14, 2016, but that Armstrong, the arresting
officer, did not complete the police report until May 19,
2016. The attached report is, by regulation, incorporated
into the A-44 form if, as is the case here, it is sworn to
by the arresting officer. See Regs., Conn. State Agencies
§ 14-227b-10 (b) (‘‘Additional statements or materials
necessary to explain any item of information in the
report may be attached to the report. Such attach-
ment[s] shall be considered a part of the report having
the approval of the commissioner, as provided in sub-
section [c] of section 14-227b of the Connecticut Gen-
eral Statutes, if sworn to under penalty of false
statement.’’).
In this case, both the A-44 and the attached reports
all consistently report the events of the investigation,
arrest, breath test, and refusal as occurring as one con-
tinuous sequence of events on the same day, May 14,
from the initial report of the accident at around 4:44
a.m. to the testing between 5:50 a.m. and 7:07 a.m.
Except for the blank next to the word ‘‘refusal,’’ which
states the date as 5/19/2016, all the dates in the A–44,
on the breath test strip attached to the A-44, and the
police report refer to the events as occurring on May
14, 2016. The report itself, however, was completed on
May 19, 2016, and Armstrong’s oath, both on the A-44
and on the narrative police report, was taken on May
19, 2016, by a Sergeant Marley. Section J of the A-44
form, captioned ‘‘Chemical Alcohol Test Refusal,’’ was
signed by Ryan Rathgaber, badge number 13. Although
the plaintiff argues that there is no evidence that Rath-
gaber was present on the morning of May 14, Rathgaber
endorsed the form under the statement: ‘‘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.’’ As
required by § 14-227b (c), Armstrong, as the arresting
officer, subsequently subscribed and swore to the
report of the chemical alcohol test or refusal under
penalty of false statement.
A reasonable inference, from the evidence as a whole,
is that the plaintiff refused the urine test on May 14,
the morning of his arrest, rather than May 19 as stated
on the form. On May 14, the date of the arrest, Arm-
strong was working the midnight to 8 a.m. shift. ROR,
narrative report, p. 1. The narrative portion of his report
attests that the breath test was administered at 5:50
a.m. and that he then requested a urine sample. At that
point, the plaintiff indicated that he wanted to speak
to an attorney and made several attempts to reach one.
When he could not reach one, he spoke with a family
member and then ‘‘elected to refuse a urine sample.’’
The narrative, though not explicit as to the time of
refusal, makes it clear that it occurred on the same day
as the arrest and breath test. After the breath test,
moreover, the plaintiff indicated that he was having
chest pains and difficulty breathing, at which point an
ambulance was called. The plaintiff refused to go to
the hospital and was subsequently released on a $600
nonsurety bond. It is reasonable to infer that by the time
the plaintiff was evaluated by ambulance personnel and
the processing of his arrest and bond was completed,
Armstrong’s shift was nearly over and he was unable
to complete the arrest report until a few days later, May
19. Based on the consistent references to May 14 as
the date of the events in question and the narrative
documenting an uninterrupted sequence of events, it is
further reasonable to infer that the single reference to
‘‘5/19/16’’ on the A-44 line documenting the refusal is a
simple error that occurred when Armstrong completed
the form on May 19.
The totality of the evidence, including the narrative
report, provides reliable, probative and substantial evi-
dence that the plaintiff refused to submit to a urine test
after passing a breath test. The plaintiff has not borne
his burden of proving that the hearing officer acted
unreasonably, arbitrarily, illegally or in abuse of her
discretion in finding sufficient evidence of refusal.
C
The plaintiff’s final argument is that there was no
reasonable cause to change the testing method. This
claim was not raised below, is not preserved for review,
and if reviewed, lacks merit.
Section 14-227b (k) states: ‘‘The provisions of this
section shall apply with the same effect to the refusal
by any person to submit to an additional chemical test
as provided in subdivision (5) of subsection (b) of sec-
tion 14-227a.’’ Section 14-227a (b) (5) provides in rele-
vant part that evidence of the amount of alcohol or
drug in a defendant’s blood or urine, as shown by a
chemical analysis, is admissible if ‘‘an additional chemi-
cal 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 . . . .’’ The plaintiff cites
Saba v. Commissioner of Motor Vehicles, Superior
Court, judicial district of Tolland, Docket No. CV-97-
64786-S (March 17, 1998) (Klaczak, J.) (21 Conn. L.
Rptr. 433), and Georgino v. Commissioner of Motor
Vehicles, Superior Court, judicial district of Hartford-
New Britain at Hartford, Docket No. CV-97-0570325
(June 24, 1997) (Maloney, J.), as instructive on the issue
of reasonable cause. The court agrees that Saba and
Georgino are instructive, but they do not help the plain-
tiff’s case.
In Saba, the evidence supporting a request for a urine
test after the plaintiff passed a breath test was that
‘‘the plaintiff was not operating his vehicle while in
full control of his faculties. He was operating without
headlights at 2 a.m. and entered a parking area through
a marked exit lane. He did not satisfactorily perform
field sobriety tests. There was marijuana residue in the
vehicle and he admitted being in the company earlier
of people who were smoking marijuana. The police
officer was not required to accept his statement that
the plaintiff had not smoked any himself.’’ Saba v. Com-
missioner of Motor Vehicles, supra, 21 Conn. L. Rptr.
434. Based on that evidence, the court found that the
request for the urine test was reasonable.
In Georgino, the evidence supporting a request for a
urine test after the plaintiff passed a breath test was
that ‘‘the plaintiff was virtually out of control at the
time he was arrested. He had just driven his vehicle
into a stationary object. He had urinated on himself.
He was unable to deal with the task of handing over
his license and registration papers . . . much less per-
form the coordination tests administered by the police
officer.’’ Georgino v. Commissioner of Motor Vehicles,
supra, Superior Court, Docket No. CV-97-0570325.
Based on that evidence, the court concluded that
‘‘[w]hen the breath test, which measures only alcohol
in the blood, showed a level below intoxication, the
police officer had a reasonable basis for requiring a
different type of test, one that might detect the presence
of some other drug to account for the plaintiff’s extreme
symptoms.’’ Id.
The plaintiff here claims that such reasonable cause
was absent in his case. To the contrary, many of the
same facts were present. He had just crashed his car
into a stationary object, resulting in substantial front
end damage to his car. He left the scene of the accident
even though substantial property damage had occurred.
He insisted that he had hit a traffic cone even though
a traffic cone could not have caused such damage to
his car. His eyes were drowsy, droopy-lidded and red-
rimmed. His pupils were constricted, which, to the offi-
cer, suggested use of narcotics. His movements were
very slow. He failed all three field sobriety tests. In
attempting the walk and turn and one-leg stand tests,
he could not maintain his balance or follow directions,
and he was very uneasy on his feet, with his legs
shaking.
The plaintiff claims that the officer had no reason to
request a breath test in the first place if he suspected
only narcotic use. The plaintiff, however, ‘‘immediately
volunteered to take a Breathalyzer test’’ before his
arrest. ROR, narrative, p. 2. After his arrest, at the police
station, the plaintiff initially declined the officer’s offer
to contact an attorney and ‘‘almost enthusiastically
elected to submit to a breath test.’’ The fact that the
plaintiff did not smell of alcohol does not mean that it
was unreasonable, in the first instance, to start with
the breath test. The officer’s decision to request a urine
test, when the breath test did not indicate any alcohol
in the plaintiff’s system, was entirely reasonable based
on the plaintiff’s failure to control his vehicle, his flight
from the scene of his accident, his failure of the field
sobriety tests, and his apparent inability to understand
or explain how he had damaged his car so substantially.
CONCLUSION
The court has carefully considered each of the plain-
tiff’s arguments in light of the evidence in the entire
record. The hearing officer’s decision is supported by
substantial reliable and probative evidence. The appeal
is dismissed.
* Affirmed. Adams v. Commissioner of Motor Vehicles, 182 Conn. App.
165, A.3d (2018).
1
The record originally filed with the court omitted three pages of the
hearing transcript. All references to the record (ROR) in this decision are
to the supplemental return of record (# 114), which contains the com-
plete record.
2
See Miranda v. Arizona, 384 U.S. 436, 478–79, 86 S. Ct. 1602, 16 L. Ed.
2d 694 (1966).
3
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.’’