Prendergast. v. Commissioner of Motor Vehicles , 172 Conn. App. 545 ( 2017 )

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HART PRENDERGAST v. COMMISSIONER
OF MOTOR VEHICLES
(AC 38895)
Lavine, Keller and Pellegrino, Js.
Argued January 5—officially released April 25, 2017
(Appeal from Superior Court, judicial district of New
Britain, Schuman, J.)
Malaina J. Sylvestre, certified legal intern, with
whom was Kristi Thomaston, for the appellant
(plaintiff).
Christine Jean-Louis, assistant attorney general,
with whom, on the brief, was George Jepsen, attorney
general, for the appellee (defendant).
Opinion
PELLEGRINO, J. The plaintiff, Hart Prendergast,
appeals from the judgment of the Superior Court dis-
missing his appeal from the decision of the defendant,
the Commissioner of Motor Vehicles, suspending his
license to operate a motor vehicle pursuant to General
Statutes § 14-227b. The plaintiff claims that the court
improperly (1) found that there was substantial evi-
dence in the record to support a finding that there was
probable cause to arrest him for operating a motor
vehicle while under the influence of alcohol or intox-
icating liquor or drugs, and (2) concluded that his due
process rights were not violated when the hearing offi-
cer continued the hearing to subpoena the police offi-
cers involved in the plaintiff’s arrest. We affirm the
judgment of the court.
The following facts are relevant to our disposition of
this appeal. On March 27, 2015, at approximately 10:46
p.m., Trooper Josue J. Dorelus of the state police
responded to a two car collision on the southbound
side of Route 15 near exit sixty-one in Hamden. While
responding, he learned that one of the vehicles had
left the scene of the accident. Upon arrival, Dorelus
observed damage to the right side of the remaining
vehicle. The operator of the vehicle told Dorelus that
his vehicle was sideswiped by what he believed to be
a blue sedan.
Shortly before midnight that night, Hamden police
received a call about a suspicious vehicle on Marietta
Street in Hamden. The caller had seen the car ‘‘come
in and park.’’ Hamden police responded and observed
the car with four flat tires, parked in the middle of the
road with the operator asleep at the wheel.
When Hamden police put out a dispatch about the
vehicle, the state police responded, and the officers
concluded that they had located a vehicle matching
the description of the evading vehicle from the earlier
accident on Route 15. Dorelus received a state police
dispatch about the matter at 12:11 a.m. At approxi-
mately 12:30 a.m., Dorelus arrived at the scene, which
was the intersection of Marietta Street and Dixwell
Avenue in Hamden, a location immediately off Route
15. Upon Dorelus’ arrival, Hamden police informed him
that they had found a blue Nissan Altima that appeared
to have been in a recent collision. They added that the
operator, who appeared to be incapacitated and under
the influence of alcohol, was sitting in the driver’s seat
with the key fob in his pocket. The motor, however,
was not running at the time.
Dorelus observed that the damage to the vehicle was
consistent with the description provided by the accident
victim. The car was in a stopped position facing south-
bound. The person in the operator’s seat, later identified
as the plaintiff, told Dorelus that he was traveling from
Meriden and arrived at the location. Dorelus observed
that the plaintiff had ‘‘a disheveled appearance’’ and
had vomit on the collar of his jacket. As the plaintiff
spoke, Dorelus detected an odor of alcohol emanating
from his breath, and his eyes appeared to be bloodshot
and glassy.
The plaintiff subsequently failed one standardized
field sobriety test and declined to take two others. At
approximately 12:45 a.m., Dorelus placed the plaintiff
under arrest for operating a motor vehicle under the
influence of alcohol. At the police station, the plaintiff
verbally refused to submit to a breath test for alcohol.
On May 6 and May 27, 2015, the Department of Motor
Vehicles conducted a hearing to determine whether to
suspend the plaintiff’s license pursuant to § 14-227b.1
On May 27, 2015, the hearing officer rendered a written
decision finding that the plaintiff was operating a motor
vehicle, that there was probable cause to arrest the
plaintiff for operating under the influence, and that the
plaintiff refused to submit to a chemical test. On the
basis of these findings, as well as the fact that the
plaintiff had a prior license suspension, the hearing
officer suspended the plaintiff’s license for one year.
See General Statutes § 14-227b (i) (2) (C).
The plaintiff appealed from the decision of the hear-
ing officer to the court pursuant to General Statutes
§ 4-183. On appeal, the plaintiff challenged the hearing
officer’s findings (1) that the police officers had proba-
ble cause to arrest him for operating a motor vehicle
while under the influence of intoxicating liquor, and
(2) that he was operating the motor vehicle. The plaintiff
claimed that the administrative record lacked substan-
tial evidence to support these findings. Additionally,
the plaintiff claimed that his right to due process of
law was violated when the hearing officer, over the
plaintiff’s objection, continued the hearing in order to
subpoena the arresting officer. The court affirmed the
hearing officer’s decision and dismissed the plaintiff’s
appeal. This appeal followed. Additional facts will be
set forth as necessary.
We first set forth our standard of review. ‘‘[J]udicial
review of the commissioner’s action is governed by the
Uniform Administrative Procedure Act [(act), General
Statutes §§ 4-166 through 4-189], and the scope of that
review is very restricted. . . . [R]eview of an adminis-
trative agency decision requires a court to determine
whether there is substantial evidence in the administra-
tive record to support the agency’s findings of basic
fact and whether the conclusions drawn from those
facts are reasonable. . . . Neither this court nor the
trial court may retry the case or substitute its own
judgment for that of the administrative agency on the
weight of the evidence or question of fact. . . . Our
ultimate duty is to determine, in view of all of the evi-
dence, whether the agency, in issuing its order, acted
unreasonably, arbitrarily, illegally or in abuse of its dis-
cretion. . . .
‘‘The substantial evidence rule governs judicial
review of administrative fact-finding under the [act].
[See] General Statutes § 4-183 (j) (5) and (6). An admin-
istrative finding is supported by substantial evidence if
the record affords a substantial basis of fact from which
the fact in issue can be reasonably inferred. . . . The
substantial evidence rule imposes an important limita-
tion on the power of the courts to overturn a decision
of an administrative agency . . . .
‘‘It is fundamental that a plaintiff has the burden of
proving that the commissioner, on the facts before him,
acted contrary to law and in abuse of his discretion [in
determining the issue of probable cause]. . . . The law
is also well established that if the decision of the com-
missioner is reasonably supported by the evidence it
must be sustained. . . .
‘‘We have stated that [p]robable cause, broadly
defined, comprises such facts as would reasonably per-
suade an impartial and reasonable mind not merely
to suspect or conjecture, but to believe that criminal
activity has occurred. . . . Reasonable minds may dis-
agree as to whether a particular [set of facts] establishes
probable cause. . . . Thus, the commissioner need
only have a substantial basis of fact from which [it] can
be inferred . . . that the evidence in the administrative
record supported a finding of probable cause with
respect to the plaintiff’s violation of [General Statutes]
§ 14-227a.’’ (Citations omitted; internal quotation marks
omitted.) Murphy v. Commissioner of Motor Vehicles,
254 Conn. 333, 343–44, 757 A.2d 561 (2000).
I
The plaintiff first claims that there was insufficient
evidence in the record to establish that Dorelus had
probable cause to believe that the plaintiff operated his
motor vehicle while under the influence of intoxicating
liquor or drugs in violation of § 14-227a.2 He argues that
because he was not operating his motor vehicle at the
time the police found him, the record lacked substantial
evidence to support a finding that the police had proba-
ble cause to arrest him for operating a motor vehicle
while under the influence. We are not persuaded.
‘‘It is well settled that operating encompasses a
broader range of conduct than does driving.’’ (Internal
quotation marks omitted.) State v. Lee, 138 Conn. App.
420, 434, 52 A.3d 736 (2012), cert. granted on other
grounds, 321 Conn. 911, 136 A.2d 644 (2016). ‘‘[T]here
is no requirement that the fact of operation be estab-
lished by direct evidence.’’ Murphy v. Commissioner
of Motor Vehicles, supra, 254 Conn. 345. Our Supreme
Court has observed that ‘‘[t]here is no distinction
between direct and circumstantial evidence [so] far as
probative force is concerned . . . . In fact, circum-
stantial evidence may be more certain, satisfying and
persuasive than direct evidence.’’ (Citation omitted;
internal quotation marks omitted.) Id., 345 n.14. In order
for an arresting officer to have probable cause to arrest
someone for a violation of § 14-227a, there must be a
‘‘temporal nexus between liquor and operation.’’ Mur-
phy v. Commissioner of Motor Vehicles, 54 Conn. App.
127, 132, 733 A.2d 892 (1999), rev’d, 254 Conn. 333, 757
A.2d 561 (2000).3 ‘‘Although the police officer may draw
any reasonable, logical inferences from the facts
observed, he may not resort to mere speculation or
conjecture, particularly . . . where there is no evi-
dence of a temporal nexus between liquor and opera-
tion.’’ Id.Applying these standards, we conclude that there is
substantial evidence in the record to support a finding
that Dorelus had probable cause to arrest the plaintiff
for operating a motor vehicle while under the influence
of liquor or drugs. Dorelus could reasonably and logi-
cally infer, on the basis of the facts known to him at
the time of the arrest, that the plaintiff had consumed
alcohol and had operated his motor vehicle. When the
plaintiff was found asleep inside his vehicle, he dis-
played signs of intoxication.4 He admitted that he had
traveled from Meriden to Hamden. The plaintiff’s car
had four flat tires and was parked in the middle of a
street located immediately off Route 15. The car had
damage that was consistent with the description of the
damage to the car sideswiped on Route 15 less than
two hours before. On the basis of these facts, it was
not mere speculation or conjecture for Dorelus to infer
that the plaintiff had operated his vehicle while under
the influence of liquor. Additionally, the damage to the
plaintiff’s vehicle was consistent with the accident that
had occurred less than two hours before the plaintiff
was found by the police, which supports the hearing
officer’s finding that there was a temporal nexus
between the plaintiff’s consumption of liquor and opera-
tion of his vehicle.5 Accordingly, the plaintiff’s first
claim fails.
II
The plaintiff next argues that he was deprived of his
right to due process of law when the hearing officer
continued his case in order to subpoena the police
officers to testify about his arrest. The plaintiff argues
that because the defendant already had rested his case,
the hearing officer lacked the discretion to continue
the case and subpoena the police officers, and that
the plaintiff was thereby deprived of his right to due
process. We disagree.
The following additional facts are relevant to our
analysis of this claim. The initial administrative hearing
for the petitioner’s case took place on May 6, 2015. Only
the hearing officer and counsel for the plaintiff were
present at this hearing. The hearing officer, on behalf
of the defendant, introduced the police reports from
the plaintiff’s arrest. He then stated, ‘‘All right. You’re
up.’’ The plaintiff’s counsel then argued that there was
insufficient evidence of a nexus between operation and
intoxication. The hearing officer responded, ‘‘[s]o, what
the Department [of Motor Vehicles] wants us to do in
these situations is to give the officer one opportunity
to come in and sort of clarify his report when these
type[s] of questions come up; so, I’m going to have to
continue the hearing. We will, on our side, subpoena
the officer.’’ The plaintiff objected on due process
grounds, but a second day of hearings took place on
May 27, 2015, at which Dorelus and the two Hamden
officers testified.
On appeal, the plaintiff asserts that the hearing offi-
cer’s continuation of the case after the defendant had
rested his case violated his right to due process of law.
The plaintiff, however, has failed to point to any statute,
regulation, or case law that would prohibit a hearing
officer from continuing the hearing in order to obtain
additional evidence under these circumstances. On the
contrary, there are statutes and regulations that explic-
itly permit the hearing officer to grant a continuance.
Section 14-227b (g) provides that ‘‘[a]t the request of
[the motorist] or the hearing officer and upon a showing
of good cause, the commissioner may grant one or more
continuances. . . .’’ Additionally, the Department of
Motor Vehicles’ regulations specifically address this sit-
uation by stating that ‘‘[a]t the hearing the commissioner
shall not require the presence and testimony of the
arresting officer, or any other person, but the hearing
officer may make an appropriate order, as authorized
by section 14-110 of the Connecticut General Statutes,
to obtain the testimony of such arresting officer or other
witness, if the same appears necessary to make a proper
finding on one or more of the issues stated in subsection
(g) or (j) of section 14-227b of the Connecticut General
Statutes.’’6 Regs., Conn. State Agencies § 14-227b-18
(a).7 Here, the hearing officer determined that it was
necessary to subpoena the arresting officers in order
to make a proper finding on the issue of probable cause
to arrest for operation under the influence, and appro-
priately continued the hearing pursuant to § 14-227b
(g). The fact that the defendant had ‘‘rested’’ his case
is immaterial to the hearing officer’s ability to continue
the hearing. Unlike the situation in certain criminal
cases, in administrative proceedings there is no rule that
limits or prevents an agency from presenting further
evidence after it has concluded its case. Cf. State v.
Dunbar, 51 Conn. App. 313, 317–20, 721 A.2d 1229(1998), cert. denied, 247 Conn. 962, 724 A.2d 1126(1999); Practice Book § 42-35 (3). ‘‘[H]earings before
administrative agencies, such as those before the com-
missioner of motor vehicles, are informal and are not
governed by the strict or technical rules of evidence.’’
(Internal quotation marks omitted.) Santiago v. Com-
missioner of Motor Vehicles, 134 Conn. App. 668, 673,
39 A.3d 1224 (2012). In addition, the plaintiff had notice
of the hearing and the charges, and was afforded a
full opportunity to cross-examine the police officers
following the continuation of the hearing. Accordingly,
the hearing officer acted within the scope of his author-
ity by continuing the plaintiff’s hearing, and the plaintiff
was not deprived of his right to due process of law.
The court, therefore, properly dismissed the appeal.
The judgment is affirmed.
In this opinion the other judges concurred.
1
General Statutes § 14-227b (g) sets forth a four part test for the adminis-
trative agency to assess whether a license suspension is warranted. The
following issues must be found: ‘‘(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. . . .’’
2
The plaintiff challenges the findings made by the hearing officer under
both the first and fourth prongs of the four part test set forth in § 14-227b
(g) under the same theory that there was insufficient evidence to establish
that he operated his vehicle or that there was probable cause for the police
officer to arrest him for operating his vehicle while intoxicated. Because
we conclude that there was sufficient evidence to support a finding of
probable cause to arrest for operating under the influence, our analysis
disproves the plaintiff’s theory as it applies to either the first or fourth
prongs of § 14-227b (g).
3
Although our Supreme Court reversed this court’s decision in Murphy,
it did so by applying the same ‘‘temporal nexus’’ standard. Murphy v. Com-
missioner of Motor Vehicles, supra, 254 Conn. 347.
4
Specifically, Dorelus observed that the plaintiff’s eyes were bloodshot
and glassy, he had a disheveled appearance, and he had vomit on his collar.
Additionally, the plaintiff failed one field sobriety test before refusing to
submit to any additional tests.
5
The plaintiff cites State v. DeCoster, 147 Conn. 502, 162 A.2d 704 (1960),
for the proposition that there was insufficient evidence to support a finding
of a temporal nexus between liquor and operation on the basis of the
evidence presented in his hearing. In DeCoster, the defendant was convicted
of operating a motor vehicle while intoxicated. Id., 503. The evidence sup-
ported a finding that a police officer found the defendant, who was intoxi-
cated, slumped over the steering wheel of his motor vehicle. Id., 504. The
vehicle’s key was in the ignition, but the ignition was in the off position.
Id. The two right tires on the motor vehicle were flat, and the vehicle
exhibited body damage on its right side. Id. Four traffic signs close to where
the motor vehicle was stopped had been knocked down. Id.
In reversing in part the conviction on the ground of insufficient evidence,
our Supreme Court in DeCoster concluded that the state had failed to demon-
strate the critical temporal nexus between intoxication and operation. Id.,
505. The court noted that although the evidence supported an inference
that the defendant’s motor vehicle had struck the signs along the nearby
intersection, there were no witnesses who had observed the defendant
operating the motor vehicle and no evidence to show how long it had been
stationary. Id., 504–505. The present case is distinguishable in at least two
regards. First, DeCoster was a criminal case requiring proof of operation
beyond a reasonable doubt, whereas the present case is an administrative
case with a lower burden of proof. Second, there were no witnesses in
DeCoster who could help establish the time that the stop signs were hit.
Here, after speaking with the accident victim, Dorelus was able to establish
that the accident had occurred within two hours from when he located the
plaintiff. DeCoster is therefore distinguishable from the plaintiff’s claim.
6
We also note that allowing the hearing officer the option to subpoena
the police officers after reviewing the evidence is in the interests of efficiency
and judicial economy. To require the presence of police officers at every
§ 14-227b hearing would be a significant waste of resources, as police officer
testimony is not always necessary for the hearing officer to arrive at his or
her findings.
7
General Statutes § 14-110 (a) provides that ‘‘[t]he commissioner . . . in
the performance of his duties, may . . . issue subpoenas. . . .’’