Schallenkamp v. DelPonte

Callahan, J.

This is the certified appeal of the plaintiff, Lois Schallenkamp, a resident of Springfield, Massachusetts, from a judgment of the Appellate Court affirming the dismissal by the trial court of her appeal from the suspension, pursuant to the applicable provisions of General Statutes § 14-227b,¹ of her nonresident motor vehicle operating privilege by the commissioner of motor vehicles.

After a hearing conducted pursuant to § 14-227b (f), the commissioner, acting by a designated hearing officer, suspended the plaintiffs nonresident operating privilege for a period of ninety days. In the plaintiffs subsequent appeal from the commissioner’s decision to the Superior Court pursuant to General Statutes § 4-183 (a),² she claimed that the record contained insufficient evidence that the arresting officer was certified to administer the breath analysis test, the results of which were admitted into evidence at her administrative hearing. The trial court dismissed the plaintiffs appeal. The Appellate Court affirmed the decision of the trial court. Schallenkamp v. DelPonte, 29 Conn. App. 576, 616 A.2d 1157 (1992). We granted certification to appeal, limited to the following question: “Did the Appellate Court properly conclude that there was substantial evidence in the record to support the finding that the arresting officer was certified to administer the breathalyzer tests?” Schallenkamp v. DelPonte, 224 Conn. 928, 619 A.2d 851 (1993). We affirm the judgment of the Appellate Court.

The plaintiff was arrested in Windsor Locks on October 6,1990, for operating a motor vehicle while under the influence of alcohol in violation of General Statutes § 14-227a (a).³ After her arrest, she submitted to a breath analysis test that indicated a blood alcohol content of 0.199 percent, a figure well in excess of the 0.10 percent ratio of alcohol in the blood required for the suspension of her operator’s privilege under § 14-227b (f). The arresting officer, Michael Balfore, temporarily suspended the plaintiff’s nonresident operating privilege pursuant to § 14-227b (c). Thereafter, Balfore, who had administered the breath analysis test, filed a report with the commissioner, on an approved motor vehicle department form, wherein he noted the results of the test, checked a box that indicated that he was certified to administer the test and swore to the truth of his report.

A subsequent hearing was held, pursuant to § 14-227b (f), to determine whether, pursuant to § 14-227b (g), the plaintiff’s nonresident operating privilege should be suspended for a period of ninety days. At the hearing, the motor vehicle department form filed by Balfore was admitted into evidence, over the plaintiff’s objection, pursuant to § 14-227b-19 of the Regulations of Connecticut State Agencies.⁴ In support of her objection, the plaintiff maintained that Balfore’s certification to operate the “Intoximeter 3000,” the instrument used to measure the plaintiff’s blood alcohol content, had expired prior to the plaintiff’s arrest.⁵ She contended therefore that the results of the test that Balfore had administered should be given no weight by the hearing officer. She argued in the Appellate Court, and argues in this court, that because of Balfore’s lack of certification there was not substantial evidence of the plaintiff’s blood alcohol content and, consequently, that it had not been demonstrated that “the ratio of alcohol [in her blood] was ten-hundredths of one per cent or more of alcohol, by weight,” an essential element under § 14-227b (f) to permit the commissioner to suspend her operating privilege.

Section 14-227b (f) specifies that a hearing to suspend an operator’s license or a nonresident’s operating privilege for operating under the influence of intoxicating liquor shall be limited to a determination by the commissioner of the following pertinent 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 ... (2) was such person placed under arrest; (3) did such person . . . submit to such test or analysis and the results of such test or analysis indicated that at the time of the alleged offense the ratio of alcohol in the blood of such person was ten-hundredths of one per cent or more of alcohol, by weight; and (4) was such person operating the motor vehicle.” “The language of General Statutes § 14-227b [¶] is plain and unambiguous. The hearing is expressly limited to the four issues enumerated above.” Buckley v. Muzio, 200 Conn. 1, 7, 509 A.2d 489 (1986); Volck v. Muzio, 204 Conn. 507, 512, 529 A.2d 177 (1987). The hearing officer determined that all of the issues specified by the statute had been demonstrated affirmatively and ordered that the plaintiff’s nonresident operating privilege be suspended for a period of ninety days.

As in any administrative appeal, the plaintiff bore the burden of proving that the commissioner’s decision to suspend her nonresident operating privilege was “clearly erroneous in view of the reliable, probative and substantial evidence on the whole record.” General Statutes § 4-183 (j) (5); see Lawrence v. Kozlowski, 171 Conn. 705, 713-14, 372 A.2d 110 (1976), cert. denied, 431 U.S. 969, 97 S. Ct. 2930, 53 L. Ed. 2d 1066 (1977). “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 findings of basic fact and whether the conclusions drawn from those facts are reasonable. . . . Substantial evidence exists if the administrative record affords a substantial basis of fact from which the fact in issue can be reasonably inferred.” (Citations omitted; internal quotation marks omitted.) Connecticut Light & Power Co. v. Dept. of Public Utility Control, 216 Conn. 627, 639-40, 583 A.2d 906 (1990).

There are two difficulties with the plaintiff’s position. One relates to the quantum of proof required to overturn an administrative finding of fact. The other relates to our holding in Volck v. Muzio, supra, 204 Conn. 512, that the governing statutes limit the issues that can be raised in an appeal from a license suspension. The plaintiff can surmount neither of these difficulties.

In support of her claim that Balfore’s certification had lapsed, the plaintiff introduced only an unsigned, unsworn “single piece of paper on the letterhead of the department of health services” indicating that Balfore had last been recertified to perform breath analysis tests on September 24,1989. Schallenkamp v. DelPonte, supra, 29 Conn. App. 578. Section 14-227a-10 (c) (1) (B) of the Regulations of Connecticut State Agencies provides in part that “[a]n operator’s certificate [to administer breath analysis tests] shall be valid for twelve (12) months from the date of issuance.” Therefore, if the information submitted by the plaintiff was correct, unless Balfore had been subsequently recertified, his certification to administer breath analysis tests would have expired on September 24,1990, shortly before the plaintiff was arrested.⁶ The countervailing evidence consisted of Balfore’s sworn report wherein he had represented that “the analytical device [used to test the plaintiff] was operated by a certified analyst.” Id.

In reviewing an administrative determination, we “must take into account [that there is] contradictory evidence in the record . . . but the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence . . . .’’(Citations omitted; internal quotation marks omitted.) Samperi v. Inland Wetlands Agency, 226 Conn. 579, 588, 628 A.2d 1286 (1993). Moreover, “it is not the function of the trial court, nor of this court, to retry the cause. . . . [T]he determination of issues of fact are matters within its province [of the administrative agency].” (Citations omitted; internal quotation marks omitted.) Tomlinson v. Board of Education, 226 Conn. 704, 713, 629 A.2d 333 (1993). Because it is the administrative hearing officer’s function to determine issues of fact, we cannot say, simply because of the existence of conflicting evidence, that the record failed to contain a substantial basis from which the hearing officer could have concluded that Balfore was certified to administer breath analysis tests on the date of the plaintiff’s arrest.

Moreover, even if we were to assume that Balfore’s certification had lapsed, such a lapse would not have sufficiently undermined the reliability of the test results to cause us to depart from our holding in Volck v. Muzio, supra, 204 Conn. 512. In Volck, we concluded that even multiple failures on the part of an arresting officer to comply with the statutory dictates of § 14-227b⁷ were not sufficient grounds for overturning the commissioner’s determination, after a hearing, that the essential elements of the statute had been proven and that the plaintiffs operator’s license should be suspended. Id., 518, 521. Similarly, Balfore’s alleged failure to comply with a regulation that he currently be certified to administer a breath analysis test would not be a basis for overturning the commissioner’s decision in this case as long as there was evidence from which the commissioner reasonably could have concluded that the four prerequisites for suspension set forth in § 14-227b (f) had been demonstrated affirmatively.⁸

The plaintiff maintained at oral argument, however, that § 14-227b-19 of the Regulations of Connecticut State Agencies⁹ required Balfore’s report to conform with General Statutes § 14-227b (c) in order for the report and the test results to have been admissible at her suspension hearing. She argued that, if Balfore had not been certified at the time she was arrested, his report did not conform to the statute and, consequently, was inadmissible and should not have been considered by the commissioner.

We agree with the plaintiff that the cited regulation mandates Balfore’s report to conform to the requirement of § 14-227b (c) in order to have been admissible at the suspension hearing. We do not agree, however, that Balfore had to be certified in order to have his written report conform to the statute. Section 14-227b (c) sets forth the steps a police officer must take in the preparation and delivery of his report to the commissioner. Nowhere does it mention the certification of the police officer preparing the report or administering the test as a necessary prerequisite to its proper preparation and delivery. The written report required by § 14-227b (c) may therefore conform to the statute and be admissible at an administrative suspension hearing pursuant to § 14-227b-19 even if the officer who prepared and dispatched the report was not currently certified to administer breath analysis tests.

Our construction of § 14-227b (c) is reinforced by a comparison with § 14-227a (c), on which the plaintiff may mistakenly be relying. The latter statute governs the admissibility of the results of a breath analysis test in criminal proceedings. For such proceedings, § 14-227a (c) does require that a breath analysis test be administered by an officer “certified or recertified for such purpose ... by the commissioner of health services” in order for the test results to be admissible in a criminal trial. The proceeding in question, however, was an administrative hearing, not a criminal trial, and consequently § 14-227a (c) is inapplicable.

The judgment of the Appellate Court is affirmed.

In this opinion Peters, C. J., Norcott and Palmer, Js., concurred.

1 “[General Statutes] Sec. 14-227b. implied consent to test, suspension OF LICENSE FOR REFUSING TO SUBMIT TO TEST OR HAVING ELEVATED blood alcohol content, hearing, (a) Any person who operates a motor vehicle in this state shall be deemed to have given his consent to a chemical analysis of his blood, breath or urine and, if said person is a minor, Ms parent or parents or guardian shall also be deemed to have given his consent.

“(b) If any such person, having been placed under arrest for manslaughter in the second degree with a motor vehicle or assault in the second degree with a motor vehicle or for operating a motor veMcle while under the influence of intoxicating liquor or any drug or both or while his ability to operate such motor vehicle is impaired by the consumption of intoxicating liquor, and thereafter, after being apprised of his constitutional rights, having been requested to submit to a blood, breath or urine test at the option of the police officer, having been afforded a reasonable opportunity to telephone an attorney prior to the performance of such test and having been informed that his license or nonresident operating privilege will be suspended in accordance with the provisions of this section if he refuses to submit to such test or if he submits to such test and the results of such test indicate that at the time of the alleged offense the ratio of alcohol in Ms blood was ten-hundredths of one per cent or more of alcohol, by weight, and that evidence of any such refusal shall be admissible in accordance with subsection (f) of section 14-227a and may be used against him in any criminal prosecution, refuses to submit to the designated test, the test shall not be given; provided, if the person refuses or is unable to submit to a blood test, the police officer shall designate the breath or urine test as the test to be taken. The police officer shall make a notation upon the records of the police department that he informed the person that his license or nonresident operating privilege would be suspended if he refused to submit to such test or if he submitted to such test and the results of such test indicated that at the time of the alleged offense the ratio of alcohol in his blood was ten-hundredths of one per cent or more of alcohol, by weight.

“(c) If the person arrested refuses to submit to such test or analysis or submits to such test or analysis and the results of such test or analysis indicates that at the time of the alleged offense the ratio of alcohol in the blood of such person was ten-hundredths of one per cent or more of alcohol, by weight, the police officer, acting on behalf of the commissioner of motor vehicles, shall immediately revoke and take possession of the motor vehicle operator’s license or, if such person is a nonresident, suspend the nonresident operating privilege of such person, for a twenty-four-hour period and shall issue a temporary operator’s license or nonresident operating privilege to such person valid for the period commencing twenty-four hours after issuance and ending thirty-five days after the date such person received notice of his arrest by the police officer. The police officer shall prepare a written report of the incident and shall mail the report together with a copy of the completed temporary license form, any operator’s license taken into possession and a copy of the results of any chemical test or analysis to the department of motor vehicles within three business days. The report shall be made on a form approved by the commissioner of motor vehicles and shall be sworn to under penalty of false statement as provided in section 53a-157 by the police officer before whom such refusal was made or who administered or caused to be administered such test or analysis. 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 manslaughter in the second degree with a motor vehicle or assault in the second degree with a motor vehicle or for operating a motor vehicle while under the influence of intoxicating liquor or any drug or both or while his ability to operate such motor vehicle is impaired by the consumption of intoxicating liquor, and shall state that such person had refused to submit to such test or analysis when requested by such police officer to do so or that such person submitted to such test or analysis and the results of such test or analysis indicated that at the time of the alleged offense the ratio of alcohol in the blood of such person was ten-hundredths of one per cent or more of alcohol, by weight.

“(d) Upon receipt of such report, the commissioner of motor vehicles shall suspend any license or nonresident operating privilege of such person effective as of a date certain, which date shall be not later than thirty-five days after the date such person received notice of his arrest by the police officer. Any person whose license or operating privilege has been suspended in accordance with this subsection shall automatically be entitled to a hearing before the commissioner to be held prior to the effective date of the suspension. The commissioner shall send a suspension notice to such person informing such person that his operator’s license or nonresident operating privilege is suspended as of a date certain and that he is entitled to a hearing prior to the effective date of suspension and may schedule such hearing by contacting the department of motor vehicles not later than seven days after the date of mailing of such suspension notice.

“(e) If such person does not contact the department to schedule a hearing, the commissioner shall affirm the suspension contained in the suspension notice for the appropriate period specified in subsection (h) of this section.

“(f) If such person contacts the department to schedule a hearing, the department shall assign a date, time and place for the hearing, which date shall be prior to the effective date of the suspension. Upon a showing of good cause, the commissioner may grant one continuance for a period not to exceed ten days. If a continuance is granted, the commissioner shall extend the validity of the temporary operator’s license or nonresident operating privilege issued pursuant to subsection (c) of this section for a period not to exceed the period of such continuance. The hearing shall be limited to a determination of the following issues: (1) Did the police officer have probable cause to arrest the person for manslaughter in the second degree with a motor vehicle or for assault in the second degree with a motor vehicle or for operating a motor vehicle while under the influence of intoxicating liquor or drug or both or while his ability to operate such motor vehicle was impaired by the consumption of intoxicating liquor; (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 and the results of such test or analysis indicated that at the time of the alleged offense the ratio of alcohol in the blood of such person was ten-hundredths of one per cent or more of alcohol, by weight; and (4) was such person operating the motor vehicle. The fees of any witness summoned to appear at the hearing shall be the same as provided by the general statutes for witnesses in criminal cases.

“(g) If, after such hearing, the commissioner finds on any one of the said issues in the negative, the commissioner shall reinstate such license or operating privilege. If, after such hearing, the commissioner does not find on any one of the said issues in the negative or if such person fails to appear at such hearing, the commissioner shall affirm the suspension contained in the suspension notice for the appropriate period specified in subsection (h) of this section. The commissioner shall render a decision at the conclusion of such hearing or send a notice of his decision by certified mail to such person not later than thirty-five days or, if a continuance is granted, not later than forty-five days from the date such person received notice of his arrest by the police officer. The notice of such decision sent by certified mail to the address of such person as shown by the records of the commissioner shall be sufficient notice to such person that his operator’s license or nonresident operating privilege is reinstated or suspended, as the case may be. Unless a continuance is granted to such person pursuant to subsection (f) of this section, if the commissioner fails to render a decision within thirty-five days from the date such person received notice of his arrest by the police officer, the commissioner shall reinstate such person’s operator’s license or nonresident operating privilege, provided notwithstanding such reinstatement the commissioner may render a decision not later than two days thereafter suspending such operator’s license or nonresident operating privilege.

“(h) The commissioner shall suspend the operator’s license or nonresident operating privilege, and revoke the temporary operator’s license or nonresident operating privilege issued pursuant to subsection (c) of this section, of a person who did not contact the department to schedule a hearing, who failed to appear at a hearing or against whom, after a hearing, the commissioner held pursuant to subsection (g) of this section, as of the effective date contained in the suspension notice or the date the commissioner renders his decision, whichever is later, for a period of: (1) (A) Ninety days, if such person submitted to a test or analysis and the results of such test or analysis indicated that at the time of the alleged offense the ratio of alcohol in the blood of such person was ten-hundredths of one per cent or more of alcohol, by weight, or (B) six months if such person refused to submit to such test or analysis, (2) one year if such person has previously had his operator’s license or nonresident operating privilege suspended under this section, and (3) two years if such person has two or more times previously had his operator’s license or nonresident operating privilege suspended under this section.

“(i) 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 (c) of section 14-227a.

“(j) The provisions of this section shall not apply to any person whose physical condition is such that, according to competent medical advice, such test would be inadvisable.

“(k) The state shall pay the reasonable charges of any physician who, at the request of a municipal police department, takes a blood sample for purposes of a test under the provisions of this section.

“(Ü) The commissioner of motor vehicles shall adopt regulations in accordance with chapter 54 to implement the provisions of this section.”

2 “[General Statutes] Sec. 4-183. appeal to superior court, (a) A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision may appeal to the superior court as provided in this section. The filing of a petition for reconsideration is not a prerequisite to the filing of such an appeal.”

3 General Statutes § 14-227a provides in relevant part: “operation while UNDER THE INFLUENCE OF LIQUOR OR DRUG OR WHILE IMPAIRED BY LIQUOR. (a) operation while under the influence. No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. A person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor or any drug or both if he operates a motor vehicle on a public highway of this state or on any road of a district organized under the provisions of chapter 105, a purpose of which is the construction and maintenance of roads and sidewalks, or on any private road on which a speed limit has been established in accordance with the provisions of section 14-218a, or in any parking area for ten or more cars or on any school property (1) while under the influence of intoxicating liquor or any drug or both or (2) while the ratio of alcohol in the blood of such person is ten-hundredths of one per cent or more of alcohol, by weight.”

4 Section 14-227b-19 of the Regulations of Connecticut State Agencies provides: “admissibility of police report at hearing. The written report filed by the arresting officer shall be admissible into evidence at the hearing if it conforms to the requirements of Section 14-227b (c) of the General Statutes.”

5 Section 14-227b-2 (c) of the Regulations of Connecticut State Agencies provides that “[cjhemical analysis for the purpose of determining the amount of alcohol in the blood of any person shall be performed in accordance with the provisions of Sections 14-227a-l through 14-227a-10 of the Regulations of Connecticut State Agencies.”

Section 14-227a-10 (c) of the Regulations of Connecticut State Agencies provides in relevant part: “No person shall be an operator of a breath analysis instrument unless such person is employed by a law enforcement agency or by the department of health services and is certified by the department of health services. . . .

“(c) certification of operators and instructors. (1) certification of operators. (A) In order to be certified as an operator of a breath analysis instrument, a person shall apply to the department for certification and shall: (i) Be employed by a law enforcement agency or by the department of health services; (ii) Successfully complete a minimum of four (4) hours of training in the operation of the instrument to be used. Such training may be acquired by training courses given by the department or by instructors certified by the department for such purposes in accordance with subdivision (3) below; (iii) Demonstrate to the department the proper use and application of the instrument.”

6 See § 14-227a-10 (c) (2) of the Regulations of Connecticut State Agencies requiring recertification at the end of a certification period.

7 The alleged defects in statutory compliance were the officer’s failure to warn the plaintiff of the consequences of his failure to submit to testing, the officer’s requesting that the plaintiff undergo testing before, rather than after, his arrest, and the officer’s failure to have his written report, indicating that the plaintiff had refused testing, endorsed by a third party. See General Statutes § 14-227b (b) and (c); Volck v. Muzio, supra, 204 Conn. 518.

8 The absence of certification or the uncertainty of its existence would be a factor that an administrative hearing officer could consider in making a determination whether “such test or analysis indicated that at the time of the alleged offense the ratio of alcohol in the blood of such person was ten-hundredths of one per cent or more of alcohol, by weight.” General Statutes § 14-227b (f) (3).

9 See footnote 4.