Do v. Commissioner of Motor Vehicles

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ANGEL HUANG DO v. COMMISSIONER
OF MOTOR VEHICLES
(SC 19722)
Palmer, McDonald, Robinson, Mullins, Kahn and Vertefeuille, 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, the Commissioner of Motor Vehicles,
who temporarily suspended her operator’s license pursuant to statute
(§ 14-227b). At the plaintiff’s suspension hearing, the Department of
Motor Vehicles offered into evidence an exhibit that consisted of a
standard A-44 form and an investigation report that were prepared by
B, the arresting officer, and the results of the plaintiff’s breath analysis
tests, which were administered shortly after the plaintiff’s arrest. The
plaintiff objected to the admission of the exhibit at the hearing on the
ground that it was unreliable due to inconsistencies and errors in the
A-44 form and the investigation report. The hearing officer admitted the
exhibit into evidence, concluding that the inconsistencies and errors
were merely scrivener’s errors that went solely to the weight to be
ascribed to the exhibit rather than to its admissibility. The plaintiff did
not testify or otherwise present any evidence at the hearing, and the
hearing officer ultimately relied on the exhibit in suspending the plain-
tiff’s license. On appeal to the trial court from the hearing officer’s
decision, the plaintiff challenged the admission of the exhibit. The trial
court rendered judgment dismissing the plaintiff’s appeal in part, con-
cluding that the hearing officer did not abuse his discretion in admitting
the exhibit because it was sufficiently reliable. The trial court neverthe-
less remanded the case to the hearing officer to resolve a factual discrep-
ancy concerning which motor vehicle the plaintiff was operating when
she was arrested, as the A-44 form stated that she was driving an Audi
whereas the investigation report stated that she was driving a Mercedes-
Benz. The plaintiff appealed from the trial court’s judgment to the Appel-
late Court, claiming, inter alia, that the trial court had incorrectly deter-
mined that the hearing officer did not abuse his discretion in admitting
the exhibit. The Appellate Court concluded that the inconsistencies and
errors in the exhibit rendered it so unreliable that its admission violated
principles of fundamental fairness. The Appellate Court reversed the
trial court’s judgment and remanded the case with direction to sustain
the plaintiff’s administrative appeal, reasoning that there was no other
evidence in the record to support the hearing officer’s findings. On the
granting of certification, the commissioner appealed to this court. Held
that the plaintiff failed to demonstrate that the hearing officer had abused
his discretion in admitting and relying on the exhibit in support of his
findings, and, accordingly, the Appellate Court’s judgment was reversed,
and the case was remanded with direction to reverse the trial court’s
judgment insofar as that court remanded the case and to order the trial
court to deny the plaintiff’s administrative appeal: the exhibit otherwise
conformed to the statutory requirements for its admission, as it was
submitted to the Department of Motor Vehicles within three business
days, was subscribed and sworn to by B, set forth the grounds for B’s
belief that there was probable cause to arrest the plaintiff, and stated
whether the plaintiff submitted to a blood test; moreover, the fact that
B may have sworn to the accuracy of conflicting information in the A-
44 form and the investigation report went to the weight to be accorded
the exhibit rather than to its admissibility, and, therefore, the hearing
officer properly considered the exhibit in its entirety despite any errors
or inconsistencies; furthermore, the investigation report alone provided
support for the hearing officer’s findings, the hearing officer reasonably
could have concluded that the inconsistencies in the exhibit did not
negate its overall reliability, and, because the information in the exhibit
constituted substantial evidence supporting the hearing officer’s find-
ings, there was no need for a remand to the hearing officer to resolve
the factual issue regarding the make of the vehicle that the plaintiff was
operating at the time of her arrest.
Argued December 20, 2017—officially released February 12, 2019
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 Ansonia-
Milford and transferred to the judicial district of New
Britain, where the case was tried to the court, Schuman,
J.; judgment dismissing the appeal in part and remand-
ing for the resolution of a disputed factual issue, and
the plaintiff appealed to the Appellate Court, Gruendel
and Prescott, Js., with Bear, J., dissenting, which
reversed the trial court’s judgment and remanded the
case with direction to render judgment sustaining the
plaintiff’s appeal, and the defendant, on the granting of
certification, appealed to this court. Reversed; judg-
ment directed.
Drew S. Graham, assistant attorney general, with
whom, on the brief, was George Jepsen, former attorney
general, for the appellant (defendant).
Chet L. Jackson, for the appellee (plaintiff).
Opinion
PALMER, J. Under General Statutes § 14-227b (c),1
anytime someone is arrested for operating a motor vehi-
cle while under the influence of drugs or intoxicating
liquor and refuses to submit to or fails a blood, breath
or urine test, the arresting officer must, among other
things, prepare a report of the incident for the Depart-
ment of Motor Vehicles (department), and, pursuant to
§ 14-227b-19 of the Regulations of Connecticut State
Agencies,2 that report is admissible at a hearing to sus-
pend an operator’s license conducted in accordance
with § 14-227b (g),3 as long as it conforms to the require-
ments of § 14-227b (c). The defendant, the Commis-
sioner of Motor Vehicles (commissioner), suspended
the operator’s license of the plaintiff, Angel Huang Do,
for ninety days following a hearing at which the hearing
officer relied on such a report, which consisted of an
A-44 form,4 a four page police investigation report, and
the results of the plaintiff’s breath analysis tests. The
plaintiff appealed to the Superior Court from the deci-
sion of the commissioner, claiming, inter alia, that this
report, which had been admitted into evidence by the
hearing officer as a single exhibit,5 was unreliable, even
though it complied with § 14-227b (c), due to certain
inconsistencies and errors contained therein. The plain-
tiff asserted, therefore, that the hearing officer had
abused his discretion by admitting the exhibit into evi-
dence. The trial court rejected the plaintiff’s claim but
remanded the case to the hearing officer for an articula-
tion of the type of vehicle the plaintiff was driving at
the time of her arrest. The plaintiff appealed from the
trial court’s judgment to the Appellate Court which, in
a two to one decision, reversed, concluding that the
inconsistencies and errors in the exhibit rendered it
so unreliable that its admission violated principles of
fundamental fairness. See Do v. Commissioner of Motor
Vehicles, 164 Conn. App. 616, 618–19, 138 A.3d 359
(2016). Because there was no other evidence in the
record to support the hearing officer’s findings, the
Appellate Court sustained the plaintiff’s appeal. Id., 619.
We granted the commissioner’s petition for certification
to appeal, limited to the issue of whether the Appellate
Court properly determined that principles of fundamen-
tal fairness required the preclusion of the exhibit as
unreliable even though it complied with § 14-227b (c).
See Do v. Commissioner of Motor Vehicles, 322 Conn.
901, 138 A.3d 931 (2016). Because we agree with the
commissioner that the hearing officer did not abuse his
discretion in admitting and relying on the exhibit, we
reverse the judgment of the Appellate Court.6
The record reveals the following facts and procedural
history. On April 24, 2014, at approximately midnight,
desk personnel notified State Trooper Troy M. Biggs
that a 911 caller had described a white Mercedes-Benz
driving erratically on Route 63 near Round Hill Road
in the town of Bethany. Shortly thereafter, Biggs spotted
the Mercedes-Benz traveling northbound on Route 63
and proceeded to follow it. After Biggs observed the
vehicle swerving and crossing the center line, he acti-
vated his emergency lights and pulled the driver over.
Biggs identified the plaintiff as the driver of the vehicle
from her Connecticut motor vehicle operator’s license.
While questioning the plaintiff, Biggs detected a strong
odor of alcohol on her breath and inside the car. The
plaintiff also admitted to having consumed two alco-
holic beverages prior to leaving her home.
On the basis of this information, Biggs asked the
plaintiff to exit the vehicle and to perform three stan-
dardized field sobriety tests, all of which the plaintiff
failed.7 At 12:30 a.m., Biggs placed the plaintiff under
arrest for operating a motor vehicle under the influence
of intoxicating liquor or drugs and transported her to the
Bethany state police barracks, where she was advised
of her Miranda8 rights. She then agreed to submit to
two breath analysis tests, the results of which indicated
a blood alcohol content of 0.1184 and 0.1186 percent,
respectively. The plaintiff subsequently was formally
charged with operating a motor vehicle under the influ-
ence of intoxicating liquor or drugs in violation of Gen-
eral Statutes (Supp. 2014) § 14-227a (a).9
On April 26, 2014, in accordance with § 14-227b (c),
Biggs transmitted a copy of the exhibit, which, as we
previously indicated, consisted of an A-44 form, a four
page police investigation report, and the results of the
plaintiff’s breath analysis tests, to the department. Each
page of the exhibit was subscribed and sworn to elec-
tronically by Biggs under penalty of false statement.
Biggs’ supervising officer, Ryan M. Hennessey, adminis-
tered an oath to Biggs and signed the exhibit as well.
On May 14, 2014, the commissioner notified the plain-
tiff that her license was being suspended for a period
of ninety days. See General Statutes § 14-227b (e) (1).10
The plaintiff availed herself of her right to contest the
suspension at a hearing before an administrative hear-
ing officer designated by the commissioner. Under § 14-
227b (g),11 such hearings are strictly ‘‘limited to a deter-
mination of the following 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 . . .
submit to [a] test or analysis, commenced within two
hours of the time of operation, [which] . . . indicated
that such person had an elevated blood alcohol content;
and (4) was such person operating the motor vehicle.’’
If the hearing officer finds affirmatively on all four
issues, the hearing officer must uphold the commission-
er’s suspension of the person’s license. See General
Statutes § 14-227b (h).
Prior to the hearing, the commissioner notified the
plaintiff that the exhibit would be offered in evidence
pursuant to § 14-227b (c). At the hearing, the plaintiff
objected to the admission of the exhibit on the ground
that it was unreliable due to the following internal dis-
crepancies: (1) the A-44 form states that, at the time of
her arrest, the plaintiff was driving a 2007 Audi A4 with
Massachusetts license plates whereas the investigation
report states that the plaintiff was driving a 2006 Mer-
cedes-Benz S28 with Connecticut license plates; (2)
after Biggs had subscribed and sworn to the information
contained in the A-44 form, Biggs’ supervising officer,
Hennessey, altered the first page of that form by cross-
ing out ‘‘04/23/2014’’ as the date of the incident and
writing in ‘‘04/24/14’’;12 (3) Hennessy also crossed out
the name ‘‘Helt, David’’ as a person who witnessed the
plaintiff’s refusal to perform a breath analysis test; and
(4) page two of the investigation report, in the prearrest
screening section, states that the plaintiff informed
Biggs that she was wearing contact lenses whereas the
summary of the plaintiff’s horizontal gaze nystagmus
test results in the same report states that the plaintiff
performed that test ‘‘with and without her glasses on.’’
On the basis of these alleged discrepancies, the plaintiff
argued that the exhibit did not meet the admissibility
requirements of § 14-227b (c) because it could not be
determined from the exhibit which vehicle the plaintiff
was driving on the night of the incident and because
the exhibit was not properly subscribed and sworn to
because of the alterations made by Hennessey. In
response, the department argued that the discrepancies
identified by the plaintiff were mere scrivener’s errors
that went solely to the weight to be ascribed to the
exhibit and not to its admissibility. The hearing officer
agreed with the department and admitted the exhibit.
The hearing officer advised the plaintiff, however, that
he would take into account her arguments regarding
the several errors and discrepancies in the exhibit in
deciding whether the commissioner had satisfied each
of the four requirements specified in § 14-227b (g) for
suspending the plaintiff’s operator’s license. The plain-
tiff did not testify or otherwise present any evidence
at the hearing.
On May 30, 2014, the hearing officer issued the follow-
ing findings: (1) ‘‘The police officer had probable cause
to arrest the [plaintiff] for a violation specified in [§]
14-227b of the . . . General Statutes’’; (2) ‘‘[t]he [plain-
tiff] was placed under arrest’’; (3) ‘‘[t]he [plaintiff] sub-
mitted to the test or analysis and the results indicated
a [blood alcohol content] of .08 [percent] or more’’; and
(4) ‘‘[the plaintiff] was operating the motor vehicle.’’
Consistent with these findings, the commissioner
ordered the suspension of the plaintiff’s license for a
period of ninety days.
The plaintiff thereafter filed a petition for reconsider-
ation in which she argued that the hearing officer could
not properly have found affirmatively on the fourth
issue—namely, that the plaintiff was operating the
motor vehicle—because the exhibit indicated that the
plaintiff was driving two different vehicles at the time
of the incident. The plaintiff further argued that the A-
44 form was inadmissible due to the alterations that
Hennessey had made to it after Biggs had subscribed
and sworn to the information contained therein. The
commissioner denied the petition for reconsideration.
Pursuant to General Statutes § 4-183,13 the plaintiff
appealed from the commissioner’s decision to the Supe-
rior Court, claiming that the hearing officer had abused
his discretion in admitting the exhibit into evidence and
that, even if the exhibit had been properly admitted,
there was insufficient evidence to support the hearing
officer’s findings. The trial court rejected the plaintiff’s
claims, concluding that the exhibit was properly admit-
ted because it complied with the requirements of § 14-
227b (c) and, furthermore, that the contents of the
exhibit supported the hearing officer’s findings. Specifi-
cally, the trial court stated: ‘‘In this case, the A-44 [form]
contains the April 26, 2014 electronic sworn signature
under penalty of false statement of [Biggs] as the
arresting officer. The signature box refers to the report
itself and any attachments thereto. The attached investi-
gation report contains the April 26, 2014 electronic
sworn signature of [Biggs] as the investigator. These
reports thus comply with the statute and provided suffi-
cient reliability to justify their admission at the license
suspension hearing in this case. See General Statutes
§ 14-227b (c) (the [c]ommissioner . . . may accept a
police report under this subsection that is prepared and
transmitted as an electronic record, including elec-
tronic signature or signatures).
‘‘That reliability is not negated by the plaintiff’s claims
of discrepancies in the date of arrest and the identity
of the motor vehicle that the plaintiff drove. The plaintiff
raised both these claims before the hearing officer, thus
giving the hearing officer an opportunity to consider
them and exercise his discretion concerning the admis-
sibility of the report.
‘‘Under the applicable abuse of discretion standard,
no abuse of discretion occurred here. . . . There is no
dispute that the motor vehicle stop took place shortly
after midnight on April 24, 2014. Page one of the A-44
[form] shows a typewritten but crossed out notation of
the incident date as 04/23/2014. In handwriting, the date
of 04/24/14 is added with initials that the commissioner
concedes are those of . . . Hennessey, who . . .
administered the oath but was not the sworn, arresting
officer. The [exhibit], therefore, does contain this
amount of unsworn information, which was improper.
However, pages one and two of the A-44 [form] contain
four references to the arrest and breath tests taking
place in the early morning hours of 04/24/2014. The
investigation report then makes six references to the
incident and investigation taking place on April 24.
Under these circumstances, the hearing officer could
reasonably have concluded that the initial notation of
04/23/2014 was a scrivener’s error due to fact that the
arrest took place shortly after midnight and that this
error did not negate the overall reliability of the
[exhibit].
‘‘The same is true of the discrepancy with regard to
the motor vehicle in question. Page one of the A-44
[form] lists the motor vehicle as a 2007 Audi with a
Massachusetts registration. In the Property section of
the investigation report, however, the motor vehicle is
identified as a white 2006 Mercedes-Benz with Connect-
icut registration 344-ZBO. [Likewise] [t]he narrative
[portion] of the [investigation] report states: A 911 caller
described the vehicle as a white Mercedes-Benz bearing
CT registration 344-ZBO. I observed this vehicle travel-
ing northbound . . . . I activated my overhead emer-
gency strobe lights, sirens and wig-wag headlights. The
vehicle pulled over . . . . I never lost sight of the vehi-
cle from my initial observation to the stop. Although
the [exhibit] thus contain[s] conflicting evidence con-
cerning the motor vehicle that the plaintiff operated,
that conflict does not negate the overall reliability of
the [exhibit], which otherwise meets the statutory and
regulatory criteria. Rather, the conflict simply creates
a fact or credibility issue for the hearing officer to
resolve.’’ (Citations omitted; internal quotation marks
omitted.) Because the trial court also concluded, how-
ever, that the exhibit was ambiguous as to which vehicle
the plaintiff was driving on the morning in question,
the court remanded the case to the hearing officer for
an articulation concerning that factual issue.
The plaintiff appealed to the Appellate Court, claim-
ing, inter alia, that the trial court incorrectly had deter-
mined that the hearing officer did not abuse his
discretion in admitting the exhibit into evidence. Do v.
Commissioner of Motor Vehicles, supra, 164 Conn. App.
618. In support of this contention, the plaintiff argued,
as she had before the trial court, that the discrepancies
and errors contained in the exhibit rendered it unrelia-
ble and, therefore, inadmissible despite its compliance
with § 14-227b (c). See id., 623. The plaintiff also argued,
for the first time, that the exhibit likely contained infor-
mation copied and pasted from the arrest report of
another person. See id. The Appellate Court, with one
judge dissenting, agreed with the plaintiff and sustained
her appeal. See id., 634; see also id., 635 (Bear, J., dis-
senting).
In reaching its determination, the Appellate Court
acknowledged that, under § 14-227b-19 (a) of the Regu-
lations of Connecticut State Agencies,14 a police report
that conforms to the requirements of § 14-227b (c) is
deemed admissible at a license suspension hearing. Id.,
624. The Appellate Court reasoned, however, that nei-
ther it nor this court ‘‘has ever held that technical com-
pliance with [§ 14-227b] (c) must always result in the
admission of an A-44 form. Although an A-44 form may
technically comply with subsection (c), the information
contained in the four corners of the document may still
lead the hearing officer to conclude that the document
is otherwise unreliable.’’ Id., 626. ‘‘Because the reliabil-
ity of the A-44 form is of the utmost importance, there
may be instances in which an A-44 form contains so
many significant internal discrepancies and errors that
it is rendered unreliable, at least in the absence of testi-
mony by the arresting officer or other evidence that
supports its reliability.’’ Id., 627. In the Appellate Court’s
view, Biggs’ report was one such instance. Specifically,
the court stated: ‘‘Portions of the exhibit in all likelihood
pertain to the arrest of another individual, calling into
question which portions of the exhibit actually pertain
to the plaintiff. Furthermore, portions of the exhibit
have been altered and initialed by an unknown person
[namely, RH], and it is unclear whether this person had
[personal] knowledge of the incident and swore under
oath to the accuracy of the alterations. Additionally,
there is no evidence as to when these alterations
occurred.’’ Id., 629–30.
‘‘The extent of the errors and discrepancies far sur-
passes mere scrivener’s errors. The exhibit does not
merely state that the plaintiff operated two different
vehicles—an Audi and a Mercedes–Benz—but it also
lists different vehicle models, years, and state registra-
tions. The statements that the plaintiff wore contact
lenses and that the plaintiff participated in field sobriety
tests with and without her glasses also cannot be dis-
missed as mere scrivener’s errors. Additionally, the
notation that ‘Helt, David’ witnessed the plaintiff’s
refusal to submit to chemical alcohol testing is not a
scrivener’s error because the department admits that
the plaintiff consented to the Breathalyzer test.
Although the incident date on the A-44 form may be a
scrivener’s error, the alteration by an unknown person
undermines its reliability.’’ Id., 630.
Judge Bear dissented from the majority opinion. In
particular, he disagreed that the internal discrepancies
identified by the plaintiff rendered the entire exhibit
unreliable. See id., 637 (Bear, J., dissenting). In his
view, the significant number of factual commonalities
between the A-44 form and the attached investigation
report, combined with the large and undisputed portion
of the exhibit that clearly described the plaintiff and her
actions on the night in question, rendered the exhibit
sufficiently reliable for use at the hearing. See id., 637,
642–44 (Bear, J., dissenting). In reaching his determina-
tion, Judge Bear noted, among other things, ‘‘that both
[the A-44 form and the investigation report] give the
same or fundamentally similar information for the fol-
lowing items: the police case number; the location and
time of the traffic stop; the race, sex, birthday, and
address of the plaintiff; that the plaintiff failed the same
three field sobriety tests in virtually the same manner;
that the plaintiff indicated that she had no physical
injuries; and that [the plaintiff] was apprised of her
Miranda rights at 12:43 a.m.’’ (Footnotes omitted.) Id.,
642–43 (Bear, J., dissenting). Judge Bear noted that
both documents also indicate that ‘‘the plaintiff [does
not have] diabetes [and was not] on medication; the
number and type of drinks that the plaintiff consumed
[prior to her arrest]; the [fact] that the plaintiff was
afforded the opportunity to contact an attorney [at 12:44
a.m.]; and the date, time, and results of [her] breath
analysis tests.’’ (Footnote omitted.) Id., 644 (Bear, J.,
dissenting).
Judge Bear disagreed with the trial court, however,
that the case must be remanded to the hearing officer
for an articulation of the type of vehicle the plaintiff
was driving when she was stopped by Biggs. See id.,
645 (Bear, J., dissenting). According to Judge Bear, it
was apparent from Biggs’ investigation report ‘‘that the
plaintiff was operating the 2006 Mercedes-Benz at the
time of her arrest . . . and that the sole reference to
the 2007 Audi [on the A-44 form] is in the nature of a
scrivener’s, typographical, or word processing error.’’
Id. Judge Bear also noted that the plaintiff did not testify
or make any claim to the hearing officer that the infor-
mation contained in the investigation report was inaccu-
rate, which, Judge Bear asserted, underscored the
overall reliability of that report and the reasonableness
of the hearing officer’s reliance on it. See id., 646 (Bear,
J., dissenting).
On appeal, the commissioner urges us to conclude,
consistent with the determinations of the trial court
and Judge Bear, that the hearing officer did not abuse
his discretion or otherwise act unreasonably, arbi-
trarily, or illegally by admitting the exhibit and then
relying on it in determining whether the department
had satisfied the requirements of § 14-227b (g). The
plaintiff, in turn, argues that the Appellate Court cor-
rectly determined that the errors contained in the
exhibit rendered it so unreliable as to be inadmissible.
We agree with the commissioner.
We begin our analysis by setting forth the relevant
standards of review and legal principles that guide our
analysis. ‘‘[J]udicial review of the commissioner’s
action is governed by the Uniform Administrative Pro-
cedure Act . . . General Statutes §§ 4-166 through 4-
189 . . . and the scope of that review is very restricted.
. . . [R]eview of an administrative agency decision
requires a court to determine whether there is substan-
tial evidence in the administrative record to support
the agency’s findings of basic fact and whether the
conclusions drawn from those facts are reasonable.’’
(Citation omitted; internal quotation marks omitted.)
Murphy v. Commissioner of Motor Vehicles, 254 Conn.
333, 343, 757 A.2d 561 (2000). ‘‘Substantial evidence
exists if the administrative record affords a substantial
basis of fact from which the fact in issue can be reason-
ably inferred.’’ (Intenal quotation marks omitted.)
Schallenkamp v. DelPonte, 229 Conn. 31, 40, 639 A.2d
1018 (1994). ‘‘The substantial evidence rule imposes
an important limitation on the power of the courts to
overturn a decision of an administrative agency . . .
and . . . provide[s] a more restrictive standard of
review than standards embodying review of weight of
the evidence or clearly erroneous action. . . . The
United States Supreme Court, in defining substantial
evidence in the directed verdict formulation, has said
that it is something less than the weight of the evidence,
and the possibility of drawing two inconsistent conclu-
sions from the evidence does not prevent an administra-
tive agency’s finding from being supported by sub-
stantial evidence.’’ (Internal quotation marks omitted.)
Cadlerock Properties Joint Venture, L.P. v. Commis-
sioner of Environmental Protection, 253 Conn. 661,
676–77, 757 A.2d 1 (2000), cert. denied, 531 U.S. 1148,
121 S. Ct. 1089, 148 L. Ed. 2d 963 (2001).
We previously have stated that ‘‘administrative tribu-
nals are not strictly bound by the rules of evidence and
. . . may consider exhibits [that] would normally be
incompetent in a judicial proceeding, [as] long as the
evidence is reliable and probative.’’ Lawrence v. Koz-
lowski, 171 Conn. 705, 710, 372 A.2d 110 (1976), cert.
denied, 431 U.S. 969, 97 S. Ct. 2930, 53 L. Ed. 2d 1066
(1977). It is axiomatic, moreover, that it is within the
province of the administrative hearing officer to deter-
mine whether evidence is reliable; see Murphy v. Com-
missioner of Motor Vehicles, supra, 254 Conn. 346; and,
on appeal, the plaintiff bears the burden of proving
‘‘that the commissioner, on the facts before him, acted
contrary to law and in abuse of his discretion . . . .’’
Demma v. Commissioner of Motor Vehicles, 165 Conn.
15, 16–17, 327 A.2d 569 (1973). ‘‘Neither this court nor
the [Appellate Court] may retry the case or substitute
its own judgment for that of the [hearing officer with
respect to] the weight of the evidence or questions of
fact. . . . Our ultimate duty is to determine, in view of
all of the evidence, whether the agency, in issuing its
order, acted unreasonably, arbitrarily, illegally or in
abuse of its discretion.’’ (Internal quotation marks omit-
ted.) Murphy v. Commissioner of Motor Vehicles,
supra, 343.
Applying these principles to the present case, we
agree with the commissioner that the plaintiff has failed
to demonstrate that the hearing officer abused his dis-
cretion by admitting the exhibit into evidence and rely-
ing on it to support his findings under § 14-227b (g). As
the Appellate Court acknowledged, § 14-227b-19 (a) of
the Regulations of Connecticut State Agencies, which
has ‘‘the force and effect of a statute’’; Gianetti v. Nor-
walk Hospital, 211 Conn. 51, 60, 557 A.2d 1249 (1989);
provides in clear and straightforward terms that a police
officer’s report concerning the arrest of a drunk driving
suspect ‘‘shall be admissible into evidence at [a license
suspension] hearing if it conforms to the requirements
of subsection (c) of [§] 14-227b of the . . . General
Statutes.’’ (Emphasis added.) Subsection (c) of § 14-
227b itself provides that the report, to be admissible,
must be submitted to the department within three busi-
ness days, be subscribed and sworn to by the arresting
officer under penalty of false statement, set forth the
grounds for the officer’s belief that there was probable
cause to arrest the driver, and state whether the driver
refused to submit to or failed a blood, breath or urine
test. We previously have stated that the admissibility
requirements set forth in § 14-227b (c) ‘‘provide suffi-
cient indicia of reliability so that the [police] report
can be introduced in evidence as an exception to the
hearsay rule, especially in license suspension proceed-
ings, without the necessity of producing the arresting
officer.’’ Volck v. Muzio, 204 Conn. 507, 518, 529 A.2d
177 (1987). It is undisputed that the exhibit in the pre-
sent case meets these requirements: it was submitted
to the department within three business days; it was
subscribed and sworn to by the arresting officer; it set
forth the grounds for the officer’s belief that there was
probable cause to arrest the plaintiff; and it stated
whether the plaintiff submitted to a blood test.
Neither this court nor the Appellate Court has ever
recognized any basis for excluding a police report from
evidence at a license suspension hearing other than
the failure to comply with § 14-227b (c). Indeed, we
consistently have rejected claims that a report should
be excluded for any other reason. See, e.g., Schallen-
kamp v. DelPonte, supra, 229 Conn. 43 (fact that officer
was not certified to administer breath analysis test was
inconsequential because certification is not required
under § 14-227b); Volck v. Muzio, supra, 204 Conn. 512,
518 (arresting officer’s failure to comply with statutory
dictates of § 14-227b [b] provided insufficient ground
for overturning commissioner’s suspension of opera-
tor’s license, but absence of endorsement of third per-
son to plaintiff’s refusal to submit to breath analysis
test as required by § 14-227b [c] would be ground for
exclusion of police report); Roy v. Commissioner of
Motor Vehicles, 67 Conn. App. 394, 398, 786 A.2d 1279
(2001) (arresting officer’s failure to check box in A-44
form indicating that plaintiff was operating vehicle on
public road did not render police report inadmissible
because ‘‘[t]he report to be completed by police officers
in accordance with § 14-227b [c] does not require the
police to check a box setting forth that the person
arrested was operating on a public road’’); Bialowas v.
Commissioner of Motor Vehicles, 44 Conn. App. 702,
711–12, 692 A.2d 834 (1997) (‘‘ ‘multiple’ ’’ violations of
§ 14-227b were not grounds for excluding police report
from evidence).
We have rejected such claims because, as we
explained in Fishbein v. Kozlowski, 252 Conn. 38, 743
A.2d 1110 (1999), ‘‘the restriction of a license suspen-
sion hearing to the four issues specified in [what is now
§ 14-227b (g)] is indicative of the legislative view that
the failure to comply precisely with the . . . require-
ments of [§ 14-227b (b)] should not prevent suspension
of the license of a person, arrested with probable cause
for believing he was operating under the influence or
with impaired ability as a result of intoxicating liquor,
who has refused to submit to [or has failed] the pre-
scribed [blood alcohol] tests . . . . While the legisla-
ture has attached certain consequences to departures
from the procedures specified in § 14-227b (b) and has
provided a substantial incentive for the police to comply
with those procedures in the context of criminal pro-
ceedings . . . the legislature has manifested its inten-
tion that noncompliance with subsection (b), not
involving one of the four issues to be determined pursu-
ant to subsection [what is now § 14-227b (g)], does not
preclude the suspension of the license of a driver when
the four enumerated elements have been demon-
strated.’’ (Citations omitted; internal quotation marks
omitted.) Id., 47–48; see also Volck v. Muzio, supra,
204 Conn. 512, 518 (because hearing is limited to four
enumerated issues, multiple failures by arresting officer
to comply with statutory dictates of § 14-227b did not
constitute grounds for overturning commissioner’s
decision to suspend operator’s license); Fitzgerald v.
Commissioner of Motor Vehicles, 142 Conn. App. 361,
364–65, 65 A.3d 533 (2013) (‘‘the failure of the police to
comply with subsection [b] of § 14-227b, which provides
the right to telephone an attorney before being sub-
jected to a chemical test, is irrelevant in a license sus-
pension hearing because the hearing specifically, by
legislation, is limited to the four issues specified in § 14-
227b [g]’’ [footnote omitted]); Dalmaso v. Dept. of Motor
Vehicles, 47 Conn. App. 839, 844, 707 A.2d 1275 (‘‘[w]ith-
out legislative action to enlarge the scope of a license
suspension hearing beyond the four issues specified in
subsection [g], we have no reason to modify the well
established view that noncompliance with subsection
[b] is irrelevant in such a proceeding’’), appeal dis-
missed, 247 Conn. 273, 720 A.2d 885 (1998). The present
case is no exception.
Contrary to the determination of the Appellate Court,
therefore, the fact that Biggs may have sworn to the
accuracy of conflicting information concerning the type
of vehicle the plaintiff was driving, the date of the inci-
dent, or whether the plaintiff was wearing contact
lenses when she performed the horizontal gaze nystag-
mus test goes to the weight to be accorded the exhibit
by the hearing officer, not to its admissibility. See, e.g.,
Schallenkamp v. DelPonte, supra, 229 Conn. 41 (deter-
mination regarding reliability of evidence is strictly
within province of administrative hearing officer, and
‘‘the possibility of drawing two inconsistent conclusions
from the evidence does not prevent an administrative
agency’s finding from being supported by substantial
evidence’’ [internal quotation marks omitted]); Law-
rence v. Kozlowski, supra, 171 Conn. 708 (‘‘The [hearing
officer’s] function is that of an administrative agency,
although he acts in a quasi-judicial capacity. To render
a decision, he must weigh evidence and reach conclu-
sions.’’ [Internal quotation marks omitted.]). Thus, the
hearing officer properly considered the exhibit in its
entirety, despite any errors or inconsistencies. More-
over, we see no persuasive reason why the hearing
officer was precluded from relying on the exhibit even
though it contained several mistakes and discrep-
ancies.15
Indeed, as Judge Bear observed; see Do v. Commis-
sioner of Motor Vehicles, supra, 164 Conn. App. 641
(Bear, J., dissenting); the four page investigation report
alone provides support for the hearing officer’s findings
that (1) the police had probable cause to arrest the
plaintiff, (2) the plaintiff was in fact arrested, (3) the
plaintiff submitted to a breath analysis test, which indi-
cated an elevated blood alcohol content, and (4) the
plaintiff was the person operating the vehicle. The
investigation report states in relevant part: ‘‘On 04-24-
14 at approximately 0018 [hours], I was informed . . .
that there was a vehicle operating erratically traveling
northbound on Route 63 in the area of Round Hill Road
in Bethany. A 911 caller described the vehicle as a white
Mercedes Benz bearing [Connecticut] registration 344-
ZBO. I observed this vehicle traveling northbound, fail-
ing to maintain its proper lane, at the intersection of
Route 63 and Munson, swerving over the solid double
yellow line onto the southbound side of the roadway.
I activated my overhead emergency strobe lights, sirens
and wig-wag headlights. The vehicle pulled over onto
the shoulder at the intersection of Route 63 and Litch-
field Turnpike in Bethany. I never lost sight of the vehi-
cle from my initial observation to the stop. [Another]
[t]rooper . . . arrived on [the] scene to assist [me].
. . .
‘‘Upon approaching the vehicle . . . I observed [an]
Asian female seated in the operator’s position with the
vehicle engine at an idle. The operator, later identified
by her [Connecticut] operator’s license . . . as [the
plaintiff] . . . was asked for her license, registration
and proof of insurance. . . . I then asked the [plaintiff]
where she was coming from to which she stated, ‘Mil-
ford.’ I asked the [plaintiff] where in Milford . . . she
[was] coming from to which she stated ‘[m]y house.’ I
asked the [plaintiff] where she was going to which she
[responded] that she was on her way to her boyfriend’s
house in Bethany. I then asked the [plaintiff] if she had
consumed any alcoholic beverages to which she stated
‘[y]es.’ She went on to explain that she had [consumed]
a [v]odka and [t]onic and a glass of [s]angria. It should
be noted that I detected a strong odor of an alcoholic
beverage emanating from the [plaintiff’s] breath as well
as the driver’s side compartment of the vehicle. I
observed that the [plaintiff’s] eyes were bloodshot and
[glassy]. The [plaintiff] appeared to have difficulty locat-
ing [her] . . . [v]ehicle registration and [i]nsurance
[identification] card . . . .
‘‘Based [on] the above stated facts and circumstances
[the plaintiff] was asked to exit and step to the rear of
her vehicle and asked to perform [s]tandardized [f]ield
[s]obriety [t]ests. [The plaintiff] was then asked if she
had any physical injuries and/or disabilities that would
prevent her from performing the tests, to which she
replied, ‘[n]o.’ [The plaintiff then] stated she was wear-
ing contact lenses . . . .’’
The investigation report then details the plaintiff’s
substandard performance on the three field sobriety
tests. It also describes her arrest and subsequent trans-
port to the state police barracks, where she was admin-
istered her Miranda warnings and read the requisite
implied consent advisory. The investigation report fur-
ther provides that the plaintiff was allowed to call an
attorney and that, after speaking with him, she submit-
ted to two breath analysis tests, which indicated a blood
alcohol content of 0.1184 and 0.1186, respectively. The
investigation report also notes that ‘‘a [video] cassette
tape of the [s]tandardized field [s]obriety [t]ests and
the [plaintiff’s] arrest was removed from the [video
recorder] in [Biggs’] assigned vehicle and entered into
evidence. . . . The video portion of the arrest [was]
functioning throughout this investigation.’’ Finally, the
investigation report concludes by providing that the
plaintiff was issued a summons to appear on May 8,
2014, at 9:30 a.m. in New Haven Superior Court, that
she was released on a $500 nonsurety bond, that her
operator’s license was revoked in accordance with § 14-
227b (c), and that she was picked up by a friend at 2
a.m. As Judge Bear also noted, the plaintiff did not
dispute any of these facts at the administrative hearing;
see Do v. Commissioner of Motor Vehicles, supra, 164
Conn. App. 636, 646 (Bear, J., dissenting); even though
she had every opportunity to do so, and there is nothing
in the record before this court to suggest that she dis-
putes those facts now.
As for the four discrepancies in the exhibit, we agree
with the trial court and Judge Bear that the hearing
officer reasonably could have concluded that they did
not negate the overall reliability of the exhibit as a
whole. See id., 641 (Bear, J., dissenting). Indeed, one
of them—that the plaintiff performed the horizontal
gaze nystagmus test with and without her glasses on
even though she told Biggs prior to taking the test that
she was wearing contact lenses—does not strike us as
a discrepancy at all. The plaintiff could have told Biggs
that she was wearing contacts but then removed them
to perform the test, believing she would do better on
the test without them. In light of her level of intoxica-
tion, the plaintiff also could have simply forgotten that
she was not wearing her contact lenses when she told
Biggs differently, which Biggs then noted in his report.
The other three discrepancies on the A-44 form, an
electronic document that contains a series of questions
the arresting officer answers by filling in the blank next
to the question, also do not warrant exclusion of the
exhibit because none of them implicates the four find-
ings prescribed by § 14-227b (g). See, e.g., Fishbein v.
Kozlowski, supra, 252 Conn. 46 (‘‘[w]e . . . have held
repeatedly that the plain language of [what is now § 14-
227b (g)] expressly and narrowly limits the scope of
the license suspension hearing to the four issues enu-
merated in the statute’’); Volck v. Muzio, supra, 204
Conn. 520 (‘‘With respect to a license suspension hear-
ing . . . whether an operator was warned of the conse-
quences of refusing to submit to chemical tests is not
made one of the issues to be adjudicated pursuant to
[what is now § 14-227b (g)]. Although one of the four
issues to be determined is whether a driver has refused
to submit to chemical testing, his knowledge of the
consequences is not an essential factor in deciding
whether such a refusal has occurred.’’); Buckley v.
Muzio, 200 Conn. 1, 7, 509 A.2d 489 (1986) (sole issue
was whether hearing officer properly applied what is
now § 14-227b [g] to facts of case, and ‘‘[h]aving nothing
more to determine, it was inappropriate for [the
reviewing court] to indulge in a microscopic search
for technical infirmities in the [commissioner’s] action’’
[internal quotation marks omitted]). It bears emphasis,
moreover, as Judge Bear noted; see Do v. Commis-
sioner of Motor Vehicles, supra, 164 Conn. App. 642–44
(Bear, J., dissenting); that the vast majority of the infor-
mation contained in the A-44 form—roughly 90 percent
of Biggs’ responses—mirrors precisely the information
contained in the investigation report. Indeed, two of
the discrepancies are actually corrections. As we pre-
viously indicated, after administering the oath to Biggs,
Hennessey crossed out ‘‘04/23/2014’’ as the date of the
incident and wrote in ‘‘04/24/14.’’ He also crossed out
‘‘Helt, David’’ as the name of a person who witnessed
the plaintiff’s refusal to submit to a breath analysis
test. We agree with Judge Bear that the hearing officer
reasonably could have concluded that the original nota-
tions of ‘‘04/23/2014’’ and ‘‘Helt, David’’ were errors that
Hennessey detected and corrected prior to transmitting
the report to the department. See Do v. Commissioner
of Motor Vehicles, supra, 644 and n.10 (Bear, J., dis-
senting). Such a conclusion is warranted because it is
undisputed that the plaintiff submitted to two breath
analysis tests, the results of which were entered into
evidence at the hearing. It is also undisputed that the
incident occurred shortly after midnight on April 24,
2014, not on April 23, 2014. Indeed, as the trial court
noted, the correct date of April 24, 2014, is mentioned
ten different times in the exhibit—four times in the A-
44 form and six times in the investigation report.
As for the single reference to a 2007 Audi, we also
agree with Judge Bear that the hearing officer reason-
ably could have concluded that the plaintiff was driving
the white Mercedes-Benz based on the narrative set
forth in the investigation report, which indicates that
both Biggs and the 911 caller observed a white Mer-
cedes-Benz driving erratically on Route 63 and that
Biggs, upon approaching this vehicle, identified the
plaintiff as the driver on the basis of her Connecticut
operator’s license. See id., 645–46 (Bear, J., dissenting).
It does appear to us, however, as the Appellate Court
itself surmised, that Biggs inadvertently transcribed
information from another person’s arrest report when
completing the plaintiff’s A-44 form and that, although
Hennessey caught two of the mistakes resulting there-
from before the three submissions were transmitted to
the department, one was not so identified. See id., 622–
23, 629–30. That would explain why ‘‘04/23/2014’’ and
the name ‘‘Helt, David’’ are crossed out whereas the
reference to the 2007 Audi is not.
As the commissioner argues, however, § 14-227b (g)
requires only a showing that the arresting officer had
probable cause to arrest the plaintiff for operating a
motor vehicle; it does not expressly require information
regarding the type of vehicle that was being driven. As
we previously stated, under § 14-227b (g) (4), the hear-
ing officer must determine whether the plaintiff was
operating ‘‘the motor vehicle.’’ In this subdivision, ‘‘the
motor vehicle’’ refers to the vehicle referenced in subdi-
vision (1) of § 14-227b (g), which asks whether the
police officer had probable cause to arrest the plaintiff
for operating ‘‘a motor vehicle while under the influence
of intoxicating liquor . . . .’’ (Emphasis added.) As we
explained, there is ample evidence in the record to
support the hearing officer’s finding that, on the night
in question, the plaintiff was operating a motor vehicle
while under the influence of intoxicating liquor. Indeed,
the plaintiff has not challenged the hearing officer’s
finding that Biggs had probable cause to arrest her for
that offense. An affirmative finding on the first statutory
issue necessarily results in an affirmative finding on
the fourth statutory issue.
We note, moreover, our disagreement with the Appel-
late Court that, ‘‘because the plaintiff objected to the
admission of the exhibit and casted significant doubt
[on] its reliability, the burden was on the department
to offer additional evidence to prove the reliability of
the exhibit,’’ and that ‘‘[p]lacing this burden on the
department is consistent with [this] [c]ourt’s holding in
Carlson v. Kozlowski, 172 Conn. 263, 267–68, 374 A.2d
207 (1977), that although hearsay evidence is generally
admissible in administrative hearings, hearsay evidence
must be sufficiently reliable to be admissible.’’ Do. v.
Commissioner of Motor Vehicles, supra, 164 Conn. App.
628. In Carlson, the commissioner suspended the opera-
tor’s license of the plaintiff, Alan J. Carlson, after a
hearing officer determined, on the basis of four eyewit-
ness affidavits, that Carlson had caused a fatal accident.
Carlson v. Kozlowski, supra, 265. On appeal, Carlson
claimed that the commissioner’s decision was not sup-
ported by substantial evidence because the hearsay con-
tained in the affidavits was unreliable. See id. As the
Appellate Court explained in the present case, ‘‘[t]o
determine whether hearsay evidence is sufficiently reli-
able in an administrative hearing, [this] court in Carlson
adopted the test articulated in Richardson v. Perales,
402 U.S. 389, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971). In
Richardson, the United States Supreme Court was
asked to decide whether medical records were suffi-
ciently reliable to be admissible in an administrative
hearing without the testimony of the medical examiner.
Id., 402. In holding that the medical records were reli-
able, the court looked to multiple factors, including
whether there were inconsistencies on the face of the
records, and whether the plaintiff had the ability to
subpoena the author of the records. Id., 403–406.’’ Do
v. Commissioner of Motor Vehicles, supra, 164 Conn.
App. 628–29.
The Appellate Court’s reliance on Carlson is mis-
placed for two reasons. First, as we previously stated,
this court has already determined, in accordance with
the legislative directive contained in § 14-227b (c), that
the admissibility requirements set forth in that provision
‘‘provide sufficient indicia of reliability so that the
[police] report can be introduced in evidence as an
exception to the hearsay rule, especially in license sus-
pension proceedings, without the necessity of produc-
ing the arresting officer.’’ Volck v. Muzio, supra, 204
Conn. 518. Second, even if the Richardson factors were
applicable, this court stated in Carlson that, ‘‘[i]f hear-
say evidence is insufficiently trustworthy to be consid-
ered ‘substantial evidence’ and it is the only evidence
probative of the plaintiff’s culpability, its use to support
the agency decision would be prejudicial to the plaintiff,
absent a showing . . . that the appellant knew it would
be used and failed to ask the commissioner to subpoena
the declarants.’’ (Emphasis added.) Carlson v. Kozlow-
ski, supra, 172 Conn. 267. In the present case, it is
undisputed that the plaintiff was informed prior to her
hearing that the exhibit would be entered into evidence,
but she failed to avail herself of her right to subpoena
Biggs or any other witness to challenge the accuracy
of the information contained in the exhibit. See Regs.,
Conn. State Agencies § 14-227b-18 (b) (‘‘[a] person
arrested for an enumerated offense may at such per-
son’s own expense and by such person’s own solicita-
tion summon to the [license suspension] hearing the
arresting officer and any other witness to give oral
testimony’’). Although it is true, as the Appellate Court
noted; see Do v. Commissioner of Motor Vehicles,
supra, 164 Conn. App. 626–27; that a witness’ failure to
respond to such a subpoena is not a ground for dismissal
or a continuance of the hearing, there is nothing in the
regulation to suggest that the hearing officer cannot, if
warranted, consider the nonappearance of a subpoe-
naed witness in making his or her decision.
We note, finally, that this court ‘‘[has] indicated
repeatedly that a license suspension hearing is not a
criminal proceeding and that the subject of such a hear-
ing is not entitled to all of the procedural protections
that would be available in a criminal proceeding.’’
Fishbein v. Kozlowski, supra, 252 Conn. 49. ‘‘In State
v. Hickam, 235 Conn. 614, 624, 668 A.2d 1321 (1995),
cert. denied, 517 U.S. 1221, 116 S. Ct. 1851, 134 L. Ed.
2d 951 (1996), we [explained] that . . . the legislative
history of § 14-227b reveals that a principal purpose
[of] the enactment of the statute was to protect the
public by removing potentially dangerous drivers from
the state’s roadways with all dispatch compatible with
due process. This court in Hickam distinguished license
suspension proceedings, the primary purpose of which
is to promote public safety by removing those who
have demonstrated a reckless disregard for the safety
of others from the state’s roadways, from criminal pro-
ceedings, the primary purpose of which is punishment.’’
(Footnote omitted; internal quotation marks omitted.)
Fishbein v. Kozlowski, supra, 48–49. Even in the con-
text of a criminal proceeding, however, in which proce-
dural safeguards are at their zenith, this court has
recognized that, as a general matter, ‘‘the constitution’s
safeguard against convictions based on unreliable or
questionable evidence is not the exclusion of such evi-
dence but an opportunity for the defense to persuade
the jury that such evidence is untrustworthy.’’ State v.
Dickson, 322 Conn. 410, 478, 141 A.3d 810 (2016) (Zare-
lla, J., concurring in the judgment), cert. denied,
U.S. , 137 S. Ct. 2263, 198 L. Ed. 2d 713 (2017). As
Judge Bear aptly noted, the plaintiff in the present case
had the opportunity at the license suspension hearing
to present evidence to demonstrate the unreliability of
the information contained in the exhibit but failed to
do so. See Do v. Commissioner of Motor Vehicles, supra,
636, 646 (Bear, J., dissenting).
We conclude, therefore, that the hearing officer prop-
erly admitted and relied on the hearsay information,
sworn to by Biggs, that was submitted to the hearing
officer by the commissioner. Because that information
constituted substantial evidence to support the hearing
officer’s findings, there is no need for a remand of the
case to the hearing officer, whose decision to reject
the plaintiff’s claim must stand.
The judgment of the Appellate Court is reversed and
the case is remanded to that court with direction to
reverse the trial court’s judgment insofar as that court
remanded the case for further articulation and to order
the trial court to deny the plaintiff’s administrative
appeal.
In this opinion the other justices concurred.
* The listing of justices reflects their seniority status on this court as of
date of oral argument.
1
General Statutes § 14-227b (c) provides in relevant part: ‘‘If [a] person
arrested [for operating a motor vehicle under the influence of intoxicating
liquor or drugs] refuses to submit to [a blood, breath or urine] test or analysis
or submits to such test or analysis, commenced within two hours of the
time of operation, and the results of such test or analysis indicate that such
person has an elevated blood alcohol content, 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. The police officer shall prepare a report of
the incident and shall mail or otherwise transmit in accordance with this
subsection the report 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 contain such information as prescribed by the Commissioner
of Motor Vehicles and shall be subscribed and sworn to under penalty of
false statement as provided in 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 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 or that such person submitted 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. The Commissioner of Motor Vehicles may
accept a police report under this subsection that is prepared and transmitted
as an electronic record, including electronic signature or signatures, subject
to such security procedures as the commissioner may specify and in accor-
dance with the provisions of sections 1-266 to 1-286, inclusive. In any hearing
conducted pursuant to the provisions of subsection (g) of this section, it
shall not be a ground for objection to the admissibility of a police report
that it is an electronic record prepared by electronic means.’’
Although § 14-227b has been the subject of amendments in 2016 and 2014;
see Public Acts 2016, No. 16-126, § 17; Public Acts 2016, No. 16-55, §§ 6 and
7; Public Acts 2014, No. 14-228, § 6; those amendments have no bearing on
the merits of the appeal. In the interest of simplicity, we refer to the current
revision of § 14-227b throughout this opinion.
2
Section 14-227b-19 of the Regulations of Connecticut State Agencies
provides: ‘‘(a) The report filed or transmitted by the arresting officer shall
be admissible into evidence at the hearing if it conforms to the requirements
of subsection (c) of section 14-227b of the . . . General Statutes.
‘‘(b) The chemical test results in the form of the tapes from a breath
analyzer or other chemical testing device submitted contemporaneously
with the report shall be admissible into evidence at the hearing if they
conform to the requirements of subsection (c) of section 14-227b of the
. . . General Statutes.
‘‘(c) An electronic record that contains electronic signatures of persons
required to sign in accordance with subsections (a), (b) and (c) of section
14-227b-10 of the Regulations of Connecticut State Agencies shall be admissi-
ble at a hearing to the same extent as a report containing written signatures,
as provided in subsection (c) of section 14-227b of the . . . General
Statutes.’’
3
General Statutes § 14-227b (g) provides in relevant part: ‘‘If [a person
whose license has been suspended pursuant to this section] 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, except that, with respect to a person whose operator’s
license or nonresident operating privilege is suspended in accordance with
subdivision (2) of subsection (e) of this section, such hearing shall be
scheduled not later than thirty days after such person contacts the depart-
ment. At the request of such person [or] the hearing officer . . . and upon
a showing of good cause, the commissioner may grant one or more continu-
ances. 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 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 opera-
tion, 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. In the hearing, the results of the test or analysis shall be
sufficient to indicate the ratio of alcohol in the blood of such person at the
time of operation, provided such test was commenced within two hours of
the time of operation. 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. Notwithstanding the provisions of subsection (a) of section
52-143, any subpoena summoning a police officer as a witness shall be
served not less than seventy-two hours prior to the designated time of
the hearing.’’
4
‘‘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. . . . [S]ee General
Statutes § 14-227b (c) (The [arresting] police officer shall prepare a report
of the incident. . . . The report shall contain such information as prescribed
by the Commissioner of Motor Vehicles . . . .).’’ (Citation omitted; internal
quotation marks omitted.) Do v. Commissioner of Motor Vehicles, 164 Conn.
App. 616, 618 n.1, 138 A.3d 359 (2016).
5
We refer to the three documents comprising the police report as the
exhibit and refer to each document in the exhibit—the A-44 form, the investi-
gation report, and the plaintiff’s breath analysis tests—individually when
discussing the specific information contained therein.
6
As we explain more fully hereinafter, we also agree with the commis-
sioner that, contrary to the determination of the trial court, there is no need
for the case to be remanded to the hearing officer for an articulation because
the hearing officer’s findings were sufficient to support the commissioner’s
decision to suspend the plaintiff’s license.
7
During the horizontal gaze nystagmus test, the plaintiff exhibited in both
eyes a ‘‘lack of smooth pursuit,’’ ‘‘distinct jerkiness at maximum deviation,’’
and an ‘‘onset of jerkiness prior to forty-five degrees . . . .’’ During the
walk and turn, the plaintiff ‘‘lost her balance, performed no heel to toe,
raised her arms for balance, took the incorrect number of steps and turned
incorrectly.’’ During the one leg stand, the plaintiff lifted her arms for balance,
swayed while trying to balance, and put her foot down.
8
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
9
General Statutes (Supp. 2014) § 14-227a (a) provides in relevant part:
‘‘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 such person operates a motor vehicle (1) while under
the influence of intoxicating liquor or any drug or both, or (2) while such
person has an elevated blood alcohol content. For the purposes of this
section, ‘elevated blood alcohol content’ means a ratio of alcohol in the
blood of such person that is eight-hundredths of one per cent or more of
alcohol, by weight . . . .’’
10
General Statutes § 14-227b (e) (1) provides: ‘‘Except as provided in
subdivision (2) of this subsection, upon receipt of [a] report [that conforms
to subsection (c) of this section], the Commissioner of Motor Vehicles may
suspend any operator’s license or nonresident operating privilege of such
person effective as of a date certain, which date shall be not later than
thirty days after the date such person received notice of such person’s arrest
by the police officer. Any person whose operator’s license or nonresident
operating privilege has been suspended in accordance with this subdivision
shall automatically be entitled to a hearing before the commissioner to be
held in accordance with the provisions of chapter 54 and prior to the effective
date of the suspension. The commissioner shall send a suspension notice
to such person informing such person that such person’s operator’s license
or nonresident operating privilege is suspended as of a date certain and
that such person is entitled to a hearing prior to the effective date of the
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.’’
11
See footnote 3 of this opinion.
12
The changes that were made to the A-44 form bore the initials ‘‘RH,’’
which the plaintiff acknowledges are those of Biggs’ supervising officer,
Hennessey, who administered the oath to Biggs.
13
General Statutes § 4-183 provides in relevant part: ‘‘(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.’’
14
See footnote 2 of this opinion.
15
Of course, although a report that complies with General Statutes § 14-
227b (c) is admissible, if the report is so confusing and ambiguous that it
reasonably cannot be relied on, then it would be improper for a hearing
officer to do so. That is not the case here.