Marshall v. Commissioner of Motor Vehicles

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ANTHONY J. MARSHALL III v. COMMISSIONER
OF MOTOR VEHICLES
(AC 44191)
Prescott, Alexander and DiPentima, Js.
Syllabus
The plaintiff, who had been arrested for operating a motor vehicle while
under the influence of intoxicating liquor in violation of statute (§ 14-
227a), appealed to the trial court from the decision of the defendant,
the Commissioner of Motor Vehicles, suspending the plaintiff’s motor
vehicle operator’s license for forty-five days and requiring the installation
of ignition interlock devices on his motor vehicles pursuant to statute
(§ 14-227b). At the administrative hearing, no testimony was presented,
but the Department of Motor Vehicles offered into evidence as an exhibit
a standard A-44 form that was completed by the arresting officer, H,
together with H’s narrative report and the results of the breath analysis
tests he administered to the plaintiff. The plaintiff objected to the admis-
sion of the exhibit on the ground that it had not been mailed to the
department within three business days as required by § 14-227b (c). The
hearing officer admitted the exhibit into evidence, and the plaintiff
appealed to the trial court, challenging the hearing officer’s admission
of the exhibit and contending that the A-44 form and the narrative police
report were not completed until five days after his arrest and were not
received by the department until nine days after his arrest. The trial
court rendered judgment dismissing the appeal, holding that the failure
to satisfy the three day mailing requirement did not undermine the
reliability and trustworthiness of the information reported in the exhibit,
as the A-44 form and its attachments were signed by H, thus, the exhibit
properly was admitted into evidence. On the plaintiff’s appeal to this
court, held that the trial court properly found that the hearing officer
did not abuse her discretion in admitting the A-44 form and its attach-
ments into evidence: although § 14-227b (c) provides that the arresting
police officer ‘‘shall mail’’ a report of the incident and a copy of the
chemical test results within three business days, the statute does not
expressly invalidate the report or test results upon noncompliance with
the three day requirement, and the purpose of the statutory provision
is to provide sufficient indicia of reliability so that the police report
can be introduced into evidence at a license suspension hearing as an
exception to the hearsay rule, thus, the time requirement for mailing
the report and test results is a matter of convenience rather than sub-
stance and is therefore directory rather than mandatory; moreover, as
H completed and signed both the A-44 form and the narrative police
report under oath and signed the plaintiff’s breath analysis test results,
and the A-44 form and its attachments set forth the grounds for H’s
belief that there was probable cause to arrest the plaintiff and stated
that the plaintiff had submitted to breath analysis tests, the A-44 form
and its attachments provided a sufficient indicia of reliability to be
admitted into evidence without H’s testimony.
(One judge dissenting)
Submitted on briefs September 9, 2021—officially released January 18, 2022
Procedural History
Appeal from the decision of the defendant suspending
the plaintiff’s motor vehicle operator’s license and
requiring the installation of an ignition interlock device
on the plaintiff’s vehicles, brought to the Superior Court
in the judicial district of New London and transferred
to the judicial district of New Britain, where the matter
was tried to the court, Cordani, J.; judgment dismissing
the appeal, from which the plaintiff appealed to this
court. Affirmed.
Cody A. Layton, filed a brief for the appellant (plain-
tiff).
Drew S. Graham, assistant attorney general, with
whom were William Tong, attorney general, and Clare
E. Kindall, solicitor general, filed a brief for the appellee
(defendant).
Opinion
DiPENTIMA, J. The plaintiff, Anthony J. Marshall III,
appeals from the judgment of the Superior Court ren-
dered in favor of the defendant, the Commissioner of
Motor Vehicles (commissioner), dismissing his appeal
from the decision of the commissioner to suspend his
motor vehicle operator’s license, pursuant to General
Statutes § 14-227b, for forty-five days and requiring an
ignition interlock device in his motor vehicles for six
months. On appeal, the plaintiff claims that the court
improperly determined that the hearing officer did not
abuse her discretion in admitting into evidence a report,
which consisted of an A-44 form,1 a narrative police
report and the results of the plaintiff’s breath analysis
tests, that did not comply with the three day mailing
requirement in § 14-227b (c).2 We affirm the judgment
of the Superior Court.
The following facts, as found by the court in its memo-
randum of decision regarding the suspension of the
plaintiff’s license, and procedural history are relevant.
On July 14, 2019, at approximately 5:31 p.m., after hear-
ing an announcement over the police radio that a partic-
ular vehicle with a specified Connecticut registration
allegedly had been involved in a ‘‘hit and run’’ accident
in Westerly, Rhode Island, Officer Jeffrey Hewes of the
Stonington Police Department observed and stopped
the specified vehicle. On approaching the vehicle,
Hewes identified the plaintiff as the operator and
noticed that his eyes were glassy and bloodshot, his
speech was slow and there was the smell of alcohol on
his breath. Hewes administered the standardized field
sobriety tests, which the plaintiff failed. The plaintiff
was then arrested and transported to police headquar-
ters where he consented to taking breath alcohol tests.
The first test, which was administered at 6:48 p.m.,
yielded a result of 0.1936 percent blood alcohol content,
and the second test, which was administered at 7:07
p.m., yielded a result of 0.1860 percent blood alcohol.
The plaintiff was charged with driving under the influ-
ence of intoxicating liquor in violation of General Stat-
utes § 14-227a.
On July 24, 2019, the plaintiff was issued a notice
informing him of the suspension of his operator’s
license pursuant to § 14-227b. An administrative hearing
was held before the commissioner’s hearing officer on
August 9, 2019, to determine whether the plaintiff’s
operator’s license should be suspended pursuant to
§ 14-227b. At the hearing, the plaintiff’s counsel
objected to the admissibility of the A-44 form and its
attachments because it had not been mailed to the
Department of Motor Vehicles (department) within
three business days as required by § 14-227b (c). The
hearing officer overruled the objection and admitted
into evidence the packet containing the A-44 form and
its attachments as state’s exhibit A. It was the only
evidence submitted at the hearing. The A-44 form is
stamped ‘‘Department of Motor Vehicles . . . 2019 Jul
23 AM 10:23,’’ and both the narrative police report and
the A-44 form are signed under oath by Hewes and
dated July 19, 2019. The document containing the breath
analysis tests results is dated July 14, 2019, and is also
signed by Hewes. The hearing officer found that the
plaintiff was operating a motor vehicle, was arrested
and submitted to breath alcohol tests, the results of
which indicated a blood alcohol content of 0.08 percent
or more, and that there was probable cause to arrest the
plaintiff. The hearing officer suspended the plaintiff’s
operator’s license for forty-five days and required the
installation of an ignition interlock device for six
months.
On August 28, 2019, the plaintiff appealed the decision
of the hearing officer to the Superior Court. In his brief
filed in the Superior Court, the plaintiff argued that the
hearing officer acted contrary to the law when she
admitted the A-44 form and its attachments into evi-
dence because that report was not mailed to the depart-
ment within three business days as required by § 14-
227b (c) and, therefore, was inadmissible. He contended
that the A-44 form and the narrative police report were
not completed until five days after his arrest and that
the A-44 form is time-stamped by the defendant nine
days after his arrest. The plaintiff argued that the packet
containing the A-44 form and its attachments was the
only evidence submitted by the defendant at the admin-
istrative hearing, and, without that report, there was
not substantial evidence to suspend his license.
On July 8, 2020, the court issued a memorandum of
decision dismissing the appeal. The court reasoned that
the ‘‘[f]ailure to meet the conditions for admissibility
specified in . . . § 14-227b (c) does not necessarily
mean that the report is absolutely inadmissible. The
rules of evidence, including the hearsay rules, are not
strictly applied in administrative hearings. The law
remains that, in the setting of an administrative hearing
such as the underlying hearing in this matter, police
reports, and other hearsay documents, are admissible
without the testimony of the author, if the documents
are reasonably found to bear indicia of trustworthiness
and reliability. Such is the case here.’’ The court rea-
soned that the failure to satisfy the three day mailing
requirement did not undermine the reliability and trust-
worthiness of the information reported therein, as the
A-44 form and its attachments were signed by the
arresting officer. The court thus concluded that exhibit
A properly was admitted into evidence. This appeal
followed.
The plaintiff claims that exhibit A, the A-44 form and
its attachments, is inadmissible because that report was
not submitted to the department within three business
days as required by § 14-227b (c). The plaintiff notes,
and the commissioner does not dispute, that the A-44
form and the narrative police report were not completed
until July 19, 2019, five days after his July 14, 2019 arrest
and were not received by the department until July 23,
2019, nine days after his arrest. As a result, he con-
cludes, the A-44 form and its attachments lacked suffi-
cient indicia of reliability to be admissible at the admin-
istrative hearing. We are not persuaded.
At the outset we note that ‘‘[j]udicial review of the
commissioner’s action is governed by the Uniform
Administrative Procedure Act [(UAPA), General Stat-
utes §§ 4-166 through 4-189], and the scope of that
review is very restricted. . . . Our ultimate duty is to
determine, in view of all of the evidence, whether the
agency, in issuing its order, acted unreasonably, arbi-
trarily, illegally or in abuse of its discretion.’’ (Citation
omitted; internal quotation marks omitted.) Murphy v.
Commissioner of Motor Vehicles, 254 Conn. 333, 343,
757 A.2d 561 (2000). ‘‘The plaintiff bears the burden of
demonstrating that a hearing officer’s evidentiary ruling
is arbitrary, illegal or an abuse of discretion.’’ (Internal
quotation marks omitted.) Paquette v. Hadley, 45 Conn.
App. 577, 580, 697 A.2d 691 (1997).
Section 14-227b (c) provides in relevant part that if
a person arrested for operating a motor vehicle while
under the influence of intoxicating liquor submits to a
breath analysis test that indicates such person has an
elevated blood alcohol content then ‘‘the police officer
. . . shall prepare a report of the incident and shall
mail or otherwise transmit in accordance with this sub-
section 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 Commis-
sioner 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 or 14-227m or subdivision (1) or (2) of subsec-
tion (a) of section 14-227n 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, com-
menced 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. . . .’’
Because the plaintiff argues that the A-44 form and
its attachments were rendered inadmissible as a result
of noncompliance with the three day mailing require-
ment, we first consider whether that requirement in
§ 14-227b (c), which provides that the police officer
‘‘shall’’ mail or otherwise transmit the report within
three business days, is mandatory or directory. Because
this claim regarding § 14-227b (c) requires us to con-
strue the relevant statute, our standard of review is
plenary. See Ives v. Commissioner of Motor Vehicles,
192 Conn. App. 587, 595, 218 A.3d 72 (2019).
The use of the word ‘‘shall’’ in § 14-227b (c) does not,
in and of itself, create a mandatory duty to mail the
report within three business days. ‘‘[T]he use of the
word shall, though significant, does not invariably cre-
ate a mandatory duty. . . . In order to determine
whether a statute’s provisions are mandatory we have
traditionally looked beyond the use of the word shall
and examined the statute’s essential purpose.’’ (Cita-
tions omitted; internal quotation marks omitted.) Crest
Pontiac Cadillac, Inc. v. Hadley, 239 Conn. 437, 445–46,
685 A.2d 670 (1996). In doing so here, we consider
whether the time limitation on mailing the report is a
matter of substance or convenience. ‘‘The test to be
applied in determining whether a statute is mandatory
or directory is whether the prescribed mode of action
is the essence of the thing to be accomplished, or in
other words, whether it relates to a matter of substance
or a matter of convenience. . . . If it is a matter of
substance, the statutory provision is mandatory. If,
however, the legislative provision is designed to secure
order, system and dispatch in the proceedings, it is
generally held to be directory, especially where the
requirement is stated in affirmative terms unaccompa-
nied by negative words. . . . Such a statutory provi-
sion is one which prescribes what shall be done but
does not invalidate action upon a failure to comply.
. . . A reliable guide in determining whether a statutory
provision is directory or mandatory is whether the pro-
vision is accompanied by language that expressly invali-
dates any action taken after noncompliance with the
provision.’’ (Citation omitted; internal quotation marks
omitted.) Lauer v. Zoning Commission, 246 Conn. 251,
262, 716 A.2d 840 (1998).
Although the statute provides that the police officer
‘‘shall mail’’ the report and test results within three
business days, the statute does not expressly invalidate
the report or test results upon noncompliance with the
three day mailing requirement. The statute does not
specifically mention admissibility, except with respect
to electronic reports, which is not applicable in the
present case, and does not state that a failure to mail
the report within three days renders the report inadmis-
sible. ‘‘A statutory provision that is directory prescribes
what shall be done but does not invalidate action upon a
failure to comply.’’ (Internal quotation marks omitted.)
Francis v. Fonfara, 303 Conn. 292, 302, 33 A.3d 185(2012). Furthermore, the legislative provision at issue
is designed to secure order, system and dispatch in the
proceedings by ensuring that the report is reliable and
can be admitted into evidence. The purpose of § 14-
227b (c) is to ‘‘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
suspension proceedings, without the necessity of pro-
ducing the arresting officer.’’ (Internal quotation marks
omitted.) Do v. Commissioner of Motor Vehicles, 330
Conn. 651, 668–69, 200 A.3d 681 (2019). ‘‘That license
suspensions hearings are limited to the four issues spec-
ified in subsection (f) of § 14-227b [now § 14-227b (g)]
indicates that the legislature did not intend compliance
with . . . subsection (c) to be an essential condition
for suspension.’’ Bialowas v. Commissioner of Motor
Vehicles, 44 Conn. App. 702, 711, 692 A.2d 834 (1997).
We conclude that the time requirement for mailing the
report and test results of § 14-227b (c) is a matter of
convenience rather than a matter of substance and,
therefore, is directory.
We next turn to the plaintiff’s contention that the
court improperly determined that the hearing officer
did not abuse her discretion in admitting the A-44 form
and its attachments into evidence because that report
was reliable and trustworthy despite the fact that it was
not mailed to the department within three business
days. With regard to the admissibility of such reports,
§ 14-227b-19 of the Regulations of Connecticut State
Agencies3 provides that ‘‘the report filed or transmitted
by the arresting officer’’ and the chemical test results
submitted contemporaneously with the report shall be
admissible into evidence at the hearing if it conforms
to the requirements of § 14-227b (c). The plaintiff relies
on the following language from Do: ‘‘Subsection (c) of
§ 14-227b itself provides that the report, to be admissi-
ble, must be submitted to the department within three
business 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.’’ Do v. Commissioner of Motor Vehicles,
supra, 330 Conn. 668. We agree with the trial court as
to the import of this language: ‘‘[Section] 14-227b (c)
provides a safe harbor. Strict compliance with the con-
ditions of § 14-227b (c) establishes the admissibility of
the report. Our Supreme Court in Do confirmed this,
finding that a report that had substantial inconsistencies
was still admissible simply because it met the condi-
tions for admissibility specified in the statute. However,
the converse is not the law. Failure to meet the condi-
tions for admissibility specified in § 14-227b (c) does
not necessarily mean that the report is absolutely inad-
missible.’’4 (Footnote omitted.)
The admissibility of hearsay evidence is determined
on the basis of whether it is reliable. ‘‘Administrative
tribunals are not strictly bound by the rules of evidence
. . . so long as the evidence is reliable and probative.’’
(Internal quotation marks omitted.) Bialowas v. Com-
missioner of Motor Vehicles, supra, 44 Conn. App. 712.
We, again, note that compliance with the admissibility
requirements in § 14-227b (c) is designed to provide
sufficient indicia of reliability so that the report can be
introduced in evidence as an exception to the hearsay
rule without the necessity of producing the arresting
officer. Do v. Commissioner of Motor Vehicles, supra,
330 Conn. 668–69.
In the present case, the arresting officer completed
and signed both the A-44 form and the narrative police
report under oath and signed the plaintiff’s breath analy-
sis test results. Additionally, the A-44 form and its
attachments satisfied additional requirements in § 14-
227b (c) in that the report set forth the grounds for the
officer’s belief that there was probable cause to arrest
the plaintiff and stated that the plaintiff had submitted
to breath analysis tests. Under the facts in the present
case, the A-44 form and its attachments, which were
completed and signed, provide a sufficient indicia of
reliability to be introduced into evidence without the
testimony of the arresting officer. The plaintiff has not
demonstrated that the short delay in mailing the A-44
form and its attachments affected the reliability of that
report. See Packard v. Dept. of Motor Vehicles, Superior
Court, judicial district of New London, Docket No. CV-
XX-XXXXXXX-S (September 18, 1991) (5 Conn. L. Rptr. 5)
(failure to comply with three day mailing requirement
in § 14-227b (c) had no impact on indicia of reliability),
aff’d, 29 Conn. App. 923, 616 A.2d 1177 (1992); Peters
v. Dept. of Motor Vehicles, Superior Court, judicial dis-
trict of Hartford, Docket No. 701413 (July 11, 1991) (4
Conn. L. Rptr. 301) (failure to mail police report within
three business days as required by § 14-227b (c) did not
affect reliability or trustworthiness of report), aff’d, 26
Conn. App. 937, 601 A.2d 1 (1992). We conclude that
the hearing officer had sufficient evidence from which
to determine that the A-44 form and its attachments
were reliable and trustworthy. Accordingly, the trial
court properly found that the hearing officer did not
abuse her discretion in admitting the A-44 form and its
attachments into evidence.
The judgment is affirmed.
In this opinion ALEXANDER, J., concurred.
1
‘‘This form is entitled: Officer’s OUI Arrest and Alcohol Test Refusal or
Failure Report. 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.’’
(Internal quotation marks omitted.) Nandabalan v. Commissioner of Motor
Vehicles, 204 Conn. App. 457, 461 n.5, 253 A.3d 76, cert. denied, 336 Conn.
951, 251 A.3d 618 (2021). ‘‘The provisions of . . . § 14-227b (c) and § 14-
227b-19 of the Regulations of Connecticut State Agencies permit the admis-
sion of the police report on a form approved by the defendant, as the A-44
form has been, together with additional sheets or materials necessary to
explain the report, which are considered part of the report.’’ (Footnotes
omitted.) Paquette v. Hadley, 45 Conn. App. 577, 580–81, 697 A.2d 691 (1997).
2
General Statutes § 14-227b (c) provides: ‘‘If the person arrested refuses
to submit to such 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 nonresi-
dent 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 other-
wise 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 informa-
tion 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 or 14-227m or subdivision (1) or (2) of
subsection (a) of section 14-227n 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 accordance 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.’’
3
Section 14-227b-19 of the Regulations of Connecticut State Agencies
provides in relevant part:
‘‘(a) The report filed or transmitted by the arresting officer shall be admissi-
ble into evidence at the hearing if it conforms to the requirements of subsec-
tion (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 Stat-
utes.’’
4
The plaintiff contends that viewing § 14-227b (c) as a safe harbor results
in there being ‘‘virtually no situation where a report could be kept out of
evidence at an administrative per se hearing. The hearing officer would
essentially have carte blanche to consider any and/all evidence put before
it. Such a position does not comport with due process and the facilitation
of justice.’’ The primary purpose of license suspension hearings is ‘‘to protect
the public by removing potentially dangerous drivers from the state’s road-
ways with all dispatch compatible with due process.’’ (Internal quotation
marks omitted.) Do v. Commissioner of Motor Vehicles, supra, 330 Conn.
679. The focus of § 14-227b (c) is whether a report has a sufficient indicia
of reliability to be admissible without the testimony of the arresting officer.
Id., 668–69. Allowing the hearing officer in the present case, in which the
report was mailed a few days late, to determine whether the report, nonethe-
less, was reliable promotes the state’s interest in removing potentially dan-
gerous drivers from the roadways with all dispatch, compatible with due
process while also promoting the purpose of § 14-227b (c), which is admit-
ting, without the necessity of producing the arresting officer, only reports
that are reliable.