Do v. Commissioner of Motor Vehicles

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ANGEL HUANG DO v. COMMISSIONER
OF MOTOR VEHICLES
(AC 37712)
Gruendel, Prescott and Bear, Js.*
Argued January 7—officially released April 19, 2016
(Appeal from Superior Court, judicial district of New
Britain, Schuman, J.)
Chet L. Jackson, for the appellant (plaintiff).
Drew S. Graham, assistant attorney general, with
whom, on the brief, was George Jepsen, attorney gen-
eral, for the appellee (defendant).
Opinion
PRESCOTT, J. ‘‘It is axiomatic that administrative
tribunals are not strictly bound by the rules of evidence.
. . . [T]hey may consider exhibits [that] would nor-
mally be incompetent in a judicial proceeding, so long
as the evidence is reliable and probative.’’ (Internal
quotation marks omitted.) Gagliardi v. Commissioner
of Children & Families, 155 Conn. App. 610, 619, 110
A.3d 512, cert. denied, 316 Conn. 917, 113 A.3d 70 (2015).
It is a rare case in which a decision by an administrative
hearing officer to admit an exhibit will be reversed
for an abuse of discretion. Principles of fundamental
fairness dictate that this is such a case.
The plaintiff, Angel Huang Do, appeals from the judg-
ment of the trial court remanding to the defendant, the
Commissioner of Motor Vehicles (commissioner), her
appeal from his decision to suspend her motor vehicle
operator’s license for ninety days pursuant to General
Statutes § 14-227b. On appeal to this court, the plaintiff
claims that the trial court improperly held that the hear-
ing officer did not abuse his discretion by admitting into
evidence an unreliable A-44 form and its attachments.1
In the alternative, the plaintiff claims that even if the
exhibit was properly admitted into evidence, the court
improperly remanded the case for an articulation. Spe-
cifically, the plaintiff challenges the court’s decision
to remand the case to the agency for an articulation
regarding which of the two motor vehicles referenced
in the exhibit was the vehicle that the hearing officer
concluded that the plaintiff was actually driving. The
plaintiff argues that, instead of remanding the case, the
court should have concluded that the exhibit, even if
properly admitted, did not constitute substantial evi-
dence that the plaintiff violated General Statutes § 14-
227a (a),2 and, thus, the court should have sustained
the plaintiff’s appeal.
Because we agree with the plaintiff’s claim that the
hearing officer improperly admitted the exhibit, and
there was no other evidence admitted into evidence,
we conclude that the commissioner’s decision is not
supported by substantial evidence. It is therefore unnec-
essary to reach the plaintiff’s alternative claim. Accord-
ingly, we reverse the judgment of the trial court and
remand the case with direction to render judgment sus-
taining the plaintiff’s appeal.
The following facts and procedural history are rele-
vant to the plaintiff’s appeal. On April 24, 2014, the
plaintiff was arrested and charged with operating a
motor vehicle while under the influence of intoxicating
liquor in violation of § 14-227a (a). On May 14, 2014,
the commissioner sent a revised notice to the plaintiff
to inform her of the suspension of her license pursuant
to § 14-227b. On May 29, 2014, an administrative hearing
was held before a hearing officer pursuant to § 14-
227b (g).3
At that hearing, no testimony was presented, but the
Department of Motor Vehicles (department) offered
into evidence the A-44 form completed by the arresting
officer, Trooper Troy M. Biggs.4 Attached to the A-44
form were Biggs’ investigation report and the results
of the breath analysis tests administered to the plaintiff,
which showed that she had a blood alcohol content of
0.1184 and 0.1186 percent. The plaintiff objected to the
admission of the exhibit on the ground that it was unreli-
able because it contained numerous errors and discrep-
ancies. The hearing officer overruled the plaintiff’s
objection on the basis that the discrepancies went to
the weight to be given to the exhibit, not its admissibil-
ity, and admitted the exhibit into evidence.
The hearing officer, acting on behalf of the commis-
sioner, subsequently found, pursuant to § 14-227b (g),
that: ‘‘(1) The police officer had probable cause to arrest
the [plaintiff] for a violation specified in [§ 14-227a (a)]’’;
‘‘(2) [the plaintiff] was placed under arrest’’; ‘‘(3) [the
plaintiff] submitted to [a sobriety] test or analysis and
the results indicated a BAC of .08% or more’’; and ‘‘(4)
[the plaintiff] was operating the motor vehicle.’’ On the
basis of these findings, the commissioner ordered that
the plaintiff’s license be suspended for a period of
ninety days.
Pursuant to General Statutes § 4-183,5 the plaintiff
appealed from the hearing officer’s decision to the Supe-
rior Court. The plaintiff claimed that (1) the hearing
officer improperly admitted the exhibit into evidence
and (2) there was not substantial evidence in the record
to support the hearing officer’s findings. The court
rejected the plaintiff’s claim that the exhibit was inad-
missible, but, because of conflicting information in the
exhibit regarding the motor vehicle involved, it
remanded the case to the hearing officer for an articula-
tion as to which motor vehicle the hearing officer con-
cluded that the plaintiff had operated.6 This appeal
followed. Additional facts will be set forth as necessary.
I
The plaintiff claims that the court improperly con-
cluded that the hearing officer did not abuse his discre-
tion by admitting the exhibit into evidence. Specifically,
the plaintiff argues that the numerous errors and dis-
crepancies contained in the exhibit render it unreliable
and, thus, inadmissible. The commissioner responds
that because the exhibit was signed under oath by the
arresting officer in accordance with § 14-227b (c), the
exhibit contained sufficient indicia of reliability and,
thus, was admissible. We agree with the plaintiff that
the hearing officer abused his discretion by admitting
the exhibit because the number of obvious discrepan-
cies and errors in the documents rendered the
exhibit unreliable.
The following additional facts are necessary to
resolve this claim. At the administrative hearing, the
plaintiff objected to the admission of the exhibit into
evidence on the ground that it was unreliable because
of numerous discrepancies and errors contained
therein. In the A-44 form, Trooper Biggs swore under
oath that the vehicle that the plaintiff operated was a
2007 Audi A4 with a Massachusetts registration plate.
In the attached investigation report, however, Biggs
swore under oath that the vehicle that the plaintiff oper-
ated was a Mercedes-Benz with a Connecticut registra-
tion plate.
Additionally, in section B of the A-44 form, the inci-
dent date is recorded as April 23, 2014. That notation,
however, is crossed out and replaced in handwriting
with the date April 24, 2014. Next to the handwritten
date are the initials ‘‘RH,’’ which do not correspond to
the initials of the arresting officer, Troy M. Biggs. There
is no evidence as to who made this alteration, when it
was made, and whether it was sworn to under oath.7
Our review of the exhibit suggests that the informa-
tion contained in it may have been copied from another
A-44 form involving the arrest of a different individual.
In the ‘‘Phase III’’ section of the investigation report,
Biggs stated that the plaintiff wore contact lenses. In
the following section, Biggs averred that he had the
plaintiff perform the Horizontal Gaze Nystagmus test
with and without her glasses, which presumably she
would not have been wearing had she been wearing
her contact lenses.
In section J of the A-44 form, which is completed
in cases in which an operator of a vehicle refuses to
participate in a chemical alcohol test, ‘‘Helt, David’’ is
listed as a witness to the plaintiff’s alleged refusal. The
plaintiff, however, submitted to a breath analysis test,
which the commissioner conceded in his brief to this
court. On the A-44 form, ‘‘Helt, David’’ is crossed out
and initialed by ‘‘RH.’’ Again, there is no evidence
regarding who made this alteration, when it was made,
and whether it was made under oath.8
On the basis of these errors and discrepancies, the
plaintiff argued that the exhibit was unreliable because
it is not clear what information contained in the exhibit
actually pertained to this case. The hearing officer, how-
ever, agreed with the department that these discrepan-
cies amounted to scrivener’s errors and went to the
weight to be afforded the exhibit, not its admissibility.
On appeal to the trial court, the court agreed with the
hearing officer that these discrepancies ‘‘[do] not negate
the overall reliability of the report, which otherwise
meets the statutory and regulatory criteria. Rather, the
conflict simply creates a fact or credibility issue for the
hearing officer to resolve. ‘It is within the province
of the hearing officer to determine the credibility of
evidence.’ Roy v. Commissioner of Motor Vehicles, 67
Conn. App. 394, 397, 786 A.2d 1279 (2002). Therefore,
the hearing officer did not abuse his discretion in admit-
ting the [exhibit].’’
We begin by setting forth the relevant standard of
review and legal principles that guide our analysis. We
review a hearing officer’s evidentiary ruling for whether
‘‘the [agency] has acted unreasonably, arbitrarily, ille-
gally, or in abuse of its discretion.’’ (Internal quotation
marks omitted.) Gagliardi v. Commissioner of Chil-
dren & Families, supra, 155 Conn. App. 618. ‘‘It is axi-
omatic that administrative tribunals are not strictly
bound by the rules of evidence. . . . [T]hey may con-
sider exhibits [that] would normally be incompetent in
a judicial proceeding, so long as the evidence is reliable
and probative. . . . According to General Statutes § 4-
178, in a contested case before an agency, [a]ny oral or
documentary evidence may be received, but the agency
shall, as a matter of policy, provide for the exclusion
of irrelevant, immaterial or unduly repetitious evidence
. . . .’’ (Citation omitted; internal quotation marks
omitted.) Id., 619–20. Although evidentiary rules are
considerably relaxed in administrative hearings, the
conduct of the hearing must be fundamentally fair and
cannot ‘‘violate the fundamental rules of natural jus-
tice.’’ Bancroft v. Commissioner of Motor Vehicles, 48
Conn. App. 391, 400, 408, 710 A.2d 807, cert. denied,
245 Conn. 917, 717 A.2d 234 (1998).
Section 14-227b, commonly referred to as the implied
consent statute, governs license suspension hearings.
At the license suspension hearing, pursuant to § 14-
227b-19 (a) of the Regulations of Connecticut State
Agencies, the A-44 form, which the arresting officer is
required to complete, ‘‘shall be admissible into evidence
at the hearing if it conforms to the requirements of
subsection (c) of Section 14-227b of the General Stat-
utes.’’ Section 14-227b (c) provides in relevant part that
the A-44 form ‘‘shall contain such information as pre-
scribed by the Commissioner of Motor Vehicles and
shall be subscribed and sworn to under penalty of false
statement as provided in [General Statutes §] 53a-157b
by the arresting officer. . . . The report shall set forth
the grounds for the officer’s belief that there was proba-
ble cause to arrest such person for a violation of subsec-
tion (a) of [§] 14-227a and shall state that such person
. . . submitted to such [sobriety] 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. . . .’’
In Volck v. Muzio, 204 Conn. 507, 518, 529 A.2d 177(1987), our Supreme Court held that the ‘‘evident pur-
pose [of § 14-227b (c)] is to provide sufficient indicia
of reliability so that the report can be introduced in
evidence as an exception to the hearsay rule, especially
in license suspension proceedings, without the neces-
sity of producing the arresting officer.’’ The court, there-
fore, concluded that if an A-44 form does not comply
with subsection (c), it is unreliable and, thus, inadmissi-
ble, as long as the plaintiff objected to its admission into
evidence.9 Id.; see Winsor v. Commissioner of Motor
Vehicles, 101 Conn. App. 674, 688, 922 A.2d 330 (2007)
(‘‘[b]ecause § 14-227b [c] is tailored to satisfy an excep-
tion to the hearsay rule, a failure to comply with [its
requirements] renders the A-44 form inadmissible, at
least in the absence of direct testimony from the
arresting officer’’); Bialowas v. Commissioner of Motor
Vehicles, 44 Conn. App. 702, 712, 692 A.2d 834 (1997)
(‘‘[T]here is merit, in theory, to a claim of procedural
error that bears on the police report’s reliability . . . .
If the report did not include such indicia of reliability,
the report would not be admissible even before an
administrative tribunal of this type.’’ [Citations omitted;
internal quotation marks omitted.]).
On the basis of our Supreme Court’s holding in Volck,
technical compliance with § 14-227b (c) is a necessary
prerequisite to a determination that an A-44 form is
sufficiently reliable to be admitted into evidence. Nei-
ther our Supreme Court nor this court, however, has
ever held that technical compliance with subsection (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 offi-
cer to conclude that the document is otherwise unre-
liable.
The reliability of an A-44 form is especially important
because the commissioner has heavily curtailed a plain-
tiff’s ability to cross-examine the arresting officer
regarding the information contained within the A-44
form by permitting himself to rely solely on these A-44
forms as evidence without testimony from the arresting
officer. Although § 14-227b-18 of the Regulations of
Connecticut State Agencies10 permits a person arrested
for violating § 14-227a (a) to summon the arresting offi-
cer to the administrative hearing, if the subpoenaed
arresting officer does not appear, the person arrested
is not entitled to a continuance or a dismissal. Thus,
even though an arrested person can subpoena the
arresting officer, if the officer does not appear, the
arrested person is deprived of his or her ability to cross-
examine the officer regarding any errors in the A-44
form.11
Because the reliability 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 dis-
crepancies and errors that it is rendered unreliable, at
least in the absence of testimony by the arresting officer
or other evidence that supports its reliability. In some
instances, the department, if it wishes that the docu-
ment be admitted into evidence, may be obligated to
call the arresting officer as a witness to explain the
discrepancies and errors. In this regard, it is important
to remember that it is the department’s burden to dem-
onstrate that the plaintiff violated § 14-227a (a).
Additionally, it was the department’s ultimate burden
to establish the exhibit’s admissibility. The dissent
asserts that it was the plaintiff’s burden to offer evi-
dence at the administrative hearing to prove or explain
the inconsistencies in the exhibit. For example, the
dissent argues that the plaintiff should have offered the
A-44 form, involving the arrest of another motorist, from
which A-44 form information was copied and pasted
into the exhibit at issue. ‘‘[T]he burden [however] is on
the proponent of the evidence, upon timely objection, to
establish that the evidence is admissible.’’ New England
Savings Bank v. Bedford Realty Corp., 238 Conn. 745,
753, 680 A.2d 301 (1996). Although there are exceptions
to the general rule, ‘‘[t]he burden of proving the grounds
of an objection is ordinarily not upon the opponent;
whether he objects on the ground that the original of
a document is not produced, or that an attesting witness
ought to be called, or that a dying declarant was not
conscious of impending dissolution, the burden of
establishing the preliminary facts essential to satisfy
any rule of evidence is upon the party offering it. The
opponent merely invokes the law; if it is applicable to
the evidence, the proponent must make the evidence
satisfy the law.’’ 1 J. Wigmore, Evidence (Tillers Rev.
1983) § 18, p. 841. In the present case, because the
plaintiff objected to the admission of the exhibit and
casted significant doubt upon its reliability, the burden
was on the department to offer additional evidence to
prove the reliability of the exhibit.
Not only was it not the plaintiff’s burden to prove
the cause or source of the obvious and significant incon-
sistencies in the exhibit, but it also would be highly
impracticable to require the plaintiff to do so because
such facts were not within her custody or control. For
example, the plaintiff would have had little or no oppor-
tunity to obtain the prior A-44 form to prove that por-
tions of the exhibit were copied from it because she
did not know the name of the other motorist. Once the
plaintiff objected and raised serious questions regarding
the exhibit’s reliability, it was the department’s burden
to produce sufficient evidence to demonstrate the
exhibit’s reliability, and, ultimately, its admissibility.
Placing this burden on the department is consistent
with our Supreme Court’s holding in Carlson v. Kozlow-
ski, 172 Conn. 263, 267–68, 374 A.2d 207 (1977), that
although hearsay evidence is generally admissible in
administrative hearings, hearsay evidence must be suffi-
ciently reliable to be admissible. To determine whether
hearsay evidence is sufficiently reliable in an adminis-
trative hearing, the 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 sufficiently reliable to
be admissible in an administrative hearing without the
testimony of the medical examiner. Id., 402. In holding
that the medical records were reliable, the court looked
to multiple factors, including whether there were incon-
sistencies on the face of the records, and whether the
plaintiff had the ability to subpoena the author of the
records. Id., 403–406. The Supreme Court noted that
there was not a single inconsistency amongst the medi-
cal records, which strengthened their reliability. Id.,
404. Thus, by adopting the Richardson factors, our
Supreme Court has recognized that internal inconsis-
tencies within the four corners of a document factor
into a determination of the reliability of that document.
The court did not, however, hold that the plaintiff was
required to prove the source of the inconsistencies in
order to show the document’s unreliability.
We do not suggest, however, that an A-44 form is
admissible only if the arresting officer testifies at the
administrative hearing and explains any discrepancies.
Indeed, tribunals often determine whether an exhibit
or testimony is sufficiently reliable in light of other
evidence in the record. In other words, in the absence
of corroborating evidence, one piece of evidence may
be unreliable and, therefore, inadmissible, but that same
piece of evidence may be admissible if supported by
sufficient corroborating evidence. Moreover, if the dis-
crepancy amounts to a mere scrivener’s error, an objec-
tion may not raise a significant question regarding an
A-44 form’s reliability that would require the depart-
ment to offer additional evidence regarding its reliabil-
ity. Such a determination may be made only on a case-
by-case basis.
In the present case, we conclude that the trial court
improperly concluded that the exhibit was sufficiently
reliable. 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, and it is
unclear whether this person had personalized knowl-
edge of the incident and swore under oath to the accu-
racy of the alterations. Additionally, there is no evidence
as to when these alterations occurred.
These discrepancies and errors heavily undermine
the exhibit’s reliability. The extent of the errors and
discrepancies far surpasses mere scrivener’s errors.
The exhibit does not merely state that the plaintiff oper-
ated two different vehicles—an Audi and a Mercedes-
Benz—but it also lists different vehicle models, years,
and state registrations. 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 dismissed as mere scrivener’s errors. Addi-
tionally, 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.12
Not only do these discrepancies undermine the exhib-
it’s reliability as a whole, but they also establish that
the exhibit does not meet the requirement under § 14-
227b (c) that the arresting officer swear to the accuracy
of the A-44 form under oath. The commissioner con-
tends that Biggs signed the exhibit under oath, and,
thus, the exhibit complies with subsection (c). This
assertion is incorrect for multiple reasons. First, Biggs
could not have had a basis of knowledge to swear to
the accuracy of the facts contained in the exhibit if
portions of the exhibit were copied from the arrest
of another individual. Second, because the exhibit is
altered by ‘‘RH’’ and there is no indication that ‘‘RH’’
swore to the accuracy of the alterations under oath,
the exhibit does not comply with the obligation in sub-
section (c) that the document be sworn to under oath
by the arresting officer. Third, because there is no evi-
dence as to when the alterations occurred, the exhibit
that Biggs signed under oath may not be the same
exhibit that is before us today. Accordingly, at most,
Biggs swore to the accuracy of portions of the exhibit,
which is not sufficient under § 14-227b (c).
This case is distinguishable from cases in which Con-
necticut courts have found that noncompliance with
§ 14-227b (c) did not render an A-44 form inadmissible.
Those cases fall into one of three categories. The first
category involves cases in which the A-44 form con-
tained sufficient additional information, sworn to under
oath, to ameliorate any noncompliance with § 14-227b
(c) or to remove serious questions regarding the docu-
ment’s reliability. See Roy v. Commissioner of Motor
Vehicles, supra, 67 Conn. App. 399 (A-44 form was suffi-
ciently reliable because although hearing officer did not
check box on form indicating that plaintiff operated
vehicle on public road, he described public road in
investigation report). The second category involves
cases in which noncompliance with subsection (c) was
a mere scrivener’s error. See Graton v. Commissioner
of Motor Vehicles, Superior Court, judicial district of
New Britain, Docket No. CV-13-6020980-S (December
9, 2013) (‘‘[E]ven if it is read as a ‘10,’ instead of ‘12,’
the court finds that this was a mere scrivener’s error
because the plaintiff was not arrested until April 12th.
This minor discrepancy does not render the [A-44 form]
and its attachments unreliable.’’). The last category
involves cases in which the admission of the A-44 form
into evidence was not objected to at the administrative
hearing. See Volck v. Muzio, supra, 204 Conn. 518 (‘‘[t]he
absence of the endorsement of a third person who wit-
nessed the arrested operator’s refusal of testing would
have rendered [the arresting officer’s] report inadmissi-
ble if the plaintiff had objected thereto’’). Here, the
number and significance of the discrepancies and errors
are far greater.
‘‘This court is aware of the carnage associated with
drunken drivers. . . . Nevertheless, in our endeavor to
rid our roads of these drivers . . . we cannot trample
on the constitutional rights of other citizens. They are
entitled to a fair hearing.’’ (Citation omitted; internal
quotation marks omitted.) Bialowas v. Commissioner
of Motor Vehicles, supra, 44 Conn. App. 718. Fundamen-
tal fairness requires the admission of only reliable
evidence.
Finally, it is important to recognize that we must
place some limit on the degree to which a critical docu-
ment, like an A-44 form, may contain significant errors
and discrepancies and still be admissible. If we held that
this exhibit, standing alone, was sufficiently reliable to
be admitted, we would altogether disincentivize police
officers to accurately document critical facts necessary
to establish that a motorist has violated § 14-227a (a).
In other words, if an A-44 form is always admissible,
as the commissioner seems to suggest, as long as the
arresting officer’s signature is on the document and the
document in some way describes probable cause to
arrest some motorist, there would be no incentive to
create an accurate and complete report of the incident.
Although we recognize that mere scrivener’s errors
should not render an A-44 form inadmissible in all cir-
cumstances, this is not such a case. Accordingly, we
conclude that the trial court improperly determined
that the hearing officer did not abuse his discretion by
admitting the exhibit into evidence.
II
Our inquiry, however, does not end with our conclu-
sion that the exhibit was not sufficiently reliable and,
thus, was inadmissible at the administrative hearing.
‘‘Even in the absence of the A-44 form, [i]f the adminis-
trative record provides substantial evidence upon
which the hearing officer could reasonably have based
his finding . . . the decision must be upheld.’’ (Internal
quotation marks omitted.) Winsor v. Commissioner of
Motor Vehicles, supra, 101 Conn. App. 688.
‘‘We review the issues raised by the plaintiff in accor-
dance with the limited scope of judicial review afforded
by the [Uniform Administrative Procedure Act (UAPA),
General Statutes § 4-166 et seq.]. . . . 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 find-
ings of basic fact and whether the conclusions drawn
from those facts are reasonable. . . . 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. . . .
[T]he plaintiff bears the burden of demonstrating that
a hearing officer’s evidentiary ruling is arbitrary, illegal
or an abuse of discretion. . . .
‘‘An administrative finding is supported by substantial
evidence if the record affords a substantial basis of fact
from which the fact in issue can be reasonably inferred.
. . . The substantial evidence rule imposes an
important limitation on the power of the courts to over-
turn a decision of an administrative agency . . . and
. . . provide[s] a more restrictive standard of review
than standards embodying review of weight of the evi-
dence or clearly erroneous action. . . . [I]t is some-
thing less than the weight of the evidence, 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. . . .
‘‘[A]s to questions of law, [t]he court’s ultimate duty
is only to decide whether, in light of the evidence, the
[agency] has acted unreasonably, arbitrarily, illegally,
or in abuse of its discretion. . . . Conclusions of law
reached by the administrative agency must stand if the
court determines that they resulted from a correct appli-
cation of the law to the facts found and could reasonably
and logically follow from such facts.’’ (Internal quota-
tion marks omitted.) Gagliardi v. Commissioner of
Children & Families, supra, 155 Conn. App. 617–18.
In the present case, the department offered no evi-
dence other than the exhibit at the administrative hear-
ing. Without the exhibit, there is nothing in the record
to support the hearing officer’s determination that the
plaintiff violated § 14-227a (a). At the administrative
hearing, the department had the opportunity to present
additional evidence, and it chose not to avail itself of
this opportunity. Without the admission of the exhibit,
the department has failed to meet its burden to provide
substantial evidence that the plaintiff violated § 14-227a
(a). Accordingly, the plaintiff’s appeal must be sus-
tained.13
The judgment is reversed and the case is remanded
with direction to render judgment sustaining the plain-
tiff’s appeal.
In this opinion GRUENDEL, J., concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
‘‘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.’’ Roy v. Commis-
sioner of Motor Vehicles, 67 Conn. App. 394, 396 n.3, 786 A.2d 1279 (2001); see
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 . . . .’’).
Because the A-44 form and its attachments were offered into evidence as
a single exhibit and there were no other exhibits offered at the administrative
hearing, for the purposes of this opinion, we refer to them as a whole as
the exhibit. We will only refer to the individual documents that comprise
the exhibit—the A-44 form, the investigation report, and the breath analysis
test results—to identify specific information contained therein.
We also note that the second page of the A-44 form was not included in
the return of the administrative record. The commissioner supplemented
the administrative record with the missing page from the A-44 form prior
to the hearing before the trial court.
2
General Statutes § 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. . . .’’
3
General Statutes § 14-227b (g) provides in relevant part: ‘‘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, 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 department. . . .’’
4
The trial court’s memorandum of decision states that the arresting offi-
cer’s name was ‘‘Trooper Troy M. Briggs,’’ but our review of the exhibit
reveals that his last name is Biggs.
5
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. . . .’’
6
For the purposes of § 4-183, a remand is an appealable final judgment.
See General Statutes § 4-183 (j).
7
Although the A-44 form is signed by Sergeant Ryan M. Hennessey as the
person who administered the oath to Biggs, no evidence was presented at
the administrative hearing to prove that Hennessey is ‘‘RH.’’ Even assuming
that Hennessey is ‘‘RH,’’ there was no evidence offered at the administrative
hearing as to whether he made the alteration before or after Biggs signed
the A-44 form, or whether he made the alteration under oath, as required
by § 14-227b (c).
8
The trial court in its memorandum of decision does not discuss or analyze
this discrepancy, which appears on the second page of the A-44 form, and
does not appear to have factored it into its analysis regarding whether it,
along with the other errors and discrepancies, renders the exhibit unreliable.
9
We note that in Volck, our Supreme Court held that strict compliance
with subsection (c) is not a prerequisite for license suspension pursuant to
§ 14-227b. Volck v. Muzio, supra, 204 Conn. 517. Thus, if an A-44 form does
not comply with subsection (c), but there is other substantial evidence in
the record to support the hearing officer’s decision in the absence of the
A-44 form, the decision must be upheld. See Winsor v. Commissioner of
Motor Vehicles, 101 Conn. App. 674, 688, 922 A.2d 330 (2007). Furthermore,
if a plaintiff does not object to the admission of the A-44 form into evidence
and it is admitted into evidence, it may constitute substantial evidence even
if it does not comply with subsection (c). Volck v. Muzio, supra, 518.
10
Section 14-227b-18 of the Regulations of Connecticut State Agencies
provides in relevant part: ‘‘(b) A person arrested for an enumerated offense
may at his own expense and by his own solicitation summon to the hearing
the arresting officer and any other witness to give oral testimony. The failure
to appear at the hearing of any witness summoned by the person arrested
shall not be grounds for such person to request a continuance or dismissal
of the hearing. . . .’’
11
To the extent that the plaintiff’s claim raises a due process issue, we
need not address it because we rule in favor of the plaintiff on the evidentiary
ground raised. See State v. Genotti, 220 Conn. 796, 804, 601 A.2d 1013(1992) (court should eschew reaching constitutional issues on appeal if
claim disposed of on evidentiary grounds).
12
Although each of these discrepancies alone may not have rendered the
exhibit inadmissible, their cumulative effect persuades us that it should not
have been admitted.
13
The dissent assigns fault to the trial court’s conclusion that the case
should be remanded for further factual findings or for an articulation regard-
ing which motor vehicle the plaintiff allegedly operated before it decides
the merits of the appeal. The dissent contends that we should reverse the
court’s decision to remand the case to the department and instead conclude
that the exhibit provided substantial evidence sufficient to support the
commissioner’s decision to suspend the plaintiff’s license. The relief, how-
ever, that the dissent argues should be granted was not sought by the
commissioner, except in a conclusory final sentence in his appellate brief.
The commissioner did not file a cross appeal or otherwise take issue with
the court’s conclusion that the case should be remanded to the department
before deciding the merits of the appeal. In fact, the commissioner argued
that the trial court did not abuse its discretion by ordering a remand.
Although we are disinclined to agree with the dissent on this point, we need
not decide it in light of our conclusion that the exhibit was inadmissible.