Clark v. Commissioner of Motor Vehichles

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JAMES P. CLARK v. COMMISSIONER OF
MOTOR VEHICLES
(AC 40061)
DiPentima, C. J., and Elgo and Eveleigh, Js.
Syllabus
The plaintiff appealed to the trial court from the decision of the defendant,
the Commissioner of Motor Vehicles, to suspend the plaintiff’s motor
vehicle operator’s and commercial driver’s licenses for operating a motor
vehicle while under the influence of intoxicating liquor. The suspension
stemmed from an incident in which the plaintiff lost control of his
vehicle while driving through an intersection, crashed into a snowbank,
and continued approximately sixty-five feet into a field. Prior to the
accident, the plaintiff had consumed a number of alcoholic beverages
at a restaurant located near the accident scene. Sometime after 8:30
p.m., the plaintiff left the restaurant, and, as he was driving home, his
wife called to ask him to pick up their daughter at a dance studio that
was ten to fifteen minutes from their house. The plaintiff then turned
his vehicle around and headed toward the studio but crashed sometime
thereafter. Following the accident, a fire chief from a neighboring town
observed the plaintiff’s vehicle off the road and stopped to ask the
plaintiff if he was all right. He replied that he was, and the fire chief
notified the state police at approximately 9:38 p.m. and left the scene.
When the police arrived soon thereafter, they found the vehicle unoccu-
pied. At approximately 10 p.m., a state police officer arrived at the
plaintiff’s residence and began speaking with the plaintiff’s wife. Shortly
thereafter, the plaintiff and the daughter returned home in a vehicle
driven by a third party. After the plaintiff failed three field sobriety tests,
he was arrested and brought to the state police barracks, where he
submitted to blood alcohol content tests. The tests commenced at 11:05
p.m., and the results indicated that he had an elevated blood alcohol
content. Following an administrative hearing, the commissioner sus-
pended the plaintiff’s licenses, finding, inter alia, that the plaintiff was
operating his vehicle after 9:05 p.m. and that the blood alcohol content
testing commenced at 11:05, which was within two hours of his operation
of the vehicle, as required by the statute (§ 14-227a [b]) governing,
inter alia, the admissibility of chemical analysis results. The trial court
dismissed the plaintiff’s appeal, and the plaintiff appealed to this
court. Held:
1. The trial court correctly determined that there was substantial evidence
in the record to support a finding that there was probable cause that
the plaintiff operated his motor vehicle while under the influence within
the two hours preceding the commencement of his blood alcohol content
testing, as the inferences underlying the commissioner’s conclusion that
the plaintiff was operating his vehicle sometime after 9:05 p.m. were
supported by compelling circumstantial evidence in the record: although
the plaintiff claimed that he crashed his vehicle before 9:05 p.m. and
sat in it for a while until the fire chief arrived at the scene, the evidence
indicated that the plaintiff did not wait in his vehicle long after the
accident, as the intersection where the accident occurred was a heavily
traveled, well marked, four-way intersection that was located close
to the restaurant at which the plaintiff had been drinking, and the
commissioner reasonably could infer that the fire chief reported the
accident shortly after it occurred because the vehicle was in a place
where it would have been observable to an average passerby and the
longer the vehicle remained off the road, the less likely it would go
unnoticed and unreported; moreover, the commissioner reasonably
could have concluded that the plaintiff’s operation of the vehicle
occurred closer to 9:38 p.m. than 9:05 p.m., as the evidence indicated
that the plaintiff was in a hurry to pick up his daughter at the dance
studio and to bring her home, the plaintiff having requested a ride to
the dance studio from a third party, having abandoned his vehicle a
short distance from the restaurant, and having failed to return to the
scene of the accident to wait for assistance after he already secured a
ride for his daughter, even though they drove past it on their way
back home.
2. The trial court did not abuse its discretion in denying the plaintiff’s motion
to reargue or for reconsideration, which was based on his claim that
he received ineffective assistance from his counsel at the administrative
hearing resulting in a failure to present additional relevant evidence, as
the absence of such evidence formed the basis for his motion and the
plaintiff failed to make a timely application for remand for the taking
of additional evidence pursuant to the applicable statute (§ 4-183 [h]).
Argued February 14—officially released July 17, 2018
Procedural History
Appeal from the decision of the defendant suspending
the plaintiff’s motor vehicle operator’s and commercial
driver’s licenses, brought to the Superior Court in the
judicial district of New Britain and tried to the court,
Huddleston, J.; judgment dismissing the appeal; there-
after, the court denied the plaintiff’s motion to reargue
or for reconsideration, and the plaintiff appealed to this
court. Affirmed.
Jack G. Steigelfest, with whom was Christopher M.
Harrington, 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
DiPENTIMA, C. J. When a driver is suspected of
operating a motor vehicle while under the influence
of alcohol, our statutes require that law enforcement
commence any consensual chemical alcohol tests
within two hours of such operation. Otherwise, the
results of those tests, although ostensibly valid, are
neither admissible nor competent evidence of operation
under the influence. In an administrative appeal from
the suspension of both his standard and commercial
operator’s licenses, the plaintiff, James P. Clark, chal-
lenged, among other things, the finding of the defen-
dant, the Commissioner of Motor Vehicles
(commissioner),1 that his failed chemical alcohol tests
were timely. The Superior Court was not persuaded
and dismissed his appeal. The plaintiff now appeals,
claiming that the court improperly (1) determined that
there was substantial evidence in the record to support
a finding that there was probable cause to arrest him
for operating a motor vehicle while under the influence
of alcohol, and (2) denied his motion to reargue or for
reconsideration. We disagree and, accordingly, affirm
the judgment of the Superior Court.
The court summarized the facts before the commis-
sioner and procedural history as follows: ‘‘On the eve-
ning of February 10, 2016, the fire chief of the Hebron
Fire Department observed a Volkswagen Passat off the
roadway at the intersection of New London Road
(Route 85) and Lake Hayward Road in Colchester. He
saw a man, later determined to be the plaintiff, in the
driver’s seat. The fire chief approached the vehicle and
asked whether the plaintiff was all right. The plaintiff
replied that he had [the American Automobile Associa-
tion (AAA)] en route, and he was okay. The fire chief
then returned to his own vehicle and notified the state
police of the accident at approximately [9:38 p.m.]
‘‘At [9:41 p.m.], two state police officers were dis-
patched to the accident scene. Upon arrival, the officers
found an unoccupied Volkswagen and deduced from
tracks in deep snow that it had been traveling north on
Route 85 when its operator disregarded a stop sign
at the intersection, crossed over the intersection and
crashed into a snowbank at the northeast corner of the
intersection, continuing approximately 65.2 feet from
the road to its point of final rest. An advertising sign
for ‘NuNu’s Bistro’ was subsequently found in the snow
beneath the Volkswagen, indicating that the vehicle had
struck and snapped off the sign as it traveled into the
snowbank. The arresting officer, Bryan Kowalsky,
noted that the intersection was a well marked major
intersection in Colchester, with four-way stop signs and
a flashing red light above the intersection. The intersec-
tion was in a very heavily traveled area. The road was
dry and no adverse weather conditions were present.
‘‘Kowalsky ran the vehicle’s license plate number to
obtain information about its owner. He then went to
the address of the plaintiff, who was the owner of the
vehicle, to find out who had been operating the vehicle
and whether there were any injuries. He arrived there
at approximately [10 p.m.] The plaintiff was not home.
His wife answered the door and spoke briefly with
Kowalsky. She told him that her husband ‘is driving the
Volkswagen’ and that ‘he was on his way to pick up
their [fifteen] year old daughter from Doreen’s dance
studio in Colchester.’ . . . Kowalsky testified that the
dance studio is located ten to fifteen minutes from the
plaintiff’s home. Kowalsky informed the plaintiff’s wife
that the Volkswagen had been in an accident and the
operator was not with the Volkswagen.
‘‘A moment2 after Kowalsky began to speak with the
plaintiff’s wife, he saw a black pickup truck pull into
the driveway. The plaintiff’s teenaged daughter got out
and came into the house. The plaintiff’s wife asked her
what had happened. She said that she wasn’t in the car
and that ‘[the plaintiff] came and picked [her] up from
dance [class] in the truck.’ . . .
‘‘Kowalsky then saw the plaintiff get out of the pas-
senger’s seat of the truck. The plaintiff entered the
house through a back door. Kowalsky asked if he had
been involved in an accident that evening. The plaintiff
replied that he had spun off the road and hit a snow-
bank. He said he called AAA and then left, ‘figuring
they would come get the car.’ . . . Kowalsky asked
why he had not stopped to talk with police at the scene
when he rode past on his way home the second time,
but the plaintiff had no response. When asked if he
had had anything to drink that evening, the plaintiff
answered that he had had a few drinks. The plaintiff’s
speech was slurred, his eyes were glazed, and an odor
of alcohol emanated from his person.
‘‘Kowalsky asked the plaintiff to complete certain
tasks, including a finger counting test, reciting the
alphabet from C to T without singing, and counting
down from [thirty-seven] to [thirteen]. The plaintiff was
unable to complete these tasks and expressed disbelief
that he could not do them.
‘‘Kowalsky then asked him to step outside to com-
plete three standard field sobriety tests. The plaintiff
failed all three tests. Kowalsky placed him under arrest
for driving under the influence and took him to Troop
K for processing. After speaking with an attorney by
telephone, the plaintiff agreed to take a breath test.
While Kowalsky was processing him, the plaintiff told
Kowalsky that he had been drinking at Toyo, a restau-
rant north of the intersection where he drove off the
road, from about [2:30 p.m.] that afternoon. He said he
last ate at [2:30 p.m.], and then had about five beers
and a couple of glasses of wine. He said he finished
drinking at [8:30 p.m.] He said he had been at the restau-
rant catching up with an old friend and was on his way
home when his wife called him and asked him to pick
up their daughter from dance class. He said that he
should have just continued on his way home rather
than turning around to go get his daughter.
‘‘Kowalsky commenced the breath test at [11:05 p.m.],
obtaining a reading of .1564. He repeated the test at
[11:25 p.m.], obtaining a reading of .1570. The plaintiff
was then charged with violations of General Statutes
§ 14-301 (failure to obey a stop sign); [General Statutes]
§ 14-224b (evading responsibility); [General Statutes]
§ 14-12 (operating an unregistered vehicle); and [Gen-
eral Statutes] § 14-227a (operating under the influ-
ence). . . .
‘‘On March 4, 2016, the Department of Motor Vehicles
(department) held an administrative hearing to deter-
mine whether the plaintiff’s operator’s and commercial
driver’s licenses should be suspended for failing a chem-
ical test. The attorney presenting the evidence on behalf
of the department called Kowalsky as a witness. He
testified as to the matters in the A-44 form3 and attached
reports, which were admitted into evidence. The plain-
tiff was present at the hearing with counsel but did
not cross-examine Kowalsky, testify himself, or offer
other evidence.
‘‘After Kowalsky testified, the plaintiff’s counsel
argued that there was no evidence of probable cause
for the arrest and no evidence of the time of the accident
and, therefore, no way to establish that the plaintiff had
operated a vehicle within two hours of the commence-
ment of the chemical test. He also asserted that a friend
of the plaintiff, not the plaintiff, had been driving the
truck in which the plaintiff and his daughter arrived at
their home.
‘‘After the plaintiff’s counsel made these arguments,
the attorney representing the department asked Kowal-
sky whether the plaintiff had admitted that he was
operating the motor vehicle. Kowalsky testified that
the plaintiff admitted that he was operating the motor
vehicle and that he had been drinking at Toyo.
‘‘On March 7, 2016, the [commissioner] issued a ruling
in which he made the four affirmative findings required
by General Statutes § 14-227b (g)4 and further found
that the plaintiff is over the age of twenty-one and is
the holder of a commercial driver’s license. He also
made the following subordinate finding: ‘Based upon
sworn, credible testimony of Officer Kowalsk[y] it is
found that there was operation by [the plaintiff] at a
point in time after [9:05 p.m.] such that the testing
commencing at [11:05 p.m.] was within [two] hours as
required by . . . § 14-227a (b).’5 The [commissioner]
suspended the plaintiff’s operator’s license for forty-
five days, required the use of an ignition interlock device
for six months, and suspended his commercial driver’s
license for one year.
‘‘On March 22, 2016, the plaintiff filed a request for
reconsideration of the subordinate finding, which he
misquoted as stating that ‘[t]he BAC tests were adminis-
tered within two (2) hours of the [first] trooper’s arrival.’
He then argued that the finding was improper because
the legal standard required testing within two hours of
operation, not within two hours of the officer’s arrival.
‘‘On April 5, 2016, the department denied the request
for reconsideration with an order stating that ‘[t]here
is sufficient evidence in the file to support the [commis-
sioner’s] decision.’ ’’ (Citations omitted; footnotes
added.)
The plaintiff then appealed to the Superior Court
pursuant to the provisions of the Uniform Administra-
tive Procedure Act, General Statutes § 4-166 et seq.
(UAPA). After a hearing, the court dismissed the plain-
tiff’s appeal and subsequently denied his motion to rear-
gue or for reconsideration. The plaintiff thereafter
appealed to this court.
Turning now to the plaintiff’s arguments on appeal,
we preface our review with the applicable legal princi-
ples. ‘‘[J]udicial review of the commissioner’s action is
governed by the [UAPA], and the scope of that review
is very restricted. . . . [R]eview of an administrative
agency decision requires a court to determine whether
there is substantial evidence in the administrative
record to support the agency’s findings of basic fact
and whether the conclusions drawn from those facts
are reasonable. . . . Neither this court nor the [Supe-
rior Court] may retry the case or substitute its own
judgment for that of the administrative agency on the
weight of the evidence or questions of fact. . . . Our
ultimate duty is to determine, in view of all of the evi-
dence, whether the agency, in issuing its order, acted
unreasonably, arbitrarily, illegally or in abuse of its dis-
cretion. . . .
‘‘The substantial evidence rule governs judicial
review of administrative fact-finding under the UAPA.
[See] General Statutes § 4-183 (j) (5) and (6). An admin-
istrative finding is supported by substantial evidence if
the record affords a substantial basis of fact from which
the fact in issue can be reasonably inferred. . . . The
substantial evidence rule imposes an important limita-
tion on the power of the courts to overturn a decision
of an administrative agency . . . .
‘‘It is fundamental that a plaintiff has the burden of
proving that the commissioner, on the facts before him,
acted contrary to law and in abuse of his discretion [in
determining the issue of probable cause]. . . . The law
is also well established that if the decision of the com-
missioner is reasonably supported by the evidence it
must be sustained. . . .
‘‘We have stated that [p]robable cause, broadly
defined, comprises such facts as would reasonably per-
suade an impartial and reasonable mind not merely
to suspect or conjecture, but to believe that criminal
activity has occurred. . . . Reasonable minds may dis-
agree as to whether a particular [set of facts] establishes
probable cause. . . . Thus, the commissioner need
only have a substantial basis of fact from which [it] can
be inferred . . . that the evidence in the administrative
record supported a finding of probable cause with
respect to the plaintiff’s violation of § 14-227a.’’ (Cita-
tions omitted; internal quotation marks omitted.) Mur-
phy v. Commissioner of Motor Vehicles, 254 Conn. 333,
343–44, 757 A.2d 561 (2000); see also Finley v. Commis-
sioner of Motor Vehicles, 113 Conn. App. 417, 422–23,
966 A.2d 773 (2009).
I
The plaintiff first claims the record does not support
the Superior Court’s determination that there was sub-
stantial evidence to support a finding that there was
probable cause that he operated his motor vehicle
within the two hours preceding his failed chemical alco-
hol tests. We do not agree.
The following additional facts are relevant to the
plaintiff’s claim. The plaintiff consumed no fewer than
seven alcoholic beverages between 2:30 and 8:30 p.m. at
Toyo, an establishment ‘‘less than thirty seconds away’’
from the scene of the accident. Sometime after 8:30
p.m., the plaintiff left Toyo for his home. On the way,
his wife called to ask him to pick up their daughter at
a dance studio ten to fifteen minutes away from their
home. Upon receiving this call, the plaintiff turned
around his car and headed northbound on Route 85
toward the dance studio. According to Kowalsky’s
report, the tracks in the snow suggest that when the
plaintiff’s vehicle reached the intersection of Route 85
and Lake Hayward Road, it ran through a stop sign and
flashing red light before crashing through a snowbank
and continuing 65.2 feet into a field. There is no evi-
dence to suggest that the plaintiff operated a motor
vehicle thereafter.
The question of whether the plaintiff operated his
motor vehicle while intoxicated6 within the two hour
statutory window, i.e., at or after 9:05 p.m., is one of
fact. As recited earlier in this opinion, our review of
administrative fact-finding is circumscribed by the
UAPA; the commissioner need only have a ‘‘substantial
basis of fact’’ from which the time of operation reason-
ably can be inferred. Murphy v. Commissioner of Motor
Vehicles, supra, 254 Conn. 344. Put another way, our
task is not to choose between two competing factual
narratives but, rather, to determine whether there was
sufficient evidence in the record to support the commis-
sioner’s narrative. Moreover, ‘‘there is no requirement
that the fact [in question] be established by direct evi-
dence. On the contrary, our case law clearly establishes
that sufficient evidence justifying the commissioner’s
determination of probable cause may be found where
the totality of the circumstances existing at the time of
the plaintiff’s arrest support[s] [such a finding] . . . .’’
(Footnote omitted; internal quotation marks omitted.)
Id., 345. Given that circumstantial evidence can be used
to establish the temporal nexus between operation and
consumption of alcohol, it can also be used to establish
the temporal nexus between operation and intoxica-
tion. See id., 347. In fact, ‘‘[i]t is incumbent upon [appel-
late courts] to rely on the circumstantial evidence
obtained by the police to determine that there was
sufficient evidence in the record to support a finding
of probable cause.’’ (Emphasis added.) Id.A series of inferences underlie the commissioner’s
ultimate conclusion that the plaintiff was driving some-
time after 9:05 p.m., all of which are supported by com-
pelling circumstantial evidence. First, the evidence was
sufficient to suggest that the plaintiff did not wait in
his car long after the accident, which is significant
because the plaintiff essentially claims that he crashed
before 9:05 p.m. and sat in his car for a while until
the fire chief appeared. The record reflects that the
intersection at which the plaintiff lost control of his
car is a well marked, four-way intersection of major
roadways, and being, as Kowalsky testified, ‘‘one of the
main thoroughfares coming into town,’’ it is ‘‘a very
heavily traveled very popular area.’’ Additionally, the
location is very close to Toyo. Accordingly, it was rea-
sonable for the commissioner to infer that the fire chief
reported the accident shortly after it occurred; the
longer the car sat off the road, the less likely it would
be for it to go unnoticed and unreported.
The plaintiff contends that this inference is not sup-
ported by the record. Specifically, he argues that his
car came to rest far beyond the view of ordinary drivers
on the road, having ‘‘crashed through the snowbank
and drifted approximately 65.2 feet to final rest.’’ He
also argues that the fire chief was more perceptive
than the average driver, and, thus, it is unreasonable
to assume that anyone else would have discovered the
accident. We are not persuaded. First, the police crash
report clearly indicates that the measurement upon
which the plaintiff relies reflected how far the car
drifted past the intersection parallel to Route 85, not
perpendicularly into the field. Even if a car were travel-
ing on the other road in the intersection, the four-way
stop would demand at least a cursory glance down both
directions of Route 85. Moreover, the car came to rest
between the roadway and a telephone pole, knocking
over a sign for a local establishment somewhere along
the way. Additionally, although it may very well be
true that the fire chief would be more vigilant than
an average passerby, there is nothing in the record to
suggest that his special training and experience led to
his discovery of the plaintiff’s car or that he had espe-
cially keen eyesight. Accordingly, we think it entirely
reasonable on this record to infer that the car was in
a place where it would have been observable to pas-
sersby.
Second, the evidence was sufficient to suggest that
the plaintiff was in a hurry. The commissioner, there-
fore, reasonably could have concluded that operation
occurred closer to 9:38 p.m. than 9:05 p.m. The plaintiff
stated that he was ‘‘on his way home when his wife
called him and asked him to go pick up their daughter
at dance class.’’ The round trip to the dance studio
from the plaintiff’s house and back took approximately
twenty to thirty minutes in total. Furthermore, the fact
that the plaintiff apparently requested a ride to the
dance studio from someone else and abandoned his
vehicle ‘‘less than thirty seconds’’ down the road implies
that he was hurrying to pick up his daughter. When
Kowalsky eventually arrived at the plaintiff’s residence
and spoke with his wife, she was not concerned that
he had not yet arrived, suggesting either that she had
called the plaintiff recently or that the daughter’s dance
lesson had yet to end, or both.7 As a result, it was
reasonable to infer that the plaintiff left Toyo shortly
before receiving his wife’s call and spun off the road
closer to 9:38 p.m. than 9:05 p.m.
The plaintiff disputes the reasonableness of these
inferences. He contends that there was no evidence to
support the notion that his daughter was ready to be
picked up from the dance studio when his wife called,
and, in the alternative, that even if he had been in a
hurry to pick her up, there is no reason for him to have
been in a hurry to bring her home. This, however, does
not comport with the plaintiff’s failure to remain in his
vehicle after speaking to the fire chief or to return to
the scene of the accident to wait for AAA after he had
secured a ride for his daughter, even though they rode
past it in the pickup truck on their way back to his
home. The plaintiff also argues that it was erroneous
to consider the time it takes to drive from his home to
the dance studio and back, because he was not at home
when he left to pick up his daughter. The plaintiff’s
later admission to Kowalsky that he had to turn the car
around after his wife called, however, indicates that
he was already somewhere between his home and the
dance studio.8 This suggests an even shorter trip, which,
in turn, implies that he received the phone call later in
time, i.e., closer to 9:38 p.m. than 9:05 p.m.
Cognizant that our standard of review requires us to
confirm only that there is sufficient evidence in the
record to support the commissioner’s findings, we can-
not say that the court improperly found that there was
substantial evidence in the record to support a finding
that there was probable cause to arrest the plaintiff for
operating a motor vehicle while under the influence of
alcohol. Individually, each of the commissioner’s infer-
ences is clearly supported the record. Together, they
buoy the commissioner’s conclusion that the plaintiff
was operating his motor vehicle while under the influ-
ence of alcohol within two hours of the commencement
of his chemical alcohol tests.
II
The plaintiff next claims that the Superior Court
abused its discretion in denying his motion to reargue or
for reconsideration. Specifically, the plaintiff contends
that he received ineffective assistance at the administra-
tive hearing from his counsel resulting in a failure to
present additional relevant evidence, namely, two affi-
davits, attesting that he had not been the driver of the
car. This claim is without merit.
In denying the plaintiff’s motion to reargue or for
reconsideration, the court stated: ‘‘[T]he information
presented was known to the plaintiff at the time of the
original administrative hearing. Although the plaintiff
argues that his counsel failed to present this evidence
at the administrative hearing because he was distracted
by a serious family emergency, the plaintiff offers no
explanation for the subsequent failure to mention this
evidence in the motion for reconsideration filed after
the [commissioner] issued his final decision. Even more
significantly, the plaintiff does not offer any explanation
for failing to raise this claim in a motion to remand the
matter to the department to present additional evidence
pursuant to . . . § 4-183 (h). Such a motion properly
could have been made at any time prior to the hearing
on the merits, which was held on September 20, 2016.
Notably, the plaintiff’s counsel obtained [one of the
proffered affidavits] nearly five months before the
court’s hearing on the merits, yet he failed to move for
a remand or to present the affidavit to the court prior
to the hearing, as required by [the statute]. To the con-
trary, in the statement of facts in his brief on appeal,
the plaintiff’s counsel stated that ‘[t]he plaintiff . . .
admitted that he had been driving the vehicle when it
went off the road.’ The plaintiff cannot try his case on
one theory and then seek to reargue it on grounds never
presented to the court in the first instance.’’
Section 4-183 (h) provides in relevant part: ‘‘If, before
the date set for hearing on the merits of an appeal,
application is made to the court for leave to present
additional evidence, and it is shown to the satisfaction
of the court that the additional evidence is material and
that there were good reasons for failure to present it
in the proceeding before the agency, the court may
order that the additional evidence be taken before the
agency upon conditions determined by the court. . . .’’
The language of this statute clearly indicates that the
trial court has the discretion to order such a remand
where ‘‘good reasons’’ exist for the failure to present
the proffered evidence. See Salmon v. Dept. of Health &
Addiction Services, 259 Conn. 288, 315, 788 A.2d 1199(2002). Furthermore, the ineffective assistance of coun-
sel may, in certain circumstances, constitute a ‘‘good
reason.’’ Id., 324.
It is important to note, however, that ‘‘a court order
granting such [an application] does not vitiate the
department’s original decision, but instead permits [it]
to consider new evidence and to modify its decision as
necessary. Thus, a remand under § 4-183 (h) does not
offer the parties an opportunity to relitigate the case
ab initio, but rather represents a continuation of the
original agency proceeding.’’ Id., 319. Accordingly, such
an application is the appropriate recourse where, as
here, a plaintiff seeks to introduce additional evidence.
Because the plaintiff failed to make a timely application
for remand to the department for the taking of addi-
tional evidence pursuant to § 4-183 (h), and because
the absence of such evidence formed the basis for his
motion to reargue or for reconsideration, the court did
not abuse its discretion in denying that motion.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The administrative hearing was held before a hearing officer. Inasmuch
as the hearing officer acts on behalf of the commissioner, we hereinafter
substitute commissioner for hearing officer where the facts ordinarily would
call for reference to the latter. See Murphy v. Commissioner of Motor
Vehicles, 254 Conn. 333, 341 n.12, 757 A.2d 561 (2000).
2
Kowalsky testified that ‘‘[f]rom the time that I knocked on the door when
I very first arrived at the address to the time that the pickup truck pulled
in, I would say it was maybe two minutes.’’
3
Police use the A-44 form to report an arrest related to operation of a
motor vehicle while under the influence of alcohol and the results of any
sobriety tests administered or the refusal to consent to such tests.
4
General Statutes § 14-227b (g) provides, in relevant part, that a hearing
to suspend a person’s license ‘‘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 intox-
icating liquor or any drug or both; (2) was such person placed under arrest;
(3) did such person refuse to submit to such test or analysis or did such
person submit to such test or analysis, commenced within two hours of the
time of operation, and the results of such test or analysis indicated that
such person had an elevated blood alcohol content; and (4) was such person
operating the motor vehicle.’’
5
General Statutes § 14-227a (b) provides in relevant part: ‘‘[E]vidence
respecting the amount of alcohol or drug in the defendant’s blood or urine
at the time of the alleged offense, as shown by a chemical analysis of
the defendant’s breath, blood or urine shall be admissible and competent
provided . . . (6) evidence is presented that the test was commenced within
two hours of operation. . . .’’
6
On this record, the plaintiff does not dispute the commissioner’s finding
that he operated a motor vehicle while under the influence of alcohol, but
does dispute that there was sufficient evidence to support a finding that he
did so at or after 9:05 p.m. But see part II of this opinion.
7
The court noted that the plaintiff’s wife also stated, in response to
Kowalsky’s question as to who was last driving the Volkswagen, that the
plaintiff ‘‘is driving [it].’’ (Emphasis in original.) The plaintiff contends that
this statement is not probative of the time of his operation. We agree that,
standing alone, this statement would not provide much insight into the
moment of operation. Nevertheless, Kowalsky’s testimony and other evi-
dence support the commissioner’s findings as to the wife’s manner and
expectations regarding the plaintiff’s arrival.
The plaintiff, however, also contends that his wife’s statements constitute
hearsay evidence. The plaintiff acknowledges that such evidence is some-
times admissible in administrative proceedings but argues that ‘‘[a]lthough
the admission of this evidence is not itself grounds for reversal, the trial
court’s conclusion may be questioned based on specific reliance on inconsis-
tent hearsay as ‘reliable, probative and substantial evidence.’ ’’ See Gonzalez
v. State Elections Enforcement Commission, 145 Conn. App. 458, 483, 77
A.3d 790 (‘‘[a]dministrative tribunals are not strictly bound by the rules of
evidence and . . . they may consider evidence which would normally be
incompetent in a judicial proceeding, as long as the evidence is reliable and
probative’’ [internal quotation marks omitted]), cert. denied, 310 Conn. 954,
81 A.3d 1181 (2013). This claim was not argued before the commissioner
or in the Superior Court, and, since there is no claim for extraordinary
review, we decline to address it now. ‘‘[A] party cannot present a case to
the trial court on one theory and then seek appellate relief on a different
one. . . . For this court to . . . consider [a] claim on the basis of a specific
legal ground not raised during trial would amount to trial by ambuscade,
unfair to both the [court] and to the opposing party.’’ (Citation omitted;
internal quotation marks omitted.) Dickman v. Office of State Ethics, Citi-
zen’s Ethics Advisory Board, 140 Conn. App. 754, 764, 60 A.3d 297, cert.
denied, 308 Conn. 934, 66 A.3d 497 (2013).
8
Kowalsky testified that the studio was in the Westchester portion of Col-
chester.