DocketNumber: No. CV98-0579142
Citation Numbers: 1998 Conn. Super. Ct. 8810
Judges: DiPENTIMA, J.
Filed Date: 8/3/1998
Status: Non-Precedential
Modified Date: 4/18/2021
Rigby raises two claims that attack the finding that she failed the chemical test of the alcohol content of her blood. She first claims that the record shows that the officer performing the test was not properly certified on the intoxilyzer. She then argues that because the officer failed to bring the intoxilyzer log books to the hearing she was deprived of the right to cross examine the officer as to the calibration and functioning of the CT Page 8811 intoxilyzer.
The plaintiff bears the burden of proving that the commissioners decision to suspend her license was clearly erroneous in view of the reliable, probative and substantial evidence on the whole record. Schallenkamp v. DelPonte,
"Judicial review of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency's findings of basic fact and whether the conclusions drawn from those facts are reasonable . . . Substantial evidence exists if the administrative record affords a substantial basis of fact from which the fact in issue can be reasonably inferred." (Internal quotation marks omitted.) Schallenkamp v. DelPonte, supra,
The hearing officer in a license suspension hearings limits his determination to the four issues specified in General Statutes §
Q. And in the most recent four hours that you completed, what CT Page 8812 was the four hours on? Was it on the 5000 machine?
A It was on the 5000 and the 3000, but we don't use the 3000 anymore.
Q It was the (inaudible) —
A We have the only 3000 left I believe in the state and it's inoperable at this time, so we use the 5000.
Q Was the full four hours on instruction of the model 5000?
A No, it was not. That course covers the 5000 and some 3000 even though we don't use it. Do you want this document back sir?
Q Yes, please.
The regulation reads:
(1) Certification of operators
(A) In order to be certified as an operator of a breath analysis instrument, a person shall:
(i) Be employed by a law enforcement agency or by the department;
(ii) Successfully complete a minimum of four (4) hours of training in the operation of the instrument to be used. Such training may be acquired by training courses given by the department or by instructors certified by the department for such purposes in accordance with subdivision (3) of this subsection;
(iii) Demonstrate to the department the proper use and application of the instrument.
Because of the decision in Schallenkamp v. DelPonte,
Moreover, even if we were to assume that Balfore's certification had lapsed, such a lapse would not have sufficiently undermined the reliability of the test results to cause us to depart from our holding in Volck v. Muzio, supra,
204 Conn. 512 . In Volck, we concluded that even multiple failures on the part of an arresting officer to comply CT Page 8813 with the statutory dictates of14-227b were not sufficient grounds for overturning the commissioner's determination, after a hearing, that the essential elements of the statute had been proven and that the plaintiff's operator's license should be suspended. Id., 518, 521. Similarly, Balfore's alleged failure to comply with a regulation that he currently be certified to administer a breath analysis test would not be a basis for overturning the commissioner's decision in this case as long as there was evidence from which the commissioner reasonably could have concluded that the four prerequisites for suspension set forth in14-227b (f) had been demonstrated affirmatively.
(Footnotes omitted.) Id., 41. Here, there is evidence in the record that the officer was properly certified. (Return of Record (ROR), Respondent's Ex. 2.) Id.
The plaintiff also argues that she was unfairly deprived of her right to cross examine the officer at the hearing as to the functioning of the intoxilyzer because he failed to comply with the subpoena in not bringing the intoxilyzer log books. The subpoena reads,
AND you are further commanded to bring with you and produce at the same time and place:
1) All evidence relevant to case number 98-2023, including but not limited to, certification for the intoxilyzer CT Model 5000, SN 68 001703, certification of the operator of such analytical device, video tape (property control PC#076-98).
The officer appeared at the hearing with the three specified items. At the hearing plaintiff's counsel argued as follows before the hearing officer,
Secondly, I subpoenaed certain documents with regard to the machine. The respondent has brought me two certifications but has not brought any other documents. There is a regulation in this state
14-227 (a) 10(d) or (b) sub IV which states that a licensed operator can have his license suspended and this being the operator of the Intoximeter 5000 can have his certification suspended for failure to produce written or recorded matters directly relating to the breath test, and therefore there is a policy in the regulations that the documentation be supplied.MR. GOODBERG: What documentation are you referring to counselor? CT Page 8814
MR. WHITE: I'm referring to the logs of the machine which (inaudible) service repair, calibration.
(ROR, tr.
The logs were not specifically requested in the subpoena. The officer produced a copy of the requested recertification of the intoxilyzer. (ROR, Respondent's Ex. 3.) The record does not support the plaintiff s argument that she was prejudiced by not having the log books at the hearing. Jutkowitz v. Department ofHealth Services,
The plaintiff concludes by arguing that under Grimes v.Conservation Commission,
The commissioner's decision will not be overturned in light of the reliable, probative and substantial evidence in the record.
The appeal is dismissed.
DiPenbma, J.