DocketNumber: No. 701405
Citation Numbers: 1992 Conn. Super. Ct. 42, 8 Conn. Super. Ct. 250
Judges: CLIFFORD, J.
Filed Date: 1/10/1992
Status: Non-Precedential
Modified Date: 4/17/2021
FACTS
On September 16, 1989, at 4:13 P.M., the plaintiff was arrested by Officer Gallagher for operating while under the influence, in violation of Connecticut General Statutes, Section
The plaintiff was released from custody of the Newington Police Department at approximately 5:00 P.M. and at approximately 6:30 to 6:45 P.M, Mr. Lampugnale, the plaintiff's employer, drove the plaintiff back to the police department and then requested that the test now be given. The plaintiff was told that he could not then take the breath test. CT Page 43
The Department of Motor Vehicles timely notified the plaintiff of his right to an administrative hearing regarding the suspension of his operator's license. By notice dated February 23, 1990, the defendant Commissioner for the Department of Motor Vehicles ("Commissioner") notified plaintiff that pursuant to General Statutes
On August 7, 1990, plaintiff filed an application for a stay of the suspension during the pendency of his appeal. The stay was granted on August 7, 1990.
SCOPE OF JUDICIAL REVIEW
Pursuant to Section
"(1) Did the police officer have probable cause to arrest the person for manslaughter in the second degree with a motor vehicle or for assault in the second degree with a motor vehicle or for operating a motor vehicle while under the influence of intoxicating liquor or drug or both or while his ability to operate such motor vehicle was impaired by the consumption of intoxicating liquor; (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 and the results of such test or analysis indicated that at the time of the alleged offense the ratio of alcohol in the blood of such person was ten-hundredths of one per cent or more of alcohol, by weight; and (4) was such person operating the motor vehicle."
The limited scope of review authorized by law prohibits the court from substituting its judgment for that of the Commissioner of Motor Vehicles on questions of fact or concerning the weight to be given the evidence. As stated in Buckley v. Muzio,
"Judicial review of the commissioner's action is governed by the Uniform Administrative Procedure Act (General Statutes, c. 54,
ISSUES
In support of his appeal, the plaintiff argues:
1) There was not substantial evidence on the record to support a finding of refusal to take the test;
2) Since the plaintiff changed his mind and returned to the police station and requested the test, there thus was no refusal;
3) The plaintiff was not advised that his refusal could be used against him in any criminal prosecution; and
4) Procedural changes in
I. Refusal
The plaintiff argues that there was not substantial evidence on the record to support a finding of refusal to take the test in question. The plaintiff relies on Murchie v. DelPonte, 4 CTLR 281 (July 15, 1991, Dunnell, J.), where the court held that a refusal to sign an implied consent form does not constitute refusal to submit to testing under General Statute
In the case at hand, however, there was more evidence in the record to support a finding that the plaintiff refused to take the test than in the DelPonte case. Besides the testimony elicited at the hearing, state's exhibit C was admitted without objection and clearly indicates in narrative form that the plaintiff refused to take any test.
The plaintiff also argues that he did not refuse to take CT Page 45 the breath test because he returned to the police station more than an hour after his release from custody and was then willing to be tested.
The commissioner counters that General Statutes
Section
In Tomczyk v. DelPonte, 4 CTLR No. 2, 60 (May 3, 1991, Schaller, J.), the court noted that while the implied consent statute does not define "refuse," a DMV regulation,
A person shall be deemed to have refused to submit to a chemical analysis if he remains silent or does not otherwise communicate his assent after being requested to take a blood, breath or urine test under circumstances where a response may reasonably be expected.
"Words in a statute must be given their plain and ordinary meaning and be interpreted in their natural and usual meaning unless the context indicates that a different meaning was intended." All Brand Importers, Inc. v. Department of Liquor Control,
In Dorman v. DelPonte,
In the present case, the plaintiff was not uncooperative in taking the breath test. Instead, the plaintiff outrightly refused to take the test. If the results of the tests are to have any validity, certainly it is of the utmost importance that an arrestee be under continuous observation. To allow someone CT Page 46 to at first refuse the test, then come back to the police station over one hour later after a change of heart and after the alcohol content has dissipated somewhat, would obviously lead to absurd results.
II. Sufficiency of Warning
The plaintiff argues that he was not properly advised by the arresting officer that his failure to submit to a chemical test could be used against him in criminal proceedings. The plaintiff further maintains that the failure to use the operative language of General Statutes
Plaintiff relies on Tarascio v. Muzio,
The Commissioner argues that the plaintiff's claim is not reviewable because the sufficiency of the warning is not appealable under General Statutes
With respect to a license suspension hearing, whether or not an arresting officer informed the motorist of the consequences of a refusal to submit to chemical testing is not made one of the issues to be adjudicated pursuant to what is now subsection (f). Volck v. Muzio,
Furthermore, there is no requirement that the motorist understand the consequences of a refusal to submit to chemical testing as told to him by the arresting officer before his CT Page 47 license may be suspended. Buckley v. Muzio,
The issue of whether or not plaintiff was properly warned of the consequences of his refusal to take the chemical test is not one which must be considered in a license suspension hearing, and that failure to warn is not a ground upon which the appeal may be sustained. Therefore, the plaintiff's argument must fail.
III. Statutory Compliance
The plaintiff lastly argues that procedural changes in General Statutes 140-227b(b) effective January 1, 1990, have not been complied with. Therefore, the plaintiff maintains the decision of the Commissioner suspending plaintiff's license is ineffectual.
General Statutes (Rev. to 1989)
Upon receipt of such report of a first refusal, the commissioner of motor vehicles shall suspend any license or nonresident operating privilege of such person for a period of six months. Any person whose license or operating privilege has been suspended in accordance with this subsection shall automatically be entitled to an immediate hearing before the commissioner.
General Statutes (Rev. to 1991)
Upon receipt of such report, the commissioner of motor vehicles shall suspend any license or non-resident operating privilege of such person effective as of a date certain, which date shall be not later than thirty-five days after the date such person received notice of his arrest by the police officer . . . Any person whose license . . . has been suspended in accordance with this subsection shall automatically be entitled to a hearing before the commissioner to be held prior to the effective date of the suspension.
(emphasis added). CT Page 48
Conn. Pub. Acts 89-314, effective January 1, 1990, revised General Statutes
The Commissioner maintains that the administrative hearing was timely. The Commissioner contends that whether the time limits imposed by Conn. Pub. Acts 89-314 are procedural or substantive should not make a difference because the hearing is timely under both.
Since the version of General Statutes
For all of the foregoing reasons, the appeal is dismissed.
CLIFFORD, J.
Persico v. Maher , 191 Conn. 384 ( 1983 )
DiBenedetto v. Commissioner of Motor Vehicles , 168 Conn. 587 ( 1975 )
Lawrence v. Kozlowski , 171 Conn. 705 ( 1976 )
Riley v. State Employees' Retirement Commission , 178 Conn. 438 ( 1979 )
Burnham v. Administrator , 184 Conn. 317 ( 1981 )
C & H ENTERPRISES, INC. v. Commissioner of Motor Vehicles , 176 Conn. 11 ( 1978 )