DocketNumber: No. CV93 070 42 64
Citation Numbers: 1994 Conn. Super. Ct. 2394
Judges: MALONEY, J.
Filed Date: 3/8/1994
Status: Non-Precedential
Modified Date: 4/17/2021
On March 30, 1993, the Farmington police arrested the plaintiff, charging him with operating a motor vehicle while under the influence of alcohol in violation of
At the administrative hearing, the plaintiff appeared, represented by counsel, and the police officer who administered the intoximeter test also appeared and testified. Certain documentary evidence concerning the certification of the intoximeter machine and the certification of the police officer by the department of health services was also introduced in evidence.
Section
Upon receipt of the hearing officer's decision, the plaintiff petitioned the motor vehicle department for reconsideration, contending that the police had failed to test the intoximeter in accordance with applicable state regulations. The division chief of the motor vehicle department, acting in behalf of the commissioner, denied CT Page 2396 the plaintiff's petition. In his decision, the division chief stated
The intoximeter was checked for accuracy with an external standard immediately prior to and immediately after each test, and its internal standard was within the proper range. There is no probative evidence that the BAC test results are not accurate.
The plaintiff does not contest the fact that the intoximeter had been certified by the department of health services or that that certification was in effect at the time the machine was used in the plaintiff's case, nor does he contest the police officer's certification by the department as a qualified operator of the machine. He also does not dispute the fact that the police tested the machine for accuracy immediately prior to using it to measure the alcohol content of the plaintiff's blood and immediately thereafter. The sole basis of the plaintiff's appeal is that the police did not test the machine "at the beginning and no later than the end of (the) workday or shift" as provided in Regs. of State Agencies
The plaintiff's argument relies on the regulation quoted above and
Prior to 1988, both the regulation and the statute provided that machines be tested only at the beginning and end of the day. In 1988, however the legislature enacted Public Act 88-85, which repealed
"(L)ater enactments are presumed to repeal (or be inapplicable to) earlier inconsistent ones to the extent of the conflict, regardless of the specific or general character of the later enactment . . . The General Assembly is always presumed to know all of the existing statutes and the effect that its action or non-action will have upon any one of them. And it is always presumed to have intended that effect which its action or non-action produces." Plourde v. Liburdi,
In this case, the statute, as amended, prescribes a reasonable and effective procedure for checking alcohol/breath testing machines before and after their use, to ensure their accuracy. As the commissioner points CT Page 2398 out in his brief to the court in this appeal, the new statutory machine checking requirement is more rigorous and subject-specific than the prior requirement. In effect, it provides more protection to the individual from the risk of being tested by a faulty machine because the machine must be checked each time it is used regardless of the number of times it was checked previously during the same workday or shift. On the other hand, checking a machine at the beginning and end of each day would now be redundant; indeed, the plaintiff has pointed to nothing that might conceivably be discovered during such an exercise that the new statutory procedure would not reveal in any case, and more meaningfully. These practical consequences of the 1988 change in the statute support the defendant commissioner's position that the statute now supplants the regulation in prescribing the entire procedure for checking the breath testing machines.
The court holds that Public Act 88-85 repealed by implication the inconsistent requirement in the earlier regulation just as it explicitly repealed that same requirement in the earlier statute. The plaintiff may not, therefore, prevail on his argument that the police did not comply with the regulation. Since it is undisputed that the police did comply with the provisions of the statute, as amended by the Act, the plaintiff's objection to the admissibility of the breath test results was properly overruled by the motor vehicle department hearing officer.
At oral argument on this appeal, the plaintiff advanced the argument that the method employed by the police to check the machine was unreliable. He claimed that merely testing "ambient" air is insufficient and that it would be necessary to check an actual alcohol sample in order to verify the machine's capability. He did not dispute, however, that the police followed the method prescribed by the applicable health department regulations in performing the checks that they did.
The plaintiff's claims concerning the methods used by the police to check the accuracy of the intoximeter may well have merit. The court is in no position in this case, however, to evaluate those claims. No evidence was CT Page 2399 introduced at the administrative hearing on the subject, so there is nothing in the record to provide a factual basis in suppport [support] of the argument. Furthermore, the plaintiff did not include these claims in his complaint or in his brief to the court, and there was, for that reason, no opportunity for the defendant commissioner to respond.
The appeal is dismissed.
MALONEY, J.