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Huang Do v. Commissioner of Motor Vehicles

Appellate Court of Connecticut

April 19, 2016

ANGEL HUANG DO
v.
COMMISSIONER OF MOTOR VEHICLES

         Argued January 7, 2016

          Appeal from the decision of the defendant suspending the plaintiff's motor vehicle operator's license, brought to the Superior Court in the judicial district of Ansonia-Milford and transferred to the judicial district of New Britain, where the matter was tried to the court, Schuman, J.; judgment dismissing the appeal in part and remanding the matter for an articulation, from which the plaintiff appealed to this court.

          Reversed; judgment directed.

          SYLLABUS

         The plaintiff, who had been arrested for operating a motor vehicle while under the influence of intoxicating liquor in violation of statute (§ 14-227a), appealed to the trial court from the decision of the defendant Commissioner of Motor Vehicles suspending the plaintiff's motor vehicle operator's license for ninety days pursuant to statute (§ 14-227b). At the administrative hearing, no testimony was presented, but the Department of Motor Vehicles offered into evidence as an exhibit a standard A-44 form that was completed by the arresting officer, B, together with B's investigation report and the results of the breath analysis tests that he administered to the plaintiff. The plaintiff objected to the admission of the exhibit on the ground that it was unreliable because the documents contained numerous discrepancies and errors. The hearing officer admitted the exhibit into evidence, finding that the discrepancies and errors amounted to scrivener's errors that pertained only to the weight to be afforded the exhibit. The plaintiff appealed to the trial court, challenging, inter alia, the hearing officer's admission of the exhibit. The trial court rendered judgment dismissing in part the plaintiff's appeal, concluding that the hearing officer did not abuse his discretion by admitting the exhibit because it was sufficiently reliable. Thereafter, the plaintiff appealed to this court.

         Held :

         1. The trial court improperly concluded that the hearing officer did not abuse his discretion by admitting the exhibit into evidence, the numerous discrepancies and errors in the documents having rendered the exhibit unreliable: contrary to the hearing officer's finding, the extent of the discrepancies and errors far surpassed mere scrivener's errors, and, therefore, they substantially undermined the exhibit's reliability and established that the exhibit did not meet the requirement under § 14-227b (c) that the arresting officer swear under oath to the accuracy of the A-44 form, as, they indicated that, at most, B swore to the accuracy of only certain portions of the exhibit; moreover, because the plaintiff objected to the admission of the exhibit and raised serious questions regarding its reliability, it was the department's burden to produce sufficient evidence to demonstrate the reliability of the exhibit, which it failed to do.

         2. The trial court improperly failed to sustain the plaintiff's appeal, the record having lacked substantial evidence to support the hearing officer's determination that the plaintiff had violated § 14-227a; without the improperly admitted exhibit, the department failed to meet its burden to provide substantial evidence that the plaintiff violated § 14-227a, as the department offered no evidence other than the exhibit at the administrative hearing.

         Chet L. Jackson, for the appellant (plaintiff).

         Drew S. Graham, assistant attorney general, with whom, on the brief, was George Jepsen, attorney general, for the appellee (defendant).

         Gruendel, Prescott and Bear, Js.[*] PRESCOTT, J. In this opinion GRUENDEL, J., concurred.

          OPINION

          PRESCOTT, J.

          [164 Conn.App. 618] " It is axiomatic that administrative tribunals are not strictly bound by the rules of evidence. . . . [T]hey may consider exhibits [that] would normally 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 judgment 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 hearing officer did not abuse his discretion by admitting into evidence an unreliable A-44 form and its attachments.[1]

          [164 Conn.App. 619] 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. Specifically, 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 evidence 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 unnecessary to reach the plaintiff's alternative claim. Accordingly, we reverse the judgment of the trial court and remand the case with direction to render judgment sustaining the plaintiff's appeal.

         The following facts and procedural history are relevant to the plaintiff's appeal. On April 24, 2014, the [164 Conn.App. 620] 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 unreliable because it contained numerous errors and discrepancies. 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 admissibility, and admitted the exhibit into evidence.

         The hearing officer, acting on behalf of the commissioner, 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 [164 Conn.App. 621] 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 Superior 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 inadmissible, but, because of conflicting information in the exhibit regarding the motor vehicle involved, it remanded the case to the hearing officer for an articulation as to which motor vehicle the hearing officer concluded 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 concluded that the hearing officer did not abuse his discretion by admitting the exhibit into evidence. Specifically, the plaintiff argues that the numerous errors and discrepancies 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 [164 Conn.App. 622] the exhibit because the number of obvious discrepancies 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 operated was a Mercedes-Benz with a Connecticut registration plate.

         Additionally, in section B of the A-44 form, the incident 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 information 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 [164 Conn.App. 623] 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, however, agreed with the department that these discrepancies 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 admitting the [exhibit]."

         We begin by setting forth the relevant standard of review and legal principles that guide our analysis. We [164 Conn.App. 624] review a hearing officer's evidentiary ruling for whether " the [agency] has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion." (Internal quotation marks omitted.) Gagliardi v. Commissioner of Children & Families, supra, 155 Conn.App. 618. " It is axiomatic that administrative tribunals are not strictly bound by the rules of evidence. . . . [T]hey may consider 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 justice." 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 Statutes." Section 14-227b (c) provides in relevant part that the A-44 form " shall contain such information as prescribed 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 [164 Conn.App. 625] the grounds for the officer's belief that there was probable cause to arrest such person for a violation of subsection (a) of [§ ] 14-227a and shall state that such person . . . submitted to such [sobriety] 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. . . ."

         In Volck v. Muzio, 204 Conn. 507, 518, 529 A.2d 177 (1987), our Supreme Court held that the " evident purpose [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 necessity of producing the arresting officer." The court, therefore, concluded that if an A-44 form does not comply with subsection (c), it is unreliable and, thus, inadmissible, 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 exception 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, [164 Conn.App. 626] 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 ยง 14-227b (c) is a necessary prerequisite to a determination that an A-44 form is sufficiently reliable to be admitted into evidence. Neither 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 ...


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