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Moore v. Commissioner of Motor Vehicles

Court of Appeals of Connecticut

April 18, 2017

LARRY A. MOORE
v.
COMMISSIONER OF MOTOR VEHICLES

          Argued January 9, 2017

         Appeal from Superior Court, judicial district of New Britain, Schuman, J.

          Roy S. Ward, for the appellant (plaintiff).

          Charles H. Walsh, assistant attorney general, with whom, on the brief, was George Jepsen, attorney general, for the appellee (defendant).

          DiPentima, C. J., and Beach and Danaher, Js.

          OPINION

          BEACH, J.

         The plaintiff, Larry A. Moore, appeals from the judgment of the Superior Court dismissing his appeal from the decision of the defendant, the Commissioner of Motor Vehicles (commissioner). The decision ordered, pursuant to General Statutes § 14-227b (c), [1] a six month suspension of the plaintiff's license to operate a motor vehicle because of his refusal to submit to chemical alcohol testing following his arrest for driving under the influence. The plaintiff claims that (1) the hearing officer's finding that he refused to submit to the chemical alcohol test was not supported by substantial evidence and (2) his due process right to present a defense was violated. We disagree and, accordingly, affirm the judgment of the court.

         The record reflects that following the plaintiff's arrest for operating a motor vehicle while under the influence of alcohol on August 17, 2014, Trooper Peter Appiah of the state police prepared a report that stated the following. At approximately 2:24 a.m., the plaintiff was traveling at a rate of eighty-six miles per hour on a portion of Interstate 95 near Westport that had a posted speed limit of fifty-five miles per hour. Appiah stopped the car, and, after detecting a strong odor of alcohol on the plaintiff's breath, attempted to administer field sobriety tests. The plaintiff began to perform the horizontal gaze nystagmus test, which he did not perform to standard, and then refused to continue performing the test. After removing his shoes and socks, and complaining of an existing injury to a toe, the plaintiff refused to perform the walk and turn test, and then refused to perform the one-leg stand test. Appiah placed the plaintiff under arrest for driving under the influence of alcohol in violation of General Statutes § 14-227a and reckless driving in violation of General Statutes § 14-222. After the plaintiff was transported to the state police barracks in Bridgeport, he refused to submit to a chemical alcohol test. He further refused to sign any documents or to participate any further in the processing procedure. The plaintiff began to yell loudly, exhibited mood swings and engaged in erratic behavior, which included, at one point, performing push-ups in his cell.

         Pursuant to § 14-227b (c), Appiah completed an A-44[2] form detailing that the plaintiff was read the implied consent advisory section of the A-44 form and refused to take a chemical alcohol test. Appiah further indicated in the A-44 form that state police Trooper Thomas Ehret witnessed the refusal.

         The commissioner notified the plaintiff that his license was to be suspended for a period of six months and that he was entitled to a hearing. The plaintiff availed himself of his statutory right to contest the suspension at an administrative hearing. At the plain- tiff's request, the hearing was continued from September 10, 2014, to September 17, 2014. The hearing took place on September 17, October 8 and October 15, 2014.

         At the September 17, 2014 hearing, Appiah testified that he did not bring police video recordings of the plaintiff that had been requested in a subpoena duces tecum because he recently had been on vacation and had been working the midnight shift; he, therefore, had not had an opportunity to obtain the video recordings, but he said that he would make an effort to do so. He further testified that the contents of the A-44 form were true. Ehret testified that he had been present when the plaintiff was being processed, but that he did not directly witness the implied consent advisory being read to the plaintiff. He said that he had been processing another prisoner and that the reading of the advisory could have happened during that time. He testified, however, that he witnessed the plaintiff's refusal to submit to chemical alcohol testing. He stated that the petitioner ‘‘was very belligerent, yelling and screaming. My recollection was, he was in the group cell when he was asked to take the breath test, at which point he refused. He refused to sign anything. He refused to participate in anything.''

         At the October 8, 2014 hearing, Appiah said that he had tried to obtain the video recording sought in the subpoena duces tecum but that it had been destroyed thirty days after the August 17, 2014 arrest in accordance with the policy of the state police. On October 15, 2014, the plaintiff testified that he had asked Appiah for a breath test at the scene, in the police cruiser and while he was in the state police barracks, but that Appiah did not read the implied consent advisory to him and refused to administer a chemical alcohol test. The plaintiff did not ask the hearing officer to draw an adverse inference from the spoliation of the video recording.

         On October 16, 2014, the hearing officer issued a decision finding that (1) the arresting officer had probable cause to arrest the plaintiff, (2) the plaintiff was arrested, (3) the plaintiff refused to submit to chemical alcohol testing, (4) the plaintiff was operating a motor vehicle and that (5) the plaintiff was not younger than twenty-one years of age. The hearing officer made the subordinate finding that ‘‘Trooper Ehret did not testify that he did not witness refusal and, per report (section J of A-44), it is found that refusal was witnessed as required by General Statutes § 14-227b (c).'' The hearing officer ordered that the plaintiff's driver's license be suspended for six months.

         The plaintiff appealed to the Superior Court from the commissioner's decision suspending his operator's license. He claimed that the hearing officer's finding that the plaintiff refused the breath test was not supported by substantial evidence and that the plaintiff's right to due process was violated by Appiah's lack of compliance with the subpoena duces tecum requesting the production of a video recording of the plaintiff's alleged refusal to submit to chemical alcohol testing. See General Statutes § 4-183. On July 17, 2015, the court issued a written memorandum of decision in which it found that there was substantial evidence to support the hearing officer's finding of refusal. Applying the factors enunciated in State v.Asherman, 193 Conn. 695, 724, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S.Ct. 1749, 84 L.Ed.2d 814 (1985), pertaining to due process, the court found that the ...


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