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Clark v. Commissioner of Motor Vehichles

Court of Appeals of Connecticut

July 17, 2018

JAMES P. CLARK
v.
COMMISSIONER OF MOTOR VEHICLES

          Argued February 14, 2018

         Procedural History

         Appeal from the decision of the defendant suspending the plaintiff's motor vehicle operator's and commercial driver's licenses, brought to the Superior Court in the judicial district of New Britain and tried to the court, Huddleston, J.; judgment dismissing the appeal; thereafter, the court denied the plaintiff's motion to reargue or for reconsideration, and the plaintiff appealed to this court. Affirmed.

          Jack G. Steigelfest, with whom was Christopher M. Harrington, for the appellant (plaintiff).

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

          DiPentima, C. J., and Elgo and Eveleigh, Js.

          OPINION

          DIPENTIMA, C. J.

         When a driver is suspected of operating a motor vehicle while under the influence of alcohol, our statutes require that law enforcement commence any consensual chemical alcohol tests within two hours of such operation. Otherwise, the results of those tests, although ostensibly valid, are neither admissible nor competent evidence of operation under the influence. In an administrative appeal from the suspension of both his standard and commercial operator's licenses, the plaintiff, James P. Clark, challenged, among other things, the finding of the defendant, the Commissioner of Motor Vehicles (commissioner), [1] that his failed chemical alcohol tests were timely. The Superior Court was not persuaded and dismissed his appeal. The plaintiff now appeals, claiming that the court improperly (1) determined that there was substantial evidence in the record to support a finding that there was probable cause to arrest him for operating a motor vehicle while under the influence of alcohol, and (2) denied his motion to reargue or for reconsideration. We disagree and, accordingly, affirm the judgment of the Superior Court.

         The court summarized the facts before the commissioner and procedural history as follows: ‘‘On the evening of February 10, 2016, the fire chief of the Hebron Fire Department observed a Volkswagen Passat off the roadway at the intersection of New London Road (Route 85) and Lake Hayward Road in Colchester. He saw a man, later determined to be the plaintiff, in the driver's seat. The fire chief approached the vehicle and asked whether the plaintiff was all right. The plaintiff replied that he had [the American Automobile Association (AAA)] en route, and he was okay. The fire chief then returned to his own vehicle and notified the state police of the accident at approximately [9:38 p.m.]

         ‘‘At [9:41 p.m.], two state police officers were dispatched to the accident scene. Upon arrival, the officers found an unoccupied Volkswagen and deduced from tracks in deep snow that it had been traveling north on Route 85 when its operator disregarded a stop sign at the intersection, crossed over the intersection and crashed into a snowbank at the northeast corner of the intersection, continuing approximately 65.2 feet from the road to its point of final rest. An advertising sign for ‘NuNu's Bistro' was subsequently found in the snow beneath the Volkswagen, indicating that the vehicle had struck and snapped off the sign as it traveled into the snowbank. The arresting officer, Bryan Kowalsky, noted that the intersection was a well marked major intersection in Colchester, with four-way stop signs and a flashing red light above the intersection. The intersection was in a very heavily traveled area. The road was dry and no adverse weather conditions were present.

         ‘‘Kowalsky ran the vehicle's license plate number to obtain information about its owner. He then went to the address of the plaintiff, who was the owner of the vehicle, to find out who had been operating the vehicle and whether there were any injuries. He arrived there at approximately [10 p.m.] The plaintiff was not home. His wife answered the door and spoke briefly with Kowalsky. She told him that her husband ‘is driving the Volkswagen' and that ‘he was on his way to pick up their [fifteen] year old daughter from Doreen's dance studio in Colchester.' . . . Kowalsky testified that the dance studio is located ten to fifteen minutes from the plaintiff's home. Kowalsky informed the plaintiff's wife that the Volkswagen had been in an accident and the operator was not with the Volkswagen.

         ‘‘A moment[2] after Kowalsky began to speak with the plaintiff's wife, he saw a black pickup truck pull into the driveway. The plaintiff's teenaged daughter got out and came into the house. The plaintiff's wife asked her what had happened. She said that she wasn't in the car and that ‘[the plaintiff] came and picked [her] up from dance [class] in the truck.' . . .

         ‘‘Kowalsky then saw the plaintiff get out of the passenger's seat of the truck. The plaintiff entered the house through a back door. Kowalsky asked if he had been involved in an accident that evening. The plaintiff replied that he had spun off the road and hit a snowbank. He said he called AAA and then left, ‘figuring they would come get the car.' . . . Kowalsky asked why he had not stopped to talk with police at the scene when he rode past on his way home the second time, but the plaintiff had no response. When asked if he had had anything to drink that evening, the plaintiff answered that he had had a few drinks. The plaintiff's speech was slurred, his eyes were glazed, and an odor of alcohol emanated from his person.

         ‘‘Kowalsky asked the plaintiff to complete certain tasks, including a finger counting test, reciting the alphabet from C to T without singing, and counting down from [thirty-seven] to [thirteen]. The plaintiff was unable to complete these tasks and expressed disbelief that he could not do them.

         ‘‘Kowalsky then asked him to step outside to complete three standard field sobriety tests. The plaintiff failed all three tests. Kowalsky placed him under arrest for driving under the influence and took him to Troop K for processing. After speaking with an attorney by telephone, the plaintiff agreed to take a breath test. While Kowalsky was processing him, the plaintiff told Kowalsky that he had been drinking at Toyo, a restaurant north of the intersection where he drove off the road, from about [2:30 p.m.] that afternoon. He said he last ate at [2:30 p.m.], and then had about five beers and a couple of glasses of wine. He said he finished drinking at [8:30 p.m.] He said he had been at the restaurant catching up with an old friend and was on his way home when his wife called him and asked him to pick up their daughter from dance class. He said that he should have just continued on his way home rather than turning around to go get his daughter.

         ‘‘Kowalsky commenced the breath test at [11:05 p.m.], obtaining a reading of .1564. He repeated the test at [11:25 p.m.], obtaining a reading of .1570. The plaintiff was then charged with violations of General Statutes § 14-301 (failure to obey a stop sign); [General Statutes] § 14-224b (evading responsibility); [General Statutes] § 14-12 ...


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