164 Conn. App. 616
Conn. App. Ct.2016Background
- Angel Huang Do was arrested April 24, 2014 for OUI; breath tests showed BACs of .1184 and .1186. Department introduced an A-44 police report (with attached investigation narrative and breath results) at the §14-227b license-suspension hearing; no live testimony was offered.
- Do objected to the A-44's admission, arguing numerous internal errors and alterations (conflicting vehicle make/year/registration, altered date initials “RH”, contradictory statements about contact lenses, and a crossed-out witness claiming refusal despite breath test results).
- Hearing officer admitted the A-44 over Do’s objection, finding discrepancies went to weight not admissibility, and made the four statutory findings required by §14-227b(g), suspending Do’s license for 90 days.
- Do appealed to Superior Court; that court upheld admissibility but remanded to the agency for articulation on which vehicle the hearing officer concluded Do operated.
- Appellate court majority reversed: it held the A-44 was inadmissible because cumulative internal discrepancies and unexplained alterations destroyed its reliability; without the A-44 there was no substantial evidence to support suspension.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of A-44 report | The A-44 contains numerous significant internal inconsistencies and unsigned/unalleged alterations that render it unreliable and inadmissible. | The A-44 bears the arresting officer’s sworn signature and meets §14-227b(c)’s indicia of reliability; discrepancies are scrivener’s errors going to weight. | A-44 was inadmissible: cumulative, significant discrepancies and unexplained alterations undermined oath/accuracy; hearing officer abused discretion. |
| Burden to prove admissibility after timely objection | Do: proponent (department) must prove admissibility once the report’s reliability is challenged; Do cannot be required to produce other reports. | Commissioner: plaintiff should have produced the prior A-44 or additional proof; inconsistencies speculative without proof. | Burden lies on proponent (department) to establish admissibility when reliability is timely objected to; Do was not required to obtain records beyond her control. |
| Whether any other substantial evidence supports suspension | Do: without the A-44, there is no other evidence in the record to support findings under §14-227b(g). | Commissioner: overlapping, corroborating parts of the report and breath results supply substantial evidence despite some errors. | Without the A-44 (inadmissible), record contains no substantial evidence to support the suspension; judgment sustaining appeal directed. |
| Remand vs. outright relief | Do sought reversal and sustaining of appeal. | Trial court remanded for articulation; commissioner did not cross-appeal that remand order. | Majority: unnecessary to reach remand issue because A-44 inadmissible and judgment reversed; directed court to render judgment sustaining Do’s appeal. |
Key Cases Cited
- Gagliardi v. Commissioner of Children & Families, 155 Conn.App. 610 (Conn. App. 2015) (administrative tribunals not strictly bound by evidentiary rules but must admit reliable, probative evidence)
- Volck v. Muzio, 204 Conn. 507 (Conn. 1987) (§14-227b(c) designed to supply indicia of reliability so A-44 may be admitted without officer testimony)
- Winsor v. Commissioner of Motor Vehicles, 101 Conn.App. 674 (Conn. App. 2007) (an A-44 that fails §14-227b(c) may be inadmissible absent other substantial evidence)
- Bialowas v. Commissioner of Motor Vehicles, 44 Conn.App. 702 (Conn. App. 1997) (hearsay in administrative hearings must be sufficiently reliable)
- Roy v. Commissioner of Motor Vehicles, 67 Conn.App. 394 (Conn. App. 2001) (credibility and weight determinations lie with hearing officer)
- Carlson v. Kozlowski, 172 Conn. 263 (Conn. 1977) (administrative hearsay must be sufficiently reliable; Richardson v. Perales factors adopted)
- Richardson v. Perales, 402 U.S. 389 (U.S. 1971) (factors for determining reliability of hearsay medical records in administrative hearings)
- New England Savings Bank v. Bedford Realty Corp., 238 Conn. 745 (Conn. 1996) (burden on proponent to establish admissibility of evidence when timely objected to)