142 Conn. App. 361
Conn. App. Ct.2013Background
- Fitzgerald was arrested for operating a motor vehicle while under the influence after a deer-related collision and field sobriety tests.
- At the state police barracks, Fitzgerald refused to submit to a breath test, wanting to speak with his attorney first.
- Picheco advised testing could not be delayed, but Fitzgerald did not consent to testing.
- The officer recorded Fitzgerald's refusal around 2:35 a.m.; Fitzgerald was released about 2:50 a.m. where his attorney was present in the lobby.
- The commissioner suspended Fitzgerald's license for six months under § 14-227b, and the Superior Court upheld the decision.
- On appeal, Fitzgerald argued there was insufficient evidence of a refusal given his intent to consult an attorney; the appellate court rejected this and affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Fitzgerald refused the test under § 14-227b(g)(3) | Fitzgerald asserted he intended to consult an attorney before testing | Dalmaso controls; any failure to submit constitutes a refusal | Refusal upheld; Dalmaso controls |
| Whether right to consult attorney affects the four issues in § 14-227b(g) | Right to speak with attorney is relevant to inquiry | Hearing limited to four enumerated issues; right is not a dispositive factor | Limited four issues rule governs; right to attorney does not negate refusal |
| Whether Dalmaso governs despite not involving right to telephone an attorney | Distinct right to consult attorney should affect outcome | Dalmaso applies; consultation rights do not negate a refusal | Dalmaso controls; refusal still constitutes grounds for suspension |
Key Cases Cited
- Dalmaso v. Dept. of Motor Vehicles, 47 Conn. App. 839 (Conn. App. 1998) (right to consult attorney not material to four-issue licensing hearing; refusal sustained)
- Volck v. Muzio, 204 Conn. 507 (Conn. 1987) (hearing limited to four enumerated issues)
- Buckley v. Muzio, 200 Conn. 1 (Conn. 1986) (four-issue limitation; no broader review of testing consequences)
- Santiago v. Commissioner of Motor Vehicles, 134 Conn. App. 668 (Conn. App. 2012) (license suspension hearing expressly limited to § 14-227b(g) four issues)