204 Conn.App. 457
Conn. App. Ct.2021Background
- May 7, 2019: Kirshan Nandabalan was stopped after erratic driving; officer detected alcohol, observed slurred speech, and he failed field sobriety tests and was arrested.
- At Guilford PD the plaintiff was read rights and the Implied Consent advisory; he called an attorney. At ~11:23 p.m. officers asked for a breath test and, according to the police paperwork, he refused twice.
- Officer Sadiev completed Form A-44 marking two refusals and noting the refusal was verbal; a breath test strip was imprinted "test aborted refusal." Sergeant Jakober signed as witness.
- At the administrative hearing (June 7, 2019) both Officer Sadiev and the plaintiff testified; Sadiev said the plaintiff said "no," but could not recall the exact words he used to request the test. The plaintiff denied recall and was equivocal.
- The hearing officer found an express refusal, suspended the license 45 days and imposed a one-year ignition interlock. The trial court affirmed; this appeal followed challenging whether the record contained substantial evidence of a knowing refusal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the administrative record contained substantial evidence that Nandabalan knowingly refused a chemical breath test | A-44 lacked a factual narrative of the words/actions constituting a refusal (per Fernschild), and Sadiev could not recall his exact request, so evidence is only conclusory | A-44, police report, breath strip, and live testimony (Officer Sadiev saying plaintiff said "no" and plaintiff's equivocal testimony) furnish reliable, probative, substantial evidence of an express verbal refusal | Affirmed. Substantial evidence supported the finding of an express refusal; Sadiev's hearing testimony cured the A-44 narrative defect |
Key Cases Cited
- Fernschild v. Commissioner of Motor Vehicles, 177 Conn. App. 472 (Conn. App. 2017) (reversed where A-44 and records contained only conclusory refusal language without underlying facts describing words or conduct)
- Adams v. Commissioner of Motor Vehicles, 182 Conn. App. 165 (Conn. App. 2018) (held an express verbal refusal can suffice even if A-44 lacks a detailed narrative)
- Bialowas v. Commissioner of Motor Vehicles, 44 Conn. App. 702 (Conn. App. 1997) (when refusal is by conduct, police must document the conduct constituting refusal)
- Ives v. Commissioner of Motor Vehicles, 192 Conn. App. 587 (Conn. App. 2019) (articulates standard of deference to agency factfinding and substantial evidence review)
- Roy v. Commissioner of Motor Vehicles, 67 Conn. App. 394 (Conn. App. 2001) (describes the A-44 form and its use in reporting OUI arrests)