478 A.2d 274 | Conn. Super. Ct. | 1984
Before the court is the plaintiff's appeal of the decision of a hearing officer appointed pursuant to the provisions of §
Those parts of General Statutes §
"(a) Any person who operates a motor vehicle in this state shall be deemed to have given his consent to a chemical analysis of his blood, breath or urine and, if said person is a minor, his parent or parents or guardian shall also be deemed to have given his consent.
"(b) If any such person having been placed under arrest for operating a motor vehicle under the influence of intoxicating liquor or any drug or both, and thereafter, after being apprised of his constitutional rights, having been requested to submit to a blood, breath or urine test at his option and having been informed that his license or nonresident operating privilege will be suspended in accordance with the provisions of subsections (d) and (e) of this section if he refuses to submit to such test, refuses to submit to any of such tests, the test shall not be given.
The plaintiff, who was later acquitted by a jury of the motor vehicle charge, has raised what he alleges to be several constitutional and procedural defects which, he asserts, should sustain his appeal and nullify the suspension order. Without addressing itself to each of the sundry claims, the court is persuaded that one of the issues advanced is dispositive of the appeal.
The court agrees with the defendant that the scope of the administrative hearing was limited to those matters specifically set forth in subparagraph (d) of General Statutes §
The record is clear that the arresting officer informed the plaintiff that he could submit to a blood or urine test. The record is also clear, and the defendant concedes, that the plaintiff, whose choice it was at the time in question,2 was not offered the option of a breath test. *288 In point of fact, the hearing officer specifically found that the officer had no equipment with which to administer a breath test.
The fact that the plaintiff was offered and refused to take a blood or urine test does not support "a determination," which the hearing officer was required to make, that the plaintiff refused to submit to a breath test. The evidence viewed at the administrative hearing simply does not support such a finding.
Although the general rule is that there is no requirement the operator be given his choice of tests; 7A Am.Jur.2d, Automobiles and Highway Traffic, § 305; the statute in question must be construed to carry out the legislature's intent which is to be ascertained from its own language. Houston v. Warden,
Among those jurisdictions which have considered similar arguments in matters of license suspension the position has been taken that the burden rests with the police agency to demonstrate that the arrested person was fully apprised of his statutory rights at the time of arrest. Adams v. Hardison,
It is the court's conclusion that the plaintiff was not afforded the option of a breath test. In the absence of notice to him, as required by statute, that such test was a choice available to him, it can hardly be said that the plaintiff was in a position to make an intelligent and informed judgment. Under the circumstances the plaintiff's refusal to submit to a blood or urine test does not present grounds for the suspension of his operator's license under the implied consent statute. See Adams v. Hardison, supra.
The order of the defendant suspending the plaintiff's motor vehicle operator's license is reversed, and judgment may enter for the plaintiff on his appeal.