722 A.2d 1237 | Conn. Super. Ct. | 1997
The plaintiff appeals from the decision of the defendant commissioner of motor vehicles suspending his license to operate a motor vehicle. Acting pursuant to General Statutes §
In this appeal the plaintiff argues that there are no competent, relevant or material facts on which the hearing officer made his subordinate findings in response to the court's remand order. He also argues that the hearing officer failed to set forth the specific findings on the crucial elements and failed to arrive at his findings by lawful procedure, within statutory authority of his agency and by reliance on reliable, probative and substantial evidence on the whole record. Specifically, he argues that the hearing officer improperly relied *491 on evidence not included in the record in making his subordinate findings as to the time of operation. He also argues that the hearing officer's findings as to the proper functioning of the intoxilyzer and statutory and regulatory compliance by the police are not supported by substantial evidence in light of the missing information on the A-44 form.
In its decision sustaining the appeal and remanding the case to the commissioner, the court, Maloney, J., found the following: "In the present case, the various forms furnished to the motor vehicle department by the arresting police officer indicate different times for the arrest, do not indicate precisely when the plaintiff was operating the vehicle, and essentially leave it to the reader-that is, the hearing officer-to make sense of them. Furthermore, the documents are the only evidence that the hearing officer had on which to base the decision. Under these circumstances, it was incumbent on the hearing officer to write a decision that sets forth specific findings on crucial elements-the time of operation, for a prime example-and explains how he arrived at those findings of fact on the basis of the poorly prepared police documents. The decision that the hearing officer did write in this case does not provide an adequate basis for the court's review."
The court then ordered the commissioner to render a new decision, based on the current record, that could affirm, modify or reverse the original decision. As the final order on remand, the court stated: "The new decision must clearly set forth specific findings of fact and conclusions of law."
On remand, the hearing officer rendered a new decision affirming the original decision and attached a page of subordinate findings of fact. Those findings are as follows: "The police officer who initiated the motor vehicle stop and subsequent arrest of the [plaintiff] and who provided the information for the A-44 form and *492 supplemental reports indicates he first observed the [plaintiff] traveling at excessive speed on October 10, 1996 at 0036 hours. The temporary license indicates a time of arrest of 0036 on October 10, 1996, which, on its face, appears inconsistent with the prearrest time reported on the A-44. It is common practice, however, for a police dispatcher to log the time an officer calls in a motor vehicle stop and that time is then generally used for all paperwork associated with the incident. I find nothing unusual or fatal with the time reported in this matter. The intoxilyzer 5000 readouts indicate the machine was functioning properly at the time the tests were conducted and the first test was completed on the [plaintiff] at 0119 on October 10, 1996, well within two hours of his being observed and stopped. Lastly, the police narrative report clearly states that the [plaintiff] was afforded an opportunity to contact a attorney before any breath tests were administered by the police. My conclusion is that all police procedures followed applicable statutes and regulations in this matter."
In an administrative appeal, it is the plaintiff's burden to prove that the commissioner's decision to suspend a motor vehicle operating privilege was clearly erroneous in view of the reliable, probative and substantial evidence on the whole record. Schallenkamp v. Del Ponte,
The plaintiff first argues that, in finding the time of operation, the hearing officer improperly relied on facts outside the current record. Specifically, the plaintiff refers to the sentence in the subordinate findings that states that "it is common practice for a police dispatcher to log the time an officer calls in a motor vehicle stop and that time is generally used for all paperwork associated with the incident." The defendant commissioner concedes that there was no evidence as to this common practice in the record. The parties agree that the court should disregard that subordinate finding. They disagree as to the effect of omitting that finding from the record. The plaintiff argues that there is insufficient evidence in the record as to the time of the operation, and the remaining subordinate findings of the hearing officer are unsupportable on this issue.
The hearing officer found that the police officer noted that the time when he saw the plaintiff's vehicle traveling at excessive speed was 0036 hours. He noted also that the time of arrest on the temporary license was 0036 hours. While these entries appear inconsistent, that inconsistency is not fatal. In Schallenkamp v. Del Ponte, supra,
While the hearing officer improperly included evidence not in the record, the subordinate findings other wise complied with the court's remand order in setting forth specific findings of fact and conclusions of law supported by the evidence in the original record. *495
The plaintiff also argues that the police officer's failure to check the box indicating that the analytical device for the chemical testing was certified and operated by a certified operator is fatal to the admissibility of the results. Schallenkamp v. DelPonte, supra,
"[O]ur Supreme Court has held that `even multiple failures on the part of an arresting officer to comply with the statutory dictates of §
The plaintiff also argues that he was deprived of due process of law because the hearing officer found that the plaintiff had the burden to subpoena the police *497
officer and because of the omissions from the A-44 form. As to the issue of subpoenaing the police officer, the hearing officer could properly rely on the record without the presence of the arresting officer, even with the conflicting information in the record. Accordingly, the plaintiff was not deprived of due process of law because the hearing officer did not subpoena the arresting officer. See Schallenkamp v.DelPonte, supra,
For the above reasons, the court dismisses the appeal.