45 Conn. App. 577 | Conn. App. Ct. | 1997
Opinion
The plaintiff appeals from the judgment of the trial court affirming the decision of the commissioner of motor vehicles (commissioner) to suspend his license pursuant to General Statutes § 14-227b
The following facts are necessary for a proper resolution of this appeal. On July 8, 1995, at approximately 10 p.m., the plaintiff was involved in a motor vehicle accident in Groton. The plaintiff, who had been operating the vehicle, exchanged seats with a woman passenger before the arresting police officer arrived.
The plaintiff requested an administrative hearing. After the hearing, the hearing officer determined affirmatively, pursuant to § 14-227b (f),
I
The plaintiff first claims that the police report, prepared and filed by the arresting officer, should not have been admitted into evidence because it relied on hearsay. He specifically argues that because the arresting officer did not personally observe the accident or the plaintiff operating the vehicle, and relied on the statements of two eyewitness bystanders, his A-44 report form and the narrative supplement to it, which included an admission by the plaintiff that he was operating the motor vehicle at the time of the accident, should not have been admitted as evidence. We disagree.
“The plaintiff bears the burden of demonstrating that a hearing officer’s evidentiary ruling is arbitrary, illegal or an abuse of discretion. Connecticut Natural Gas Corporation v. Public Utilities Control Authority, 183 Conn. 128, 139, 439 A.2d 282 (1981).” O’Sullivan v. DelPonte, 27 Conn. App. 377, 382, 606 A.2d 43 (1992). The plaintiff has failed to sustain his burden.
The provisions of General Statutes § 14-227b (c)
Moreover, we have previously determined that a police report containing the hearsay statements of witnesses may be properly admitted at such an administrative hearing without requiring the witnesses’ presence at the hearing. See O’Sullivan v. DelPonte, supra, 27 Conn. App. 381. While police reports are normally admissible under the business records exception to the hearsay rule, statements of witnesses repeated in the report do not fall within this exception. Hutchinson v. Plante, 175 Conn. 1, 4-5, 392 A.2d 488 (1978). The plaintiffs statement, however, contained in that report is admissible as an admission. See Swenson v. Sawoska, 215 Conn. 148, 151, 575 A.2d 206 (1990). Furthermore, hearsay evidence itself is not prohibited in administrative proceedings by the Uniform Administrative Procedure Act, General Statutes § 4-166 et seq., which permits the introduction of oral or documentary evidence.
II
The plaintiff next claims that the evidence was insufficient to support the finding that probable cause existed to arrest him. We do not agree.
The arresting officer, on the basis of current information from an eyewitness bystander that a motor vehicle had been involved in an accident and that the driver was attempting to evade responsibility, detained the plaintiffs vehicle, which had fresh damage to the left rear bumper. The officer asked the plaintiff, who was identified by two witnesses as the driver and who eventually admitted to being the operator, to exit the automobile. On the bases of the information supplied and his own observation of the plaintiff, including the plaintiffs performance of a field sobriety test, the officer arrested him for operating a motor vehicle while under the influence of intoxicating liquor. See Clark v. Muzio, 14 Conn. App. 212, 213, 540 A.2d 1063, cert. denied, 208 Conn. 809, 545 A.2d 1105 (1988). “Probable cause exists when the facts and circumstances within the knowledge of
Ill
The plaintiff argues that the evidence was insufficient to support a determination that he refused to submit to the blood alcohol test. He argues that, although the A-44 report form contained a statement that he refused to submit to such a test, along with the name and signature of a witness to the refusal, there is no “factual explanation, description or basis for that conclusion” and the hearing officer could not make that a separate finding of fact. We do not agree.
The record before the hearing officer supports the determination that the police officer fully explained the testing procedure to the plaintiff and the consequences of a refusal to take the test, and that the plaintiff refused to take the test. The trial court noted “that there was no other evidence for the hearing officer to consider in this case. In particular, there was no evidence to contradict any of the evidence that was contained in the police report.” The evidence presented, therefore, would clearly support a finding that the plaintiff failed to take the test because he refused to do so. Any claim that the plaintiff failed to take the test because he was incapable is not supported by the record.
The judgment is affirmed.
In this opinion the other judges concurred.
The plaintiffs license was suspended for a period of two years pursuant to General Statutes § 14-227b (h) due to his refusal to submit to a chemical alcohol test following his arrest for operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a.
The passenger, Maria Paquette, was the registered owner of the vehicle. Although the police officer did not personally observe the accident or the plaintiff operating the vehicle, two witnesses informed him that the plaintiff was operating the vehicle at the time of the accident. The plaintiff later admitted to the officer that he was operating the vehicle.
The plaintiff was unable to perform successfully the horizontal gaze nystagmus, the walk-turn and the finger to nose tests. He refused to perform the one-leg stand test.
General Statutes § 14-227b (a) provides in relevant part: “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 . . . .”
The A-44 report form is a form approved by the department of motor vehicles for processing individuals arrested for driving while under the influence of intoxicating liquor.
General Statutes § 14-227b (f) provides in relevant part: “The hearing shall be limited to a determination of the following issues: (1) Did the police officer have probable cause to arrest the person for operating a motor vehicle while under the influence of intoxicating liquor or drag or both or while his ability to operate such motor vehicle was impaired by the consumption of intoxicating liquor; (2) was such person placed under arrest; (3) did such person refuse to submit to such test or analysis or did such person submit to such test or analysis, commenced within two hours of the time of operation, and the results of such test or analysis indicated that the ratio of alcohol in the blood of such person was ten-hundredths of one per
General Statutes § 14-227b (c) provides in relevant part: “The police officer shall prepare a written report of the incident. . . on a form approved by the Commissioner of Motor Vehicles and shall be subscribed and sworn to under penalty or false statement ... by the arresting officer. . . .”
Section 14-227b-19 of the Regulations of Connecticut State Agencies provides that the written report filed by the arresting officer shall be admissible into evidence at the hearing if it conforms to the requirements of General Statutes § 14-227b (c).
We recognize, however, that “[i]f hearsay evidence is insufficiently trustworthy to be considered ‘substantial evidence’ and it is the only evidence probative of the plaintiffs culpability, its use to support the agency decision would be prejudicial to the plaintiff, absent a showing . . . that the appellant knew it would be used and failed to ask the commissioner to subpoena the declarants.” Carlson v. Kozlowski, 172 Conn. 263, 267, 374 A.2d 207 (1977). In the present case, the police officer included in his report of the incident the statements of eyewitnesses. The plaintiff knew the report existed and was highly likely to be introduced at the hearing. He, neverthe