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HART PRENDERGAST v. COMMISSIONER

OF MOTOR VEHICLES

(AC 38895)

Lavine, Keller and Pellegrino, Js.

Argued January 5—officially released April 25, 2017

(Appeal from Superior Court, judicial district of New

Britain, Schuman, J.)

Malaina J. Sylvestre, certified legal intern, with

whom was Kristi Thomaston, for the appellant

(plaintiff).

Christine Jean-Louis, assistant attorney general,

with whom, on the brief, was George Jepsen, attorney

general, for the appellee (defendant).
Opinion

PELLEGRINO, J. The plaintiff, Hart Prendergast,

appeals from the judgment of the Superior Court dismissing his appeal from the decision of the defendant,

the Commissioner of Motor Vehicles, suspending his

license to operate a motor vehicle pursuant to General

Statutes § 14-227b. The plaintiff claims that the court

improperly (1) found that there was substantial evidence in the record to support a finding that there was

probable cause to arrest him for operating a motor

vehicle while under the influence of alcohol or intoxicating liquor or drugs, and (2) concluded that his due

process rights were not violated when the hearing officer continued the hearing to subpoena the police officers involved in the plaintiff’s arrest. We affirm the

judgment of the court.

The following facts are relevant to our disposition of

this appeal. On March 27, 2015, at approximately 10:46

p.m., Trooper Josue J. Dorelus of the state police

responded to a two car collision on the southbound

side of Route 15 near exit sixty-one in Hamden. While

responding, he learned that one of the vehicles had

left the scene of the accident. Upon arrival, Dorelus

observed damage to the right side of the remaining

vehicle. The operator of the vehicle told Dorelus that

his vehicle was sideswiped by what he believed to be

a blue sedan.

Shortly before midnight that night, Hamden police

received a call about a suspicious vehicle on Marietta

Street in Hamden. The caller had seen the car ‘‘come

in and park.’’ Hamden police responded and observed

the car with four flat tires, parked in the middle of the

road with the operator asleep at the wheel.

When Hamden police put out a dispatch about the

vehicle, the state police responded, and the officers

concluded that they had located a vehicle matching

the description of the evading vehicle from the earlier

accident on Route 15. Dorelus received a state police

dispatch about the matter at 12:11 a.m. At approximately 12:30 a.m., Dorelus arrived at the scene, which

was the intersection of Marietta Street and Dixwell

Avenue in Hamden, a location immediately off Route

15. Upon Dorelus’ arrival, Hamden police informed him

that they had found a blue Nissan Altima that appeared

to have been in a recent collision. They added that the

operator, who appeared to be incapacitated and under

the influence of alcohol, was sitting in the driver’s seat

with the key fob in his pocket. The motor, however,

was not running at the time.

Dorelus observed that the damage to the vehicle was

consistent with the description provided by the accident

victim. The car was in a stopped position facing southbound. The person in the operator’s seat, lateridentified

as the plaintiff, told Dorelus that he was traveling from
Meriden and arrived at the location. Dorelus observed

that the plaintiff had ‘‘a disheveled appearance’’ and

had vomit on the collar of his jacket. As the plaintiff

spoke, Dorelus detected an odor of alcohol emanating

from his breath, and his eyes appeared to be bloodshot

and glassy.

The plaintiff subsequently failed one standardized

field sobriety test and declined to take two others. At

approximately 12:45 a.m., Dorelus placed the plaintiff

under arrest for operating a motor vehicle under the

influence of alcohol. At the police station, the plaintiff

verbally refused to submit to a breath test for alcohol.

On May 6 and May 27, 2015, the Department of Motor

Vehicles conducted a hearing to determine whether to

suspend the plaintiff’s license pursuant to § 14-227b.1

On May 27, 2015, the hearing officer rendered a written

decision finding that the plaintiff was operating a motor

vehicle, that there was probable cause to arrest the

plaintiff for operating under the influence, and that the

plaintiff refused to submit to a chemical test. On the

basis of these findings, as well as the fact that the

plaintiff had a prior license suspension, the hearing

officer suspended the plaintiff’s license for one year.

See General Statutes § 14-227b (i) (2) (C).

The plaintiff appealed from the decision of the hearing officer to the court pursuant to General Statutes

§ 4-183. On appeal, the plaintiff challenged the hearing

officer’s findings (1) that the police officers had probable cause to arrest him for operating a motor vehicle

while under the influence of intoxicating liquor, and

(2)that he was operating the motor vehicle. The plaintiff

claimed that the administrative record lacked substantial evidence to support these findings. Additionally,

the plaintiff claimed that his right to due process of

law was violated when the hearing officer, over the

plaintiff’s objection, continued the hearing in order to

subpoena the arresting officer. The court affirmed the

hearing officer’s decision and dismissed the plaintiff’s

appeal. This appeal followed. Additional facts will be

set forth as necessary.

We first set forth our standard of review. ‘‘[J]udicial

review of the commissioner’s action is governed by the

Uniform Administrative Procedure Act [(act), General

Statutes §§ 4-166 through 4-189], and the scope of that

review is very restricted. . . . [R]eview of an administrative agency decision requires a court to determine

whether there is substantial evidence in the administrative record to support the agency’s findings of basic

fact and whether the conclusions drawn from those

facts are reasonable. . . . Neither this court nor the

trial court may retry the case or substitute its own

judgment for that of the administrative agency on the

weight of the evidence or question of fact. . . . Our

ultimate duty is to determine, in view of all of the evidence, whether the agency, in issuing its order, acted
unreasonably, arbitrarily, illegally or in abuse of its discretion. . . .

‘‘The substantial evidence rule governs judicial

review of administrative fact-finding under the [act].

[See] General Statutes § 4-183 (j) (5) and (6). An administrative finding is supported by substantial evidence if

the record affords a substantial basis of fact from which

the fact in issue can be reasonably inferred. . . . The

substantial evidence rule imposes an important limitation on the power of the courts to overturn a decision

of an administrative agency . . . .

‘‘It is fundamental that a plaintiff has the burden of

proving that the commissioner, on the facts before him,

acted contrary to law and in abuse of his discretion [in

determining the issue of probable cause]. . . . The law

is also well established that if the decision of the commissioner is reasonably supported by the evidence it

must be sustained. . . .

‘‘We have stated that [p]robable cause, broadly

defined, comprises such facts as would reasonably persuade an impartial and reasonable mind not merely

to suspect or conjecture, but to believe that criminal

activity has occurred. . . . Reasonable minds may disagree as to whether a particular[set of facts] establishes

probable cause. . . . Thus, the commissioner need

only have a substantial basis of fact from which [it] can

be inferred . . . that the evidence in the administrative

record supported a finding of probable cause with

respect to the plaintiff’s violation of [General Statutes]

§ 14-227a.’’ (Citations omitted; internal quotation marks

omitted.) Murphy v. Commissioner of Motor Vehicles,

254 Conn. 333, 343–44, 757 A.2d 561 (2000).

I

The plaintiff first claims that there was insufficient

evidence in the record to establish that Dorelus had

probable cause to believe that the plaintiff operated his

motor vehicle while under the influence of intoxicating

liquor or drugs in violation of § 14-227a.2 He argues that

because he was not operating his motor vehicle at the

time the police found him, the record lacked substantial

evidence to support a finding that the police had probable cause to arrest him for operating a motor vehicle

while under the influence. We are not persuaded.

‘‘It is well settled that operating encompasses a

broader range of conduct than does driving.’’ (Internal

quotation marks omitted.) State v. Lee, 138 Conn. App.

420, 434, 52 A.3d 736 (2012), cert. granted on other

grounds, 321 Conn. 911, 136 A.2d 644 (2016). ‘‘[T]here

is no requirement that the fact of operation be established by direct evidence.’’ Murphy v. Commissioner

of Motor Vehicles, supra, 254 Conn. 345. Our Supreme

Court has observed that ‘‘[t]here is no distinction

between direct and circumstantial evidence [so] far as

probative force is concerned . . . . In fact, circum-
stantial evidence may be more certain, satisfying and

persuasive than direct evidence.’’ (Citation omitted;

internal quotation marks omitted.)Id., 345 n.14. In order

for an arresting officer to have probable cause to arrest

someone for a violation of § 14-227a, there must be a

‘‘temporal nexus between liquor and operation.’’ Murphy v. Commissioner of Motor Vehicles, 54 Conn. App.

127, 132, 733 A.2d 892 (1999), rev’d, 254 Conn. 333, 757

A.2d 561 (2000).3

‘‘Although the police officer may draw

any reasonable, logical inferences from the facts

observed, he may not resort to mere speculation or

conjecture, particularly . . . where there is no evidence of a temporal nexus between liquor and operation.’’ Id.

Applying these standards, we conclude that there is

substantial evidence in the record to support a finding

that Dorelus had probable cause to arrest the plaintiff

for operating a motor vehicle while under the influence

of liquor or drugs. Dorelus could reasonably and logically infer, on the basis of the facts known to him at

the time of the arrest, that the plaintiff had consumed

alcohol and had operated his motor vehicle. When the

plaintiff was found asleep inside his vehicle, he displayed signs of intoxication.4 He admitted that he had

traveled from Meriden to Hamden. The plaintiff’s car

had four flat tires and was parked in the middle of a

street located immediately off Route 15. The car had

damage that was consistent with the description of the

damage to the car sideswiped on Route 15 less than

two hours before. On the basis of these facts, it was

not mere speculation or conjecture for Dorelus to infer

that the plaintiff had operated his vehicle while under

the influence of liquor. Additionally, the damage to the

plaintiff’s vehicle was consistent with the accident that

had occurred less than two hours before the plaintiff

was found by the police, which supports the hearing

officer’s finding that there was a temporal nexus

between the plaintiff’s consumption of liquor and operation of his vehicle.5 Accordingly, the plaintiff’s first

claim fails.

II

The plaintiff next argues that he was deprived of his

right to due process of law when the hearing officer

continued his case in order to subpoena the police

officers to testify about his arrest. The plaintiff argues

that because the defendant already had rested his case,

the hearing officer lacked the discretion to continue

the case and subpoena the police officers, and that

the plaintiff was thereby deprived of his right to due

process. We disagree.

The following additional facts are relevant to our

analysis of this claim. The initial administrative hearing

for the petitioner’s case took place on May 6, 2015. Only

the hearing officer and counsel for the plaintiff were

present at this hearing. The hearing officer, on behalf
of the defendant, introduced the police reports from

the plaintiff’s arrest. He then stated, ‘‘All right. You’re

up.’’ The plaintiff’s counsel then argued that there was

insufficient evidence of a nexus between operation and

intoxication. The hearing officer responded, ‘‘[s]o, what

the Department [of Motor Vehicles] wants us to do in

these situations is to give the officer one opportunity

to come in and sort of clarify his report when these

type[s] of questions come up; so, I’m going to have to

continue the hearing. We will, on our side, subpoena

the officer.’’ The plaintiff objected on due process

grounds, but a second day of hearings took place on

May 27, 2015, at which Dorelus and the two Hamden

officers testified.

On appeal, the plaintiff asserts that the hearing officer’s continuation of the case after the defendant had

rested his case violated his right to due process of law.

The plaintiff, however, has failed to point to any statute,

regulation, or case law that would prohibit a hearing

officer from continuing the hearing in order to obtain

additional evidence under these circumstances. On the

contrary, there are statutes and regulations that explicitly permit the hearing officer to grant a continuance.

Section 14-227b (g) provides that ‘‘[a]t the request of

[the motorist] orthe hearing officer and upon a showing

of good cause, the commissioner may grant one or more

continuances. . . .’’ Additionally, the Department of

Motor Vehicles’ regulations specifically address this situation by stating that‘‘[a]tthe hearing the commissioner

shall not require the presence and testimony of the

arresting officer, or any other person, but the hearing

officer may make an appropriate order, as authorized

by section 14-110 of the Connecticut General Statutes,

to obtain the testimony of such arresting officer or other

witness, if the same appears necessary to make a proper

finding on one or more of the issues stated in subsection

(g) or (j) of section 14-227b of the Connecticut General

Statutes.’’6 Regs., Conn. State Agencies § 14-227b-18

(a).7 Here, the hearing officer determined that it was

necessary to subpoena the arresting officers in order

to make a proper finding on the issue of probable cause

to arrest for operation under the influence, and appropriately continued the hearing pursuant to § 14-227b

(g). The fact that the defendant had ‘‘rested’’ his case

is immaterial to the hearing officer’s ability to continue

the hearing. Unlike the situation in certain criminal

cases, in administrative proceedings there is no rule that

limits or prevents an agency from presenting further

evidence after it has concluded its case. Cf. State v.

Dunbar, 51 Conn. App. 313, 317–20, 721 A.2d 1229

(1998), cert. denied, 247 Conn. 962, 724 A.2d 1126

(1999); Practice Book § 42-35 (3). ‘‘[H]earings before

administrative agencies, such as those before the commissioner of motor vehicles, are informal and are not

governed by the strict or technical rules of evidence.’’

(Internal quotation marks omitted.) Santiago v. Com-
missioner of Motor Vehicles, 134 Conn. App. 668, 673,

39 A.3d 1224 (2012). In addition, the plaintiff had notice

of the hearing and the charges, and was afforded a

full opportunity to cross-examine the police officers

following the continuation of the hearing. Accordingly,

the hearing officer acted within the scope of his authority by continuing the plaintiff’s hearing, and the plaintiff

was not deprived of his right to due process of law.

The court, therefore, properly dismissed the appeal.

The judgment is affirmed.

In this opinion the other judges concurred.

1 General Statutes § 14-227b (g) sets forth a four part test for the administrative agency to assess whether a license suspension is warranted. The

following issues must be found: ‘‘(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 any drug or both; (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 such person had an elevated blood alcohol content;

and (4) was such person operating the motor vehicle. . . .’’

2 The plaintiff challenges the findings made by the hearing officer under

both the first and fourth prongs of the four part test set forth in § 14-227b

(g) under the same theory that there was insufficient evidence to establish

that he operated his vehicle or that there was probable cause for the police

officer to arrest him for operating his vehicle while intoxicated. Because

we conclude that there was sufficient evidence to support a finding of

probable cause to arrest for operating under the influence, our analysis

disproves the plaintiff’s theory as it applies to either the first or fourth

prongs of § 14-227b (g).

3 Although our Supreme Court reversed this court’s decision in Murphy,

it did so by applying the same ‘‘temporal nexus’’ standard. Murphy v. Commissioner of Motor Vehicles, supra, 254 Conn. 347.

4 Specifically, Dorelus observed that the plaintiff’s eyes were bloodshot

and glassy, he had a disheveled appearance, and he had vomit on his collar.

Additionally, the plaintiff failed one field sobriety test before refusing to

submit to any additional tests.

5 The plaintiff cites State v. DeCoster, 147 Conn. 502, 162 A.2d 704 (1960),

for the proposition that there was insufficient evidence to support a finding

of a temporal nexus between liquor and operation on the basis of the

evidence presented in his hearing. In DeCoster, the defendant was convicted

of operating a motor vehicle while intoxicated. Id., 503. The evidence supported a finding that a police officer found the defendant, who was intoxicated, slumped over the steering wheel of his motor vehicle. Id., 504. The

vehicle’s key was in the ignition, but the ignition was in the off position.

Id. The two right tires on the motor vehicle were flat, and the vehicle

exhibited body damage on its right side. Id. Four traffic signs close to where

the motor vehicle was stopped had been knocked down. Id.

In reversing in part the conviction on the ground of insufficient evidence,

our Supreme Court in DeCoster concluded that the state had failed to demonstrate the critical temporal nexus between intoxication and operation. Id.,

505. The court noted that although the evidence supported an inference

that the defendant’s motor vehicle had struck the signs along the nearby

intersection, there were no witnesses who had observed the defendant

operating the motor vehicle and no evidence to show how long it had been

stationary. Id., 504–505. The present case is distinguishable in at least two

regards. First, DeCoster was a criminal case requiring proof of operation

beyond a reasonable doubt, whereas the present case is an administrative

case with a lower burden of proof. Second, there were no witnesses in

DeCoster who could help establish the time that the stop signs were hit.

Here, after speaking with the accident victim, Dorelus was able to establish

that the accident had occurred within two hours from when he located the

plaintiff. DeCoster is therefore distinguishable from the plaintiff’s claim.

6 We also note that allowing the hearing officer the option to subpoena

the police officers afterreviewing the evidence is in the interests of efficiency

and judicial economy. To require the presence of police officers at every

§ 14-227b hearing would be a significant waste of resources, as police officer
testimony is not always necessary for the hearing officer to arrive at his or

her findings.

7 General Statutes § 14-110 (a) provides that ‘‘[t]he commissioner . . . in

the performance of his duties, may . . . issue subpoenas. . . .’’