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LARRY A. MOORE v. COMMISSIONER
OF MOTOR VEHICLES
(AC 38146)
DiPentima, C. J., and Beach and Danaher, Js.
Argued January 9—officially released April 18, 2017
(Appeal from Superior Court, judicial district of New
Britain, Schuman, J.)
Roy S. Ward, for the appellant (plaintiff).
Charles H. Walsh, assistant attorney general, with
whom, on the brief, was George Jepsen, attorney gen-
eral, for the appellee (defendant).
Opinion
BEACH, J. The plaintiff, Larry A. Moore, appeals from
the judgment of the Superior Court dismissing his
appeal from the decision of the defendant, the Commis-
sioner of Motor Vehicles (commissioner). The decision
ordered, pursuant to General Statutes § 14-227b (c),1 a
six month suspension of the plaintiff’s license to operate
a motor vehicle because of his refusal to submit to
chemical alcohol testing following his arrest for driving
under the influence. The plaintiff claims that (1) the
hearing officer’s finding that he refused to submit to the
chemical alcohol test was not supported by substantial
evidence and (2) his due process right to present a
defense was violated. We disagree and, accordingly,
affirm the judgment of the court.
The record reflects that following the plaintiff’s arrest
for operating a motor vehicle while under the influence
of alcohol on August 17, 2014, Trooper Peter Appiah
of the state police prepared a report that stated the
following. At approximately 2:24 a.m., the plaintiff was
traveling at a rate of eighty-six miles per hour on a
portion of Interstate 95 near Westport that had a posted
speed limit of fifty-five miles per hour. Appiah stopped
the car, and, after detecting a strong odor of alcohol
on the plaintiff’s breath, attempted to administer field
sobriety tests. The plaintiff began to perform the hori-
zontal gaze nystagmus test, which he did not perform
to standard, and then refused to continue performing
the test. After removing his shoes and socks, and com-
plaining of an existing injury to a toe, the plaintiff
refused to perform the walk and turn test, and then
refused to perform the one-leg stand test. Appiah placed
the plaintiff under arrest for driving under the influence
of alcohol in violation of General Statutes § 14-227a and
reckless driving in violation of General Statutes § 14-
222. After the plaintiff was transported to the state
police barracks in Bridgeport, he refused to submit to
a chemical alcohol test. He further refused to sign any
documents or to participate any further in the pro-
cessing procedure. The plaintiff began to yell loudly,
exhibited mood swings and engaged in erratic behavior,
which included, at one point, performing push-ups in
his cell.
Pursuant to § 14-227b (c), Appiah completed an A-
442 form detailing that the plaintiff was read the implied
consent advisory section of the A-44 form and refused
to take a chemical alcohol test. Appiah further indicated
in the A-44 form that state police Trooper Thomas Ehret
witnessed the refusal.
The commissioner notified the plaintiff that his
license was to be suspended for a period of six months
and that he was entitled to a hearing. The plaintiff
availed himself of his statutory right to contest the
suspension at an administrative hearing. At the plain-
tiff’s request, the hearing was continued from Septem-
ber 10, 2014, to September 17, 2014. The hearing took
place on September 17, October 8 and October 15, 2014.
At the September 17, 2014 hearing, Appiah testified
that he did not bring police video recordings of the
plaintiff that had been requested in a subpoena duces
tecum because he recently had been on vacation and
had been working the midnight shift; he, therefore, had
not had an opportunity to obtain the video recordings,
but he said that he would make an effort to do so. He
further testified that the contents of the A-44 form were
true. Ehret testified that he had been present when
the plaintiff was being processed, but that he did not
directly witness the implied consent advisory being read
to the plaintiff. He said that he had been processing
another prisoner and that the reading of the advisory
could have happened during that time. He testified,
however, that he witnessed the plaintiff’s refusal to
submit to chemical alcohol testing. He stated that the
petitioner ‘‘was very belligerent, yelling and screaming.
My recollection was, he was in the group cell when he
was asked to take the breath test, at which point he
refused. He refused to sign anything. He refused to
participate in anything.’’
At the October 8, 2014 hearing, Appiah said that he
had tried to obtain the video recording sought in the
subpoena duces tecum but that it had been destroyed
thirty days after the August 17, 2014 arrest in accor-
dance with the policy of the state police. On October
15, 2014, the plaintiff testified that he had asked Appiah
for a breath test at the scene, in the police cruiser
and while he was in the state police barracks, but that
Appiah did not read the implied consent advisory to
him and refused to administer a chemical alcohol test.
The plaintiff did not ask the hearing officer to draw an
adverse inference from the spoliation of the video
recording.
On October 16, 2014, the hearing officer issued a
decision finding that (1) the arresting officer had proba-
ble cause to arrest the plaintiff, (2) the plaintiff was
arrested, (3) the plaintiff refused to submit to chemical
alcohol testing, (4) the plaintiff was operating a motor
vehicle and that (5) the plaintiff was not younger than
twenty-one years of age. The hearing officer made the
subordinate finding that ‘‘Trooper Ehret did not testify
that he did not witness refusal and, per report (section
J of A-44), it is found that refusal was witnessed as
required by General Statutes § 14-227b (c).’’ The hearing
officer ordered that the plaintiff’s driver’s license be
suspended for six months.
The plaintiff appealed to the Superior Court from
the commissioner’s decision suspending his operator’s
license. He claimed that the hearing officer’s finding
that the plaintiff refused the breath test was not sup-
ported by substantial evidence and that the plaintiff’s
right to due process was violated by Appiah’s lack of
compliance with the subpoena duces tecum requesting
the production of a video recording of the plaintiff’s
alleged refusal to submit to chemical alcohol testing.
See General Statutes § 4-183. On July 17, 2015, the court
issued a written memorandum of decision in which it
found that there was substantial evidence to support
the hearing officer’s finding of refusal. Applying the
factors enunciated in State v. Asherman, 193 Conn. 695,
724, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050,
105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985), pertaining to
due process, the court found that the record did not
require the conclusion that the hearing officer should
have inferred from the spoliation of the video recording
that the recording contained information favorable to
the plaintiff. The court dismissed the appeal.3 This
appeal followed.
We begin by setting forth the standard applicable
to our review of administrative decisions. ‘‘[J]udicial
review of the commissioner’s action is governed by
the Uniform Administrative Procedure Act [(UAPA),
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 deter-
mine whether there is substantial evidence in the admin-
istrative 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 questions of fact. . . . Our
ultimate duty is to determine, in view of all of the evi-
dence, whether the agency, in issuing its order, acted
unreasonably, arbitrarily, illegally or in abuse of its dis-
cretion.’’ (Citation omitted; internal quotation marks
omitted.) Murphy v. Commissioner of Motor Vehicles,
254 Conn. 333, 343, 757 A.2d 561 (2000).
Section 14-227b, commonly referred to as the implied
consent statute, governs license suspension hearings.
Section 14-227b (g) provides in relevant part: ‘‘The hear-
ing 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 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. . . .’’
‘‘In the context of a license suspension under the
implied consent law, if the administrative determination
of the four license suspension issues set forth in § 14-
227b [g] is supported by substantial evidence in the
record, that determination must be sustained.’’ Schal-
lenkamp v. DelPonte, 29 Conn. App. 576, 581, 616 A.2d
1157 (1992), aff’d, 229 Conn. 31, 639 A.2d 1018 (1994).
‘‘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 over-
turn a decision of an administrative agency . . . and
. . . provide[s] a more restrictive standard of review
than standards embodying review of weight of the evi-
dence or clearly erroneous action. . . . The United
States Supreme Court, in defining substantial evidence
. . . has said that it is something less than the weight
of the evidence, and the possibility of drawing two
inconsistent conclusions from the evidence does not
prevent an administrative agency’s finding from being
supported by substantial evidence.’’ (Internal quotation
marks omitted.) Spitz v. Board of Examiners of Psy-
chologists, 127 Conn. App. 108, 115–16, 12 A.3d 1080
(2011).
I
The plaintiff claims that the court improperly
affirmed the hearing officer’s finding that the plaintiff
refused to submit to chemical alcohol testing and that
the hearing officer’s finding was not supported by sub-
stantial evidence in the record. We disagree.
‘‘Whether the plaintiff’s actions constituted a refusal
to submit to [a chemical alcohol] test presents a ques-
tion of fact . . . and, therefore, our review is limited
to determining whether the hearing officer’s finding
was supported by substantial evidence.’’ (Citations
omitted.) Altschul v. Salinas, 53 Conn. App. 391, 397,
730 A.2d 1171, cert. denied, 249 Conn. 931, 761 A.2d
751 (1999). ‘‘[R]efusing to take a breath test may be
accomplished by a failure to cooperate as well as by
an expressed refusal.’’ (Internal quotation marks omit-
ted.) Id.
There was substantial evidence in the record to sup-
port the hearing officer’s finding that the plaintiff
refused to submit to chemical alcohol testing. The A-
44 form indicated that the plaintiff refused to submit
to chemical alcohol testing. Under ‘‘Section F: Chemical
Alcohol Test Data,’’ the box, ‘‘test refusal,’’ was
checked. Ehret signed the section for chemical alcohol
test refusal, which stated, ‘‘[t]he operator named above
refused to submit to such test or analysis when
requested to do so. The refusal occurred in my presence
and my endorsement appears below.’’ The results of
the breath test indicated, ‘‘test aborted refusal,’’ and
was signed by Appiah. The form also indicated that the
plaintiff was read the implied consent advisory. Appiah
signed under oath to the accuracy of the statements in
the A-44 form. Appiah also testified at the administrative
hearing to the truth of the contents of the A-44 form.
Appiah stated in his investigation report that at
‘‘[a]pproximately 0318 hours, [the plaintiff] was read
the implied consent advisory section of the A-44. After
being read the implied consent advisory section, [the
plaintiff] refused to take the selected breath [test] and
indicated that he refused to sign any documents or
participate in the processing procedure any further.
Trooper Ehret . . . witnessed the refusal.’’ Ehret testi-
fied that he witnessed the plaintiff’s refusal to submit
to chemical alcohol testing.
The plaintiff argues that the statements on the A-44
form that he was read the implied consent advisory and
refused the test, and that his refusal was witnessed,
were contradicted by Ehret’s testimony. He further
argues that Ehret’s credibility was diminished because
his testimony was internally contradictory, in that he
testified to two different locations where the plaintiff
refused the test: the holding cell, and the booking area
where Ehret was processing another arrestee. He
argues that the refusal could not have occurred simulta-
neously in two different locations so that it was not
possible to know from Ehret’s testimony whether he
refused. The plaintiff contends that his own testimony
indicated that he repeatedly asked for a breath test, and
that it would not be logical for the plaintiff repeatedly to
request a breath test prior to booking only to refuse
the test once he was at the state police barracks where
the test could be performed.
The claims that Ehret’s testimony was not credible,
and that the hearing officer should have credited the
plaintiff’s testimony, are not claims on which the plain-
tiff can prevail.4 It was within the province of the hearing
officer to resolve credibility determinations. ‘‘The credi-
bility of witnesses and the determination of factual
issues are matters within the province of the administra-
tive agency, and this court cannot disturb the conclu-
sions reached by the commissioner if there is evidence
that reasonably supports his decision.’’ (Internal quota-
tion marks omitted.) Dumont v. Commissioner of
Motor Vehicles, 48 Conn. App. 635, 640, 712 A.2d 427,
cert. denied, 245 Conn. 917, 717 A.2d 234 (1998).
We conclude that the hearing officer’s finding that
the plaintiff refused to submit to chemical alcohol test-
ing was supported by substantial evidence.
II
The plaintiff next claims that the court erred in failing
to conclude that his due process right to present a
defense was violated by Appiah’s failure to preserve
and to produce video recordings that may have shown
whether he refused to submit to chemical alcohol test-
ing. The court determined that the spoliation test pre-
scribed in State v. Asherman, supra, 193 Conn. 695,
governed this case and that the plaintiff could not pre-
vail under that test. The plaintiff argues that the court
erred in applying Asherman, and should have instead
utilized the spoliation test enunciated in Beers v. Bay-
liner Marine Corp., 236 Conn. 769, 775, 675 A.2d 829
(1996), on the reasoning that Beers is to be applied in
civil matters.
The Asherman balancing test is used to determine
‘‘whether the failure of the police to preserve potentially
useful evidence had deprived a criminal defendant of
due process of law under . . . [our] state constitution’’
and requires the following factors to be weighed: ‘‘the
materiality of the missing evidence, the likelihood of
mistaken interpretation of it by witnesses or the jury,
the reason for its nonavailability to the defense and the
prejudice to the defendant caused by the unavailability
of the evidence.’’ (Citations omitted.) State v. Morales,
232 Conn. 707, 719–20, 657 A.2d 585 (1995).
In Beers v. Bayliner Marine Corp., supra, 236 Conn.
769, our Supreme Court ‘‘adopt[ed] the rule of the
majority of the jurisdictions that have addressed the
issue [of spoliation of evidence] in a civil context, which
is that the trier of fact may draw an inference from the
intentional spoliation of evidence that the destroyed
evidence would have been unfavorable to the party that
destroyed it. . . . To be entitled to this inference
[under the Beers test], the victim of spoliation must
prove that: (1) the spoliation was intentional, in the
sense that it was purposeful, and not inadvertent; (2)
the destroyed evidence was relevant to the issue or
matter for which the party seeks the inference; and (3)
he or she acted with due diligence with respect to the
spoliated evidence. . . . We emphasized that the
adverse inference is permissive, and not mandatory
. . . .’’ (Emphasis omitted; internal quotation marks
omitted.) Williams v. State, 124 Conn. App. 759, 767, 7
A.3d 385 (2010).
The plaintiff argues that he satisfied the Beers test
and thus was entitled5 to receive the benefit of an infer-
ence that information contained in the destroyed evi-
dence would have been helpful to him. He argues that
if an adverse inference had been drawn, then ‘‘the accu-
racy and/or truthfulness of the police report, A-44 and
the officers’ testimony would have been eviscerated,
requiring a reversal of the suspension order.’’ We need
not decide which standard is appropriately applied in
the circumstances of this case because the plaintiff
cannot prevail under either standard.
The conclusions made by the court regarding the
third prong of the Asherman test are dispositive of the
plaintiff’s inability to meet the Beers standard. The third
prong of the Asherman test concerns the reasons why
the evidence was not available. This factor examines
‘‘the motives behind the destruction of evidence [and
can include] such factors as whether the destruction
was deliberate and intentional rather than negligent
. . . .’’ (Citations omitted.) State v. Grillo, 23 Conn.
App. 50, 56, 578 A.2d 677 (1990). The court noted that
evidence in the record supported the conclusion that
Appiah’s failure to obtain the video, prior to its destruc-
tion under standard police policy, was negligent rather
than intentional. The court noted Appiah’s testimony
to the effect that he did not know how long the police
retained videos until it was too late, and it noted that
the destruction was not directed at the plaintiff but
rather was the result of standard police policy.
Under the first factor of Beers, the plaintiff must
prove that the spoliation was intentional rather than
inadvertent. The court determined that the record sup-
ported the conclusion that the destruction of the evi-
dence was a result of Appiah’s negligence, but was not
intentional. Because the plaintiff did not satisfy the
first Beers factor, he was not entitled to a permissive
inference in any event.6 See, e.g., Williams v. State,
supra, 124 Conn. App. 767.
The record does not compel a finding that the Beers
standard was satisfied and the plaintiff has not chal-
lenged the court’s conclusion that he cannot prevail
under the Asherman test. Accordingly, the plaintiff can-
not prevail on his claim.
The judgment is affirmed.
In this opinion the other judges concurred.
1
General Statutes § 14-227b provides in relevant part: ‘‘(a) Any person
who operates a motor vehicle in this state shall be deemed to have given
such person’s consent to a chemical analysis of such person’s blood, breath
or urine and, if such person is a minor, such person’s parent or parents or
guardian shall also be deemed to have given their consent. . . .
‘‘(c) If the person arrested refuses to submit to such test or analysis . . .
the police officer, acting on behalf of the Commissioner of Motor Vehicles,
shall immediately revoke and take possession of the motor vehicle operator’s
license . . . . The police officer shall prepare a report of the incident and
shall mail or otherwise transmit in accordance with this subsection the
report . . . to the Department of Motor Vehicles . . . . The report shall
contain such information as prescribed by the Commissioner of Motor Vehi-
cles and shall be subscribed and sworn to under penalty of false statement
as provided in section 53a-157b by the arresting officer. If the person arrested
refused to submit to such test or analysis, the report shall be endorsed by
a third person who witnessed such refusal. The report shall set forth the
grounds for the officer’s belief that there was probable cause to arrest such
person for a violation of section 14-227a or 14-227m or subdivision (1) or
(2) of subsection (a) of section 14-227n and shall state that such person
had refused to submit to such test or analysis when requested by such police
officer to do so . . . .’’
2
‘‘The A-44 form is used by the police to report an arrest related to
operating a motor vehicle under the influence and the results of any sobriety
tests administered or the refusal to submit to such tests.’’ Roy v. Commis-
sioner of Motor Vehicles, 67 Conn. App. 394, 396 n.3, 786 A.2d 1279 (2001).
3
The court stayed the suspension of the plaintiff’s operator’s license
pending the present appeal. See General Statutes § 4-183 (f).
4
Ehret’s testimony was not necessarily contradictory. He testified that
he was in the booking room when Appiah was processing the plaintiff and
that it was his recollection that the plaintiff was in the group cell when he
was asked to take the breath test and refused. Ehret testified that it was
‘‘possible’’ that the plaintiff was read the implied consent advisory when he
was in the group cell but that he ‘‘was dealing with another prisoner at the
time as well.’’ He stated that the petitioner ‘‘was very belligerent, yelling
and screaming. My recollection was, he was in the group cell when he was
asked to take the breath test, at which point he refused. He refused to sign
anything. He refused to participate in anything.’’
Even if there were inconsistencies in the evidence, however, the finding
of the hearing officer that the plaintiff refused to submit to chemical alcohol
testing may still be held to be supported by substantial evidence. See Schal-
lenkamp v. DelPonte, 229 Conn. 31, 41, 639 A.2d 1018 (1994) (‘‘In reviewing
an administrative determination, we must take into account [that there is]
contradictory evidence in the record . . . but the possibility of drawing
two inconsistent conclusions from the evidence does not prevent an adminis-
trative agency’s finding from being supported by substantial evidence . . . .
Moreover, it is not the function of the trial court, nor of this court, to retry
the cause. . . . [T]he determination of issues of fact are matters within
[the] province [of the administrative agency].’’ [Citation omitted; internal
quotation marks omitted.]).
5
We note that if the Beers factors are satisfied, the finder of fact may draw
an adverse inference. Intentional spoliation does not necessarily compel
judgment against the spoliator; rather, a permissive inference results. Beers
v. Bayliner Marine Corp., supra, 236 Conn. 774–77.
6
Neither party has contested the court’s perusal of the record to determine
whether an adverse inference was available to the plaintiff. We merely note
that the court considered no evidence outside the return of record, and it
dealt with the substance of the plaintiff’s claim regarding the adverse infer-
ence. In these circumstances, the reasoning of the court may be deemed
to support the ultimate determination of whether the hearing officer could
have reasonably and logically reached his conclusions. See, e.g., Church
Homes, Inc. v. Administrator, Unemployment Compensation Act, 250
Conn. 297, 303, 735 A.2d 805 (1999).
We also are unable to discern from the record whether the hearing officer
actually did employ an adverse inference, but found that the evidence none-
theless compelled a result unfavorable to the plaintiff, whether the officer
simply decided not to employ the inference, although he could have, or
whether he believed that he could not lawfully use the inference. Because
the result is supported by substantial evidence in any event, and there is
nothing in the record to suggest that the decision was unreasonably or
unlawfully reached, the hearing officer’s conclusions must stand.