Do v. Comm'r of Motor Vehicles, 138 A.3d 359, 164 Conn. App. 616 (2016)

April 19, 2016 · Connecticut Appellate Court · No. 37712.

138 A.3d 359, 164 Conn. App. 616

Angel Huang DO
v.
COMMISSIONER OF MOTOR VEHICLES.

No. 37712.

Appellate Court of Connecticut.

Argued Jan. 7, 2016.
Decided April 19, 2016.

Chet L. Jackson, New Haven, for the appellant (plaintiff).

Drew S. Graham, assistant attorney general, with whom, on the brief, was George Jepsen, attorney general, for the appellee (defendant).

GRUENDEL, PRESCOTT and BEAR, Js.^*

* The listing of judges reflects their seniority status on this court as of the date of oral argument.

PRESCOTT, J.

"It is axiomatic that administrative tribunals are not strictly bound by the rules of evidence.... [T]hey may consider exhibits [that] would normally be incompetent in a judicial proceeding, so long as the evidence is reliable and probative." (Internal quotation marks omitted.) Gagliardi v. Commissioner of Children & Families, 155 Conn.App. 610, 619, 110 A.3d 512, cert. denied, 316 Conn. 917, 113 A.3d 70 (2015). It is a rare case in which a decision by an administrative hearing officer to admit an exhibit will be reversed for an abuse of discretion. Principles of fundamental fairness dictate that this is such a case.

The plaintiff, Angel Huang Do, appeals from the judgment of the trial court remanding to the defendant, the Commissioner of Motor Vehicles (commissioner), her appeal from his decision to suspend her motor vehicle operator's license for ninety days pursuant to General Statutes § 14-227b. On appeal to this court, the plaintiff claims that the trial court improperly held that the hearing officer did not abuse his discretion by admitting into evidence an unreliable A-44 form and its attachments.¹

In the alternative, the plaintiff claims that even if the exhibit was properly admitted into evidence, the court improperly remanded the case for an articulation. Specifically, the plaintiff challenges the court's decision to remand the case to the agency for an articulation regarding which of the two motor vehicles referenced in the exhibit was the vehicle that the hearing officer concluded that the plaintiff was actually driving. The plaintiff argues that, instead of remanding the case, the court should have concluded that the exhibit, even if properly admitted, did not constitute substantial evidence that the plaintiff violated General Statutes § 14-227a (a),² and, thus, the court should have sustained the plaintiff's appeal.

Because we agree with the plaintiff's claim that the hearing officer improperly admitted the exhibit, and there was no other evidence admitted into evidence, we conclude that the commissioner's decision is not supported by substantial evidence. It is therefore unnecessary to reach the plaintiff's alternative claim. Accordingly, we reverse the judgment of the trial court and remand the case with direction to render judgment sustaining the plaintiff's appeal.

The following facts and procedural history are relevant to the plaintiff's appeal. On April 24, 2014, the plaintiff was arrested and charged with operating a motor vehicle while under the influence of intoxicating liquor in violation of § 14-227a (a). On May 14, 2014, the commissioner sent a revised notice to the plaintiff to inform her of the suspension of her license pursuant to § 14-227b. On May 29, 2014, an administrative hearing was held before a hearing officer pursuant to § 14-227b (g).³

At that hearing, no testimony was presented, but the Department of Motor Vehicles (department) offered into evidence the A-44 form completed by the arresting officer, Trooper Troy M. Biggs.⁴ Attached to the A-44 form were Biggs' investigation report and the results of the breath analysis tests administered to the plaintiff, which showed that she had a blood alcohol content of 0.1184 and 0.1186 percent. The plaintiff objected to the admission of the exhibit on the ground that it was unreliable because it contained numerous errors and discrepancies. The hearing officer overruled the plaintiff's objection on the basis that the discrepancies went to the weight to be given to the exhibit, not its admissibility, and admitted the exhibit into evidence.

The hearing officer, acting on behalf of the commissioner, subsequently found, pursuant to § 14-227b (g), that: "(1) The police officer had probable cause to arrest the [plaintiff] for a violation specified in [§ 14-227a (a) ]"; "(2) [the plaintiff] was placed under arrest"; "(3) [the plaintiff] submitted to [a sobriety] test or analysis and the results indicated a BAC of .08% or more"; and "(4) [the plaintiff] was operating the motor vehicle." On the basis of these findings, the commissioner ordered that the plaintiff's license be suspended for a period of ninety days.

Pursuant to General Statutes § 4-183,⁵ the plaintiff appealed from the hearing officer's decision to the Superior Court.

The plaintiff claimed that (1) the hearing officer improperly admitted the exhibit into evidence and (2) there was not substantial evidence in the record to support the hearing officer's findings. The court rejected the plaintiff's claim that the exhibit was inadmissible, but, because of conflicting information in the exhibit regarding the motor vehicle involved, it remanded the case to the hearing officer for an articulation as to which motor vehicle the hearing officer concluded that the plaintiff had operated.⁶ This appeal followed. Additional facts will be set forth as necessary.

I

The plaintiff claims that the court improperly concluded that the hearing officer did not abuse his discretion by admitting the exhibit into evidence. Specifically, the plaintiff argues that the numerous errors and discrepancies contained in the exhibit render it unreliable and, thus, inadmissible. The commissioner responds that because the exhibit was signed under oath by the arresting officer in accordance with § 14-227b (c), the exhibit contained sufficient indicia of reliability and, thus, was admissible. We agree with the plaintiff that the hearing officer abused his discretion by admitting the exhibit because the number of obvious discrepancies and errors in the documents rendered the exhibit unreliable.

The following additional facts are necessary to resolve this claim. At the administrative hearing, the plaintiff objected to the admission of the exhibit into evidence on the ground that it was unreliable because of numerous discrepancies and errors contained therein. In the A-44 form, Trooper Biggs swore under oath that the vehicle that the plaintiff operated was a 2007 Audi A4 with a Massachusetts registration plate. In the attached investigation report, however, Biggs swore under oath that the vehicle that the plaintiff operated was a Mercedes-Benz with a Connecticut registration plate.

Additionally, in section B of the A-44 form, the incident date is recorded as April 23, 2014. That notation, however, is crossed out and replaced in handwriting with the date April 24, 2014. Next to the handwritten date are the initials "RH," which do not correspond to the initials of the arresting officer, Troy M. Biggs. There is no evidence as to who made this alteration, when it was made, and whether it was sworn to under oath.⁷

Our review of the exhibit suggests that the information contained in it may have been copied from another A-44 form involving the arrest of a different individual. In the "Phase III" section of the investigation report, Biggs stated that the plaintiff wore contact lenses. In the following section, Biggs averred that he had the plaintiff perform the Horizontal Gaze Nystagmus test with and without her glasses, which presumably she would not have been wearing had she been wearing her contact lenses.

In section J of the A-44 form, which is completed in cases in which an operator of a vehicle refuses to participate in a chemical alcohol test, "Helt, David" is listed as a witness to the plaintiff's alleged refusal. The plaintiff, however, submitted to a breath analysis test, which the commissioner conceded in his brief to this court. On the A-44 form, "Helt, David" is crossed out and initialed by "RH." Again, there is no evidence regarding who made this alteration, when it was made, and whether it was made under oath.⁸

On the basis of these errors and discrepancies, the plaintiff argued that the exhibit was unreliable because it is not clear what information contained in the exhibit actually pertained to this case. The hearing officer, however, agreed with the department that these discrepancies amounted to scrivener's errors and went to the weight to be afforded the exhibit, not its admissibility. On appeal to the trial court, the court agreed with the hearing officer that these discrepancies "[do] not negate the overall reliability of the report, which otherwise meets the statutory and regulatory criteria. Rather, the conflict simply creates a fact or credibility issue for the hearing officer to resolve. 'It is within the province of the hearing officer to determine the credibility of evidence.' Roy v. Commissioner of Motor Vehicles, 67 Conn.App. 394, 397, 786 A.2d 1279 (2002[2001] ). Therefore, the hearing officer did not abuse his discretion in admitting the [exhibit]."

We begin by setting forth the relevant standard of review and legal principles that guide our analysis. We review a hearing officer's evidentiary ruling for whether "the [agency] has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion." (Internal quotation marks omitted.) Gagliardi v. Commissioner of Children & Families, supra, 155 Conn.App. at 618, 110 A.3d 512. "It is axiomatic that administrative tribunals are not strictly bound by the rules of evidence.... [T]hey may consider exhibits [that] would normally be incompetent in a judicial proceeding, so long as the evidence is reliable and probative.... According to General Statutes § 4-178, in a contested case before an agency, [a]ny oral or documentary evidence may be received, but the agency shall, as a matter of policy, provide for the exclusion of irrelevant, immaterial or unduly repetitious evidence...." (Citation omitted; internal quotation marks omitted.) Id., at 619-20, 110 A.3d 512. Although evidentiary rules are considerably relaxed in administrative hearings, the conduct of the hearing must be fundamentally fair and cannot "violate the fundamental rules of natural justice." Bancroft v. Commissioner of Motor Vehicles, 48 Conn.App. 391, 400, 408, 710 A.2d 807, cert. denied, 245 Conn. 917, 717 A.2d 234 (1998).

Section 14-227b, commonly referred to as the implied consent statute, governs license suspension hearings. At the license suspension hearing, pursuant to § 14-227b-19 (a) of the Regulations of Connecticut State Agencies, the A-44 form, which the arresting officer is required to complete, "shall be admissible into evidence at the hearing if it conforms to the requirements of subsection (c) of Section 14-227b of the General Statutes." Section 14-227b (c) provides in relevant part that the A-44 form "shall contain such information as prescribed by the Commissioner of Motor Vehicles and shall be subscribed and sworn to under penalty of false statement as provided in [

General Statutes §] 53a-157b by the arresting officer.... 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 subsection (a) of [§ ] 14-227a and shall state that such person ... submitted to such [sobriety] 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...."

In Volck v. Muzio, 204 Conn. 507, 518, 529 A.2d 177 (1987), our Supreme Court held that the "evident purpose [of § 14-227b (c) ] is to provide sufficient indicia of reliability so that the report can be introduced in evidence as an exception to the hearsay rule, especially in license suspension proceedings, without the necessity of producing the arresting officer." The court, therefore, concluded that if an A-44 form does not comply with subsection (c), it is unreliable and, thus, inadmissible, as long as the plaintiff objected to its admission into evidence.⁹ Id.; see Winsor v. Commissioner of Motor Vehicles, 101 Conn.App. 674, 688, 922 A.2d 330 (2007) ("[b]ecause § 14-227b [c] is tailored to satisfy an exception to the hearsay rule, a failure to comply with [its requirements] renders the A-44 form inadmissible, at least in the absence of direct testimony from the arresting officer"); Bialowas v. Commissioner of Motor Vehicles, 44 Conn.App. 702, 712, 692 A.2d 834 (1997) ("[T]here is merit, in theory, to a claim of procedural error that bears on the police report's reliability.... If the report did not include such indicia of reliability, the report would not be admissible even before an administrative tribunal of this type." [Citations omitted; internal quotation marks omitted.] ).

On the basis of our Supreme Court's holding in Volck, technical compliance with § 14-227b (c) is a necessary prerequisite to a determination that an A-44 form is sufficiently reliable to be admitted into evidence. Neither our Supreme Court nor this court, however, has ever held that technical compliance with subsection (c) must always result in the admission of an A-44 form. Although an A-44 form may technically comply with subsection (c), the information contained in the four corners of the document may still lead the hearing officer to conclude that the document is otherwise unreliable.

The reliability of an A-44 form is especially important because the commissioner has heavily curtailed a plaintiff's ability to cross-examine the arresting officer regarding the information contained within the A-44 form by permitting himself to rely solely on these A-44 forms as evidence without testimony from the arresting officer. Although § 14-227b-18 of the Regulations of Connecticut State Agencies¹⁰ permits a person arrested for violating § 14-227a (a) to summon the arresting officer to the administrative hearing, if the subpoenaed arresting officer does not appear, the person arrested is not entitled to a continuance or a dismissal. Thus, even though an arrested person can subpoena the arresting officer, if the officer does not appear, the arrested person is deprived of his or her ability to cross-examine the officer regarding any errors in the A-44 form.¹¹

Because the reliability of the A-44 form is of the utmost importance, there may be instances in which an A-44 form contains so many significant internal discrepancies and errors that it is rendered unreliable, at least in the absence of testimony by the arresting officer or other evidence that supports its reliability. In some instances, the department, if it wishes that the document be admitted into evidence, may be obligated to call the arresting officer as a witness to explain the discrepancies and errors. In this regard, it is important to remember that it is the department's burden to demonstrate that the plaintiff violated § 14-227a (a).

Additionally, it was the department's ultimate burden to establish the exhibit's admissibility. The dissent asserts that it was the plaintiff's burden to offer evidence at the administrative hearing to prove or explain the inconsistencies in the exhibit. For example, the dissent argues that the plaintiff should have offered the A-44 form, involving the arrest of another motorist, from which A-44 form information was copied and pasted into the exhibit at issue. "[T]he burden [however] is on the proponent of the evidence, upon timely objection, to establish that the evidence is admissible." New England Savings Bank v. Bedford Realty Corp., 238 Conn. 745, 753, 680 A.2d 301 (1996). Although there are exceptions to the general rule, "[t]he burden of proving the grounds of an objection is ordinarily not upon the opponent; whether he objects on the ground that the original of a document is not produced, or that an attesting witness ought to be called, or that a dying declarant was not conscious of impending dissolution, the burden of establishing the preliminary facts essential to satisfy any rule of evidence is upon the party offering it. The opponent merely invokes the law; if it is applicable to the evidence, the proponent must make the evidence satisfy the law." 1 J. Wigmore, Evidence (Tillers Rev.1983) § 18, p. 841. In the present case, because the plaintiff objected to the admission of the exhibit and casted significant doubt upon its reliability, the burden was on the department to offer additional evidence to prove the reliability of the exhibit.

Not only was it not the plaintiff's burden to prove the cause or source of the obvious and significant inconsistencies in the exhibit, but it also would be highly impracticable to require the plaintiff to do so because such facts were not within her custody or control. For example, the plaintiff would have had little or no opportunity to obtain the prior A-44 form to prove that portions of the exhibit were copied from it because she did not know the name of the other motorist. Once the plaintiff objected and raised serious questions regarding the exhibit's reliability, it was the department's burden to produce sufficient evidence to demonstrate the exhibit's reliability, and, ultimately, its admissibility.

Placing this burden on the department is consistent with our Supreme Court's holding in Carlson v. Kozlowski, 172 Conn. 263, 267-68, 374 A.2d 207 (1977), that although hearsay evidence is generally admissible in administrative hearings, hearsay evidence must be sufficiently reliable to be admissible. To determine whether hearsay evidence is sufficiently reliable in an administrative hearing, the court in Carlson adopted the test articulated in Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). In Richardson, the United States Supreme Court was asked to decide whether medical records were sufficiently reliable to be admissible in an administrative hearing without the testimony of the medical examiner. Id., at 402, 91 S.Ct. 1420. In holding that the medical records were reliable, the court looked to multiple factors, including whether there were inconsistencies on the face of the records, and whether the plaintiff had the ability to subpoena the author of the records. Id., at 403-406, 91 S.Ct. 1420. The Supreme Court noted that there was not a single inconsistency amongst the medical records, which strengthened their reliability. Id., at 404, 91 S.Ct. 1420. Thus, by adopting the Richardson factors, our Supreme Court has recognized that internal inconsistencies within the four corners of a document factor into a determination of the reliability of that document. The court did not, however, hold that the plaintiff was required to prove the source of the inconsistencies in order to show the document's unreliability.

We do not suggest, however, that an A-44 form is admissible only if the arresting officer testifies at the administrative hearing and explains any discrepancies. Indeed, tribunals often determine whether an exhibit or testimony is sufficiently reliable in light of other evidence in the record. In other words, in the absence of corroborating evidence, one piece of evidence may be unreliable and, therefore, inadmissible, but that same piece of evidence may be admissible if supported by sufficient corroborating evidence. Moreover, if the discrepancy amounts to a mere scrivener's error, an objection may not raise a significant question regarding an A-44 form's reliability that would require the department to offer additional evidence regarding its reliability. Such a determination may be made only on a case-by-case basis.

In the present case, we conclude that the trial court improperly concluded that the exhibit was sufficiently reliable. Portions of the exhibit in all likelihood pertain to the arrest of another individual, calling into question which portions of the exhibit actually pertain to the plaintiff. Furthermore, portions of the exhibit have been altered and initialed by an unknown person, and it is unclear whether this person had personalized knowledge of the incident and swore under oath to the accuracy of the alterations. Additionally, there is no evidence as to when these alterations occurred.

These discrepancies and errors heavily undermine the exhibit's reliability. The extent of the errors and discrepancies far surpasses mere scrivener's errors. The exhibit does not merely state that the plaintiff operated two different vehicles-an Audi and a Mercedes-Benz-but it also lists different vehicle models, years, and state registrations. The statements that the plaintiff wore contact lenses and that the plaintiff participated in field sobriety tests with and without her glasses also cannot be dismissed as mere scrivener's errors. Additionally, the notation that "Helt, David" witnessed the plaintiff's refusal to submit to chemical alcohol testing is not a scrivener's error because the department admits that the plaintiff consented to the breathalyzer test. Although the incident date on the A-44 form may be a scrivener's error, the alteration by an unknown person undermines its reliability.¹²

Not only do these discrepancies undermine the exhibit's reliability as a whole, but they also establish that the exhibit does not meet the requirement under § 14-227b (c) that the arresting officer swear to the accuracy of the A-44 form under oath. The commissioner contends that Biggs signed the exhibit under oath, and, thus, the exhibit complies with subsection (c). This assertion is incorrect for multiple reasons. First, Biggs could not have had a basis of knowledge to swear to the accuracy of the facts contained in the exhibit if portions of the exhibit were copied from the arrest of another individual. Second, because the exhibit is altered by "RH" and there is no indication that "RH" swore to the accuracy of the alterations under oath, the exhibit does not comply with the obligation in subsection (c) that the document be sworn to under oath by the arresting officer. Third, because there is no evidence as to when the alterations occurred, the exhibit that Biggs signed under oath may not be the same exhibit that is before us today. Accordingly, at most, Biggs swore to the accuracy of portions of the exhibit, which is not sufficient under § 14-227b (c).

This case is distinguishable from cases in which Connecticut courts have found that noncompliance with § 14-227b (c) did not render an A-44 form inadmissible. Those cases fall into one of three categories. The first category involves cases in which the A-44 form contained sufficient additional information, sworn to under oath, to ameliorate any noncompliance with § 14-227b (c) or to remove serious questions regarding the document's reliability. See Roy v. Commissioner of Motor Vehicles, supra, 67 Conn.App. at 399, 786 A.2d 1279 (A-44 form was sufficiently reliable because although hearing officer did not check box on form indicating that plaintiff operated vehicle on public road, he described public road in investigation report). The second category involves cases in which noncompliance with subsection (c) was a mere scrivener's error. See Graton v. Commissioner of Motor Vehicles, Superior Court, judicial district of New Britain, Docket No. CV-13-6020980-S, 2013 WL 6916780 (December 9, 2013) ("[E]ven if it is read as a '10,' instead of '12,' the court finds that this was a mere scrivener's error because the plaintiff was not arrested until April 12th. This minor discrepancy does not render the [A-44 form] and its attachments unreliable."). The last category involves cases in which the admission of the A-44 form into evidence was not objected to at the administrative hearing. See Volck v. Muzio, supra, 204 Conn. at 518, 529 A.2d 177 ("[t]he absence of the endorsement of a third person who witnessed the arrested operator's refusal of testing would have rendered [the arresting officer's] report inadmissible if the plaintiff had objected thereto"). Here, the number and significance of the discrepancies and errors are far greater.

"This court is aware of the carnage associated with drunken drivers.... Nevertheless, in our endeavor to rid our roads of these drivers ... we cannot trample on the constitutional rights of other citizens. They are entitled to a fair hearing." (Citation omitted; internal quotation marks omitted.) Bialowas v. Commissioner of Motor Vehicles, supra, 44 Conn.App. at 718, 692 A.2d 834. Fundamental fairness requires the admission of only reliable evidence.

Finally, it is important to recognize that we must place some limit on the degree to which a critical document, like an A-44 form, may contain significant errors and discrepancies and still be admissible. If we held that this exhibit, standing alone, was sufficiently reliable to be admitted, we would altogether disincentivize police officers to accurately document critical facts necessary to establish that a motorist has violated § 14-227a (a). In other words, if an A-44 form is always admissible, as the commissioner seems to suggest, as long as the arresting officer's signature is on the document and the document in some way describes probable cause to arrest some motorist, there would be no incentive to create an accurate and complete report of the incident. Although we recognize that mere scrivener's errors should not render an A-44 form inadmissible in all circumstances, this is not such a case. Accordingly, we conclude that the trial court improperly determined that the hearing officer did not abuse his discretion by admitting the exhibit into evidence.

II

Our inquiry, however, does not end with our conclusion that the exhibit was not sufficiently reliable and, thus, was inadmissible at the administrative hearing. "Even in the absence of the A-44 form, [i]f the administrative record provides substantial evidence upon which the hearing officer could reasonably have based his finding ... the decision must be upheld." (Internal quotation marks omitted.) Winsor v. Commissioner of Motor Vehicles, supra, 101 Conn.App. at 688, 922 A.2d 330.

"We review the issues raised by the plaintiff in accordance with the limited scope of judicial review afforded by the [Uniform Administrative Procedure Act (UAPA), General Statutes § 4-166 et seq. ].... Judicial review 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.... 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.... [T]he plaintiff bears the burden of demonstrating that a hearing officer's evidentiary ruling is arbitrary, illegal or an abuse of discretion....

"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 evidence or clearly erroneous action.... [I]t 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....

"[A]s to questions of law, [t]he court's ultimate duty is only to decide whether, in light of the evidence, the [agency] has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion.... Conclusions of law reached by the administrative agency must stand if the court determines that they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts." (Internal quotation marks omitted.) Gagliardi v. Commissioner of Children & Families, supra, 155 Conn.App. at 617-18, 110 A.3d 512.

In the present case, the department offered no evidence other than the exhibit at the administrative hearing. Without the exhibit, there is nothing in the record to support the hearing officer's determination that the plaintiff violated § 14-227a (a). At the administrative hearing, the department had the opportunity to present additional evidence, and it chose not to avail itself of this opportunity. Without the admission of the exhibit, the department has failed to meet its burden to provide substantial evidence that the plaintiff violated § 14-227a (a). Accordingly, the plaintiff's appeal must be sustained.¹³

The judgment is reversed and the case is remanded with direction to render judgment sustaining the plaintiff's appeal.

In this opinion GRUENDEL, J., concurred.

1 "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. Commissioner of Motor Vehicles, 67 Conn.App. 394, 396 n. 3, 786 A.2d 1279 (2001) ; see General Statutes § 14-227b (c) ("The [arresting] police officer shall prepare a report of the incident.... The report shall contain such information as prescribed by the Commissioner of Motor Vehicles....").

Because the A-44 form and its attachments were offered into evidence as a single exhibit and there were no other exhibits offered at the administrative hearing, for the purposes of this opinion, we refer to them as a whole as the exhibit. We will only refer to the individual documents that comprise the exhibit-the A-44 form, the investigation report, and the breath analysis test results-to identify specific information contained therein.

We also note that the second page of the A-44 form was not included in the return of the administrative record. The commissioner supplemented the administrative record with the missing page from the A-44 form prior to the hearing before the trial court.

2 General Statutes § 14-227a (a) provides in relevant part: "No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. A person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor or any drug or both if such person operates a motor vehicle (1) while under the influence of intoxicating liquor or any drug or both, or (2) while such person has an elevated blood alcohol content...."

3 General Statutes § 14-227b (g) provides in relevant part: "If such person contacts the department to schedule a hearing, the department shall assign a date, time and place for the hearing, which date shall be prior to the effective date of the suspension, except that, with respect to a person whose operator's license or nonresident operating privilege is suspended in accordance with subdivision (2) of subsection (e) of this section, such hearing shall be scheduled not later than thirty days after such person contacts the department...."

4 The trial court's memorandum of decision states that the arresting officer's name was "Trooper Troy M. Briggs," but our review of the exhibit reveals that his last name is Biggs.

5 General Statutes § 4-183 provides in relevant part: "(a) A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision may appeal to the Superior Court as provided in this section...."

6 For the purposes of § 4-183, a remand is an appealable final judgment. See General Statutes § 4-183(j).

7 Although the A-44 form is signed by Sergeant Ryan M. Hennessey as the person who administered the oath to Biggs, no evidence was presented at the administrative hearing to prove that Hennessey is "RH." Even assuming that Hennessey is "RH," there was no evidence offered at the administrative hearing as to whether he made the alteration before or after Biggs signed the A-44 form, or whether he made the alteration under oath, as required by § 14-227b (c).

8 The trial court in its memorandum of decision does not discuss or analyze this discrepancy, which appears on the second page of the A-44 form, and does not appear to have factored it into its analysis regarding whether it, along with the other errors and discrepancies, renders the exhibit unreliable.

9 We note that in Volck, our Supreme Court held that strict compliance with subsection (c) is not a prerequisite for license suspension pursuant to § 14-227b. Volck v. Muzio, supra, 204 Conn. at 517, 529 A.2d 177. Thus, if an A-44 form does not comply with subsection (c), but there is other substantial evidence in the record to support the hearing officer's decision in the absence of the A-44 form, the decision must be upheld. See Winsor v. Commissioner of Motor Vehicles, 101 Conn.App. 674, 688, 922 A.2d 330 (2007). Furthermore, if a plaintiff does not object to the admission of the A-44 form into evidence and it is admitted into evidence, it may constitute substantial evidence even if it does not comply with subsection (c). Volck v. Muzio, supra, at 518, 529 A.2d 177.

10 Section 14-227b-18 of the Regulations of Connecticut State Agencies provides in relevant part: "(b) A person arrested for an enumerated offense may at his own expense and by his own solicitation summon to the hearing the arresting officer and any other witness to give oral testimony. The failure to appear at the hearing of any witness summoned by the person arrested shall not be grounds for such person to request a continuance or dismissal of the hearing...."

11 To the extent that the plaintiff's claim raises a due process issue, we need not address it because we rule in favor of the plaintiff on the evidentiary ground raised. See State v. Genotti, 220 Conn. 796, 804, 601 A.2d 1013 (1992) (court should eschew reaching constitutional issues on appeal if claim disposed of on evidentiary grounds).

12 Although each of these discrepancies alone may not have rendered the exhibit inadmissible, their cumulative effect persuades us that it should not have been admitted.

13 The dissent assigns fault to the trial court's conclusion that the case should be remanded for further factual findings or for an articulation regarding which motor vehicle the plaintiff allegedly operated before it decides the merits of the appeal. The dissent contends that we should reverse the court's decision to remand the case to the department and instead conclude that the exhibit provided substantial evidence sufficient to support the commissioner's decision to suspend the plaintiff's license. The relief, however, that the dissent argues should be granted was not sought by the commissioner, except in a conclusory final sentence in his appellate brief. The commissioner did not file a cross appeal or otherwise take issue with the court's conclusion that the case should be remanded to the department before deciding the merits of the appeal. In fact, the commissioner argued that the trial court did not abuse its discretion by ordering a remand. Although we are disinclined to agree with the dissent on this point, we need not decide it in light of our conclusion that the exhibit was inadmissible.

BEAR, J., dissenting.

I respectfully dissent from the majority opinion. The plaintiff, Angel Huang Do, sets forth two claims in her appeal. The first is that this court should reverse the trial court's judgment because the hearing officer abused his discretion by overruling the plaintiff's objection to the admissibility of unreliable evidence in an A-44 form that was copied from a prior arrest. The second is that this court should reverse the court's judgment because there was not substantial reliable evidence to determine that the plaintiff operated "the motor vehicle" as required under General Statutes § 14-227b (g)(4). A more specific statement of the second claim raised by the plaintiff is that because of errors in the A-44 form and the investigation report completed by state police Trooper Troy M. Biggs (exhibit), the hearing officer did not have a sufficient evidentiary basis on which to determine that the plaintiff was operating a 2007 Audi with a Massachusetts registration or a 2006 Mercedes-Benz with a Connecticut registration at the time of her arrest, and the trial court, thus, should have reversed the decision of the defendant, the Commissioner of Motor Vehicles (commissioner).

I disagree with each of her claims. The plaintiff's statement of her first issue is as follows: "Whether the Superior Court erred by finding the A-44 form and attached police narrative were sufficiently reliable to be admissible for purposes of [§ 14-227b (g) ] when the documents contained information that the arresting officer copied and pasted from a different stop and arrest that did not involve the plaintiff?" ¹ The plaintiff did not offer any evidence in the hearing as a basis for, or otherwise in support of, her assertion that the documents contained information that the arresting officer copied and pasted from a different stop and arrest that did not involve the plaintiff, and with respect to her second issue, that the reference to the 2007 Audi appeared in a prior A-44 form. Specifically, the plaintiff did not offer the alleged prior A-44 form that she referred to and relied on in support of her claims as an exhibit in the hearing. The plaintiff's attacks on the substance and admissibility of the exhibit admitted by the hearing officer, thus, are grounded solely in speculation or otherwise unsupported by evidence. In the absence of any evidence to support her arguments, there was no reason or basis for the hearing officer to entertain them or for him not to accept and admit the exhibit proffered by the Department of Motor Vehicles (department) as a full exhibit, with any arguments about its contents going to weight. See, e.g., Beverly Hills Concepts, Inc. v. Schatz & Schatz, Ribicoff & Kotkin, 247 Conn. 48, 78, 717 A.2d 724 (1998) (when plaintiff fails to remove question of damages from realm of speculation, recovery is denied "not for lack of 'mathematical exactitude' ... but because the plaintiff failed to provide sufficient evidence" [citation omitted] ); Mountaindale Condominium Assn., Inc. v. Zappone, 59 Conn.App. 311, 316, 757 A.2d 608 ("a party may not rely on mere speculation or conjecture as to the true nature of the facts" [internal quotation marks omitted] ), cert. denied, 254 Conn. 947, 762 A.2d 903 (2000). The plaintiff, therefore, has no legal basis on which to advance or support her claims on appeal, and we should affirm the judgment of the court without further considering her unsubstantiated claims.

To the extent that the plaintiff's claims solely relate to the internal inconsistencies within the exhibit, and that, as a result thereof, all of the information within the documents is inherently unreliable, the inconsistencies are generally identifiable as scrivener's or word processing errors, or other errors of form, and, conversely, a large and undisputed portion of the exhibit is clearly identifiable as describing or relating to the plaintiff and her actions, and thus is substantial and reliable.

If the hearing officer was required to give consideration to the plaintiff's arguments that the inconsistencies in the exhibit were sufficient to prohibit its admission and to prevent the identification of the vehicle that she was operating, the hearing officer reasonably could have found that the inconsistencies identified by the plaintiff demonstrated that most of the alleged errors in the exhibit could be identified and segregated from the remainder that actually related to the plaintiff's offense and the traffic stop by Biggs. The court did not err in determining that the hearing officer did not act unreasonably, arbitrarily, illegally, or outside the scope of his discretion in accepting and admitting the exhibit as a full exhibit, or in determining that the remaining uncontested information in the exhibit provided sufficiently reliable information for his statutory findings.² The hearing officer's decision that the exhibit was sufficiently reliable to warrant its admission, and that any issues with respect to it, or portions of it, went to the weight to be given, therefore, was not unreasonable, arbitrary, illegal, or an abuse of discretion. See Roy v. Commissioner of Motor Vehicles, 67 Conn.App. 394, 397, 786 A.2d 1279 (2001).

Further, specifically with respect to the vehicle identity issue, the error identified by the plaintiff about the listing of the Audi on page one of the A-44 form is, in the full context of the exhibit, insufficient to have required the court to conclude that it was arbitrary, illegal, or an abuse of discretion for the hearing officer to have admitted as evidence the full exhibit, or for us to determine that the court erred in affirming the hearing officer's finding that it contained substantially reliable evidence that the plaintiff was operating a motor vehicle at the time of her offense and subsequent arrest. See Solomon v. Connecticut Medical Examining Board, 85 Conn.App. 854, 860, 859 A.2d 932 (2004) ("The present appeal is from the decision of the trial court. We review that decision only to determine whether it was rendered in accordance with the [Uniform Administrative Procedure Act, General Statutes § 4-166 et seq. ]." [Internal quotation marks omitted.] ), cert. denied, 273 Conn. 906, 868 A.2d 748 (2005).

The court's memorandum of decision, with which I generally agree,³ contains the following findings and discussion of the issues in this case: "The plaintiff ... appeals from the final decision of the [commissioner] suspending the plaintiff's driver's license for ninety days for operating a motor vehicle with an elevated blood alcohol level. For the following reasons, the court rejects several of the plaintiff's claims but remands the appeal to the commissioner for further articulation on one of them.

"State regulations provide that written police reports are admissible at license suspension hearings if they comply with subsection (c) of General Statutes § 14-227b. Regs. Conn. State Agencies § 14-227b-19 (a). Section 14-227b (c), which is part of our implied consent law, requires a police report to be 'subscribed and sworn to under penalty of false statement as provided in [General Statutes §] 53a-157b by the arresting officer.' General Statutes § 14-227b (c). 'Compliance with § 14-227b (c) is designed to provide sufficient indicia of reliability so that the report can be introduced in evidence as an exception to the hearsay rule, especially in license suspension proceedings, without the necessity of producing the arresting officer.' ...

Bialowas v. Commissioner of Motor Vehicles, 44 Conn.App. 702, 712, 692 A.2d 834 (1997).

"In this case, the A-44 [form] contains the April 26, 2014 electronic sworn signature under penalty of false statement of Trooper Troy M. [Biggs] as the 'arresting officer.' The signature box refers to the report itself and 'any attachments' thereto. The attached investigation report contains the April 26, 2014 electronic sworn signature of Trooper [Biggs] as the 'investigator.' These reports thus comply with the statute and provided sufficient reliability to justify their admission at the license suspension hearing in this case. See General Statutes § 14-227b (c) ('[t]he Commissioner of Motor Vehicles may accept a police report under this subsection that is prepared and transmitted as an electronic record, including electronic signature or signatures').

"That reliability is not negated by the plaintiff's claims of discrepancies in the date of arrest and the identity of the motor vehicle that the plaintiff drove. The plaintiff raised both these claims before the hearing officer, thus giving the hearing officer an opportunity to consider them and exercise his discretion concerning the admissibility of the report.

"Under the applicable abuse of discretion standard, no abuse of discretion occurred here. See Murphy v. Commissioner of Motor Vehicles, 254 Conn. 333, 343, 757 A.2d 561 (2000) ; [see also] General Statutes § 4-183(j). There is no dispute that the motor vehicle stop took place shortly after midnight on April 24, 2014. Page one of the A-44 [form] shows a typewritten but crossed out notation of the incident date as '04/23/2014.' In handwriting, the date of '04/24/14' is added with initials that the commissioner concedes are those of Sergeant Ryan M. Hennessey, who the report indicates administered the oath but was not the sworn, arresting officer. The report, therefore, does contain this amount of unsworn information, which was improper. However, pages one and two of the A-44 [form] contain four references to the arrest and breath tests taking place in the early morning hours of '04/24/2014.' The investigation report then makes six references to the incident and investigation taking place on April 24. Under these circumstances, the hearing officer could reasonably have concluded that the initial notation of '04/23/2014' was a scrivener's error due to fact that the arrest took place shortly after midnight and that this error did not negate the overall reliability of the report.

"The same is true of the discrepancy with regard to the motor vehicle in question. Page one of the A-44 [form] lists the motor vehicle as a 2007 Audi with a Massachusetts registration. In the 'Property' section of the investigation report, however, the motor vehicle is identified as a white 2006 Mercedes-Benz with Connecticut registration 344-ZB0. The narrative of the report states: 'A 911 caller described the vehicle as a white Mercedes-Benz bearing CT registration 344-ZBO. I observed this vehicle traveling northbound.... I activated my overhead emergency strobe lights, sirens and wig-wag headlights. The vehicle pulled over.... I never lost sight of the vehicle from my initial observation to the stop.' Although the reports thus contain conflicting evidence concerning the motor vehicle that the plaintiff operated, that conflict does not negate the overall reliability of the report, which otherwise meets the statutory and regulatory criteria. Rather, the conflict simply creates a fact or credibility issue for the hearing office to resolve. 'It is within the province of the hearing officer to determine the credibility of evidence.' Roy v. Commissioner of Motor Vehicles, [supra, 67 Conn.App. at 397, 786 A.2d 1279 ]. Therefore, the hearing officer did not abuse his discretion in admitting the report.

"The plaintiff also relies on the discrepancy concerning the motor vehicle to attack the adequacy of the hearing officer's fourth finding that the plaintiff 'was operating the motor vehicle.' Ordinarily, our appellate courts have narrowly construed the four statutory issues that a hearing officer must address in a license suspension hearing. See Fishbein v. Kozlowski, 252 Conn. 38, 47, 743 A.2d 1110 (2000[1999] ) ; [see also] General Statutes § 14-227b (g). Further, the regulations cited by the plaintiff appear to require hearing officers only to make these four findings and do not specifically require a hearing officer to make any supporting findings of fact. See Regs. Conn. State Agencies §§ 14-227b-20 (a) [and] 14-227b-23. In this case, however, the court cannot evaluate the plaintiff's claim that there was not substantial evidence to support the finding that the plaintiff 'was operating the motor vehicle' without knowing which motor vehicle the hearing officer concluded that the plaintiff operated. For the court to assume one vehicle or the other would amount to improper speculation. Therefore, the court must remand the case to the hearing officer pursuant to General Statutes § 4-183(j) to articulate which car he concluded that the plaintiff was operating and to add any other findings that he deems appropriate.

"Accordingly, the court remands the case to the hearing officer for further articulation. The court retains jurisdiction over the appeal."

I disagree with the majority's determination that the exhibit as a whole was unreliable. One of the reasons for my disagreement is that there were numerous areas of overlap between the A-44 form and Biggs' attached investigation report and the results of the breath analysis tests, which suggest that much of the information in the A-44 form is reliable. Considering just those places on page one of the A-44 form that correspond to information within the investigation report, I note that both documents give the same or fundamentally similar information for the following items: the police case number; the location and time of the traffic stop; the race, sex, birthday, and address of the plaintiff; that the plaintiff failed the same three field sobriety tests in virtually the same manner;⁴ that the plaintiff indicated that she had no physical injuries; and that she was apprised of her Miranda⁵ rights at 12:43 a.m. Further, although the majority rightfully observes that the second page of the A-44 form was not originally included in the return of the administrative record submitted to the court, there is no claim that the hearing officer did not have the full report at the time that he rendered his decision. With respect to the court's consideration of the second page of the A-44 form, the full copy of the form was submitted initially as an exhibit with the plaintiff's June 30, 2014 appeal to that court. Further, the supplement to the administrative record was filed by the commissioner on December 17, 2014; therefore, the court was in possession of it both at the time that it heard the appeal on January 30, 2015, and when it filed its memorandum of decision less than a week later. The court also clearly considered the second page of the A-44 form, as it explicitly referenced portions of that page in its memorandum of decision.⁶

Factoring in this second page increases the number of commonalities between the two documents. In particular, both documents provide the same following information: that the plaintiff neither had diabetes nor was on medication;⁷ the number and type of drinks that the plaintiff had consumed; the time that the plaintiff was afforded the opportunity to contact an attorney; and the date, time, and results of the breath analysis tests.⁸

Finally, I do not attribute the same weight as the majority does to the handwritten notations. Assuming that the handwritten notations were an improper alteration of the A-44 form, it would be reasonable to assume, as the trial court did, that those annotations, which are accompanied by the initials "RH," all refer to Sergeant Ryan M. Hennessey, who is listed on both the A-44 form and the attached narrative as Biggs' supervisor and the individual who administered the oath to Biggs.⁹ I also note that both notations are handwritten, while the remainder of the A-44 form, including the electronic signatures of both Biggs and Hennessey, was typed, and that there are no other indications that the document had been altered beyond those two places. Additionally, the subject matter addressed by each of these notations readily and fairly can be determined to be scrivener's or word processing errors.¹⁰

Another state's appellate court has defined reliable evidence as "dependable evidence that has a reasonable probability of being true...." Franklin County Sheriff v. Frazier, 174 Ohio App.3d 202, 208, 881 N.E.2d 345 (2007). The substantive statements and arguments of the plaintiff's attorney at the hearing were not evidence requiring the hearing officer to find that there was not sufficient reliable evidence in the exhibit to keep it from being admitted, nor was the plaintiff's identification of inconsistencies in the exhibit of a nature sufficient to require such a finding. On the record before it, the court, therefore, did not err in determining that the hearing officer had not acted unreasonably, arbitrarily, or illegally, or that he had abused his discretion in determining that the exhibit was sufficiently reliable to warrant its admission.

I disagree, however, with the court's remand order. There is no need for this matter to be remanded to the hearing officer because it is clear from a fair reading of the exhibit that the plaintiff was operating the 2006 Mercedes-Benz at the time of her arrest, and that the sole reference to the 2007 Audi is in the nature of a scrivener's, typographical, or word processing error. See, e.g., State v. Browne, 291 Conn. 720, 733-37, 970 A.2d 81 (2009) ; D'Amico v. Dept. of Correction, 73 Conn.App. 718, 727-30, 812 A.2d 17 (2002), cert. denied, 262 Conn. 933, 815 A.2d 132 (2003). The Audi is mentioned only once on the first page of the A-44 form. The Mercedes-Benz is mentioned twice on page one of the attached investigation report by Biggs, first in the vehicle description portion of the report and again in the narrative portion of the report, in a context that establishes that it is the vehicle that was being operated by the plaintiff at the time of her offense and traffic stop by Biggs: "A 911 caller described the vehicle as a white Mercedes-Benz bearing CT registration 344-ZBO. I observed this vehicle traveling northbound, failing to maintain its proper lane ... swerving over the solid double yellow line onto the southbound side of the roadway.... I never lost sight of the vehicle from my initial observation to the stop." On page two of the report, Biggs wrote that "upon approaching the vehicle (CT 344-ZBO)," he observed the plaintiff "seated in the operator's position, with the vehicle's engine at an idle." Thereafter, the plaintiff "was asked to exit and step to the rear of her vehicle...."¹¹

The plaintiff did not testify or offer any other evidence at the hearing. She did not make any claim to the hearing officer that these facts were inaccurate or from a prior report. There is nothing in the record to challenge or contradict these facts set forth by Biggs. Put in this context, it is obvious that "the motor vehicle" the plaintiff was operating was the 2006 Mercedes-Benz when she was first observed by the 911 caller and thereafter observed and stopped by Biggs. Because the sole reference to the 2007 Audi is in the nature of a typographical, word processing, or other error of form, and because of the observations of the 911 caller and Biggs of the Mercedes-Benz, and Biggs' observations of the plaintiff in the Mercedes-Benz after he stopped that vehicle, the identity of the vehicle that the plaintiff was operating is not in dispute. Thus, it was not necessary for the court to remand the vehicle identity issue to the hearing officer so that he can state the obvious: that the plaintiff was operating the Mercedes-Benz when her offenses were allegedly committed and when she was stopped by Biggs. See, e.g., State v. Zayas, 195 Conn. 611, 620, 490 A.2d 68 (1985) ("[i]t is an abiding principle of jurisprudence that common sense does not take flight when one enters a courtroom"). It is clear from the exhibit that the plaintiff was the person operating the motor vehicle, the motor vehicle in question was the Mercedes-Benz and not the Audi, and the plaintiff did not specifically challenge the other statutorily required findings made by the hearing officer in this appeal.¹² On this basis, I agree with the commissioner that the appropriate course of action would be to reverse the judgment of the trial court and remand the case with direction to dismiss the plaintiff's appeal. Therefore, I respectfully dissent.

1 In the plaintiff's statement of facts and proceedings, she states that her appeal "arises out of a state police officer copying material information from a prior unrelated drinking and driving arrest," and that "in drafting the documents, the arresting officer copied information from a prior unrelated arrest and swore to its accuracy." In her first argument, the plaintiff also asserted that "material information contained in the A-44 form and attached narrative was copied from a prior unrelated arrest," and that "[t]his court should reverse the Superior Court's decision that the A-44 form and attached narrative were reliable and admissible because the arresting officer copied material information from a prior unrelated arrest and used the copied information in the A-44 form and attached narrative in the plaintiff's case." The plaintiff also asserts, without proof, that the arresting officer copied the field sobriety test results from a prior arrest. Finally, there are other assertions and assumptions by the plaintiff for which proof is lacking.

2 General Statutes § 14-227b (g) 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 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."

The hearing officer found that the department had proved that: probable cause existed to arrest the plaintiff for a violation specified in § 14-227b ; the plaintiff was placed under arrest; the plaintiff had submitted to the breath analysis test and the plaintiff was over the legal limit; and the plaintiff was operating "the motor vehicle." The plaintiff's initial appeal alleged fifteen errors by the hearing officer, including that there was insufficient reliable evidence to establish probable cause to arrest the plaintiff based on the field sobriety tests conducted by Trooper Biggs. Before the Superior Court and this court, however, the plaintiff has addressed the field sobriety tests only in her arguments that the exhibit is, as a whole, unreliable, and has argued that the department had not established that there was substantial and reliable evidence that the plaintiff was the operator of "the motor vehicle" as required by § 14-227b (g)(4) as a separate, if related, ground. Therefore, the plaintiff has not separately challenged on appeal the hearing officer's findings made with respect to § 14-227b (g)(1), (2), or (3) beyond contesting the admissibility of the exhibit.

3 As I explain later in this opinion, I do not agree with the court that a remand was necessary in this case.

4 Bigg's account of two of these field sobriety tests-specifically, the walk and turn and one leg stand tests-are exactly the same. Although his narrative account concerning the horizontal gaze nystagmus test indicates that the plaintiff "exhibited 6 out of 6 clues" of intoxication, while the A44 form only lists three clues, these discrepancies are reconcilable as the investigative report notes that these clues applied to both eyes.

5 See Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

6 In particular, the trial court noted that the A-44 form contained the electronic sworn signature of Biggs as the arresting officer, that the field referred both to the report and any attachments, and that both "pages one and two of the A-44 [form] contain four references to the arrest and breath tests taking place in the early morning hours of '04/24/2014.' " (Emphasis added.)

7 The A-44 form has this information in "Section D," titled "Post Arrest Interview," while the investigative report has this information in the section labeled "Phase III Pre-Arrest Screening." This discrepancy, however, is minor.

8 The attached results of the breath analysis tests confirm the date, time, and results of these tests as well.

9 Contesting the admissibility of the exhibit during the proceeding before the hearing officer, the plaintiff's attorney stated: "The initials appear to be 'RH,' which I would guess would be Ryan Hennessey and not Troy Biggs."

10 With respect to the altered date, both documents, as the court noted, indicate that the incident took place less than one-half hour after midnight; therefore, any mistake as to the date would be understandable. Page one of the A-44 form also lists the date of arrest as April 24, 2014. With respect to the annotation crossing out the name "David Helt" as a witness to the fact that the plaintiff refuse a drug test, the name is otherwise unaccompanied by any typed or handwritten information concerning a badge number or a signature in the related fields of "Section J" of the A-44 form. Additionally, the remainder of the A-44 form, the investigative report, and the results of the breath analysis tests all make clear that the plaintiff did not refuse the test and that the test was administered.

11 The record does not contain any challenge by the plaintiff to these statements.

12 See footnote 2 of this dissenting opinion.