Kramer v. Commissioner of Motor Veh., No. Cv 89-0360010 S (Jul. 30, 1992)

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION This case involves an appeal from the decision of the Commissioner of Motor Vehicles suspending the petitioner's motor vehicle license for alleged refusal to submit to an alcohol blood content test requested of the petitioner upon his arrest for erratic operation of his motor vehicle on July 21, 1988, by the arresting officer.

The matter is presented to this court on remand from the Appellate Court to determine whether the third finding of the hearing officer that the petitioner refused to submit to a alcohol content urine test was supported by the evidence.

The court has a very restricted review function, Lawrence v. Kozlowski, 171 Conn. 705, 707 (1976). "This court may [not] retry the case or substitute its own judgment for that of the defendant." C H Enterprises, Inc. v. Commissioner of Motor Vehicles, 176 Conn. 11, 12 (1978).

The only issue for review is whether the evidence supports the claim that the petitioner Kramer had a physical condition which precluded his providing a urine sample for alcohol content analysis. The petitioner is deemed to have refused to provide a urine sample and thereby refused the test selected by the arresting officer. There are no subordinate findings in the record to ascertain whether the hearing officer discounted or otherwise accepted the petitioner's testimony relative to his CT Page 7258 physical condition. The court cannot surmise or guess as to what the examiner accepted or discounted.

It is the order of this court that the matter be remanded to the agency for finding of fact relative to the claimed physical condition and whether the petitioner sustained the burden of proof relative to that condition which would make it impossible for him to comply with the police officer's request.

Kocay, J.