State v. Hanusiak

Jacobs, J.

(dissenting). The issue in this case involves a question of delegation of power. Simply put, it is this: May the legislature confer upon the courts the power to make a finding, after trial and acquittal, of operation or nonoperation of a motor vehicle where a person has been placed under arrest for operating while under the influence of intoxicating liquor (§ 14-227a) and “refuses to submit to either a breath or blood test” (§ 14-227b) ? I think it can. The purpose behind our implied consent statute, § 14-227b, may be found in a fair reading of its provisions and the scheme designed by the legislature for realization of its purpose. The statute is reasonable. Drivers know in advance what is expected of them. By refusing to submit to the optional form of testing (breath or blood), the de *48 fendant saw fit to thwart a clearly expressed legislative policy designed for the protection of users of our highways.

The trial court was not asked to take administrative action against the operator’s license of the defendant or his privilege to operate; see 7 Am. Jur. 2d, Automobiles and Highway Traffic, §§ 109, 110, 120-130; 60 C.J.S., Motor Vehicles, § 160; nor was the court called upon, as it could not be under the circumstances of the case, to impose or apply criminal sanctions. All the court was asked to do was to make a finding of operation or nonoperation — an adjudicative fact — as an auxiliary remedial device in aid of the administrative agency. “Courts in a proper case may act in aid of the jurisdiction of the administrative agency where this does not involve decision of a controversy of which the agency has exclusive jurisdiction.” 2 Am. Jur. 2d 678, Administrative Law, § 778. No conflict of jurisdiction appears here; only the administrative agency has control of and exercises exclusive authority over suspension or revocation of licenses.

I see no basis for the majority’s writing into the statute a procedural limitation that the legislature did not include. Such a limitation might be justified to further some policy of the criminal law such as, for example, the right to a fair hearing or the right to be free from double jeopardy. No such policy considerations are involved here. On the contrary, the majority ruling seems to me to thwart a clearly expressed legislative policy — the policy of visiting administrative sanctions upon persons who refuse to submit to blood testing, even though those persons may be acquitted after trial. In other words, the statute we are considering does not fit into the conventional pattern, exemplified in State v. Carabetta, 106 Conn. 114 , that no form of criminal punishment *49 may be applied against an accused after he has been discharged. The whole philosophy behind § 14-227b —its raison d’etre, one might say — is to provide some way of reaching out against an accused, though not as part of the criminal law, to prevent the obstruction of a fixed legislative policy. This reaching out, so to speak, is merely directed toward the suspension or revocation of the operating privileges of an accused. The ruling of the majority says that the finding of operation or nonoperation cannot take place unless it is made before the jury is discharged. I find nothing in the statute to warrant such a holding. I see no reason why the finding may not be made at any reasonable time after the conclusion of the trial, provided the defendant is given notice, is accorded a fair hearing and is not prejudiced by the delay. In other words, the emphasis ought to be oriented toward appropriate and proper safeguards to assure a defendant a fair hearing on the limited issue.

“Law enforcement is an art; it is not the mere unthinking application of mathematical absolutes.” National Labor Relations Board v. Eanet, 179 F.2d 15, 21 . Neither the executive nor the judicial branch of the government must be regarded by the other as an alien intruder; rather they are coordinate forces for the accomplishment of that art: law enforcement. See United States v. Morgan, 307 U.S. 183, 191 . “Courts, no less than administrative bodies, are agencies of government. Both are instruments for realizing public purposes and both are law-enforcing agencies utilized by the legislature as such. They are not to be regarded as business rivals or competitors in the task of safeguarding the public interest.” 1 Am. Jur. 2d 822, Administrative Law, § 18. “We must be wary against interpolating our notions of policy in the interstices of legislative provisions.” *50 Scripps-Howard Radio, Inc. v. Federal Communications Commission, 316 U.S. 4, 11 . “We are asked to shut our eyes to the plainest facts of our national life and to deal with the question of . . . [the interpretation of the statute] in an intellectual vacuum.” National Labor Relations Board v. Jones & Laughlin Steel Corporation, 301 U.S. 1, 41 . This we may not do.

The legislature having seen fit to delegate to the courts the power to make a finding of operation or nonoperation in eases of this kind, I see no reason or occasion to take a judicial hands-off policy. The defendant made no claim in his brief or on oral argument that he was in any way prejudiced by the delay or by lack of notice or by lack of a fair hearing-on the issue of operation. In these circumstances, I would sustain, the finding of the trial court.