author: VERTEFEUILLE, J.

text:
    STATE OF CONNECTICUT v. HERIBERTO LOPEZ
    (SC 16183)
    Borden, Norcott, Katz, Palmer and Vertofeuille, Js.
    Argued May 31
    officially released August 15, 2000

      Lauren Weisfeld, assistant public defender, for the appellant (defendant).

      Ronald G. Weller, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Gary Nicholson, senior assistant state’s attorney, for the appellee (state).
   Opinion

VERTEFEUILLE, J.

The defendant, Heriberto Lopez, appeals from a judgment of conviction for the crimes of murder in violation of General Statutes § 53a-54a conspiracy to commit murder in violation of General Statutes §§ 53a-481 and 53a-54a, and possession of a weapon in a motor vehicle in violation of General Statutes § 29-38. On appeal, the defendant claims that the trial court improperly found that the confession of a third party declarant was untrustworthy and therefore inadmissible. We conclude that the trial court did not abuse its discretion in excluding the confession, and we therefore affirm the judgment of the Appellate Court.

This case returns to us for a second time. After a jury trial, the defendant was found guilty and sentenced to forty-five years imprisonment. During the trial, the court refused to admit the confession of a third party declarant, Lenise Nestir, finding that she was available to testify and that her hearsay statement was therefore inadmissible. The defendant appealed from his conviction to this court, and we transferred the appeal to the Appellate Court, which affirmed the judgment of conviction. State v. Lopez, 38 Conn. App. 434, 447, 662 A.2d 792 (1995). After granting the defendant’s certification to appeal; State v. Lopez, 235 Conn. 919, 665 A.2d 907 (1995); we determined that the trial court had abused its discretion in finding that Nestir was available to testify. We therefore remanded the case to the trial court to determine whether the alleged third party confession was sufficiently trustworthy to have been admitted into evidence. State v. Lopez, 239 Conn. 56, 57, 681 A.2d 950 (1996).

On remand, the trial court found that the alleged confession was not sufficiently trustworthy to be admitted into evidence. The Appellate Court affirmed the judgment of the trial court; State v. Lopez, 54 Conn. App. 168, 177, 736 A.2d 157 (1999); and the defendant successfully petitioned this court for certification to appeal.* *** State v. Lopez, 250 Conn. 924, 738 A.2d 661 (1999). This appeal followed. We now affirm the judgment of the Appellate Court.

As indicated in the prior appeal to this court, the jury reasonably could have found the following facts. During the early evening of May 8, 1991, the victim, Elvis Cmkovic, and his brother, Paul Cmkovic, were playing basketball at the comer of Winthrop and Davenport Avenues in New Haven, when two cars approached. State v. Lopez, supra, 239 Conn. 59. The defendant sat in the front passenger seat of one of the cars, which was brown, armed with a .38 caliber revolver. Jorge Orta drove the other car, a gray Mazda, in which David Morales was a passenger. Id. The defendant and someone in the gray car fired shots and Elvis was shot in the back as he and his brother attempted to flee. Id., 59-60. Elvis later died as a result of his wounds. Id., 60.

Prior to the shooting, Nestir, one of the state’s key witnesses at trial, was in the Liberty Street area of New Haven, where she saw Alex Romero driving a brown vehicle. Romero claimed to have a gun in his possession and asked whether anyone wanted to accompany him to Davenport Avenue. Id. Nestir explained that there was tension between a group of youths in the Liberty Street area, known as the “Liberty Street Posse,” and another group in the Davenport Avenue area. At trial, Nestir testified that Romero and the defendant were members of the Liberty Street Posse. The defendant accepted Romero’s invitation to accompany him and the two men drove away. While Nestir had declined Romero’s invitation to accompany them, she walked to within one block of the shooting to watch. Id., 60-61.

From the intersection of Winthrop and Davenport Avenues, Nestir observed Romero’s brown car approach, although she was unable to identify its occupants. Id., 61. Nestir saw shots fired from the vehicle. She denied seeing a gray car at the scene, although the state introduced evidence that shots were also fired from a gray car. Id.

After the shooting, Nestir saw the brown car, driven by Romero with the defendant and another male named Andrew as passengers, approach a nearby dumpster. Nestir observed Andrew empty shells from a gun into the dumpster. Id. Later that same day, Romero gave Nestir a gun and, according to Nestir’s testimony, asked her to “get rid of it . . . because it was hot.” Nestir did not dispose of the gun but, instead, kept the gun, hoping to exchange it for a car. Id. Later, the New Haven police, based upon a tip from an informant, seized the gun from Nestir but never charged her with an offense. Id.

During his case-in-chief, the defendant sought to introduce evidence that Nestir had confessed to committing the murder. Id., 62. The defendant called Robin Shade to make an offer of proof concerning self-incriminating statements that Nestir allegedly had made to Shade. In these statements, Nestir claimed that she had shot the victim. Id.

In this appeal, the defendant contends that the trial court abused its discretion in finding that Nestir’s statement was untrustworthy despite the timing of the declaration and in light of the person to whom it was made, and the allegedly ample evidence that corroborated the statement. We disagree.

At the outset, we note that a trial court’s ruling on the admissibility of evidence is entitled to great deference. See State v. Castonguay, 218 Conn. 486, 497, 590 A.2d 901 (1991). “[T]he trial court has broad discretion in ruling on the admissibility ... of evidence. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion. . . . Moreover, evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice.” (Citations omitted; internal quotation marks omitted.) State v. Hines, 243 Conn. 796, 801, 709 A.2d 522 (1998). “This deferential standard is [generally] applicable to evidentiary questions involving hearsay . . . .” (Citation omitted.) Id., 801-802.

We recognized previously that “[t]he law regarding the admissibility of third party statements against interest is well settled. A trustworthy third party statement exculpatory of the accused and against the penal interest of the declarant is admissible at the trial of the accused if the declarant is unavailable. . . . The determination of whether such a statement is sufficiently trustworthy to be admitted into evidence at trial lies within the sound discretion of the trial court. . . . Four considerations have been deemed relevant when examining the trustworthiness of declarations against penal interest: (1) the time of the declaration and the party to whom the declaration was made; (2) the existence of corroborating evidence in the case; (3) the extent to which the declaration is really against the declarant’s penal interest; [and] (4) the availability of the declarant as a witness.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Lopez, supra, 239 Conn. 70-71. Although this court has often repeated these four considerations, we previously have not explicated the relative importance of each of the factors in the overall determination of the trustworthiness of a confession by a third party declarant.

We reiterate that as a threshold matter, it is necessary to determine that the third party is unavailable to testify. See State v. DeFreitas, 179 Conn. 431, 447, 426 A.2d 799 (1980) (“[there is] a threshold requirement of unavailability of the declarant for the admission of these third party declarations against penal interest”). We previously have stated that the necessity for having this exception to the hearsay rule results from the declarant’s unavailability to testily at trial. Id., 440-41.

After the initial determination of unavailability, the trial court should then consider the remaining three factors in the determination of trustworthiness. We previously have emphasized, however, that “ ‘no single factor in the test we adopt for determining the trustworthiness of third party declarations against penal interest is necessarily conclusive’ . . . .” State v. Gold, 180 Conn. 619, 633-34, 431 A.2d 501, cert. denied, 449 U.S. 920, 101 S. Ct. 320, 66 L. Ed. 2d 148 (1980), quoting State v. DeFreitas, supra, 179 Conn. 454 n.11. In allowing this exception to the hearsay rule, we are primarily concerned that “under the particular circumstances, the statement is trustworthy, that is, that safeguards reasonably equivalent to the oath and the test of cross-examination exist.” Ferguson v. Smazer, 151 Conn. 226, 232, 196 A.2d 432 (1963) (third party declaration against pecuniary interest). Thus, it is not necessary that the trial court find that all of the factors support the trustworthiness of the statement. The trial court should consider all of the factors and determine whether the totality of the circumstances supports the trustworthiness of the statement.

We clarify today that in order to admit a third party statement against penal interest, the trial court must determine first, that the declarant is unavailable. Second, the trial court must find that the declarant’s out-of-court statement was trustworthy by considering the following factors in the context of the totality of the circumstances: (1) the time of the declaration and the party to whom the declaration was made; (2) the existence of corroborating evidence in the case; and (3) the extent to which the declaration is against the declarant’s penal interest.

Since there has been a threshold determination of unavailability of the declarant in the present case, we focus on the consideration of the remaining factors in order to determine the trustworthiness of the statement. There is no dispute that the alleged confession to murder was against Nestir’s penal interest. State v. Lopez, supra, 239 Conn. 74. Therefore, we focus on the remaining two considerations, namely, the timing of the declaration and to whom the declaration was made and the existence of corroborating evidence.

The defendant first contends that the trial court abused its discretion in finding that the timing of the declaration and the person to whom it had been made were insufficient to support its trustworthiness. We afford the trial court broad discretion in deciding whether the timeliness of a statement indicates that it is trustworthy. In general, “declarations made soon after the crime suggest more reliability than those made after a lapse of time where a declarant has a more ample opportunity for reflection and contrivance.” State v. Bryant, 202 Conn. 676, 699, 523 A.2d 451 (1987). A statement’s timeliness, however, is not necessarily dis-positive of the trustworthiness determination. See id. (confession made within hours of crime); State v. Gold, supra, 180 Conn. 634 (confession made within three months of murders); cf. United States v. Satterfield, 572 F.2d 687, 693 (9th Cir.), cert. denied, 439 U.S. 840, 99 S. Ct. 128, 58 L. Ed. 2d 138 (1978) (confession made two years after crime). In State v. Hernandez, 204 Conn. 377, 392, 528 A.2d 794 (1987), this court affirmed the trial court’s exclusion of a confession made the day after the crime occurred because of a lack of circumstances that indicated it was trustworthy. Similarly, in the present case, although Nestir’s confession was made promptly, within one and one-half days after the shooting, the timing of the statement alone is not sufficient to support its trustworthiness.

With respect to the second part of the first element of trustworthiness, we require that “the witness testilying as to the statement must be one in whom the declarant would naturally confide.” Id. “There must be a relationship in which the two parties to the conversation had a close and confidential relationship.” State v. Rivera, 221 Conn. 58, 70, 602 A.2d 571 (1992); id., 70-71 (finding declarant’s confession to brother did not meet relationship element of test because of evidence that they did not get along well, they did not grow up together, and declarant burglarized brother’s apartment). Further, the burden of establishing the requisite relationship rests on the proponent of the statement. Id., 71.

Shade’s testimony indicated that, although she and Nestir had a nine year relationship, it was not close or confidential. Approximately eight years prior to trial, Shade cared for Nestir for eleven months and again, six months later, for another nine months. Shade had stopped taking care of Nestir because she “just likes to go on the streets constantly.” Since that time, Nestir had visited Shade quite often but Shade had restricted Nestir’s visits to one hour stays and confined Nestir to the living room and bathroom of her home. Shade had imposed these restrictions because she was concerned that Nestir would get her children into trouble and exert a bad influence on them.

Moreover, Shade testified that Nestir had lied to her repeatedly. As a result, Shade did not always believe Nestir, and unless Nestir proved her statements, Shade would not rely on what Nestir had said. At trial, Shade stated unequivocally, “I didn’t trust her.” Although Shade testified that she thought she could discern when Nestir was lying, Shade did not testify that Nestir was telling the truth when she made this confession. Accordingly, although Shade’s testimony established that she and Nestir had an ongoing relationship, the trial court did not abuse its discretion by deciding, again based on Shade’s testimony, that the relationship was not a close and confidential one.

The defendant further contends that the trial court abused its discretion in finding that there was insufficient corroborative evidence to establish the trustworthiness of Nestir’s confession. He relies on two corroborative facts: (1) Nestir’s possession of the murder weapon only eight days after the shooting; and (2) her presence near the vicinity of the shooting when it occurred.

We previously have emphasized that “[tjhe corroboration requirement for the admission of a third party statement against penal interest is significant and goes beyond minimal corroboration.” (Emphasis added.) State v. Rosado, 218 Conn. 239, 249, 588 A.2d 1066 (1991). Third party statements that exculpate an accused are suspect because of the danger of fabrication. Id. Therefore, the statement must be accompanied by corroborating circumstances that clearly indicate the statement’s trustworthiness. Id.

In the few cases in which this court has found that the trial court had abused its discretion by excluding such a statement, there was significant corroborating evidence. See State v. Bryant, supra, 202 Conn. 706 (remanded for new trial); State v. Gold, supra, 180 Conn. 660 (same). We have found that evidence significantly corroborated a confession where: (1) the declarant spontaneously confessed; (2) the declarant made incriminating statements to more than one person; (3) there was eyewitness testimony regarding the declarant’s involvement in the crime; (4) the declarant’s whereabouts were unknown at the time of the crime; (5) there was physical evidence tying the declarant to the crime; and (6) the declarant’s actions after the crime were suspicious. See State v. Gold, supra, 634-37; State v. Bryant, supra, 701.

In State v. Gold, supra, 180 Conn. 634-37, this court determined that the alleged confession was corroborated sufficiently because: (1) the declarant had made the spontaneous confession the night he took his own life; (2) a second witness had overheard the confession on an extension telephone; (3) the declarant had made inculpatory statements to two witnesses, which included the declarant describing, within hours of the murders, that he was covered with blood and had “just done something that he wasn’t going to be able to get out of’; (4) an eyewitness had seen the declarant running from the direction of the victims’ home shortly after the murders; (5) the declarant had not been home during the time of the murders; (6) two witnesses had observed a bloody shirt in the declarant’s home; and (7) the declarant had fled the state the day after the murders. Similarly, in State v. Bryant, supra, 202 Conn. 701, we found sufficient evidence to support the confession’s trustworthiness where: (1) the declarant spontaneously had confessed to his mother, describing the means by which he had entered the victim’s apartment; (2) the declarant had made statements to at least four individuals that he had planned to commit the crime or, afterward, that he had committed the crime; (3) an eyewitness’ description of the assailant had matched the declarant; (4) the declarant had not been home at the time of the crime; (5) other witnesses had testified that the declarant had the victim’s pocketbook and driver’s license shortly after the crime, and the police later had found the victim’s license at the declarant’s home; and (6) the declarant had told his mother he would lie in court if called to testify at trial. In both of these cases, we determined that there was significant corroborating evidence that clearly indicated the trustworthiness of the confession.

In the present case, we cannot conclude that the trial court abused its discretion in finding that the evidence did not meet the significant level of corroboration required for the admission of a hearsay statement. Although the alleged confession was spontaneous, there was no evidence presented that Nestir ever had repeated the statement or had made any inculpatory statements to persons other than Shade. Moreover, none of the eyewitnesses had identified Nestir, or any female, as one of the shooters. There was no other physical evidence tying Nestir to the crime, nor any evidence that her actions afterward were suspicious. Nestir’s possession of the murder weapon eight days after the shooting and her presence near the scene of the shooting were not necessarily sufficient to support the trustworthiness of the statement.

The trial court did not abuse its broad discretion by excluding Nestir’s confession from evidence because it was not trustworthy. The evidence amply supported the trial court’s findings that Shade and Nestir did not enjoy a close and confidential relationship, and that there was insufficient evidence corroborating Nestir’s confession.

The judgment of the Appellate Court is affirmed.

In this opinion the other justices concurred.

       General Statutes § 53a-54a provides in pertinent part: “(a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person . . . .”

       General Statutes § 53a-48 (a) provides: “A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.”

       General Statutes § 29-38 provides in pertinent part: “Any person who knowingly has, in any vehicle owned, operated or occupied by him, any weapon for which aproper permit has not been issued as provided in section 29-28 or section 53-206, or has not registered such weapon as required by section 53-202, as the case may be, shall be fined not more than one thousand dollars or imprisoned not more than five years or both, and the presence of any such weapon in any vehicle shall be prima facie evidence of a violation of this section by the owner, operator and each occupant thereof. . . .”

        Section 29-38 was amended by No. 99-212, § 14, of the 1999 Public Acts. The changes therein are not relevant to this appeal and, for purposes of clarity and consistency with the previous opinions regarding this case, we refer to the present revision of § 29-38, which is identical to the statute in effect at the time of the commission of the crime.

      Judge Stanley, who had presided over the original trial, died before addressing the trustworthiness of the alleged confession on remand. Judge Damiani, after reviewing the evidence, found that the statement was untrustworthy. In his decision, Judge Damiani noted the comments that Judge Stanley had made during his decision to exclude the statement, which included the following: “Even [if we were to assume] arguendo, [that Nestir] were found to be . . . unavailable . . . and her possession of the murder weapon eight days after the event is a significant connection to the crime, which it may or may not be, the testimony by [Robin] Shade was unequivocal that the declarant was decidedly untrustworthy in her eyes. And so there’s a matter of trustworthiness even if you get past the fact that she seems to be available. . . . [Shade] also said that she wouldn’t accept anything that Miss Nestir said without proof. Now, it is not a matter of looking at a person and saying I know or don’t know she is telling the truth. She said I wouldn’t accept anything she said without proof. . . . The conclusion I reach is that she (A) is available and that (B) if she were unavailable the trustworthiness is seriously, seriously in doubt.”

       We granted certification to appeal limited to the following issue: “Whether the Appellate Court properly affirmed the trial court’s finding that the alleged third party confession was not sufficiently trustworthy to have been admitted into evidence?” State v. Lopez, 250 Conn. 924, 738 A.2d 661 (1999).

       The defendant sought to admit the following testimony from Shade, which was given during an offer of proof to the trial court.
      “[Defense Counsel]: What did [Nestir] tell you about Elvis [Crnkovic] being shot and killed?
      “[Shade] She told me that her and [Paul Crnkovic (Paulie)] had a fight. . . . Paulie was supposed to smack her in the face and she said that no F-body is going to smack her in the face and she is going to go get some boys from Liberty Street to beat his butt. As far as I know she got a car full of guys and she said that one of them had the gun shooting it out the window up to the sky and she grabbed it from the guy and pointed it to Paulie and it didn’t hit Paulie it hit someone else and she said it was his brother.
      “Q. Did she tell you that?
      “A. Yes, she did.
      “Q. Was it soon after the shooting?
      “A. Yes, it was. It was a day and a half almost [two] days after; a day and a half say.”

       We previously have determined that the declarant, Nestir, was unavailable. State v. Lopez, supra, 239 Conn. 74.

       Only one witness, Jeanette Ayala, testified that Nestir was inside the gray vehicle at the time of the shooting. Ayala also stated, however, that a man named Moses, not Nestir, was the shooter.


source: Caselaw Access Project

author: NORCOTT, J.

license: Public Domain

text:
    JOSEPH FALCO v. INSTITUTE OF LIVING
    (SC 16052)
    McDonald, C. J., and Borden, Norcott, Palmer and Vertefeuille, Js.

      Argued April 26
    officially released August 22, 2000

      Mark R. Kravitz, with whom were Jennifer R. Kinsbruner, law student, and, on the brief, Tracey M. Lane and Donna R. Zito, for the appellant (defendant).

      Doreen J. Bonadies, with whom was John Biller, for the appellee (plaintiff).
   Opinion

NORCOTT, J.

The dispositive issue in this certified appeal is whether the psychiatrist-patient privilege against disclosure, pursuant to General Statutes § 52-MOe, is subject to any exceptions beyond those enacted by the legislature. We conclude that it is not and, therefore, we reverse the judgment of the Appellate Court affirming the trial court’s granting of the bill of discovery filed by the plaintiff, Joseph Falco, against the defendant psychiatric hospital, the Institute of Living, to compel disclosure of the name, last known address and social security number of one of the defendant’s patients referred to as John Doe.

The relevant facts are as follows. On March 10, 1995, the plaintiff was admitted as an inpatient at the defendant. Shortly thereafter, on March 15, 1995, while attending a group meeting, the plaintiff allegedly was attacked without provocation by John Doe.

On January 7, 1997, after the defendant’s insurer denied the plaintiff’s insurance claim, the plaintiff filed this bill of discovery against the defendant to obtain identifying information from it that would enable him to bring an action against John Doe. The plaintiff indicated that this information was required immediately in order to file an action before the expiration of the statute of limitations on March 15,1997. The defendant moved to strike the bill of discovery on the grounds that it was improper under the circumstances, and that § 52-146e prohibited disclosure of communications and records identifying a patient. On February 28, 1997, during the pendency of the bill of discovery, the plaintiff filed a separate civil action against the defendant and John Doe.* * In paragraph three of the first count of the complaint, the plaintiff identified John Doe by what he believed to be Doe’s actual name. On March 10, 1997, in the present case, the trial court granted the plaintiffs bill of discovery and ordered the defendant to disclose John Doe’s name, last known address and social security number. The defendant appealed to the Appellate Court, which affirmed, with one judge dissenting, the judgment of the trial court granting the bill of discovery. Falco v. Institute of Living, 50 Conn. App. 654, 665, 718 A.2d 1009 (1998). The Appellate Court reasoned that, although § 52-146e applied, a court is nonetheless entitled to weigh a patient’s statutory privilege against other countervailing considerations and, where appropriate, may provide for exceptions to the privilege beyond those explicitly articulated in the statute. Id., 657-58. Specifically, the court concluded that the plaintiffs state constitutional right to redress outweighed John Doe’s statutory privilege against a “single limited disclosure” of identifying information. Id., 659.

We granted the defendant’s petition for certification to appeal limited to the following issue: “Under the circumstances of this case, did the Appellate Court properly conclude that the plaintiff was entitled to a bill of discovery regarding ‘John Doe’s’ name, last known address and social security number?” Falco v. Institute of Living, 247 Conn. 948, 723 A.2d 324 (1998). The defendant claims that: (1) the trial court improperly exceeded its authority by recognizing an exception to John Doe’s privilege that the legislature has not enacted; (2) disclosure of identifying information would implicate John Doe’s constitutional privacy rights; and (3) John Doe was entitled to notice before the adjudication of the plaintiff’s bill of discovery. We agree with the defendant’s first claim. This conclusion renders it unnecessary to reach the second and third claims. Accordingly, we reverse the judgment of the Appellate Court.

The defendant first claims that the Appellate Court improperly concluded that the trial court could exercise its discretion to override the psychiatrist-patient privilege where the court discerned “compelling countervailing interests” not explicitly recognized by the legislature. Falco v. Institute of Living, supra, 50 Conn. App. 659-60. The defendant argues that § 52-146e prohibits the disclosure of identifying information, narrowly limits the delineated exceptions to nondisclosure, and that the courts may not override that privilege where the legislature has not provided an exception. The plaintiff concedes that § 52-146e controls and that no appropriate statutory exception applies. He nonetheless contends that the trial court may balance competing interests and override the privilege in its discretion. We agree with the defendant.

Section 52-146e (a) provides: “All communications and records as defined in section 52-146d shall be confidential and shall be subject to the provisions of sections 52-146d to 52-146j, inclusive. Except as provided in sections 52-146f5 to 52-146Í, inclusive, no person may disclose or transmit any communications and records or the substance or any part or any resume thereof which identify a patient to any person, corporation or governmental agency without the consent of the patient or his authorized representative.” (Emphasis added.)

“As we have previously observed, [t]he people of this state enjoy a broad privilege in the confidentiality of their psychiatric communications and records; State v. D’Ambrosio, 212 Conn. 50, 55, 561 A.2d 422 (1989), cert. denied, 493 U.S. 1063, 110 S. Ct. 880, 107 L. Ed. 2d 963 (1990); and the principal purpose of that privilege is to give the patient an incentive to make full disclosure to a physician in order to obtain effective treatment free from the embarrassment and invasion of privacy which could result from a doctor’s testimony. State v. White, 169 Conn. 223, 234-35, 363 A.2d 143, cert. denied, 423 U.S. 1025, 96 S. Ct. 469, 46 L. Ed. 2d 399 (1975). Accordingly, the exceptions to the general rule of nondisclosure of communications between psychiatrist and patient were drafted narrowly to ensure that the confidentiality of such communications would be protected unless important countervailing considerations required their disclosure. See, e.g., 9 H.R. Proc., Pt. 8, 1961 Sess., p. 3945, remarks of Representative Nicholas B. Eddy (statutory scheme defines the protected relationship carefully and at the same time recognizes the legitimate interest of society in intruding upon the relationship in certain limited situations) . . . .” (Citations omitted; emphasis in original; internal quotation marks omitted.) Home Ins. Co. v. Aetna Life & Casualty Co., 235 Conn. 185, 195-96, 663 A.2d 1001 (1995); see also State v. Toste, 178 Conn. 626, 629, 424 A.2d 293 (1979).

Although we are cognizant that “[c]ommunications that bear no relationship to the purpose for which the privilege was enacted do not obtain shelter under the statute and are admissible subject to the normal rules of evidence”; Bieluch v. Bieluch, 190 Conn. 813, 819, 462 A.2d 1060 (1983); we are equally convinced that the protection of communications that identify a patient are central to the purpose of the statute. The language of the statute supports this conclusion. Section 52-146e (a) specifically prohibits the disclosure or transmission of any communications or records that would “identify a patient . . . .” Section 52-146d provides that the phrase “ ‘identify a patient’ refer[s] to communications and records which contain (A) names or other descriptive data from which a person acquainted with the patient might reasonably recognize the patient as the person referred to, or (B) codes or numbers which are in general use outside of the mental health facility which prepared the communications and records . . . .” Further, the fact that an explicit exception contained in subdivision (3) of § 52-146Í permits the disclosure of a patient’s “name, address and . . . [t]hat the person was in fact a patient” for purposes of collection disputes between the hospital and the patient, lends weight to our conclusion that the general rule against disclosure applies with equal force to identity as to other information.

We therefore disagree with the Appellate Court’s characterization of information identifying the patient as “a single limited disclosure . . . .” Falco v. Institute of Living, supra, 50 Conn. App. 659. We also disagree with the plaintiffs suggestion, at oral argument before this court, that identifying information is of lesser importance within the statutory scheme than other communications and records. The confidentiality of a patient’s identity is as essential to the statutory purpose of preserving the therapeutic relationship as the confidentiality of any other information in a patient’s communications and records. The statute recognizes the unfortunate reality that a stigma may attach to one who seeks psychiatric care, and that revealing a patient’s identity may subject him or her to embarrassment, harassment or discrimination.

It is just as clear that no exception is available beyond those contained in § 52-146Í. “[W]e have long held that . . . exceptions to statutes are to be strictly construed with doubts resolved in favor of the general rule rather than the exception .... [W]here express exceptions are made, the legal presumption is that the legislature did not intend to save other cases from the operation of the statute.” (Citations omitted; internal quotation marks omitted.) Ensign-Bickford Realty Corp. v. Zoning Commission, 245 Conn. 257, 268, 715 A.2d 701 (1998). With respect to § 52-146e, we have noted that the legislature has narrowly drafted the exceptions to the general rule against disclosure after carefully balancing the important countervailing considerations. Home Ins. Co. v. Aetna Life & Casualty Co., supra, 235 Conn. 195. The inference that we draw is that the legislature did not intend to save other cases from the general rule. Consideration of one exception in particular illustrates this point. Subdivision (7) of § 52-146f allows disclosure of communications to “the immediate family or legal representative of the victim of a homicide committed by the patient where such patient has . . . been found not guilty of such offense by reason of mental disease or defect” for use in a civil action against the patient.

The passage of the bill that ultimately was enacted as subdivision (7) of § 52-146Í followed the murder of a young girl by a psychiatric patient in Middletown. See 35 H.R. Proc., Pt. 13,1992 Sess., pp. 4441-49. The murder highlighted the difficulties presented to a litigant by the psychiatrist-patient privilege. Id. The legislature, however, did not draft an exception that assists civil claimants in general. See id., p. 4447, remarks of Representative Peter A. Nystrom (“[s]ome of us in the House probably don’t think the amendment goes far enough, but that’s another battle for another day”). The exception allows disclosure only after a homicide trial, and only after the patient has been found not guilty by reason of mental disease and defect. As Representative Robert M. Ward stated, the exception was a “quite narrowly drawn change to the law . . . strictly limited to those fact patterns” described in the act. Id., p. 4441. Therefore, we conclude that it is contrary to the language of the statute and the intent of the legislature for courts to make discretionary case-by-case determinations of when the privilege may be overridden.

We reject the argument that, even in the absence of a statutoiy exception, the plaintiffs right to redress pursuant to article first, § 10, of the constitution of Connecticut permits us to override the patient’s privilege. We are unpersuaded that the right to redress is implicated at all, either by the statute generally or on the facts of this case specifically.

First, the right to redress is not implicated unless the statute restricts or alters the cause of action itself. See Gentile v. Altermatt, 169 Conn. 267, 284, 363 A.2d 1 (1975), appeal dismissed, 423 U.S. 1041, 96 S. Ct. 763, 46 L. Ed. 2d 631 (1976). The psychiatrist-patient privilege merely restricts the discovery and the availability of evidence—in this case, the communications and records held by the defendant. In this respect, the psychiatrist-patient privilege is no different from other common privileges such as the attorney-client or spousal privileges. Evidentiary privileges exist for “the protection of interests and relationships which, rightly or wrongly, are regarded as of sufficient social importance to justify some sacrifice of availability of evidence relevant to the administration of justice.” 1 C. McCormick, Evidence (4th Ed. 1992) § 72, p. 269. The plaintiff has failed to demonstrate that the privilege limits or impairs the cause of action itself. In the absence of that showing, we cannot conclude that the plaintiffs right to redress is implicated.

Second, the plaintiff presented no evidence in the record to show the absence of alternative means of discovering the requested information other than disclosure by the defendant. The lack of such evidence lends credence to the defendant’s argument, which echoes Judge Schaller’s dissent from the Appellate Court decision, that the plaintiff employed the bill of discovery as a fast and easy alternative to diligent investigation. The plaintiff merely stated in the bill of discovery that “[t]here are no other adequate means [of] seeming the information conveniently, effectively and completely.” We agree with Judge Schaller’s observation in his dissent that “[i]t can hardly be seriously contended that failing to provide the most convenient way to obtain information about aputative defendant deprives aplaintiff ’ of his right to redress. (Emphasis in original.) Falco v. Institute of Living, supra, 50 Conn. App. 669.

We therefore conclude that the psychiatrist-patient privilege may be overridden only by legislatively enacted exceptions, and that the facts of this case do not fall within the narrowly drawn exceptions delineated by the legislature.

The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to reverse the judgment of the trial court, and to remand the case to that court with direction to render judgment for the defendant.

In this opinion the other justices concurred.

       General Statutes § 52-146e provides: “Disclosure of communications, (a) All communications and records as defined in section 52-146d shall be confidential and shall be subject to the provisions of sections 52-146d to 52-146j, inclusive. Except as provided in sect ions 52-146f to 52-1461, inclusive, no person may disclose or transmit any communications and records or the substance or any part or any resume thereof which identify a. patient to any person, corporation or governmental agency without the consent of the patient or his authorized representative.
      “(b) Any consent given to waive the confidentiality shall specify to what person or agency the information is to be disclosed and to what use it will be put. Each patient shall be informed that his refusal to grant consent will not jeopardize his right to obtain present or future treatment except where disclosure of the communications and records is necessary for the treatment.
      “(c) The patient, or his authorized representative may withdraw any consent given under the provisions of this section at any time in a writing addressed to the person or office in which the original consent was filed. Withdrawal of consent shall not affect communications or records disclosed prior to notice of the withdrawal.”

       The plaintiff did not serve John Doe with a copy of the bill of discovery. Since we rest our decision in this case on statutory grounds alone, we save for another day the issue of whether reasonable efforts or more must be given by a health care provider regarding notice to a patient whose records are sought.

       John Doe purportedly was served by abode service at the defendant.

       “The plaintiffs original request contained in the bill of discovery requested the full name, last known address, social security number and date of birth, the medical and psychiatric records of John Doe while he was an inpatient at the hospital during March, 1995, and all incident reports made by the defendant regarding the incident that occurred on or about March 15, 1995. At oral argument on the bill of discovery, the plaintiff withdrew his request for the psychiatric records of the patient in question, conceding that it was privileged information, and his request for the incident reports, as that information could be obtained through discovery. The trial court did not grant the plaintiffs request for John Doe’s date of birth. ” Falco v. Institute of Living, 50 Conn. App. 654, 656 n.2, 718 A.2d 1009 (1998).

       General Statutes § 52-146d provides in relevant part: “As used in sections 52-146d to 52-146Í, inclusive . . .
      “(2) ‘Communications and records’ means all oral and written communications and records thereof relating to diagnosis or treatment of a patient’s mental condition between the patient and a psychiatrist, or between a member of the patient’s family and a psychiatrist, or between any of such persons and a person participating under the supervision of a psychiatrist in the accomplishment of the objectives of diagnosis and treatment, wherever made, including communications and records which occur in or are prepared at a mental health facility . . .
      “(4) ‘Identifiable’ and ‘identify a patient’ refer to communications and records which contain (A) names or other descriptive data from which a person acquainted with the patient might reasonably recognize the patient as the person referred to, or (B) codes or numbers which are in general use outside of the mental health facility which prepared the communications and records

       General Statutes (Rev. to 1995) § 52-146Í provides: “Consent of the patient shall not be required for the disclosure or transmission of communications or records of the patient in the following situations as specifically limited:
      “(1) Communications or records may be disclosed to other persons engaged in the diagnosis or treatment of the patient or may be transmitted to another mental health facility to which the patient is admitted for diagnosis or treatment if the psychiatrist in possession of the communications or records determines that the disclosure or transmission is needed to accomplish the objectives of diagnosis or treatment. The patient shall be informed that the communications or records will be so disclosed or transmitted. For purposes of this subsection, persons in professional training are to be considered as engaged in the diagnosis or treatment of the patients.
      “(2) Communications or records may be disclosed when the psychiatrist determines that there is substantial risk of imminent physical injury by the patient to himself or others or when a psychiatrist, in the course of diagnosis or treatment of the patient, finds it necessary to disclose the communications or records for the purpose of placing the patient in a mental health facility, by certification, commitment or otherwise, provided the provisions of sections 52-146d to 52-146j, inclusive, shall continue in effect after the patient is in the facility.
      “(3) Except as provided in section 17b-225, the name, address and fees for psychiatric services to a patient may be disclosed to individuals or agencies involved in the collection of fees for such services. In cases where a dispute arises over the fees or claims or where additional information is needed to substantiate the fee or claim, the disclosure of further information shall be limited to the following: (A) That the person was in fact a patient; (B) the diagnosis; (0) the dates and duration of treatment; and (D) a general description of the treatment, which shall include evidence that a treatment plan exists and has been carried out and evidence to substantiate the necessity for admission and length of stay in a health care institution or facility. If further information is required, the party seeking the information shall proceed in the same manner provided for hospital patients in section 4-105.
      “(4) Communications made to or records made by a psychiatrist in the course of apsychiatric examination ordered by a court or made in connection with the application for the appointment of a conservator by the probate court for good cause shown may be disclosed at judicial or administrative proceedings in which the patient is a party, or in which 1he question of his incompel ence because of mental illness is an issue, or in appropriate pretrial proceedings, provided the court finds that the patient has been informed before making the communications that any communications will not be confidential and provided the communications shall be admissible only on issues involving the patient’s mental condition.
      '“(5) Communications or records may be disclosed in a civil proceeding in which the patient introduces his mental condition as an element of his claim or defense, or, after the patient’s death, when his condition is introduced by a party claiming or defending through or as a beneficiary of the patient and the court or judge finds that it is more important to the interests of justice that the communications be disclosed than that the relationship between patient and psychiatrist be protected.
      "(6) Communications or records may be disclosed to the commissioner of public health and addiction services in connection with any inspection, investigation or examination of an institution, as defined in subsection (a) of section 19a-490, authorized under section 19a-498.
      “(7) Communications or records may be disclosed to a member of the immediate family or legal representative of the victim of a homicide committed by the patient where such patient has, on or after July 1, 1989, been found not guilty of such offense by reason of mental disease or defect pursuant to section 53a-13, provided such family member or legal representative requests the disclosure of such communications or records not later than six years after such finding, and provided further, such communications shall only be available during the pendency of, and for use in, a civil action relating to such person found not guilty pursuant to section 53a-13.”
      Although § 52-1461' has since been amended, the amendments are not relevant to this appeal. References to § 52-146f are to the 1995 revision of that statute, which was in effect at the time of the incident.

       The “important countervailing considerations” that we noted in Home Ins. Co. v. Aetna Life & Casualty Co., supra, 235 Conn. 195, referred to the considerations underlying those exceptions enacted by the legislature. It was not intended as an invitation to courts to determine, independent of statutory enactment, when the privilege should be overridden. This court has never indicated, and explicitly rejects the suggestion, that it is the function of the judiciary to balance these considerations.
      Nothing in our decision today contradicts our prior observation that the broad psychiatrist-patient privilege may be subject to exceptions other than those enumerated in § 52-146f. See State v. Toste, supra, 178 Conn. 629. As we also have noted, however, the creation of those exceptions is within the province of the legislature, not the discretion of the courts. See id.; see also State v. White, supra, 169 Conn. 233-34.

       Article first, § 10, of the constitution of Connecticut provides: “All courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay."

       Indeed, the fact that the plaintiff actually learned John Doe’s identity prior to the granting of the bill of discovery indicates that alternative methods of investigation were available. It also undercuts the plaintiffs argument that John Doe’s privilege would implicate and violate his right of redress by foreclosing his only avenue of discovering Doe’s identity.


author: SULLIVAN, J.

text:
    MARY ELLEN MURPHY v. COMMISSIONER OF MOTOR VEHICLES
    (SC 16193)
    Norcott, Palmer, Sullivan, Vertefeuille and Flynn, Js.
    Argued April 20
    officially released August 22, 2000

      Priscilla J. Green, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellant (defendant).

      Barry N. Silver, for the appellee (plaintiff).
   Opinion

SULLIVAN, J.

The dispositive issues in this appeal are: (1) whether the Appellate Court properly concluded that the evidence in the administrative record was insufficient to establish probable cause that the plaintiff, Mary Ellen Murphy, had violated General Statutes § 14-227a; and (2) whether the evidence in the administrative record was sufficient to establish that the plaintiff had operated her motor vehicle. The defendant, commissioner of motor vehicles (commissioner), appeals from the judgment of the Appellate Court, which reversed the trial court’s judgment dismissing the plaintiffs appeal from the decision of the commissioner to suspend the plaintiffs motor vehicle operator’s license pursuant to General Statutes § 14-227b. Murphy v. Commissioner of Motor Vehicles, 54 Conn. App. 127, 132, 733 A.2d 892 (1999).

The following facts and procedural history are relevant to our disposition of this appeal. On September 9, 1996, the plaintiff was driving a motor vehicle on Spruce Bark Road in Hamden. Spruce Bark Road runs along the Mill River (river). Upon noticing a scenic area by the river, the plaintiff decided to stop and take some photographs. The plaintiff parked and then walked away from her vehicle.* ** As the plaintiff was taking photographs, she heard a low rumble, turned around, and saw her vehicle roll down an embankment and into the river. 6Thereafter, the plaintiff went to a nearby house to summon help. At that time, she took some medication to calm herself. At approximately 7:43 p.m., Officer R. J. Cicero of the Hamden police department was called to respond to the plaintiffs location. When Cicero arrived at the scene, he met with the plaintiff. While speaking with the plaintiff, Cicero detected a smell of alcohol on her breath, noticed her stagger as she stood and walked, and observed that her speech was slurred and that her eyes were glassy and bloodshot. The person who allowed the plaintiff to use the telephone also detected the scent of alcohol on the plaintiffs breath.

Cicero asked the plaintiff if she had consumed any alcoholic beverages. The plaintiff denied drinking, but stated that she was “heavily medicated.”* ***** Cicero then administered certain field sobriety tests to the plaintiff. The plaintiff failed the horizontal gaze nystagmus test and the alphabet test, and refused to attempt the walk and turn test and the one leg stand test,* explaining that she previously had suffered injuries to her right leg as a result of a prior accident.

Consequently, Cicero placed the plaintiff under arrest for driving under the influence of intoxicating liquor in violation of § 14-227a. Upon arrest, Cicero advised the plaintiff of her constitutional rights. The plaintiff was then transported to the Hamden police department, at which she, again, was advised of her constitutional rights and also was given an implied consent advisory. The plaintiff nevertheless refused to submit to a breath test for blood alcohol content.

In accordance with § 14-227b (e), the plaintiffs license was suspended for six months for refusing to submit to a breath test. See footnote 3 of this opinion. Subsequently, the plaintiff requested, and was granted, pursuant to § 14-227b (e) and (g), respectively, an administrative hearing to contest the license suspension resulting from her refusal to be tested. Section 14-227b (g) specifies that a hearing to suspend a person’s license “shall be limited to a determination [by the commissioner] 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 drug or both or while his ability to operate such motor vehicle was impaired by the consumption of intoxicating liquor; (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 the ratio of alcohol in the blood of such person was ten-hundredths of one per cent or more of alcohol, by weight; and (4) was such person operating the motor vehicle.” General Statutes § 14-227b (g); see, e.g., Fishbein v. Kozlowski, 252 Conn. 38, 46-47, 743 A.2d 1110 (2000). At the suspension hearing, an administrative hearing officer, acting on behalf of the commissioner, found that all four of the criteria set forth in § 14-227b (g) were met. Accordingly, the commissioner ordered that the plaintiffs license be suspended.

The plaintiff appealed the commissioner’s decision to the trial court pursuant to General Statutes § 4-183 (a). The plaintiff claimed that there was insufficient evidence to support a finding of probable cause that she had violated § 14-227a. The plaintiff also claimed that the commissioner erroneously found that she had been operating her vehicle. The trial court found in favor of the commissioner and rendered judgment dismissing the plaintiffs appeal. The plaintiff then appealed to the Appellate Court, claiming “that the trial court improperly (1) concluded that the police officer had probable cause to arrest her for operating a motor vehicle while under the influence of intoxicating liquor, (2) held that the hearing officer’s written decision was not defective in that the decision contained merely a recitation of the four standard issues enumerated in § 14-227b [g] without any further findings of fact and conclusions of law and (3) concluded, independently, that she operated the vehicle.” Murphy v. Commissioner of Motor Vehicles, supra, 54 Conn. App. 128-29.

The Appellate Court reversed the trial court’s judgment, concluding that the absence of a “temporal nexus between the plaintiffs operation of [her] motor vehicle and her being under the influence of liquor or drugs”; id., 131; left the police officer without probable cause to arrest the plaintiff. Id., 132. Thus, the Appellate Court concluded that the evidence in the record was insufficient to support a finding that probable cause existed for Cicero to arrest the plaintiff for violating § 14-227a. See id., 130. Because the Appellate Court resolved the plaintiffs first claim in her favor, it did not address the plaintiffs remaining claims. Id., 132.

We granted the commissioner’s petition for certification to appeal from the judgment of the Appellate Court, limited to the following issue: “Did the Appellate Court properly conclude that the evidence in the administrative record was insufficient to establish probable cause that the plaintiff had violated ... § 14-227a?” Murphy v. Commissioner of Motor Vehicles, 251 Conn. 904, 905, 738 A.2d 1091 (1999). We conclude that the Appellate Court improperly concluded that the evidence in the administrative record was insufficient to support a finding that probable cause existed for Cicero to arrest the plaintiff for violating § 14-227a. We also conclude that the evidence in the administrative record was sufficient to establish that the plaintiff had operated her vehicle.

The commissioner claims that the Appellate Court improperly concluded that there did not exist substantial evidence in the record to establish probable cause that the plaintiff had operated her motor vehicle while under the influence of liquor. In contrast, the plaintiff claims that the Appellate Court properly concluded that the evidence in the administrative record was insufficient to establish probable cause. We agree with the commissioner.

Our analysis begins with the appropriate standard of review. “[Jjudicial 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. ” (Internal quotation marks omitted.) Bancroft v. Commissioner of Motor Vehicles, 48 Conn. App. 391, 399, 710 A.2d 807 (1998). “[R]eview of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency’s findings of basic fact and whether the conclusions drawn from those facts are reasonable. . . . Neither this court nor the trial court may retry the case or substitute its own judgment for that of the administrative agency on the weight of the evidence or questions of fact. . . . Our ultimate duty is to determine, in view of all of the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily, illegally or in abuse of its discretion.” (Citations omitted; internal quotation marks omitted.) Dolgner v. Alander, 237 Conn. 272, 280, 676 A.2d 865 (1996).

“The substantial evidence rule governs judicial review of administrative fact-finding under the UAPA. [See] General Statutes § 4-183 (j) (5) and (6). An administrative finding is supported by substantial evidence if the record affords a substantial basis of fact from which the fact in issue can be reasonably inferred. . . . The substantial evidence rule imposes an important limitation on the power of the courts to overturn a decision of an administrative agency . . . .” (Citations omitted; internal quotation marks omitted.) Id., 281.

“It is fundamental that a plaintiff has the burden of proving that the commissioner, on the facts before him, acted contrary to law and in abuse of his discretion [in determining the issue of probable cause]. . . . The law is also well established that if the decision of the commissioner is reasonably supported by the evidence it must be sustained.” (Citation omitted.) Demma v. Commissioner of Motor Vehicles, 165 Conn. 15, 16-17, 327 A.2d 569 (1973).

We have stated that “[p]robable cause, broadly defined, comprises such facts as would reasonably persuade an impartial and reasonable mind not merely to suspect or conjecture, but to believe that criminal activity has occurred. . . . Reasonable minds may disagree as to whether a particular [set of facts] establishes probable cause.” (Internal quotation marks omitted.) State v. Eady, 249 Conn. 431, 440, 733 A.2d 112, cert. denied, 528 U.S. 1030, 120 S. Ct. 551, 145 L. Ed. 2d 428 (1999), quoting State v. Diaz, 226 Conn. 514, 541, 628 A.2d 567 (1993); see also State v. Marra, 222 Conn. 506, 513, 610 A.2d 1113 (1992). Thus, the commissioner need only have “a substantial basis of fact from which [it] can be inferred”; (internal quotation marks omitted) Schallenkamp v. DelPonte, 229 Conn. 31, 40, 639 A.2d 1018 (1994); that the evidence in the administrative record supported a finding of probable cause with respect to the plaintiffs violation of § 14-227a.

In this case, the essence of the plaintiffs argument is that there was insufficient evidence in the record to establish that Cicero had probable cause to believe that the plaintiff operated her motor vehicle while under the influence of intoxicating liquor or drugs in violation of § 14-227a. We begin by noting that the issue of whether one operates a motor vehicle within the meaning of § 14-227a is to be determined on a case-by-case basis, making “[p]roof of operation ... a factual determination”; (internal quotation marks omitted) Redden v. Kozlowski, 45 Conn. App. 225, 227, 695 A.2d 26 (1997); rather than “a question of law . . . involv[ing] the application, interpretation and construction of [the statute].” O'Rourke v. Commissioner of Motor Vehicles, 33 Conn. App. 501, 505, 636 A.2d 409, cert. denied, 229 Conn. 909, 642 A.2d 1205 (1994). In addition, there is no requirement that the fact of operation be established by direct evidence. On the contrary, our case law clearly establishes that sufficient evidence justifying the commissioner’s determination of probable cause may be found where the “totality of the circumstances existing at the time of the plaintiff’s arrest support [s] [such a finding] . . . .” Kirei v. Hadley, 47 Conn. App. 451, 457, 705 A.2d 205 (1998); see, e.g., Schuh v. Commissioner of Motor Vehicles, 48 Conn. App. 547, 549, 551, 711 A.2d 743, cert. denied, 245 Conn. 924, 718 A.2d 21 (1998) (sufficient evidence of operation on public highway found when plaintiff discovered in driver’s seat of stopped vehicle located on grassy slope five to six feet from main travel portion of highway); O’Rourke v. Commissioner of Motor Vehicles, supra, 503, 509 (rejecting plaintiffs challenge to sufficiency of evidence of operating motor vehicle when police officer found plaintiff in stationary vehicle after accident but did not witness operation of vehicle).

For example, in Kirei v. Hadley, supra, 47 Conn. App. 451, the plaintiff claimed that the trial court improperly concluded that there was substantial evidence in the record to support a finding that he operated his vehicle within the meaning of § 14-227a when the police had discovered him walking a short distance from his vehicle, which was abandoned in a nearby snow bank. Id., 452-53. The plaintiff in Kirei testified at his suspension hearing that his consumption of intoxicating liquor occurred after he had operated his vehicle. Id., 456-57. Nevertheless, the hearing officer was not persuaded by the plaintiffs testimony. Id., 457. The Appellate Court concluded that “it was within the hearing officer’s province to determine whether he believed the plaintiffs testimony regarding when the plaintiff consumed liquor in relation to the time of operating his motor vehicle.” (Emphasis added.) Id., 457.

In Kirei, the Appellate Court concluded that “the testimony of the police officers, the police reports that were admitted into evidence and the totality of the circumstances existing at the time of the plaintiffs arrest support[ed] the hearing officer’s finding that there was probable cause to arrest the plaintiff for operating a motor vehicle while under the influence of liquor.” Id., 457. We conclude that there is a similar “basis in fact”; (internal quotation marks omitted) id., 455; in this case in which lies the nexus between the plaintiffs consumption of intoxicating liquor and her operation of the vehicle.

In this case, the testimony of the plaintiff, the police reports upon which the commissioner relied and the totality of the circumstances existing when the plaintiff was arrested all support the commissioner’s finding that there was probable cause to believe that the plaintiff had violated § 14-227a. The plaintiffs car was found in the river, her breath smelled of alcohol and she lacked sufficient coordination to pass simple, field sobriety tests. The plaintiff, herself, testified that she was driving past the scenic area when she decided to pull over and take photographs. See footnote 6 of this opinion. She also testified that this occurred at “about 7 [or] 7:30 [p.m.].” Id. The police arrived at the scene shortly thereafter. The commissioner reasonably could have concluded, based on the plaintiffs testimony and other facts in the record, that the plaintiff was under the influence of intoxicating liquor before her vehicle rolled down the embankment and into the river, and that she had operated the vehicle while she was under the influence of intoxicating liquor.

The absence of witnesses to the plaintiffs operation of the vehicle is not dispositive on the issue of operation. To be sure, it is often the case that police officers investigate § 14-227a violations after the intoxicated driver has ceased operating the vehicle. See, e.g., O’Rourke v. Commissioner of Motor Vehicles, supra, 33 Conn. App. 503. The circumstantial evidence in this case, including the observations of Cicero and other facts in the record, creates the “temporal nexus”; Murphy v. Commissioner of Motor Vehicles, supra, 54 Conn. App. 132; that, according to the Appellate Court, was lacking. It is incumbent upon this court to rely on the circumstantial evidence obtained by the police to determine that there was sufficient evidence in the record to support a finding of probable cause. Therefore, we conclude that it was not unreasonable for both the police officer and the commissioner to find that there was probable cause to believe that the plaintiff drove her vehicle to the location from which the vehicle had rolled into the river, and that the plaintiff had been under the influence of intoxicating liquor when she drove the vehicle to that location.

We conclude that: (1) the evidence in the administrative record was sufficient to support a finding of probable cause that the plaintiff had violated § 14-227a; and (2) the evidence in the administrative record was sufficient to support a finding that the plaintiff had operated her motor vehicle.

The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to consider the plaintiffs claim that the trial court improperly held that the hearing officer’s written decision was not defective in that the decision contained merely a recitation of the four standard issues enumerated in § 14-227b (g) without any further findings of fact and conclusions of law.

In this opinion the other justices concurred.

       General Statutes § 14-227a provides in relevant part: “Operation while under the influence of liquor or drug or while impaired by liquor, (a) Operation while under the influence. 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 he operates a motor vehicle ... (1) while under the influence of intoxicating liquor or any drug or both or (2) while the ratio of alcohol in the blood of such person is ten-hundredths of one per cent or more of alcohol, by weight. . . .”

       The first of these two issues is the only certified issue in this appeal. See Murphy v. Commissioner of Motor Vehicles, 251 Conn. 904, 905, 738 A.2d 1091 (1999). The plaintiff distinctly raised the second issue before the Appellate Court. Murphy v. Commissioner of Motor Vehicles, 54 Conn. App. 127, 128-29, 733 A.2d 892 (1999). Both issues, however, are related, and we conclude that, in briefing the first issue, the plaintiff adequately briefed the second issue as an alternative ground for affirming the judgment of the Appellate Court. “[Although the plaintiff] failed to preserve [the second issue] for appeal by filing a statement of alternative grounds for affirmance pursuant to Practice Book § 84-11 (c), which provides in relevant part [that] [a]ny party desiring to present alternative grounds for affirmance . . . shall file a statement thereof within fourteen days from the issuance of notice of certification ... we have refused to consider an issue not contained in a preliminary statement of issues only in cases in which the opposing party would be prejudiced by consideration of the issue.” (Internal quotation marks omitted.) Russell v. Mystic Seaport Museum, Inc., 252 Conn. 596, 599-600 n.3, 748 A.2d 278 (2000). Therefore, in this case, we consider the plaintiffs alternative ground for affirmance inasmuch as the defendant, commissioner of motor vehicles, has not argued that he was prejudiced by the plaintiffs failure to file a preliminary statement of issues.

       General Statutes § 14-227b provides in relevant part: “Implied consent to test. Procedures for refusal to test or submitting to test blood alcohol content. Hearing procedures, (a) Any person who operates a motor vehicle in this state shall be deemed to have given his consent to a chemical analysis of his blood, breath or urine and, if said person is a minor, his parent or parents or guardian shall also be deemed to have given his consent.
      “(b) If any such person, having been placed under arrest for operating a motor vehicle while under the influence of intoxicating liquor or any drug or both or while his ability to operate such motor vehicle is impaired by the consumption of intoxicating liquor, and thereafter, after being apprised of his constitutional rights, having been requested to submit to a blood, breath or urine test at the option of the police officer, having been afforded a reasonable opportunity to telephone an attorney prior to the performance of such test and having been informed that his license or nonresident operating privilege may be suspended in accordance with the provisions of this section if he refuses to submit to such test or if he submits to such test and the results of such test indicate that the ratio of alcohol in his blood was ten-hundredths of one per cent or more of alcohol, by weight, and that evidence of any such refusal shall be admissible in accordance with subsection (f) of section 14-227a and may be used against him in any criminal prosecution, refuses to submit to the designated test, the test shall not be given; provided, if the person refuses or is unable to submit to a blood test, the police officer shall designate the breath or urine test as the test to be taken. The police officer shall make a notation upon the records of the police department that he informed the person that his license or nonresident operating privilege may be suspended if he refused to submit to such test or if he submitted to such test and the results of such test indicated that the ratio of alcohol in his blood was ten-hundredths of one per cent or more of alcohol, by weight.
      “(c) If the person arrested refuses to submit to such test or analysis or submits to such test or analysis, commenced within two hours of the time of operation, and the results of such test or analysis indicate that the ratio of alcohol in the blood of such person is ten-hundredths of one per cent or more of alcohol, by weight, 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 or, if such person is a nonresident, suspend the nonresident operating privilege of such person, for a twenty-four-hour period and shall issue a temporary operator’s license or nonresident operating privilege to such person valid for the period commencing twenty-four hours after issuance and ending thirty days after the date such person received notice of his arrest by the police officer. The police officer shall prepare a written report of the incident and shall mail the report together with a copy of the completed temporary license form, any operator’s license taken into possession and a copy of the results of any chemical test or analysis to the Department of Motor Vehicles within three business days. The report shall be made on a form approved by the Commissioner of Motor Vehicles 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 operating a motor vehicle while under the influence of intoxicating liquor or any drug or both or while his ability to operate such motor vehicle is impaired by the consumption of intoxicating liquor, and shall state that such person had refused to submit to such test or analysis when requested by such police officer to do so or that such person submitted to such test or analysis, commenced within two hours of the time of operation, and the results of such test or analysis indicated that the ratio of alcohol in the blood of such person was ten-hundredths of one per cent or more of alcohol, by weight. . . .
      “(e) Upon receipt of such report, the Commissioner of Motor Vehicles may suspend any license or nonresident operating privilege of such person effective as of a date certain, which date shall be not later than thirty days after the date such person received notice of his arrest by the police officer. Any person whose license or operating privilege has been suspended in accordance with this subsection shall automatically be entitled to a hearing before the commissioner to be held prior to the effective date of the suspension. The commissioner shall send a suspension notice to such person informing such person that his operator’s license or nonresident operating privilege is suspended as of a date certain and that he is entitled to a hearing prior to the effective date of the suspension and may schedule such hearing by contacting the Department of Motor Vehicles not later than seven days after the date of mailing of such suspension notice.
      “(f) If such person does not contact the department to schedule a hearing, the commissioner shall affirm the suspension contained in the suspension notice for the appropriate period specified in subsection (i) of this section.
      “(g) 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. . . . 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 drug or both or while his ability to operate such motor vehicle was impaired by the consumption of intoxicating liquor; (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 the ratio of alcohol in the blood of such person was ten-hundredths of one per cent or more of alcohol, by weight; and (4) was such person operating the motor vehicle. In the hearing, the results of the test or analysis shall be sufficient to indicate the ratio of alcohol in the blood of such person at the time of operation, except that if the results of the additional test indicate that, the ratio of alcohol in the blood of such person is twelve-hundredths of one per cent or less of alcohol, by weight, and is higher than the results of the first test, evidence shall be presented that demonstrates that the test results and analysis thereof accurately indicate the blood alcohol content at the time of operation. The fees of any witness summoned to appear at the hearing shall be the same as provided by the general statutes for witnesses in criminal cases.
      “(h) If, after such hearing, the commissioner finds on any one of the said issues in the negative, the commissioner shall reinstate such license or operating privilege. If, after such hearing, the commissioner does not find on any one of the said issues in the negative or if such person fails to appear at such hearing, the commissioner shall affirm the suspension contained in the suspension notice for the appropriate period specified in subsection (i) of this section. . . .
      “(i) The commissioner shall suspend the operator’s license or nonresident operating privilege, and revoke the temporary operator’s license or nonresident operating privilege issued pursuant to subsection (c) of this section, of a person who did not contact the department to schedule a hearing, who failed to appear at a hearing or against whom, after a hearing, the commissioner held pursuant to subsection (h) of this section, as of the effective date contained in the suspension notice or the date the commissioner renders his decision, whichever is later, for a period of: (1) (A) Ninety days, if such person submitted to a test or analysis and the results of such test or analysis indicated that the ratio of alcohol in the blood of such person was ten-hundredths of one per cent or more of alcohol, by weight, or (B) six months if such person refused to submit to such test or analysis, (2) one year if such person has previously had his operator’s license or nonresident operating privilege suspended under this section, and (3) two years if such person has two or more times previously had his operator’s license or nonresident operating privilege suspended under this section. . . .”
      Although Public Acts 1998, No. 98-182, § 20, incorporated amendments to § 14-227b that became effective January 1, 1999, those amendments are not relevant to this appeal. For convenience, we cite to the current revision of § 14-227b throughout this opinion.

       The police report provided in relevant part: “[The plaintiff] stated she exited the vehicle, and the vehicle remained in gear and proceeded down the embankment into the water that runs parallel [with] Whitney Ave[nue in Hamden].” The police report was admitted into evidence at the suspension hearing without objection.

       The plaintiff testified during her suspension hearing in relevant part:
      “ [Barry Silver, Plaintiffs Counsel]: Ms. Murphy, can you tell us, on September 9, about 7, 7:30, what happened that led to this incident here?
      “[Plaintiff]: I saw some trees near [the] river, turned around to come back because I carry a camera with me . . . and I turned around and parked the car—and this was after the first accident—parked the car, took my keys out, grabbed my camera, shut the motor off and walked away from the car and started snapping pictures .... I did that and then, all of a sudden, heard some noise and then I heard some rumble, and the car started going down the slope right in the river . . . .”

       The following is a colloquy between the hearing officer, the plaintiff and the plaintiffs counsel during the plaintiffs suspension hearing:
      “[Jeffrey Donahue, Hearing Officer]: How long after you stopped did the police arrive?
      “[Plaintiff]: I don’t recall.
      “[Barry Silver, Plaintiffs Counsel]: It would have been within an hour?
      “[Plaintiff]: Yes, definitely within an hour . . .

         However, Cicero noted at the bottom of the “Officer’s DWI Arrest and Alcohol Test Eefusal or Failure Report” that the plaintiff admitted drinking wine between 2 and 2:30 p.m. on the day of the accident. It is unclear at what point during Cicero’s investigation the plaintiff made this admission with respect to the consumption of wine.

       “The horizontal gaze nystagmus test measures the extent to which a person’s eyes jerk as they follow an object moving from one side of the person’s field of vision to the other. The test is premised on the understanding that, whereas everyone’s eyes exhibit some jerking while turning to the side, when the subject is intoxicated the onset of the jerking occurs after fewer degrees of turning, and the jerking at more extreme angles becomes more distinct.” (Internal quotation marks omitted.) State v. Beliveau, 52 Conn. App. 475, 483 n.6, 727 A.2d 737, cert. denied, 249 Conn. 920, 733 A.2d 235 (1999); see also State v. Merritt, 233 Conn. 302, 303 n.1, 659 A.2d 706 (1995).

       The police report provides that the plaintiff “was asked to recite the entire alphabet [and that] while reciting the alphabet, at R, she continued, U, T, S, W, V, Z.”

       “The walk and turn test requires the subject to walk heel to toe along a straight line for nine paces, pivot, and then walk back heel to toe along the line for another nine paces. The subject is required to count each pace aloud from one to nine.” (Internal quotation marks omitted.) State v. Beliveau, 52 Conn. App. 475, 483-84 n.6, 727 A.2d 737, cert. denied, 249 Conn. 920, 733 A.2d 235 (1999).

       “The one leg stand test requires the subject to stand on one leg with the other leg extended in the air for 30 seconds, while counting aloud from 1 to 30.” (Internal quotation marks omitted.) State v. Beliveau, 52 Conn. App. 475, 483-84 n.6, 727 A.2d 737, cert. denied, 249 Conn. 920, 733 A.2d 235 (1999).

       Inasmuch as the hearing officer acts on behalf of the commissioner, we hereinafter substitute “commissioner” for “hearing officer” where the facts ordinarily would call for reference to the latter.

       General Statutes § 4-183 (a) provides in relevant part: “Appeal to Superior Court, (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. . . .”

       We note that, generally, “[t]here is no distinction between direct and circumstantial evidence [so] far as probative force is concerned (Internal quotation marks omitted.) State v. Teti, 50 Conn. App. 34, 39, 716 A.2d 931, cert. denied, 247 Conn. 921, 722 A.2d 812 (1998), quoting State v. Heinz, 193 Conn. 612, 625, 480 A.2d 452 (1984). “In fact, circumstantial evidence may be more certain, satisfying and persuasive than direct evidence.” (Internal quotation marks omitted.) State v. Teti, supra, 39.

       Similarly, in State v. Englehart, 158 Conn. 117, 256 A.2d 231 (1969), this court explained how a jury might view “operation” in light of particular facts. In Englehart, the defendant was discovered in her car, stopped in the middle of the road with the headlights on and the motor off, and slumped over the steering wheel. Id., 120. The police did not witness her drive the car to the location. See id. The court stated that, “[f]rom the evidence . . . [a] jury . . . [could infer] that the defendant, while under the influence of intoxicating liquor, had either driven the vehicle to the point at which it stopped or had attempted to start it after if had stopped . . . .” Id., 121. This inference, according to the court, was both reasonable and logical in light of the facts proven. See id. Thus, even a criminal conviction for driving under the influence of intoxicating liquor may be upheld based on reliable circumstantial evidence, notwithstanding the heightened burden of proof in criminal cases.

      The credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency, and [the] court cannot disturb the conclusions reached by the commissioner if there is evidence that reasonably supports his decision.” Kirei v. Hadley, supra, 47 Conn. App. 457, citing DiBenedetto v. Commissioner of Motor Vehicles, 168 Conn. 587, 589, 362 A.2d 840 (1975).