Opinion
LAVERY, J.
The plaintiff, Lindsey Altschul, appeals from the trial court’s dismissal of his administrative appeal. On appeal, the plaintiff claims that (1) the trial court improperly determined that he refused to submit to a breath test pursuant to General Statutes (Rev. to 1997) § 14-227b (f), now § 14-227b (g),1 and (2) § 14-227b is constitutionally defective. We affirm the judgment of the trial court.
[393]*393On May 26, 1997, at approximately 2:11 a.m., a state trooper observed the plaintiff operating a motor vehicle in an erratic manner on Interstate 84 and made the plaintiff stop his vehicle. The plaintiff emitted an odor of alcohol and informed the trooper that he had consumed a few pints of beer. The trooper administered three roadside field sobriety tests, each of which the plaintiff failed. The trooper arrested the plaintiff for operating a motor vehicle while under the influence of intoxicating liquor or drugs in violation of General Statutes § 14-227a, and transported him to the state police barracks at Tolland.
At the barracks, the trooper advised the plaintiff of his Miranda2 rights and provided him with an implied consent advisory. Pursuant to General Statutes § 14-227b (b),3 the trooper afforded the plaintiff a reasonable [394]*394opportunity to contact an attorney before deciding whether to submit to chemical testing. The plaintiff made three telephone calls between 2:40 and 3:05 a.m. and he was unable to contact an attorney. The trooper then asked the plaintiff to submit to a breath test. The plaintiff responded that without legal representation he could neither submit to nor refuse the test. The trooper construed the plaintiffs response as a refusal to submit to the test.
The defendant commissioner of motor vehicles subsequently suspended the plaintiffs operator’s license, and the plaintiff requested an administrative hearing. The hearing was limited to the four issues set forth in § 14-227b (f).4 A hearing officer found each issue in the affirmative and suspended the plaintiffs operator’s license. Pursuant to General Statutes § 4-183, the plaintiff appealed to the trial court from the suspension of his license. In affirming the decision of the hearing officer, the trial court concluded that the plaintiffs “refusal [to submit to the breath test] was amply supported by the record.” This appeal followed.
I
The plaintiff first claims that the trial court improperly affirmed the hearing officer’s determination that he refused to submit to a breath test pursuant to § 14-227b (f) (3). Specifically, he claims that “[w]hen an officer gives a person his Miranda warnings, then asks him to take a breath test, and the person responds by asking to exercise his just-stated [fifth amendment] right to counsel, he cannot be considered to have refused to submit to a breath test under § 14-227b.” We affirm the judgment of the trial court.
As a threshold matter, we must determine whether the plaintiff has a fifth amendment right to consult with [395]*395counsel before taking or refusing a breath test. The plaintiff has “no constitutional right to refuse to take the breath test, since his breath constitutes ‘real or physical’ rather than ‘testimonial or communicative’ evidence and compulsion of physical evidence from the body of the [plaintiff] does not violate the privilege against self-incrimination. Schmerber v. California, 384 U.S. 757, 760-65, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966).” Welch v. District Court of Vermont, 594 F.2d 903, 904 (2d Cir. 1979); see Buckley v. Muzio, 200 Conn. 1, 8, 509 A.2d 489 (1986) (“person has no constitutional right to withhold nontestimonial evidence when the state’s demand is supported by probable cause”). “The Supreme Court has held that the fifth amendment right to counsel protects an individual’s privilege against making incriminating statements against himself. Miranda v. Arizona, [384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966)].” McVeigh v. Smith, 872 F.2d 725, 728 (6th Cir. 1989); see State v. Jones, 205 Conn. 638, 648, 534 A.2d 1199 (1987). Because the breath test did not implicate the plaintiff’s fifth amendment privilege against self-incrimination, he did not have a fifth amendment right to consult with counsel before deciding whether to take this test. See People v. Sudduth, 65 Cal. 2d 543, 546, 421 P.2d 401, 55 Cal. Rptr. 393 (1966); Standish v. Dept. of Revenue, 235 Kan. 900, 904, 683 P.2d 1276 (1984); Wall v. Holman, 902 S.W.2d 329, 330-31 (Mo. App. 1995) (“driver has no constitutional right to speak to an attorney prior to deciding whether to submit to a chemical test”). Section 14-227b (b) does, however, afford the plaintiff “a reasonable opportunity to telephone an attorney prior to the performance of such test” and, in this case, the plaintiff was given a reasonable opportunity to telephone an attorney.
Having determined that the plaintiff did not have a fifth amendment right to counsel, we must next determine whether the trial court improperly affirmed the [396]*396hearing officer’s determination that the plaintiff refused to submit to the breath test pursuant to § 14-227b (f) (3). A license suspension hearing is limited to the determination of the four issues set forth in § 14-227b (f). Volck v. Muzio, 204 Conn. 507, 511-12, 529 A.2d 177 (1987); Buckley v. Muzio, supra, 200 Conn. 6-8; Piorek v. DelPonte, 28 Conn. App. 911, 610 A.2d 201 (1992). “In the context of a license suspension under the implied consent law, if the administrative determination of the four license suspension issues set forth in § 14-227b (f) is supported by substantial evidence in the record, that determination must be sustained. ” Schallenkamp v. DelPonte, 29 Conn. App. 576, 581, 616 A.2d 1157 (1992), aff'd, 229 Conn. 31, 639 A.2d 1018 (1994).
“As in any administrative appeal, the plaintiff bore the burden of proving that the commissioner’s decision to suspend [the plaintiffs] . . . operating privilege was clearly erroneous in view of the rehable, probative and substantial evidence on the whole record. . . .
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Opinion
LAVERY, J.
The plaintiff, Lindsey Altschul, appeals from the trial court’s dismissal of his administrative appeal. On appeal, the plaintiff claims that (1) the trial court improperly determined that he refused to submit to a breath test pursuant to General Statutes (Rev. to 1997) § 14-227b (f), now § 14-227b (g),1 and (2) § 14-227b is constitutionally defective. We affirm the judgment of the trial court.
[393]*393On May 26, 1997, at approximately 2:11 a.m., a state trooper observed the plaintiff operating a motor vehicle in an erratic manner on Interstate 84 and made the plaintiff stop his vehicle. The plaintiff emitted an odor of alcohol and informed the trooper that he had consumed a few pints of beer. The trooper administered three roadside field sobriety tests, each of which the plaintiff failed. The trooper arrested the plaintiff for operating a motor vehicle while under the influence of intoxicating liquor or drugs in violation of General Statutes § 14-227a, and transported him to the state police barracks at Tolland.
At the barracks, the trooper advised the plaintiff of his Miranda2 rights and provided him with an implied consent advisory. Pursuant to General Statutes § 14-227b (b),3 the trooper afforded the plaintiff a reasonable [394]*394opportunity to contact an attorney before deciding whether to submit to chemical testing. The plaintiff made three telephone calls between 2:40 and 3:05 a.m. and he was unable to contact an attorney. The trooper then asked the plaintiff to submit to a breath test. The plaintiff responded that without legal representation he could neither submit to nor refuse the test. The trooper construed the plaintiffs response as a refusal to submit to the test.
The defendant commissioner of motor vehicles subsequently suspended the plaintiffs operator’s license, and the plaintiff requested an administrative hearing. The hearing was limited to the four issues set forth in § 14-227b (f).4 A hearing officer found each issue in the affirmative and suspended the plaintiffs operator’s license. Pursuant to General Statutes § 4-183, the plaintiff appealed to the trial court from the suspension of his license. In affirming the decision of the hearing officer, the trial court concluded that the plaintiffs “refusal [to submit to the breath test] was amply supported by the record.” This appeal followed.
I
The plaintiff first claims that the trial court improperly affirmed the hearing officer’s determination that he refused to submit to a breath test pursuant to § 14-227b (f) (3). Specifically, he claims that “[w]hen an officer gives a person his Miranda warnings, then asks him to take a breath test, and the person responds by asking to exercise his just-stated [fifth amendment] right to counsel, he cannot be considered to have refused to submit to a breath test under § 14-227b.” We affirm the judgment of the trial court.
As a threshold matter, we must determine whether the plaintiff has a fifth amendment right to consult with [395]*395counsel before taking or refusing a breath test. The plaintiff has “no constitutional right to refuse to take the breath test, since his breath constitutes ‘real or physical’ rather than ‘testimonial or communicative’ evidence and compulsion of physical evidence from the body of the [plaintiff] does not violate the privilege against self-incrimination. Schmerber v. California, 384 U.S. 757, 760-65, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966).” Welch v. District Court of Vermont, 594 F.2d 903, 904 (2d Cir. 1979); see Buckley v. Muzio, 200 Conn. 1, 8, 509 A.2d 489 (1986) (“person has no constitutional right to withhold nontestimonial evidence when the state’s demand is supported by probable cause”). “The Supreme Court has held that the fifth amendment right to counsel protects an individual’s privilege against making incriminating statements against himself. Miranda v. Arizona, [384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966)].” McVeigh v. Smith, 872 F.2d 725, 728 (6th Cir. 1989); see State v. Jones, 205 Conn. 638, 648, 534 A.2d 1199 (1987). Because the breath test did not implicate the plaintiff’s fifth amendment privilege against self-incrimination, he did not have a fifth amendment right to consult with counsel before deciding whether to take this test. See People v. Sudduth, 65 Cal. 2d 543, 546, 421 P.2d 401, 55 Cal. Rptr. 393 (1966); Standish v. Dept. of Revenue, 235 Kan. 900, 904, 683 P.2d 1276 (1984); Wall v. Holman, 902 S.W.2d 329, 330-31 (Mo. App. 1995) (“driver has no constitutional right to speak to an attorney prior to deciding whether to submit to a chemical test”). Section 14-227b (b) does, however, afford the plaintiff “a reasonable opportunity to telephone an attorney prior to the performance of such test” and, in this case, the plaintiff was given a reasonable opportunity to telephone an attorney.
Having determined that the plaintiff did not have a fifth amendment right to counsel, we must next determine whether the trial court improperly affirmed the [396]*396hearing officer’s determination that the plaintiff refused to submit to the breath test pursuant to § 14-227b (f) (3). A license suspension hearing is limited to the determination of the four issues set forth in § 14-227b (f). Volck v. Muzio, 204 Conn. 507, 511-12, 529 A.2d 177 (1987); Buckley v. Muzio, supra, 200 Conn. 6-8; Piorek v. DelPonte, 28 Conn. App. 911, 610 A.2d 201 (1992). “In the context of a license suspension under the implied consent law, if the administrative determination of the four license suspension issues set forth in § 14-227b (f) is supported by substantial evidence in the record, that determination must be sustained. ” Schallenkamp v. DelPonte, 29 Conn. App. 576, 581, 616 A.2d 1157 (1992), aff'd, 229 Conn. 31, 639 A.2d 1018 (1994).
“As in any administrative appeal, the plaintiff bore the burden of proving that the commissioner’s decision to suspend [the plaintiffs] . . . operating privilege was clearly erroneous in view of the rehable, probative and substantial evidence on the whole record. . . . 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. . . . Substantial evidence exists if the administrative record affords a substantial basis of fact from which the fact in issue can be reasonably inferred.” (Citations omitted; internal quotation marks omitted.) Schallenkamp v. DelPonte, 229 Conn. 31, 39-40, 639 A.2d 1018 (1994).
The plaintiff claims that his actions did not constitute a refusal because he assumed that his Miranda rights, in particular his fifth amendment right to counsel, extended to the breath test. Although we have already established that the plaintiffs assumption concerning the scope of his Miranda rights was misplaced, we must determine whether the hearing officer’s determination [397]*397that the plaintiff refused to submit to the test was supported by substantial evidence. Whether the plaintiffs actions constituted a refusal to submit to the breath test presents a question of fact; Piorek v. DelPonte, supra, 28 Conn. App. 911-12 (issue of fact whether motorist’s request to consult with attorney before submitting to chemical test constituted refusal under § 14-227b); Clark v. Muzio, 14 Conn. App. 212, 214, 540 A.2d 1063, cert. denied, 208 Conn. 809, 545 A.2d 1105 (1988); and, therefore, our review is limited to determining whether the hearing officer’s finding was supported by substantial evidence. See Schallenkamp v. DelPonte, supra, 229 Conn. 39-40.
At the administrative hearing, the plaintiff claimed that his actions did not constitute a refusal because he assumed that his Miranda rights extended to the breath test and the trooper did not dispel this assumption. As the trier of fact, however, the hearing officer was free to reject or to credit the plaintiffs testimony. Bancroft v. Commissioner of Motor Vehicles, 48 Conn. App. 391, 400, 710 A.2d 807, cert. denied, 245 Conn. 917, 717 A.2d 234 (1998). The trooper’s report was offered into evidence at the hearing, and there is no evidence in the report that would indicate that the plaintiff seemed confused about the scope of the Miranda warnings. Moreover, in his report, the trooper stated that he construed the plaintiffs conduct as a refusal to submit to the breath test. “ ‘[R]efusing’ to take a breath test may be accomplished by a failure to cooperate as well as by an expressed refusal.” State v. Corbeil, 41 Conn. App. 7, 19, 674 A.2d 454, cert. granted on other grounds, 237 Conn. 919, 676 A.2d 1374 (1996) (appeal dismissed upon death of defendant).
“In reviewing an administrative determination, we must take into account [that there is] contradictory evidence in the record . . . but the possibility of drawing two inconsistent conclusions from the evidence [398]*398does not prevent an administrative agency’s finding from being supported by substantial evidence. . . . Moreover, it is not the function of the trial court, nor of this court, to retry the cause. . . . [T]he determination of issues of fact are matters within [the] province [of the administrative agency].” (Citation omitted; internal quotation marks omitted.) Schallenkamp v. Del-Ponte, supra, 229 Conn. 41.
Because it is the hearing officer’s function to determine issues of fact, we cannot say, simply because of the existence of conflicting evidence, that the record failed to contain a substantial basis from which the hearing officer could have concluded that the plaintiff refused to submit to the breath test. See id. We therefore affirm the judgment of the trial court because the record contains substantial evidence in support of the hearing officer’s determination.
II
The plaintiff next claims that § 14-227b violated his right to due process under the fourteenth amendment to the federal constitution5 because this statute did not require the trooper to inform him that his Miranda rights did not extend to the breath test. Relying on the three part standard set forth in Connecticut v. Doehr, 501 U.S. 1, 11, 111 S. Ct. 2105, 115 L. Ed. 2d 1 (1991), the plaintiff claims that the failure of § 14-227b to require the trooper to provide such notice resulted in a deprivation of his operator’s license without affording him procedural due process. We disagree.
As previously discussed, the plaintiff has no constitutional right to consult with counsel before deciding [399]*399whether to take the breath test. Therefore, no constitutional deprivation can arise from the failure of the statute to provide that a person must be advised that such is the case.
The judgment is affirmed.
In this opinion the other judges concurred.