Yanni v. DelPonte

624 A.2d 1175, 31 Conn. App. 350, 1993 Conn. App. LEXIS 229

• Court: Connecticut Appellate Court
• Decided: May 18, 1993
• Docket: 11304
• Status: Published

Opinions

Heiman, J.

The plaintiff appeals from the trial court’s judgment dismissing his appeal from the decision of the commissioner of motor vehicles (commissioner) ordering the suspension of his operator’s license. The plaintiff asserts that the trial court improperly dismissed his appeal by incorrectly finding that the certified mail notice requirement of General Statutes § 14-227b (g) is directory and that the notice provided did not prejudice him. We affirm the judgment of the trial court.

The facts necessary to resolve this appeal may be summarized as follows. On December 21, 1990, the Wallingford police arrested the plaintiff for operating a motor vehicle while intoxicated. The plaintiff submitted to a breathalyzer test. The first test taken one-half hour after the plaintiff was apprehended showed that his blood alcohol content was 0.152 of 1 percent. A subsequent test taken approximately one hour after the plaintiff was stopped showed that his blood alcohol content was 0.133 of 1 percent. A written report of the arrest and the test results was forwarded to the department of motor vehicles in accordance with subsection (c) of General Statutes § 14-227b.

The plaintiff was informed by the commissioner that his operator’s license was to be suspended for ninety days. He was also notified that, if he so requested, he would be afforded a hearing to contest the suspension. After a hearing, the commissioner informed the plaintiff by bulk certified mail that his license had been suspended pursuant to the criteria set forth in General Statutes § 14-227b (f).

The plaintiff appealed the commissioner’s decision to the Superior Court. He alleged that the commissioner’s decision should be reversed because the commissioner improperly sent the notice of the decision by bulk certified mail rather than by certified mail as stated in § 14-227b (g) and improperly found that the arresting officer had probable cause for his arrest. The court found that the provision in § 14-227b (g) for the method of mailing the commissioner’s decision to the operator is directory, not mandatory, since it contains no invalidating language.¹ The court also found that the arresting officer had probable cause to arrest the plaintiff. The court refused to overturn the plaintiff’s license suspension and subsequently dismissed his appeal. This appeal followed.²

The plaintiff asserts that the trial court improperly found that the certified mail notice requirement of § 14-227b (g) is directory and that he was not prejudiced by the commissioner’s failure to send notice by certified mail. He emphasizes the fact that the legislature utilized the word “shall” in the statute when discussing the commissioner’s obligation to send notice of the decision to the operator. In the appendix to his brief, the plaintiff attached the United States Postal Regulations that distinguish between certified mail and bulk certified mail.³ The plaintiff contends that by virtue of the commissioner’s failure to send notice by certified mail, his due process rights were violated and he was prejudiced by the loss of his license. He further contends that the ineffective notice had the same effect as the commissioner’s not rendering a decision and thus the suspension of his license is ineffective and a nullity. We disagree.

General Statutes § 14-227b (g) provides in pertinent part that “[t]he commissioner shall . . . send a notice of his decision by certified mail . . . .” (Emphasis added.) The legislature’s use of the word “shall” does not in and of itself create a mandatory duty to perform an action. Hall Manor Owner’s Assn. v. West Haven, 212 Conn. 147, 152, 561 A.2d 1373 (1989); Caron v. Inland Wetlands & Watercourses Commission, 25 Conn. App. 61, 66, 592 A.2d 964 (1991), aff'd, 222 Conn. 269, 610 A.2d 584 (1992). Statutes are viewed as a whole in order to ascertain the legislative intent.⁴ Ruotolo v. Inland Wetlands Agency, 18 Conn. App. 440, , 558 A.2d 1021, cert. denied, 212 Conn. 806, 563 A.2d 1356 (1989). The test for determining whether a ■statutory requirement is mandatory or directory is whether the prescribed mode of action relates to a matter of substance or convenience. Hall Manor Owner’s Assn. v. West Haven, supra, 152-53; Caron v. Inland Wetlands & Watercourses Commission, supra. “Provisions relating to matters of substance are mandatory, whereas provisions designed to secure order, system, and dispatch in the proceedings [are] generally held to be directory, especially when the requirement is stated in affirmative terms unaccompanied by negative words.” (Internal quotation marks omitted.) Caron v. Inland Wetlands & Watercourses Commission, supra, 66-67. Notice of the commissioner’s decision regarding a suspension is a matter of convenience notifying the party of the right to appeal. A statutory provision of convenience is mandatory when that provision is accompanied by language that expressly invalidates an action taken after noncompliance with it. Brown v. Smarrelli, 29 Conn. App. 660, 664, 617 A.2d 905 (1992), cert. denied, 225 Conn. 901, 621 A.2d 284 (1993); Ruotolo v. Inland Wetlands Agency, supra. The statute here has no invalidating language that would render the commissioner’s decision ineffective for failure to mail the decision by certified mail. See footnote 1, supra. The trial court properly found that the method of mailing the decision to the motor vehicle operator is directory, not mandatory, and that the commissioner’s failure to mail notice by certified mail does not render the commissioner’s decision suspending the plaintiff’s license ineffective.⁵

The judgment is affirmed.

In this opinion Schaller, J., concurred.

1 General Statutes § 14-227b (g) provides: “If, after [a] hearing, the commissioner finds on any one of the said issues [mentioned in subsection (f) of this section] 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 (h) of this section. The commissioner shall render a decision at the conclusion of such hearing or send a notice of his decision by certified mail to such person not later than thirty-five days or, if a continuance is granted, not later than forty-five days from the date such person received notice of his arrest by the police officer. The notice of such decision sent by certified mail to the address of such person as shown by the records of the commissioner shall be sufficient notice to such person that his operator’s license or nonresident operating privilege is reinstated or suspended, as the case may be. Unless a continuance is granted to such person pursuant to subsection (f) of this section, if the commissioner fails to render a decision within thirty-five days from the date such person received notice of his arrest by the police officer, the commissioner shall reinstate such person’s operator’s license or nonresident operating privilege, provided notwithstanding such reinstatement the commissioner may render a decision not later than two days thereafter suspending such operator’s license or nonresident operating privilege.” (Emphasis added.)

2 On appeal, the plaintiff does not contest the court’s finding that the officer had probable cause to arrest him.

3 During his hearing before the trial court, the plaintiff did not present evidence to distinguish certified mail from bulk certified mail.

4 Our Supreme Court noted that “[w]hile we generally will not look for interpretative guidance beyond the language of the statute when the words of the statute are plain and unambiguous . . . our past decisions have indicated that the use of the word ‘shall,’ though significant, does not invariably create a mandatory duty.” (Citation omitted.) Hall Manor Owner’s Assn. v. West Haven, 212 Conn. 147, 152, 561 A.2d 1373 (1989).

5 The plaintiff cannot establish that he was prejudiced by the commissioner’s failure to deliver notice of his decision by certified mail. He concedes that he had actual timely notice of the decision. His claim that he suffered prejudice, the suspension of his license, is without merit. This alleged prejudice is no different from that suffered by a person who received notice by certified mail. The plaintiff therefore suffered no cognizable prejudice, since he had actual notice of the commissioner’s decision.