Opinion
No. 02-07-459-CV
Delivered: March 5, 2009.
Appealed from County Court at Law of Wise County.
PANEL: DAUPHINOT, WALKER, and MCCOY, JJ.
WALKER, J. concurs without opinion.
MCCOY, J. filed a dissenting opinion.
MEMORANDUM OPINION
See ex. R. App. P. 47.4.
An administrative law judge ("ALJ") upheld the suspension of Appellee Frank Riley Gilfeather's driver's license, but on appeal, the trial court reversed that decision. The Texas Department of Public Safety ("DPS") appeals from the trial court's order. Because we hold that the ALJ's decision was not reasonably supported by substantial evidence, we affirm the trial court's order reversing the ALJ's decision.
Shortly after midnight on December 12, 2006, Trooper Chris Markin stopped Gilfeather for speeding but let him go with a warning. About three to five minutes later, Trooper Christopher Petty stopped Gilfeather for speeding after determining with the use of radar that Gilfeather was driving 68 m.p.h. in a 55 m.p.h. zone.
After talking with Gilfeather, Petty noticed an odor of alcohol coming from the vehicle and saw that Gilfeather had red, bloodshot, glassy eyes. Petty then asked Gilfeather to step out of the vehicle. Gilfeather did not stagger when getting out of the car, but Petty noticed that while standing by the roadside, Gilfeather had "a little bit of a sway to him." Once Gilfeather was out of his vehicle, Tropper Petty detected a strong odor of alcohol on Gilfeather's breath and decided to administer field sobriety tests. Gilfeather refused to participate in any of the field sobriety tests or take a breath test. In his offense report, Petty noted that there were open containers in Gilfeather's vehicle, but he did not make any notations as to the contents of the containers.
Based on his observations, Petty concluded that Gilfeather was driving while intoxicated and arrested him. Gilfeather signed the warning form acknowledging that if he refused the breath test, his license would be suspended for not less than 180 days.
Gilfeather's license was suspended, and he requested an administrative hearing to contest the suspension. At the hearing, Petty and Gilfeather both testified. After the hearing, the ALJ issued an order sustaining the suspension of Gilfeather's driver's license. Gilfeather appealed the decision to the Wise County Court at Law, which reversed the ALJ's decision. DPS now appeals.
Whether in the trial court or on appeal, courts reviewing an ALJ's decision on a license suspension use the substantial evidence standard. We review the trial court's substantial evidence review de novo. As in the trial court, we may not substitute our judgment for that of the ALJ. We do not determine whether the ALJ's decision was correct, but rather whether the record "demonstrates some reasonable basis" for the ALJ's action. In contested cases, if there is more than a scintilla of evidence to support the administrative findings, we must affirm those findings; "[i]n fact, an administrative decision may be sustained even if the evidence preponderates against it." But we may reverse an ALJ's decision if an appellant's substantial rights have been prejudiced because the ALJ's findings, inferences, conclusions, or decisions "are not reasonably supported by substantial evidence considering the reliable and probative evidence in the record as a whole."
Mireles v. Tex. Dep't of Pub. Safety, 9 S.W.3d 128, 131 (Tex. 1999).
See Tex. Dep't of Pub. Safety v. Alford, 209 S.W.3d 101, 103 (Tex. 2006) (noting that ALJ's findings are entitled to deference but that "whether there is substantial evidence to support an administrative decision is a question of law" and as such, neither trial court nor ALJ's determination of issue is entitled to deference on appeal).
Id.; see also Tex. Gov't Code Ann. § 2001.174 (Vernon 2008).
Mireles, 9 S.W.3d at 131.
Id.
The transportation code provides that if a person is arrested and the peace officer making the arrest has reasonable grounds to believe that the person is driving while intoxicated, specimens of the person's breath or blood may be taken. If the person refuses to submit to the taking of a specimen, DPS shall suspend the person's license to operate a motor vehicle on a public highway for 180 days. If a person's license is suspended under this chapter, the person may request a hearing on the suspension. At the hearing, the issues that DPS must prove are whether:
Tex. Transp. Code Ann. § 724.012(a)(1) (Vernon 1999).
Id. § 724.035(a)(1) (Vernon Supp. 2008).
Id. § 724.041.
(1) reasonable suspicion or probable cause existed to stop or arrest the person;
(2) probable cause existed to believe that the person was:
(A) operating a motor vehicle in a public place while intoxicated; . . .
. . .
(3) the person was placed under arrest by the officer and was requested to submit to the taking of a specimen; and
(4) the person refused to submit to the taking of a specimen on request of the officer.
Id. § 724.042.
In its sole issue, DPS argues that the trial court erred by holding that DPS failed to meet its burden of proof in this case. There is no dispute that DPS proved that Gilfeather was placed under arrest by Petty, that Petty requested Gilfeather to submit to the taking of a specimen, and that Gilfeather refused. Thus, the only two contested issues are whether Petty had reasonable suspicion or probable cause to stop or arrest Gilfeather and whether Petty had probable cause to believe that Gilfeather was driving while intoxicated.
See id.
Petty testified that he observed Gilfeather driving 68 m.p.h. in a 55 m.p.h. zone. Although Gilfeather testified that he believed the speed limit was 65 miles per hour, rather than the posted 55 miles per hour, he acknowledged that he had been speeding. Thus, Petty had reasonable suspicion to stop Gilfeather for the offense of speeding.
At a hearing under this chapter, DPS is not required to prove a connection between the reason for the stop and the reason for the person's arrest, and an officer may validly stop a vehicle for one offense and arrest the driver for an unrelated offense. Thus, DPS was not required to prove a connection between the stop of Gilfeather for speeding and the arrest of Gilfeather for DWI. Accordingly, because DPS proved that it had reasonable suspicion to stop Gilfeather, DPS satisfied the first issue under section 724.042.
Tex. Dep't of Pub. Safety v. Torres, 54 S.W.3d 438, 441 (Tex.App.-Fort Worth 2001, no pet.).
Id.
We therefore consider whether Petty had probable cause to believe that Gilfeather was driving while intoxicated. Bloodshot eyes, an odor of alcohol on a person's breath, and unsteady balance are all "classic symptoms" of intoxication. But these facts do not, without more, give rise to probable cause to believe that Gilfeather was driving while intoxicated. The rest of the evidence does not support the conclusion that Gilfeather was driving while intoxicated. When Petty asked Gilfeather for his driver's license and insurance, although Gilfeather initially tried to hand Petty the warning he had been given by Trooper Markin, he was then able to provide the information to Petty. When asked, Petty acknowledged that if Gilfeather had "stumbled around with" providing the information, he would have noted it in his report; no such notation appears in the report. Petty also testified that Gilfeather pulled over when Petty turned his lights on, and as far as Petty could remember, Gilfeather exhibited no unsafe driving in doing so. Petty further testified that Gilfeather was polite, that he followed Petty's instructions, and that Petty could understand him. There was no testimony that Gilfeather seemed unsteady of his feet, with the exception of one moment of having "a little bit of a sway to him," and Petty stated that Gilfeather did not stagger getting out of the car or hang on to the car for balance. Petty did not observe any bad driving facts other than speeding — he did not, for example, observe Gilfeather swerving, weaving, or straddling the lanes. Although Petty testified that he believed that he asked Gilfeather if he had anything to drink (and Gilfeather testified that he did ask him that question), he could not remember Gilfeather's answer. The fact that Gilfeather refused to participate in the field sobriety tests is not evidence of intoxication, and we decline to follow a prior case out of this court holding that such refusal is a factor that may be considered in a probable cause review.
See Mireles v. Tex. Dep't of Pub. Safety, 993 S.W.2d 426, 428 (Tex.App. 1999), aff'd, 9 S.W.3d 128 (Tex. 1999); see also Cotton v. State, 686 S.W.2d 140, 143 n. 3 (Tex.Crim.App. 1985).
See, e.g., Tex. Dep't of Pub. Safety v. Varme, 262 S.W.3d 34, 41 (Tex.App. 2008, no pet.) (holding that officer had probable cause to arrest appellant when appellant had been speeding, officer observed appellant had an odor of alcohol and slurred speech, appellant's eyes were bloodshot, and his balance was poor, his walking was unsure, and he had admitted that he had been drinking); Mireles, 993 S.W.2d at 428 (upholding ALJ's suspension of license when arresting officer noted that appellant had slurred speech, glassy eyes, a strong odor of alcohol on his breath, and that appellant swayed when walking and failed field sobriety tests).
Maxwell v. State, 253 S.W.3d 309, 314 (Tex.App.-Fort Worth 2008, pet. ref'd) (holding that refusal to take field sobriety tests alone is insufficient probable cause for DWI but is a factor that may be considered in probable cause review).
We hold that based on the record, the ALJ's decision was not reasonably supported by substantial evidence. Accordingly, we affirm the trial court's order reversing the ALJ's decision.
See Tex. R. App. P. 47.4.
I respectfully dissent. The trial court is to affirm the administrative findings "if there is more than a scintilla of evidence to support them." Mireles v. Tex. Dep't of Pub. Safety, 9 S.W.3d 128, 131 (Tex. 1999). Under this substantial evidence standard of review, the reviewing court cannot replace the ALJ's judgment with its own. Id.
As to the issue of probable cause, the totality of factual circumstances is considered. See Wiede v. State, 214 S.W.3d 17, 25 (Tex.Crim.App. 2007). Here, those facts included that Gilfeather, when stopped by Petty, was speeding, and he had red, blood-shot, glassy eyes and "a little bit of a sway to him"; the strong odor of alcohol coming from his automobile was subsequently determined to be coming from his person. Further, he was stopped after midnight, and he had just received a warning for speeding three to five minutes earlier. Lastly, he refused to participate in field sobriety tests that this court, and numerous other courts, have held is a factor to be considered in the totality of the circumstances test. Based on the foregoing evidence as applied to the totality of the circumstances test, I would reverse the judgment of the trial court.
Maxwell v. State, 253 S.W.3d 309, 314 (Tex.App.-Fort Worth 2008, pet. ref'd); see Partee v. Tex. Dep't of Pub. Safety, 249 S.W.3d 495, 501-02 (Tex.App. 2007, no pet.); Tex. Dep't of Pub. Safety v. Nielsen, 102 S.W.3d 313, 317 (Tex.App.-Beaumont 2003, no pet.); see also Lonsdale v. State, No. 08-05-00139-CR, 2006 WL 2480342, at *3 (Tex.App.-El Paso Aug. 29, 2006, pet. ref'd) (not designated for publication); Peters v. Tex. Dep't of Pub. Safety, No. 05-05-00103-CV, 2005 WL 3007783, at *2 (Tex.App.-Dallas Nov. 10, 2005, no pet.) (mem. op., not designated for publication); Lemay v. Tex. Dep't of Pub. Safety, No. 04-05-00089-CV, 2005 WL 2755928, at *1 (Tex.App. Oct. 26, 2005, no pet.) (mem. op., not designated for publication).