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affirming administrative law judge's determination that officer had reasonable suspicion to stop defendant where, among other things, defendant did not comply with traffic-control device
Summary of this case from Lewis v. StateOpinion
No. 05-08-01182-CV
Opinion issued July 9, 2009.
On Appeal from the County Court at Law, Rockwall County, Texas, Trial Court Cause No. CI08-006.
Before Justices MOSELEY, O'NEILL, and MURPHY.
MEMORANDUM OPINION
William F. Kortemier, II, was arrested for driving while intoxicated; thereafter, his driver's license was suspended pursuant to an administrative decision after a hearing by an administrative law judge (ALJ). See Tex. Transp. Code Ann. §§ 724.035, .042 (Vernon Supp. 2008). Kortemier appealed the suspension to the county court at law, which affirmed. See id. § 524.041 (Vernon 2007). See also Tex. Gov't Code Ann. § 2001.174 (Vernon 2008). Kortemier now appeals to this Court, arguing in one issue that the trial judge erred in affirming the ALJ's administrative decision because the police officer did not have sufficient reasonable suspicion or probable cause authorizing a stop and detention. The background of the case and the evidence adduced at trial are well-known to the parties; thus, we do not recite them here in detail. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex. R. App. P. 47.2(a), 47.4. We affirm the trial court's order.
Facts
The record contains evidence that Rockwall police Officer Phillip Young saw Kortemier enter a right-turn lane marked by a solid white line without using his traffic signal. The lane led to a gated community, which Kortemier did not enter. Instead, he drove back onto the public road, traversing a privately owned and maintained grass and dirt median in the process. Young did not see Kortemier use his signal or brake lights during this maneuver. Thereafter, Young activated his in-car video camera. He also observed the right-side tires of Kortemier's vehicle drive on the "fog line," the line dividing the roadway from the shoulder, three times and completely cross the line once. Young then activated his squad-car lights directing Kortemier to pull over. Before Kortemier stopped, Young saw him turn right on a red light at an intersection without stopping and almost make contact with the guardrail.
When Young talked with Kortemier after the stop, he detected the odor of an alcoholic beverage on Kortemier's breath and observed he had glassy eyes, made slow lethargic movements, and had unsteady balance. Kortemier admitted consuming alcoholic beverages and refused to perform field sobriety tests or submit a specimen of breath. Young then placed him under arrest for driving while intoxicated.
At the hearing before the trial court, after the administrative record was admitted into evidence, Kortemier's counsel stated, "I want to tell you that the only part that we're contesting in this entire process has to do with the initial stop." Later, during opening statement, co-counsel stated, "The issue of whether there was sufficient cause, probable cause to arrest [Kortemier] for driving while intoxicated, we're not contesting. We're just contesting the original stop." Thus, in the context of this appeal, the relevant issue determined by the ALJ at the suspension hearing was whether Young had reasonable suspicion or probable cause to stop or arrest Kortemier. See Tex. Transp. Code Ann. § 724.042.
Standard of Review
An ALJ's suspension of driving privileges is reviewed under a substantial evidence standard. See Mireles v. Tex. Dep't of Pub. Safety, 9 S.W.3d 128, 138 (Tex. 1999) (per curiam); Tex. Dep't of Pub. Safety v. Fisher, 56 S.W.3d 159, 162 (Tex.App.-Dallas 2001, no pet.). A court applying the substantial evidence standard of review may not substitute its judgment for that of the ALJ. Mireles, 9 S.W.3d at 131; Fisher, 56 S.W.3d at 162. Under the substantial evidence rule, the issue for the reviewing court is not whether the ALJ's decision was correct, but only whether the record demonstrates some reasonable basis for the ALJ's decision. Mireles, 9 S.W.3d at 131; Fisher, 56 S.W.3d at 162. A reviewing court must affirm administrative findings in contested cases if there is more than a scintilla of evidence to support them, even if the findings are against the preponderance of the evidence. Mireles, 9 S.W.3d at 131 (citing R.R. Comm'n of Tex. v. Torch Operating Co., 912 S.W.3d 790, 792-93 (Tex. 1995)); Fisher, 56 S.W.3d at 162.
Whether the order of an administrative agency is supported by substantial evidence is a question of law. Tex. Dep't of Pub. Safety v. Jackson, 76 S.W.3d 103, 106 (Tex.App.-Houston [14th Dist.] 2002, no pet.). Thus, we review the trial court's judgment under a substantial evidence review de novo. Id. (citing Tex. Dep't of Pub. Safety v. Valdez, 956 S.W.2d 767, 769 (Tex.App.-San Antonio 1997, no writ)). Furthermore, when the issue on appeal is a question of law, we exercise de novo review. Id.
Applicable Law
A warrantless automobile stop is a Fourth Amendment seizure analogous to a temporary detention, which must be justified by reasonable suspicion. Berkemer v. McCarty, 468 U.S. 420, 439 (1984). An officer may lawfully stop and reasonably detain a person for a traffic violation. Garcia v. State, 827 S.W.2d 937, 944 (Tex.Crim.App. 1992). See also Terry v. Ohio, 392 U.S.1, 21 (1968). Similarly, an officer may briefly detain a person for investigative purposes if, under the totality of the circumstances, the officer has reasonable suspicion supported by facts that the person detained is, has been, or soon will be engaged in criminal activity. Woods v. State, 956 S.W.2d 33, 35 (Tex.Crim.App. 1997) (citing Terry, 392 U.S. at 30). Reasonable suspicion permits an officer to detain a person on less than probable cause to investigate possible criminal behavior when the officer points to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the detention. See Carmouche v. State, 10 S.W.3d 323, 328-20 (Tex.Crim.App. 2000). The articulable facts used by the officer must create some reasonable suspicion that some activity out of the ordinary is occurring or has occurred, and that the unusual activity is related to crime. Meeks v. State, 653 S.W.2d 6, 12 (Tex.Crim.App. 1983).
Analysis
Based on the record, the ALJ's finding that Young had reasonable suspicion to stop and detain Kortemier is reasonably supported by substantial evidence. Kortemier committed several traffic infractions which led Young to reasonably believe he might be intoxicated. Kortemier changed lanes without signaling, did not comply with traffic control-devices (lane marking used to regulate or guide traffic), made a right turn at a stop light without coming to a complete stop, and recklessly damaged property. See Tex. Transp. Code Ann. §§ 544.004 (Vernon 1999), 544.007(d) (Vernon Supp. 2008), 545.104(a) (Vernon 1999); Tex. Penal Code Ann. § 28.04 (Vernon 2003). All of these specific articulable facts together led Young to conclude Kortemier was possibly driving while intoxicated, a criminal activity, thus providing reasonable suspicion to initiate the stop. In reaching our conclusion, we reject Kortemier's three arguments raised on appeal. Kortemier first argues that events witnessed on a privately-maintained roadway do not furnish reasonable suspicion or probable cause to support a vehicular detention, citing State v. Ballman, 157 S.W.3d 65, 70 (Tex.App.-Ft. Worth 2004, pet. ref'd). There, a police officer stopped the defendant after he failed to signal a turn exiting a privately owned parking lot onto a publicly maintained roadway; because this action did not violate any traffic code, the police officer did not have reasonable suspicion to justify a traffic stop. Id.
In contrast, here there is evidence Kortemier failed to signal a lane change from a public road onto a private driveway. This constituted a traffic code violation taking place on a public highway. See Tex. Transp. Code Ann. §§ 542.001 (Vernon 1999) ("Vehicles on Highways"), 545.104(a) (a driver is required to use a turn signal to indicate an intention to turn, change lanes, or start from a parked position when a vehicle is being operated on a highway). Therefore, Young had at least reasonable suspicion justifying his stop of Kortemier. Following this event, Kortemier then committed another traffic offense by failing to turn right from a right-turn-only lane marked by a solid white stripe. See id. § 544.004 (requiring compliance with traffic-control devices). This provided further reasonable suspicion for Young to stop Kortemier.
Kortemier is correct in his second argument that tires touching and crossing the fog line alone do not give rise to reasonable suspicion sufficient to detain the driver. See State v. Huddleston, 164 S.W.3d 711, 716 (Tex.App.-Austin 2005, no pet.). However, in Huddleston, there was no testimony that the defendant's driving was unsafe. Id. at 715. Here, Young testified that the preceding events involving the turn lane and the median gave him reasonable suspicion that Kortemier was driving while intoxicated.
In his last argument, Kortemier argues that any facts Young observed after he activated his lights and "had begun the detention"-almost touching the guardrail and running a red light before stopping-cannot be used to justify the detention. He relies on Pichon v. State, 683 S.W.2d 422 (Tex.Crim.App. 1984), cert. denied, 471 U.S. 1137 (1985). We have already concluded that Young pointed to specific and articulable facts about Kortemier's driving conduct before Young activated his lights that reasonably warranted the stop, even if Young testified to driving behavior after he activated his lights. Moreover, Pichon concerns the suppression of evidence resulting from an illegal arrest, not a stop and detention. See id. at 423, 426. Accordingly, Pichon is not applicable in Kortemier's case.
We reject Kortemier's arguments that the trial court erred in affirming the ALJ's administrative decision and conclude the ALJ's finding that Young had reasonable suspicion to stop Kortemier is supported by substantial evidence. Accordingly, we overrule Kortemier's issue and affirm the trial court's order.