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finding probable cause based on officer's report that Perkins's eyes were red and glassy, and his breath had very strong odor of alcohol
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No. 01-04-00093-CV
Opinion issued December 2, 2004.
On Appeal from County Court at Law No. 3, Brazoria County, Texas, Trial Court Cause No. 31,082B.
Panel consists of Justices TAFT, JENNINGS, and BLAND.
MEMORANDUM OPINION
Appellant, the Texas Department of Public Safety (DPS), challenges a county court at law order setting aside an administrative suspension of the driver's license of appellee, Christopher Perkins (Perkins), which suspension was based on his refusal to submit a breath specimen after his arrest for driving while intoxicated. In two issues, DPS contends that the county court at law erred in reversing the administrative suspension.
See Tex. Transp. Code Ann. § 724.042 (Vernon Supp. 2004-2005).
Facts and Procedural Background
According to DPS Trooper J. Johnson's original and supplemental written refusal reports (forms DIC-23), on May 3, 2003, at around 12:45 a.m., Johnson saw a green sports utility vehicle (SUV) on FM 521 on the Brazos River bridge. Johnson had been dispatched to this location in order to "work an accident." Upon arrival, Johnson saw the wrecked SUV facing north on the FM 521 Brazos River bridge. He noted that the SUV had apparently struck the side of the bridge at its entrance and had then traveled along the rail before coming to rest half-way across the bridge. Johnson approached Perkins, who was standing at the back of the wrecked SUV. Perkins told Johnson that he had been "driving from a party in the Wild Peach area and that he [had] lost control of the vehicle as he approached the bridge." Johnson noted that Perkins had "red glassy eyes and emitted a very strong odor of an alcoholic [beverage] on or about his breath." Johnson also noted that Perkins's eyes "exhibited lack of smooth pursuit," that "distinct nystagmus was present at the maximum deviation," and that "the onset of nystagmus was present prior to 45 degrees." After Perkins refused to perform any other sobriety tests, Johnson arrested Perkins for driving while intoxicated and transported Perkins to the Brazoria County Jail, where Johnson read to Perkins the statutory warnings concerning the refusal to submit a breath or blood specimen (form DIC-24). When Johnson requested that Perkins submit a breath specimen, Perkins refused, and Johnson then gave Perkins a copy of the statutory warnings and a notice of suspension (form DIC-25).
Perkins requested an administrative license revocation hearing to challenge the suspension of his driver's license. At the administrative hearing, DPS offered five exhibits into evidence: (1) Trooper Johnson's original written refusal report that Johnson had prepared on May 6, 2003, three days after the arrest; (2) the statutory warning form; (3) the statutory notice of suspension form; (4) a certified copy of Perkins's driving record; and (5) Johnson's supplemental written refusal report. Perkins objected to the supplemental written refusal report, contending that Transportation Code section 724.032(c) requires arresting officers to forward such reports to DPS within five business days after the date of an arrest. Perkins argued that, because the supplemental written refusal report was forwarded to DPS on July 11, 2003, it should not be admitted. The administrative law judge (ALJ) overruled both of Perkins's objections and admitted all five of DPS's exhibits into evidence.
The difference between Johnson's original and supplemental written refusal reports is found in the space that is designated for the trooper's explanation of his "reasonable suspicion to stop and make contact." The original report states: "I was dispatched [to] this location by Brazoria [C]o. Communications to work an accident." In contrast, the supplemental report is more complete and reads as follows:
I was dispatched [to] this location by Brazoria [C]o. Communications to work an accident. Upon arrival I observed a wrecked car on FM 521 Brazos [R]iver bridge facing north. I noted that the vehicle had struck the bridge at it's [sic] entrance a [sic] traveled along the rail coming to rest half way across the bridge. I approached Mr. Perkins as he stood at the rear of the wrecked car. Mr. Perkins stated that he was driving from a party in the Wild Peach area and that he [had] lost control of his vehicle as he approached the bridge.
In its findings of fact, the ALJ found that:
(1) On May 3, 2003, reasonable suspicion to stop [Perkins] existed, in that Trooper J. Johnson of the Texas Department of Public Safety was dispatched to the scene of an accident on FM 521 on the Brazos River bridge in Brazoria County, Texas. Upon arrival, Trooper Johnson spoke with [Perkins], who identified himself to Trooper Johnson as the operator of the vehicle involved in the accident. [Perkins] was further identified by his driver's license.
(2) On the same date, probable cause to arrest [Perkins] existed, in that probable cause existed to believe that [Perkins] was operating a motor vehicle in a public place while intoxicated because, in addition to the facts in No. 1, Trooper Johnson observed a very strong odor of an alcoholic beverage on [Perkins's] breath and that [Perkins] had red, glassy eyes. [Perkins] refused to submit to any field sobriety tests save the Horizontal Gaze Nystagmus test.
(3) [Perkins] was placed under arrest and was properly asked to submit a breath or blood specimen.
(4) After being requested to submit a specimen breath or blood, [Perkins] refused.
(5) [Perkins] has had one or more alcohol or drug related enforcement contacts during the ten years preceding the date of [Perkins's] arrest, as is indicated on [Perkins's] driving record. In its conclusions of law, the ALJ determined that, based on its findings of fact, DPS had proved the issues set out in section 724.042 and that, as a result, Perkins's driver's license was subject to suspension or denial for two years. Thus, the ALJ ordered that DPS was authorized to suspend or deny Perkins's driving privileges for two years.
Perkins then appealed the ALJ's suspension order to the county court at law. In his petition to set aside the ALJ's order, Perkins contended that (1) the suspension order had "deprived him of due process of law," and (2) "there [was] no factual or legal basis upon which an Order of Suspension should be issued as it pertains to his driver's license privileges." At a hearing before the county court at law, Perkins argued that there was insufficient evidence to prove that he was the driver of the wrecked SUV because there was no corroboration of his admission. He also argued that the supplemental written refusal report had not been filed within five days after the arrest and, therefore, should not have been admitted into evidence at the administrative hearing. Without stating the basis for its ruling, the county court at law granted Perkins's petition and set aside the ALJ's suspension order. The county court at law made no findings of fact or conclusions of law.
Standard of Review
Courts reviewing a license suspension must apply chapter 2001 of the Texas Government Code, the Administrative Procedure Act (APA). See Tex. Transp. Code Ann. §§ 524.002, 724.047 (Vernon 1999). Government Code section 2001.174 establishes the standard of judicial review for reviewing driver's license a suspension. See Tex. Gov't Code Ann. § 2001.174 (Vernon 2000); Tex. Dep't of Pub. Safety v. Cantu, 944 S.W.2d 493, 495 (Tex.App.-Houston [14th Dist.] 1997, no writ). The statute provides that [a] court may not substitute its judgment for the judgment of the state agency on the weight of the evidence on questions committed to agency discretion but:
(1) may affirm the agency decision in whole or in part; and
(2) shall reverse or remand the case for further proceedings if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(A) in violation of a constitutional or statutory provision;
(B) in excess of the agency's statutory authority;
(C) made through unlawful procedure;
(D) affected by other error of law;
(E) not reasonably supported by substantial evidence considering the reliable and probative evidence in the record as a whole; or
(F) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
Tex. Gov't Code Ann. § 2001.174. "[T]o reverse an agency decision, the reviewing court must conclude (1) that the agency's decision was erroneous for one of the reasons enumerated in subsections (A) through (F), and (2) that substantial rights of the appellant have thereby been prejudiced." Cantu, 944 S.W.2d at 495.
When appealing an administrative order to a trial court, the trial court is required to examine the ALJ's order to determine whether it is "reasonably supported by substantial evidence" considering the record as a whole. See Tex. Gov't Code Ann. § 2001.174(2)(E). Substantial evidence means more than a mere scintilla. See Mireles v. Tex. Dep't of Pub. Safety, 9 S.W.3d 128, 131 (Tex. 1999). The trial court may not substitute its judgment for that of the agency, as the ALJ is deemed the ultimate trier of fact. Id.; see Tex. Gov't Code Ann. § 2001.174. In reviewing the agency record, the existence of substantial evidence turns on the question of reasonableness, not its correctness. R.R. Comm'n of Tex. v. Torch Operating Co., 912 S.W.2d 790, 792 (Tex. 1995). The findings and conclusions of the agency are presumed valid. Tex. Dep't of Pub. Safety v. Stacy, 954 S.W.2d 80, 83 (Tex.App. 1997, no writ). Courts must affirm administrative findings in contested cases if there is more than a scintilla of evidence to support them. Mireles, 9 S.W.3d at 131; Torch Operating Co., 912 S.W.2d at 792-93; see generally Tex. Gov't Code Ann. § 2001.174. Any evidentiary ambiguities should be resolved in favor of the administrative order with a finding of substantial evidence to support the ALJ's decision. See Torch Operating Co., 912 S.W.2d at 792; Tex. Health Facilities Comm'n v. Charter Med. — Dallas, Inc., 665 S.W.2d 446, 453 (Tex. 1984).
This court's review of the trial court's determination is undertaken de novo. Raesner v. Tex. Dep't of Pub. Safety, 982 S.W.2d 131, 132 (Tex.App. 1998, pet. denied). We review questions of law without affording any deference to the trial court's finding. Tex. Dep't of Pub. Safety v. Cuellar, 58 S.W.3d 781, 784 (Tex.App. 2001, no pet.).
In his brief on appeal, Perkins argues that, because the county court at law made no findings of fact or conclusions of law, its "decision must be affirmed on any legal theory finding support in the evidence." However, Perkins misstates the nature of the review of an administrative decision. As noted above, courts reviewing administrative decisions must comply with Government Code section 2001.174. Specifically, to reverse an agency decision, the reviewing court must conclude (1) that the agency's decision was erroneous for at least one of the six reasons enumerated in subsections (A) through (F), and (2) that substantial rights of the appellant have thereby been prejudiced. Tex. Gov't Code Ann. § 2001.174; Cantu, 944 S.W.2d at 495.
Here, in his petition to set aside the administrative suspension order, Perkins generally asserted two grounds upon which the county court at law should have reversed the ALJ's decision: (1) the ALJ's findings, inferences, conclusions, or decisions were made through unlawful procedures because the ALJ admitted Trooper Johnson's supplemental written refusal report into evidence, and (2) the ALJ's findings, inferences, conclusions, or decisions were not reasonably supported by substantial evidence as to whether reasonable suspicion and probable cause existed to arrest Perkins for driving while intoxicated and whether Perkins was properly requested to submit to a breath or blood specimen. Compliance with Section 724.032(c)
In his petition to set aside the administrative suspension order, Perkins argues, generally, that he was deprived of due process of law. However, a review of the entire administrative record reveals that, at his hearing before the county court at law, Perkins did not articulate how he was allegedly deprived of due process of law.
In its second point of error, DPS contends that the trial court erred in impliedly finding, if it did, that Trooper Johnson's supplemental written refusal report was improperly admitted on the ground that Johnson had failed to send a copy of his supplemental written refusal report to DPS within five business days after the date of Perkins's arrest.
At the administrative hearing, Perkins argued that DPS's failure to show that the arresting officer had forwarded the supplemental written refusal report to DPS within five business days after the arrest rendered the documents inadmissible. See Tex. Transp. Code Ann. § 724.032(c) (Vernon Supp. 2004-2005).
We review administrative rulings on the admission or exclusion of evidence under an abuse of discretion standard. See Tex. Dep't of Pub. Safety v. Mendoza, 956 S.W.2d 808, 810 (Tex.App. 1997, no pet.). A court abuses its discretion if it acts without reference to any guiding rules and principles or acts arbitrarily and unreasonably. Id. at 810-11.
Transportation Code section 724.032(c) states that "[t]he officer shall forward to the department not later than the fifth business day after the date of the arrest a copy of the refusal report." Tex. Transp. Code Ann. § 724.032(c)(4). Whether a statutory provision is mandatory or directory is a question of law, and we exercise de novo review over questions of law in an APA appeal. See In re Humphreys, 880 S.W.2d 402, 404 (Tex. 1994); Mendoza, 956 S.W.2d at 811.
The Code Construction Act defines "shall" as follows: "`Shall' imposes a duty." Tex. Gov't Code Ann. § 311.016(2) (Vernon 1998). We agree that, pursuant to section 724.032(c)(4), Trooper Johnson had a duty to forward to the department a copy of the notice of suspension or denial and the refusal report not later than the fifth business day after the date of Perkins's arrest. See Tex. Transp. Code Ann. § 724.032(c)(4); Tex. Dep't of Pub. Safety v. Gratzer, 982 S.W.2d 88, 90-91 (Tex.App. 1998, no pet.). However, as this court has previously held, the statute does not require the conclusion that an officer's failure to comply with this duty renders the report inadmissible. Id.
The Supreme Court addressed the interpretation of "shall" in Chisholm v. Bewle Mills as follows:
There is no absolute test by which it may be determined whether a statutory provision is mandatory or directory. The fundamental rule is to ascertain and give effect to the legislative intent. Although the word "shall" is generally construed to be mandatory, it may be and frequently is held to be merely directory. In determining whether the Legislature intended the particular provision to be mandatory or merely directory, consideration should be given to the entire act, its nature and object, and the consequences that would follow from each construction. Provisions which are not of the essence of the thing to be done, but which are included for the purpose of promoting the proper, orderly and prompt conduct of business, are not generally regarded as mandatory. If the statute directs, authorizes or commands an act to be done within a certain time, the absence of words restraining the doing thereof afterwards or stating the consequences of failure to act within the time specified, may be considered as a circumstance tending to support a directory construction.
Chisholm, 287 S.W.2d 943, 945 (Tex. 1956); see also Gratzer, 982 S.W.2d at 91.
Applying the Chisholm analysis, we conclude that the requirement of section 724.032(c) is merely directory. See Gratzer, 982 S.W.2d at 91; Mendoza, 956 S.W.2d at 812. "Generally, provisions regulating the duties of police officers and specifying the time for their performance are held to be directory." Mendoza, 956 S.W.2d at 812. Section 724.032(c)(4) contains no specific language specifying the consequences for an officer's failure to forward the written refusal report on time, nor does it suggest that proof of compliance is a predicate to some other action. Gratzer, 982 S.W.2d at 91; Mendoza, 956 S.W.2d at 812. We conclude that the legislature intended the provision to be a housekeeping procedure placed in the statute to further the prompt and orderly conduct of DPS's business and meant it only as a directory requirement. Gratzer, 982 S.W.2d at 91; Mendoza, 956 S.W.2d at 812; Tex. Dep't of Pub. Safety v. Repschleger, 951 S.W.2d 932, 934 (Tex.App.-Houston [14th Dist.] 1997, no pet.).
Despite the use of "shall" in section 724.032(c), other courts have held that the five-day forwarding requirement is directory, not mandatory. See, e.g., Tex. Dep't of Pub. Safety v. Pruitt, 75 S.W.3d 634, 638 (Tex.App. 2002, no pet.); Mendoza, 956 S.W.2d at 811-12; Tex. Dep't of Pub. Safety v. Repschleger, 951 S.W.2d 932, 934 (Tex.App.-Houston [14th Dist.] 1997, no pet.). However, the Fort Worth Court of Appeals has held that the five-day forwarding requirement is mandatory. Tex. Dep't of Pub. Safety v. Kimbrough, 106 S.W.3d 747, 747-50 (Tex.App.-Fort Worth 2003, no pet.). But, citing Mendoza, the court further held that the failure of an officer to comply with the statute does not render the report inadmissible at an administrative hearing because statute's language indicates that the five-day requirement is simply a housekeeping measure intended to benefit DPS by ensuring that the officer forwards the relevant information to DPS to allow time to prepare for a hearing if the defendant should request one. Id.
Thus, we conclude that, although Johnson's supplemental written refusal report was not filed within five days after Perkins's arrest, Johnson's failure to comply with section 724.032(c)'s time requirement did not render the supplemental report inadmissible. Such reports are admissible under the public records exception to the hearsay rule. Tex. R. Evid. 803(8); Gratzer, 982 S.W.2d at 90; Tex. Dep't of Pub. Safety v. Duggin, 962 S.W.2d 76, 80 (Tex.App. 1997, no pet.). Therefore, the ALJ's admission of the supplemental written refusal report was not an abuse of discretion.
We sustain DPS's second issue.
Substantial Evidence
In its first issue, DPS argues that the county court at law erred in reversing the ALJ's decision because DPS met its burden in establishing that reasonable suspicion and probable cause existed to arrest Perkins for driving while intoxicated and that Perkins refused to submit a breath or blood specimen after being requested to submit such a specimen.
At a license suspension hearing, DPS bears the burden of proving: (1) reasonable suspicion or probable cause existed to stop or arrest the person; (2) probable cause existed to believe that the person was 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. Tex. Transp. Code Ann. § 724.042 (Vernon Supp. 2004-2005). Here, there was substantial evidence in the administrative record to support the ALJ's decision. Trooper Johnson's supplemental report provides a basis in the record for the ALJ to make affirmative findings on all four elements of section 742.042.
Substantial evidence existed to support the ALJ's finding that Trooper Johnson had reasonable suspicion and probable cause to arrest Perkins for driving a motor vehicle while intoxicated. The determination of the existence of probable cause concerns practical considerations of everyday life on which reasonable people, not legal technicians, act. See Guzman v. State, 955 S.W.2d 85, 87 (Tex.Crim.App. 1997). Johnson's supplemental written refusal report indicates that Johnson saw a wrecked SUV facing north on the FM 521 Brazos River bridge and that the SUV had apparently struck the bridge at its entrance and had traveled along the rail before coming to rest half-way across the bridge. According to his report, Johnson approached Perkins, who was standing at the back of the wrecked SUV, and Perkins told him that he had been "driving from a party in the Wild Peach area and that he [had] lost control of the vehicle as he approached the bridge." Furthermore, Johnson's report recited that Perkins had "red glassy eyes and emitted a very strong odor of an alcoholic [beverage] on or about his breath," that Perkins's eyes "exhibited lack of smooth pursuit," that "distinct nystagmus was present at the maximum deviation," and that "the onset of nystagmus was present prior to 45 degrees." Johnson's original and supplemental refusal reports noted that Perkins had refused to perform any other sobriety tests. The observation of the odor of alcohol, glassy, bloodshot eyes, and the failure to properly perform field sobriety tests can constitute probable cause for arrest. See, e.g., Held v. State, 948 S.W.2d 45, 51 (Tex.App. 1997, pet. ref'd).
Substantial evidence also existed to support the ALJ's finding that, after Perkins's arrest, Johnson requested Perkins to submit a breath specimen, and Perkins refused to submit such a specimen. The written refusal reports also provided that, after Johnson read the statutory warnings concerning license suspension to Perkins, Johnson requested a breath specimen, and Perkins refused to submit one.
Perkins argues that his statement to Johnson that Perkins was driving the wrecked SUV from a party was not sufficient to support a finding that he, in fact, was the driver of the wrecked SUV. However, DPS is not required to prove that Perkins was, in fact, driving while intoxicated in order to suspend his license under section 724.042. See Church v. State, 942 S.W.2d 139, 140 (Tex.App. 1997, pet. ref'd). The determination of whether the driver did, in fact, operate a motor vehicle while intoxicated is a criminal matter, while a license suspension is a civil matter, requiring only probable cause to believe the driver was driving while intoxicated. Id.; see Tex. Transp. Code Ann. § 724.048(a) (Vernon 1999). "The statute authorizing the suspension hearing neither requires nor empowers the ALJ to decide the ultimate issue of whether appellant was actually operating a motor vehicle while intoxicated." Church, 942 S.W.2d at 140. Thus, at the license suspension hearing, Perkins's admission to Johnson that he was the driver, along with the corroborating evidence that Perkins was driving while intoxicated, was sufficient for the ALJ to find that probable cause existed for Johnson to arrest Perkins for driving while intoxicated.
Perkins also argues that there was no evidence of when the accident occurred. However, proof of the time of the accident is not a dispositive factor in license suspension cases. See, e.g., Tex. Dep't of Pub. Safety v. Pruitt, 75 S.W.3d 634, 640-41 (Tex.App. 2002, no pet.) (affirming license suspension when no time of accident was established and police officer's report on single SUV accident indicated driver had mild odor of alcohol and slurred speech); see also Tex. Dep't of Pub. Safety v. Jones, 938 S.W.2d 785, 787 (Tex.App. 1997, no writ) (affirming license suspension when no time of accident was established, driver left scene of accident, and the police officer testified that, when he located driver, driver had slurred speech, strong odor of alcohol, and impaired ability to walk).
Based on the foregoing evidence, we hold there was substantial evidence to support the ALJ's findings that probable cause existed for Johnson to arrest Perkins for operating a motor vehicle in a public place while intoxicated, that Perkins was properly asked to submit a breath or blood specimen after his arrest, and that he refused to submit such a specimen.
Accordingly, we sustain DPS's first issue.
Conclusion
Having held that the grounds on which Perkins relied in his petition to set aside his administrative suspension order are not warranted, we reverse the order of the county court at law, and we render judgment affirming the administrative decision suspending Perkins's driver's license.