Mireles v. Texas Department of Public Safety

993 S.W.2d 426, 1999 Tex. App. LEXIS 3558, 1999 WL 300650

• Court: Court of Appeals of Texas
• Decided: May 12, 1999
• Docket: 04-97-01007-CV
• Status: Published

Opinions

ON APPELLEE’S MOTION FOR REHEARING

Opinion by:

TOM RICKHOFF, Justice.

Appellee Department of Public Safety’s motion for rehearing en banc is granted. The en banc court’s opinions of October 30, 1998 are withdrawn and this opinion is substituted in its place.

In this opinion we must decide whether a breath test taken more than an hour after a traffic stop, combined with an arresting officer’s observations at the time of the stop, effectively support an administrative law judge’s determination that a subject had a blood-alcohol concentration of greater than 0.10 while operating a motor vehicle in a public place. Because we find there was a reasonable basis in the record for this determination, we affirm.

Facts

Albert Míreles Jr. was stopped for speeding about 12:30 a.m. on June 20, 1997. The arresting officer noted that Mí-reles had slurred speech, glassy eyes and a very strong odor of alcohol on his breath— all classic symptoms of alcohol intoxication. The officer also noted that Míreles swayed as he walked and failed field sobriety tests; he was arrested on suspicion of driving while intoxicated. About an hour later, at 1:35 a.m., he submitted to breath tests which showed his alcohol concentration to be 0.161 and 0.162.

The Texas Department of Public Safety (“DPS”) sent Míreles a notice advising him that it would seek to suspend his driver’s license. See Tex. Transp. Code Ann. § 524.001-051 (Vernon Supp.1999). Mi-reles requested a hearing before an administrative law judge (“ALJ”). Tex. Transp. Code Ann. § 524.031 (Vernon Supp.1999). At that hearing, the arresting officer’s report, the results of the breath tests and the testimony of DPS’s breath test technical supervisor regarding the scientific reliability of these breath test results were received into evidence. No testimony relating Míreles’ alcohol concentration at the time of the test to his likely concentration at the time he was driving was offered.

The ALJ found that the officer had probable cause to stop Míreles and that Míreles had an alcohol concentration greater than 0.10 while operating a motor vehicle in a public place, and thus upheld DPS’s suspension of his driver’s license. Tex. Transp. Code Ann. § 524.035(a) (Vernon 1999).

Míreles appealed to the county court at law, contending that there was no evidence of his blood-alcohol concentration at the time he was driving or in actual physical control of a motor vehicle. He argued the evidence introduced showed, at most, that he was legally intoxicated at the time the tests were administered. The county court at law rejected this contention and affirmed the ALJ’s decision, prompting this appeal.

Standard of Review

We review administrative proceedings under the substantial evidence standard of review. This means we review the order in the original proceeding and determine whether the original order was based on substantial evidence in the record. Tex. Gov’t Code Ann. § 2001.174 (Vernon Supp.1998); Railroad Comm’n of Texas v. Graford Oil Corp., 557 S.W.2d 946, 951-952 (Tex.1977). This standard does not permit the court to substitute its judgment for that of the agency. Texas Health Facilities Comm ’n v. Charter Medical-Dallas, Inc., 665 S.W.2d 446, 452 (Tex.1984). The issue for the reviewing court is not whether the agency reached the correct conclusion, but rather whether there is some reasonable basis in the record for the action taken by the agency. City of El Paso v. Public Util. Comm ’n, 883 S.W.2d 179, 185 (Tex.1994). In making this determination, the reviewing court considers all the reliable and probative evidence in the record as a whole. See Tex. Gov’t Code Ann. § 2001.174(2)(E) (Vernon Supp.1998) Substantial evidence requires only more than a scintilla, and the evidence on the record may actually preponderate against the decision of the agency and nonetheless amount to substantial evidence. Railroad Comm ’n of Texas v. Torch Operating Co., 912 S.W.2d 790 (Tex. 1995). Indeed, if there is evidence to support either affirmative or negative findings on a specific matter, the administrative decision must be upheld. Texas Dep’t of Public Safety v. Stacy, 954 S.W.2d 80, 83 (Tex.App.-San Antonio 1997, no writ).

License Suspension Standard

At a license suspension hearing, DPS must prove that the person had a blood-alcohol concentration of 0.10 while operating a motor vehicle in a public place. Tex. TRansp. Code Ann. § 524.035(a)(1) (Vernon Supp.1999). An ALJ may not so find if the person had an alcohol concentration of less than 0.10 at the time the specimen was taken. Tex. TRansp. Code Ann. § 524.035(d) (Vernon 1998). The statute is silent as to any other limit on the ALJ's ability to find that the statutory requirements were satisfied.

Míreles argues the ALJ erred because there was no evidence that his alcohol concentration was greater than 0.10 percent at the time he was driving. He argues the only evidence that could have proved this concentration would have been extrapolation testimony, in which an expert, taking into account Míreles’ body weight and his food and alcohol consumption, could have related the reading on Míreles’ breath test to the point an hour before when he was actually driving. We disagree. We believe that alcohol concentration an hour or more after the stop is indeed probative of alcohol concentration at the time of the stop, a belief bolstered by our examination of criminal cases.

Courts in the criminal context have generally found that this question of extrapolation is an issue for the trier of fact to weigh in its decision. See Forte v. State, 707 S.W.2d 89, 94-95 (Tex.Crim.App.1986) (interpreting Tex.Rev.Civ. Stat. Ann. art. 67011 — 1(a)(2)(b))(now codified at Tex. Penal Code Ann. § 49.01(2)(B)); see also Owen v. State, 905 S.W.2d 434 (Tex.App.—Waco 1996, pet. ref'd).

In Forte, the court of criminal appeals was faced with a challenge to the amended statute, which for the first time defined “intoxication” as either loss of faculties or having an alcohol concentration of .10 or greater in the body. The court found this new per se definition of intoxication did not constitute a mandatory conclusive presumption, and its explanation sheds light on our case:

To be sure, if the State relies upon the 0.10% definition of intoxication, then such proof will normally appear in the form of a chemical test showing the alcohol concentration in a defendant’s body near the time of the offense. However, a conviction will not necessarily follow from the offer of such a test. First, the trier of fact must still be convinced beyond a reasonable doubt that the chemical test provides trustworthy evidence of alcohol concentration in a defendant’s breath, blood or urine. Second, the jury must still be convinced beyond a reasonable doubt that an inference can be made from the results of the chemical test that the defendant had a 0.10% alcohol concentration in his body at the time of the offense.

Nothing prevents a defendant from challenging the validity of the test itself by attacking the reliability of the machine or the qualifications of the operator. [citations omitted] Nor does anything prevent a defendant from arguing that his alcohol concentration increased from the time of the arrest to the time of testing. In no way does Article 67011 — 1, supra, encourage a jury to ignore such defensive evidence on the issue of intoxication in favor of a presumption, whether mandatory or permissive.

Id. at 94-95 (emphasis in original). Thus, in a criminal case, in which the state must prove guilt beyond a reasonable doubt, the question of the lag time between driving and the chemical test is a matter to be weighed by the jury.¹ To use a classic phrase, the question of lag time goes to weight, not admissibility.

In Owen, a prosecution for involuntary manslaughter, the defendant challenged a breath test on the grounds that it had been administered about an hour after the accident and no testimony had linked the result to her condition at the time of the accident. Owen, 905 S.W.2d at 437-438. The reviewing court rejected this argument. It noted that in mandating the admissibility of such evidence, the Legislature implicitly accepted the fact that delay between the offense and test would be inevitable, and that it was for a properly instructed trier of fact to determine the weight to be given such evidence. Id. at 439. As with Forte, Owen involved the much higher standard of review involved in a criminal case. Id. at 435.

Additionally, although not facially relevant to the issue of alcohol concentration as measured by a chemical test, we believe we may examine the arresting officer’s statements as well. Our review for substantial evidence must take into account all the probative evidence in the record. Tex. Gov’t Code Ann. § 2001.174(2)(E)(Vernon Pamph.1999). Indeed, in the criminal context another court has found that the proof needed to prove the loss of faculties offense and the proof needed to show the per se offense are not necessarily mutually exclusive: “Clearly, a test showing that blood had a 0.10 alcohol concentration is probative evidence of a loss of faculties. Conversely, evidence of his failure to pass field sobriety tests immediately after driving his vehicle tends to make it more probable that the failed blood or breath test taken an hour later accurately reflect the driver’s condition at the time of the offense ...” Daricek v. State, 875 S.W.2d 770, 773 (Tex.App.-Austin 1994, pet. ref'd). Likewise, a review of the arresting officer’s testimony bolsters our conclusion that this ALJ was justified in upholding suspension of Míreles’ driver’s license.

Of persuasive value is the fact that our sister court has squarely faced the question before us and found the evidence sufficient to support the ALJ’s decision. See Martin v. Dep’t of Public Safety, 964 S.W.2d 772 (Tex.App.-Austin 1998, no pet. h.).

In Martin, the appellant was stopped for erratic driving; the officer noted that her speech was slurred, she smelled of alcohol and she failed several field sobriety tests. Id. at 776. Martin was arrested under suspicion of driving while intoxicated. Id. at 773. About ninety minutes after her arrest, she consented to a breath analysis test which showed her alcohol concentration to be over 0.19. Id. Martin requested a hearing on her driver’s license suspension; one of the issues she raised there and in the reviewing court was the sufficiency of the evidence to show that her alcohol concentration was over 0.10 at the time she was actually operating her car. Id. at 774.

The Austin court of appeals found that the evidence was sufficient to support the ALJ’s conclusion:

The Department bore the burden of proving Martin had an alcohol concentration of at least 0.10 when she was driving. The results of the breath test and the officer’s observations of Martin’s behavior at the time of arrest reasonably support the inference that she had an alcohol concentration 0.10 when she was driving. ' The Department did not have the burden of disproving alternative hypotheses when attempting to prove its case. Many courts, including this one, have sustained convictions for driving while intoxicated, in which a much higher standard of proof applied, based in part on after-the-fact test results without expert extrapolation evidence. Furthermore, nothing in the Transportation Code requires the Department to present specific extrapolation evidence.

Martin, 964 S.W.2d at 776 (citations omitted).

Finally, we believe it significant that while the statute prohibits an ALJ from upholding a driver’s license suspension when a chemical test falls below the legal limit, it does not require extrapolation evidence.

Conclusion

The trier of fact was confronted with two pieces of evidence here: 1) an unchallenged test showing Mireles’ alcohol concentration an hour after the offense was well above the legal limit; 2) the arresting officer’s testimony that Mireles failed field sobriety tests and smelled of alcohol immediately after the stop. While symptoms of alcohol intoxication can be caused by medical conditions other than alcohol intoxication, when reviewing this record as a whole we believe there was a reasonable basis in the record for this trier of fact to uphold suspension of Mireles’ driver’s license.

The judgment of the trial court is affirmed.

Dissenting opinion by: PAUL W. GREEN, Justice, joined by Justices DUNCAN and ANGELINI.

1 . Indeed, this court has held that a defendant is not entitled to a jury instruction spelling out that they must be able to infer from the chemical test that the defendant’s alcohol concentration was beyond the legal limit at the time he was driving. Fernandez v. State, 915 S.W.2d 572, 575 fn. 3 (Tex.App.-San Antonio 1996, no writ).