Texas Department of Public Safety v. Gilfeather

293 S.W.3d 875, 2009 Tex. App. LEXIS 6144, 2009 WL 2414376

• Court: Court of Appeals of Texas
• Decided: August 6, 2009
• Docket: 2-07-459-CV
• Status: Published

Opinions

OPINION ON REHEARING

BOB McCOY, Justice.

I. Introduction

After considering Appellant Texas Department of Public Safety’s motion for rehearing en banc, we grant the motion, withdraw our opinion and judgment dated March 5, 2009, and substitute the following.

In one issue, the Department challenges the trial court’s reversal of an administrative law judge’s (“ALJ”) order suspending Appellee Frank Riley Gilfeather’s driver’s license. We reverse the trial court’s judgment and render judgment reinstating the ALJ’s order.

II. Factual and Procedural History

Shortly after midnight on December 12, 2006, Trooper Chris Markin stopped Gil-feather for speeding but let him go with a warning. In a separate incident approximately five minutes later, Trooper Christopher Petty stopped Gilfeather for driving 68 m.p.h. in a 55 m.p.h. speed zone.¹

Upon making contact with Gilfeather, Trooper Petty asked him for his driver’s license and insurance. Instead of handing Trooper Petty the requested items, Gil-feather handed him the warning that Trooper Markin had just given him. While talking to Gilfeather, Trooper Petty noticed an odor of alcohol coming from the vehicle and saw that Gilfeather had red, bloodshot, glassy eyes. Trooper Petty asked Gilfeather to step out of the vehicle to determine if the odor was coming from Gilfeather or the vehicle. Gilfeather did not stagger as he stepped out of the car, but Trooper Petty did notice that Gilfeather swayed as he walked and as he stood on the side of the road. Trooper Petty detected a strong odor of alcohol on Gilfeather’s breath and decided to administer field sobriety tests. Gilfeather refused to participate in the tests.

Based on his observations, Trooper Petty arrested Gilfeather for driving while intoxicated. After the arrest, Trooper Petty asked Gilfeather to take a breath test. Gilfeather refused and signed a 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 subsequently suspended. Gilfeather requested an administrative hearing to contest the suspension. At the hearing, the Department’s evidence consisted of Trooper Petty’s offense report and his testimony. Gilfeather testified on his own behalf. 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. The Department now appeals.

III. Standard of Review

A review in the county court at law or county court of an administrative license suspension is conducted under the substantial evidence standard of review. See Mireles v. Tex. Dep’t of Pub. Safety, 9 S.W.3d 128, 131 (Tex.1999). Under this standard, the reviewing court cannot replace the ALJ’s judgment with its own. See id.; R.R. Comm’n of Tex. v. Torch Operating Co., 912 S.W.2d 790, 792 (Tex.1995). If the ALJ’s decision is supported by more than a scintilla of evidence, that decision must be upheld. See Torch Operating Co., 912 S.W.2d at 792-93. However, a trial court may reverse an ALJ’s determination if a substantial right of the appellant has been prejudiced because the ALJ’s findings, inferences, conclusions, or decisions are not reasonably supported by substantial evidence considering the record as a whole. See Tex. Gov’t Code Ann. § 2001.174(2)(E) (Vernon 2008).

The court of appeals reviews the trial court’s substantial evidence review de novo. Tex. Dep’t of Pub. Safety v. Valdez, 956 S.W.2d 767, 769 (Tex.App.-San Antonio 1997, no pet.). 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. See Tex. Dep’t of Pub. Safety v. Fisher, 56 S.W.3d 159, 162 (Tex.App.-Dallas 2001, no pet.) (citing Mireles, 9 S.W.3d at 131). Courts 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. See id. If the evidence is conflicting, the court must defer to the ALJ’s factual findings. See Brown v. Tex. Dep’t of Ins., 34 (Tex.App.-Austin 2000, no pet.).

IV. Discussion

In its sole issue, the Department asserts that the trial court erred in reversing the ALJ’s decision to sustain the suspension of Gilfeather’s license because there was substantial evidence to support each of the findings required to do so. We agree.

Pursuant to the transportation code, 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. See Tex. Transp. Code Ann. § 724.012(a)(1) (Vernon Supp. 2008). If the person refuses to submit to the taking of a specimen, the Department shall suspend the person’s license to operate a motor vehicle on a public highway for 180 days. Id. § 724.035(a)(1) (Vernon Supp. 2008). If a person’s license is suspended under this chapter, that person may request a hearing on the suspension. Id. § 724.041 (Vernon Supp. 2008). At the hearing, the Department must prove the following:

(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; ...

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(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 (Vernon Supp. 2008).

Here, the undisputed evidence showed that Trooper Petty placed Gilfeather under arrest, that Trooper Petty requested a specimen from Gilfeather, and that Gil-feather refused to give a specimen. Thus, the only two contested issues are (1) whether Trooper Petty had reasonable suspicion or probable cause to stop or arrest Gilfeather and (2) whether Trooper Petty had probable cause to believe that Gilfeather was driving while intoxicated.

1. Reasonable Suspicion to Stop Gil-feather

An officer conducts a lawful stop when he has reasonable suspicion to believe that an individual is violating the law. Ford v. State, 158 S.W.3d 488, 492 (Tex.Crim.App.2005). Reasonable suspicion exists if the officer has specific, articu-lable facts that, when combined with rational inferences from those facts, would lead him to reasonably conclude that a particular person actually is, has been, or soon will be engaged in criminal activity. Id.; Garcia v. State, 43 S.W.3d 527, 530 (Tex.Crim.App.2001). Under this standard, we look to whether an objective basis for the stop existed while considering the totality of the circumstances. Ford, 158 S.W.3d at 492-93. An officer may stop a driver if he has reasonable suspicion that a traffic violation was in progress or had been committed. Fisher, 56 S.W.3d at 163.

After reviewing the administrative record, we conclude that substantial evidence supports the ALJ’s reasonable suspicion determination. Specifically, Trooper Petty testified that Gilfeather had been driving 68 m.p.h. in a 55 m.p.h. zone. Trooper Petty further testified that he had used radar equipment to determine Gil-feather’s speed. Thus, Trooper Petty had reasonable suspicion to stop Gilfeather for the offense of speeding.² See id.; see also Tex. Transp. Code Ann. § 545.351 (Vernon 1999) (declaring that speeding is a traffic violation for which an officer may lawfully stop and detain a person). Accordingly, the Department satisfied the first contested issue under section 724.042.

2. Probable Cause that Gilfeather was Driving While Intoxicated

Probable cause for a warrant-less arrest exists if, at the moment the arrest is made, the facts and circumstances within the arresting officer’s knowledge and of which he has reasonably trustworthy information are sufficient to warrant a prudent man as believing that the person arrested had committed or was committing an offense. Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964). “An offense is deemed to have occurred within the presence or view of an officer when any of his senses afford him an awareness of its occurrence.” State v. Steelman, 93 S.W.3d 102, 107 (Tex.Crim.App.2002). The test for probable cause is an objective one, unrelated to the subjective beliefs of the arresting officer, and it requires a consideration of the totality of the circumstances facing the arresting officer. Maryland v. Pringle, 540 U.S. 366, 371, 124 S.Ct. 795, 800, 157 L.Ed.2d 769 (2003); Beck, 379 U.S. at 96-97, 85 S.Ct. at 228. A finding of probable cause requires “more than bare suspicion” but “less than ... would justify ... conviction.” Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879 (1949).

Speeding can indicate impaired mental judgment and, therefore, is a factor to be considered as part of the totality of the eircumstances. See, e.g., Arthur v. State, 216 S.W.3d 50, 55-56 (Tex.App.-Fort Worth 2007, no pet.); see also State v. Cullen, 227 S.W.3d 278, 282 (Tex.App.-San Antonio 2007, pet. ref'd). Bloodshot eyes, an odor of alcohol on a person’s breath, and unsteady balance are all classic symptoms of intoxication. See Cotton v. State, 686 S.W.2d 140, 142-43 & n. 3 (Tex.Crim.App.1985). Finally, this court and numerous other courts of appeals have held that the refusal to participate in field sobriety tests is a factor to be considered in the totality of the circumstances. 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.-Amarillo 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.-San Antonio Oct. 26, 2005, no pet.) (mem. op., not designated for publication).

Here, the evidence showed that Gilfeather had received a warning from Trooper Markin for speeding approximately five minutes prior to Trooper Petty’s stop; that Trooper Petty stopped Gilfeather for driving thirteen miles over the speed limit; that Gilfeather had red, bloodshot, glassy eyes; that Gilfeather swayed while walking and while standing on the side of the road; that Gilfeather had a strong odor of alcohol on his breath; and that Gilfeather had refused to participate in any of the field sobriety tests.

Based on the foregoing evidence, as applied to the totality of the circumstances test, we conclude that the ALJ’s finding that Trooper Petty had probable cause to believe that Gilfeather was driving while intoxicated was reasonably supported by substantial evidence. See State v. Garrett, 22 S.W.3d 650, 654 (Tex.App.-Austin 2000, no pet.) (finding probable cause to arrest defendant for DWI when officer testified defendant smelled of alcohol, had watery eyes, was unsteady on his feet, and drove illegally); Reynolds v. State, 902 S.W.2d 558, 560 (Tex.App.-Houston [1st Dist.] 1995, pet. ref'd) (finding probable cause to arrest defendant for DWI when officer testified defendant had slurred speech, bloodshot eyes, breath that smelled of alcohol, and posed a danger to himself and others). Thus, the Department satisfied the second, and final, contested issue under section 724.042.

We therefore conclude that the decision by the ALJ to continue suspension of Gil-feather’s license was supported by more than a scintilla of evidence and that there was some reasonable basis in the record for the action taken by the ALJ. See Mireles, 9 S.W.3d at 131. Accordingly, we sustain the Department’s sole issue.

Y. Conclusion

Having sustained the Department’s sole issue, we reverse the trial court’s judgment and render judgment reinstating the ALJ’s order.

DAUPHINOT, J., filed a dissenting opinion. WALKER, J., concurs without opinion.

1 . Trooper Petty testified that he used radar equipment to determine Gilfeather's speed.

2 . The Department did not have to prove a connection between Trooper Petty stopping Gilfeather for speeding and the arrest of Gil-feather for DWI. See Tex. Dep't of Pub. Safety v. Torres, 54 S.W.3d 438, 441 (Tex.App.-Fort Worth 2001, no pet.) (holding that the Department 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).