Texas Department of Public Safety v. Boeck, Reid Evan ( 2001 )

NUMBER 13-99-812-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

___________________________________________________________________

TEXAS DEPARTMENT OF

PUBLIC SAFETY

, Appellant,

v.

REID EVAN BOECK

, Appellee.

___________________________________________________________________

On appeal from the County Court at Law No. 4 of Hidalgo County, Texas.

___________________________________________________________________

O P I N I O N

Before Justices Dorsey, Castillo, and Cantu⁽¹⁾ Opinion by Justice Dorsey

This case is the appeal of the county court at law's reversal of an administrative decision suspending Reid Evan Boeck's driver's license for a period of sixty days. Boeck appealed the administrative decision to the Hidalgo county court at law. The county court at law reversed the administrative decision. TDPS here appeals the decision of the county court at law. We reverse the county court at law decision and affirm the administrative decision.

Review of an Administrative License-Suspension Decision

Review of an administrative license suspension decision should be extremely deferential. The Texas Supreme Court has explained:

[C]ourts review administrative license suspension decisions under the substantial evidence standard. A court applying the substantial evidence standard of review may not substitute its judgment for that of the agency. The issue for the reviewing court is not whether the agency's decision was correct, but only whether the record demonstrates some reasonable basis for the agency's action. Courts must affirm administrative findings in contested cases if there is more than a scintilla of evidence to support them. In fact, an administrative decision may be sustained even if the evidence preponderates against it.

Mireles v. Texas Dept. of Public Safety, 9 S.W.3d 128, 131 (Tex. 1999) (internal citations omitted).

The government code confirms that under the substantial evidence rule, 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. Govt. Code Ann. § 2001.174 (Vernon 2000). In applying those principles to the agency decision in this case, we affirm the decision of the agency, and, accordingly, reverse the decision of the county court at law.

Administrative Hearing on License Suspension

The issues that must be proved by a preponderance of evidence at the administrative suspension hearing are (1) whether:

(A) the person had an alcohol concentration of [.08] while operating a motor vehicle in a public place; or

(B) the person is a minor and had any detectable amount of alcohol in the minor's system while operating a motor vehicle in a public place; and

(2) whether reasonable suspicion to stop or probable cause to arrest the person existed.

Tex. Transp. Code Ann. § 524.035 (Vernon 1999). Boeck contends that the officer who stopped him was without probable cause to arrest him.

The evidence showed that Officer Cruz testified in person at the administrative suspension hearing. Officer Cruz stated that he stopped Boeck for driving on the wrong side of the road, though his report indicated he stopped Boeck for failing to maintain a single lane. After stopping Boeck, he observed that Boeck smelled of alcohol, had bloodshot eyes and slurred speech. Because Boeck is confined to a wheelchair, Cruz did not conduct field sobriety tests on him, but placed him under arrest for suspicion of driving while intoxicated. See Tex. Pen. Code Ann. § 49.04 (Vernon Supp. 2001). After Boeck was placed under arrest, he was taken to the station and offered a breath test. He took the test, and it indicated his blood alcohol content was .20, over twice the legal limit. See Tex. Pen. Code Ann. § 49.01 (Vernon Supp. 2001). Both the arrest report and the results of the breath test were admitted into evidence at the administrative hearing.

Boeck stipulated that Officer Cruz had a reasonable suspicion to stop him. After an officer stops a defendant for a traffic offense, additional facts must exist constituting probable cause to arrest the defendant for driving while intoxicated. See Chapnick v. State, 25 S.W.3d 875, 877­88 (Tex. App.--Houston [14^th Dist.] 2000, pet. ref'd.); McClain v. State, 984 S.W.2d 700, 702-03 (Tex. App.--Texarkana 1998, pet. ref'd.). "Probable cause exists where the police have reasonably trustworthy information sufficient to warrant a reasonable person to believe a particular person has committed or is committing an offense." Guzman v. State, 955 S.W.2d 85, 87 (Tex. Crim. App. 1997). "[I]t requires more than mere suspicion but far less evidence than that needed to support a conviction or even that needed to support a finding by a preponderance of the evidence." Id.

A person commits the offense of DWI if he is intoxicated while operating a motor vehicle in a public place. See Tex. Pen. Code Ann. § 49.04 (Vernon Supp. 2001). "Intoxicated" means: (1) not having the normal use of mental or physical faculties by reason of introduction of alcohol or other substances in the body; or (2) having an alcohol concentration of 0.08 or more. See Tex. Pen. Code Ann. § 49.01 (Vernon Supp. 2001).

The administrative law judge's findings of fact state:

1. On the 3rd day of April, 1999, reasonable suspicion to investigate the defendant existed in that the arresting officer, Patrolman Juan Cruz, Jr., of the McAllen Police Department, saw defendant driving a Chrysler Sebring southbound on North 29^th Street, a public street in McAllen, Hidalgo County, Texas.

2. The officer who was driving northbound, saw defendant drive his automobile over the center line into the oncoming officer's lane, almost causing an accident. Defendant's driving was erratic and a safety hazard to himself and others.

3. On the same date, the officer noted that defendant had a strong odor of an alcoholic beverage on his breath, bloodshot eyes, slurred speech, and an unsteady balance as he exited his vehicle. . . . Defendant is physically handicapped and uses a wheelchair.

4. On the same date, probable cause existed to believe and arrest Defendant for operating a motor vehicle in a public place while intoxicated, because in addition to the facts in No. 2 and 3 above, the arresting officer was unable to conduct field sobriety tests due to the physical handicap of Defendant.

5. Defendant was placed under arrest and properly asked to submit a specimen of breath or blood as demonstrated by the Department's statutory warning form.

6. Defendant was operating a motor vehicle with an alcohol concentration of 0.10 grams or more of alcohol per 210 liters of breath as determined by Defendant's submission to a breath test, and specifically the results were 0.202 and 0.209.

We hold that administrative law judge did not err in finding that the officer had probable cause to arrest Boeck for driving while intoxicated. Accordingly, the decision of the county court at law is reversed, and the administrative decision is affirmed.

______________________________

J. BONNER DORSEY,

Justice

Do not publish

.

Tex. R. App. P. 47.3(b).

Opinion delivered and filed

this 26th day of April, 2001.

1. Senior Justice Antonio G. Cantu assigned to this court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov't Code Ann. § 74.003 (Vernon 1998).