Loren James Gault, Jr. v. Texas Department of Public Safety

Opinion filed July 24, 2008

Opinion filed July 24, 2008

                                                                        In The

    Eleventh Court of Appeals

                                                                 ____________

                                                          No. 11-06-00201-CV

                                                    __________

                               LOREN JAMES GAULT, JR., Appellant

                                                             V.

                   TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellee

                                               On Appeal from the County Court

                                                      Palo Pinto County, Texas

                                                     Trial Court Cause No. 5296

                                              M E M O R A N D U M   O P I N I O N         

Loren James Gault, Jr. appeals from the judgment affirming an order issued by the State Office of Administrative Hearings suspending his driver=s license for 180 days pursuant to Tex. Transp. Code Ann. ' 724.035 (Vernon Supp. 2007).  We affirm.

Appellant argues in his sole issue on appeal that there was no probable cause for his arrest for driving while intoxicated.  We review administrative license suspension decisions under a substantial evidence standard.   Mireles v. Tex. Dep=t of Pub. Safety, 9 S.W.3d 128, 131 (Tex. 1999);  Tex. Dep=t of Pub. Safety v. Pucek, 22 S.W.3d 63, 67 (Tex. App.CCorpus Christi 2000, no pet.).  Under this standard, the administrative decision may not be reversed unless it prejudices the substantial rights of an appellant 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(2) (Vernon 2000).

We cannot substitute our judgment for that of the administrative agency and must affirm the administrative decision if it is supported by more than a scintilla of evidence.   Mireles, 9 S.W.3d at 131.  The issue is not whether the administrative agency made a correct decision, but only whether the record demonstrates some reasonable basis for the agency=s action.  Id.  An administrative decision may be sustained even if the evidence preponderates against it.  Id.

The record shows that on December 17, 2005,  David L. Modgling, a Texas Parks and Wildlife Game Warden, was working at a roadblock stopping cars to caution drivers that there had been a gas explosion.  In his report, Officer Modgling stated that appellant pulled to the shoulder of the road and drove past the roadblock.  Appellant finally stopped about 150 to 200 yards past the roadblock.  When appellant approached Officer Modgling on foot, Officer Modgling noticed a strong odor of an alcoholic beverage and that appellant had bloodshot eyes.  Appellant  stated that he had had a beer with his meal two hours earlier.  Officer Modgling instructed appellant to blow into an intoximeter, but appellant refused because Officer Modgling had been Arude.@  Appellant refused to perform any field sobriety tests.  Officer Modgling stated that appellant was Aextremely argumentative.@  Appellant was placed under arrest.  At the Palo Pinto County Jail, appellant again refused to provide a breath sample.  Appellant did not perform satisfactorily on field sobriety tests and was charged with driving while intoxicated.

Appellant argues that the Acounty court erred in finding that there was substantial evidence to show sufficient probable cause for the officer to arrest appellant for driving while intoxicated.@  The record shows that appellant drove past a roadblock, that he had a strong alcoholic odor, that he had bloodshot eyes, that he admitted drinking an alcoholic beverage, that he was extremely argumentative, and that he refused to take field sobriety tests.  The totality of the circumstances is substantial evidence of probable cause for appellant=s arrest for driving while intoxicated.  Tex. Dep=t. of Pub. Safety v. Nielsen, 102 S.W.3d 313, 317 (Tex. App.CBeaumont 2003, no pet.).  Appellant=s sole issue on appeal is overruled.

The judgment of the trial court is affirmed.

JIM R. WRIGHT

CHIEF JUSTICE

July 24, 2008

Panel consists of:  Wright, C.J.,

McCall, J., and Strange, J.