Sara D. Peters v. Texas Department of Public Safety

Opinion issued March 19, 2013
In The
Court of Appeals
For The
First District of Texas
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NO. 01-12-00157-CV
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SARA PETERS, Appellant
V.
TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellee
On Appeal from County Civil Court at Law No. 1
Harris County, Texas
Trial Court Case No. 1002860
OPINION
Sara Peters appeals from a suit for judicial review in which the trial court
affirmed the administrative law judge’s (ALJ) order granting the Texas
Department of Public Safety’s (DPS) petition to suspend her driver’s license for
ninety days. 1 Peters’s single issue on appeal contends that the trial court erred
because the ALJ’s finding that the officer had reasonable suspicion to stop her is
not reasonably supported by substantial evidence. We reverse and render
judgment in Peters’s favor.
Background
On July 16, 2011, Peters was stopped and subsequently arrested by Harris
County Sheriff’s Department Deputy Christopher Kerr for driving while
intoxicated. Peters gave a breath specimen, the analysis of which showed an
alcohol concentration of .08 or greater.2 At Peters’s request, a hearing was held
before an ALJ on September 28, 2011 to contest the suspension of her driving
privileges. TEX. TRANSP. CODE ANN. § 524.031 (West 2007).
At the hearing, DPS introduced into evidence the DIC-23 Peace Officer’s
Sworn Report, the DIC-24 Statutory Warning, the DIC-25 Notice of
Suspension/Temporary Driving Permit, the breath-test slip, and the DIC-56 Breath
Test Technical Supervisor Affidavit. The DIC-23, signed and sworn to by Deputy
Kerr, stated that on or about July 16, 2011 at 1:39 a.m., he observed a white Lexus
in the 9500 block of the North Sam Houston Tollway. Under the section
1
TEX. TRANSP. CODE ANN. §§ 524.022 (West Supp. 2012), .041 (West 2007).
2
Peters does not challenge the breath-specimen analysis and concedes that the
ALJ’s finding that she had a blood alcohol concentration of .08 or greater was
reasonably supported by substantial evidence.
2
designated “Reasonable suspicion to make contact,” Deputy Kerr stated, “While on
patrol I observed the above vehicle traveling 40mph in a 65mph posted zone.”
Deputy Kerr did not testify at the hearing.
Two days after the hearing, the ALJ issued an administrative decision, which
included findings of fact, conclusions of law, and an order authorizing DPS to
suspend Peters’s driving privileges. The ALJ made only one finding of fact with
respect to the reasonableness of the stop: “On 7-16-11, reasonable suspicion to
stop [Peters] existed, in that Officer Kerr observed [Peters] operating a motor
vehicle traveling 40 mph in a 65 mph speed zone on the tollway in the 9500 block
of North Sam Houston Tollway, Houston, Harris County, Texas.” Based upon
these facts, as well as the analysis of Peters’s breath specimen, and Deputy Kerr’s
observations of Peters after he pulled her over, the ALJ concluded that DPS met its
burden of proof under Transportation Code section 524.035 and was therefore
authorized to suspend Peters’s driving privileges for ninety days. 3
Peters filed a suit for judicial review in the county civil court at law. After
reviewing the hearing transcript and evidence presented to the ALJ, as well as
3
In particular, the ALJ found that Deputy Kerr had probable cause to arrest Peters
for driving while intoxicated based on the fact that (1) he observed her driving on
the tollway at twenty-five miles an hour under the speed limit, (2) after he pulled
her vehicle over, Deputy Kerr observed that Peters’s breath smelled strongly of
alcohol, she had slurred speech, bloodshot eyes, and was disoriented, and (3)
Peters’s performance on two field-sobriety tests, as described in Deputy Kerr’s
report.
3
arguments of counsel, the trial court signed an order affirming the ALJ’s decision.
Peters timely filed her appeal of this order. See Tex. Dep’t Pub. Safety v. Barlow,
48 S.W.3d 174, 175–76 (Tex. 2001).
Discussion
a. Standard of Review
“[C]ourts review administrative license suspension decisions under the
substantial evidence standard.” Mireles v. Tex. Dep’t of Pub. Safety, 9 S.W.3d
128, 131 (Tex. 1999); see TEX. TRANSP. CODE ANN. § 724.047 (West 2011)
(“Chapter 524 governs an appeal from an action of the department, following an
administrative hearing under this chapter, in suspending or denying the issuance of
a license.”); TEX. TRANSP. CODE ANN. § 524.043 (West 2007) (establishing rules
for appeal but not defining scope of review). We presume that the ALJ’s decision
is supported by substantial evidence, and Peters, as the complaining party, has the
burden to prove otherwise. Tex. Health Facilities Comm’n v. Charter
Med.-Dallas, Inc., 665 S.W.2d 446, 452 (Tex. 1984). In contested cases, if more
than a scintilla of evidence supports the administrative findings, we affirm those
findings; “[i]n fact, an administrative decision may be sustained even if the
evidence preponderates against it.” Mireles, 9 S.W.3d at 131. Under the
Administrative Procedure Act, Reviewing courts may not substitute their judgment
for
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the judgment of the state agency on the weight of the evidence on
questions committed to agency discretion but . . . (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: . . . (E) not reasonably
supported by substantial evidence considering the reliable and
probative evidence in the record as a whole. . . .
TEX. GOV’T CODE ANN. § 2001.174 (West 2008). We review the county civil court
at law’s substantial evidence review of the administrative ruling de novo. See Tex.
Dep’t of Pub. Safety v. Alford, 209 S.W.3d 101, 103 (Tex. 2006) (noting that ALJ’s
findings of fact are entitled to deference but that “whether there is substantial
evidence to support an administrative decision is a question of law” and as such,
neither county court nor ALJ’s determination of issue is entitled to deference on
appeal).
b. License Suspension Statute
The Transportation Code requires DPS to suspend the driving privileges of
anyone the department determines had an alcohol concentration level of .08 grams
or greater while operating a motor vehicle in a public place. TEX. TRANSP. CODE
ANN. § 524.012(b)(1) (West Supp. 2012); see also TEX. PENAL CODE ANN.
§ 49.01(2)(B) (West 2011) (defining “intoxicated” as having an alcohol
concentration of 0.08 or more). In order to prevail at the license-suspension
hearing in the present case, DPS was required to prove by a preponderance of the
evidence that (1) Peters had an alcohol concentration of a level of .08 or greater,
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while operating a motor vehicle in a public place and (2) that Deputy Kerr had
“reasonable suspicion to stop or probable cause to arrest” Peters. See TEX.
TRANSP. CODE ANN. § 524.035(a)(1)(A), (2) (West Supp. 2012). Because Peters is
only challenging the sufficiency of the evidence with respect to the second issue
(i.e., whether the ALJ’s finding that Deputy Kerr had reasonable suspicion to stop
her is reasonably supported by substantial evidence), we will limit our discussion
to the evidence supporting the reasonableness of the stop.
c. Evidence Supporting ALJ’s Finding of Reasonable Suspicion to Stop
DPS argues that there is substantial evidence in the record to demonstrate
that Deputy Kerr had reasonable suspicion to stop Peters because he suspected that
she was driving while intoxicated. DPS further contends that, even if there was not
reasonable suspicion to stop Peters based on Deputy Kerr’s suspicion that she was
intoxicated, Deputy Kerr’s detention of Peters was nevertheless appropriate and
lawful because he detained her as part of his “community caretaking”
responsibility. 4 Neither basis proffered by DPS is supported by substantial
evidence in the record.
4
The record demonstrates that Peters was observed driving twenty-five miles per
hour below the posted speed limit around 1:40 in the morning on a public road.
Such conduct does not constitute a traffic violation, however, absent evidence that
Peters was impeding the normal and reasonable movement of traffic. TEX.
TRANSP. CODE ANN. § 545.363(a) (West 2011). As such, Deputy Kerr did not
have reasonable suspicion to detain Peters on this basis. See Garcia v. State, 827
S.W.2d 937, 944 (Tex. Crim. App. 1992) (stating police officer may stop and
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d. Reasonable Suspicion to Stop
A police officer may temporarily detain an individual for investigative
purposes if he reasonably suspects that the individual is involved in criminal
activity. Foster v. State, 326 S.W.3d 609, 613 (Tex. Crim. App. 2010) (citing
Terry v. Ohio, 392 U.S. 1, 27, 88 S. Ct. 1868, 1883 (1968)). “Reasonable suspicion
exists if the officer has specific, articulable 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.” Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). It requires
more than an “inchoate and unparticularized suspicion or ‘hunch.’” Terry, 392
U.S. at 27, 88 S. Ct. at 1883. “A reasonable-suspicion determination is made by
considering the totality of the circumstances.” Ford, 158 S.W.3d at 492–93.
DPS argues that, based on the totality of the circumstances, there is
substantial evidence in the record to demonstrate that Deputy Kerr had reasonable
suspicion to stop Peters because he suspected that she was driving while
intoxicated. Citing to two Court of Criminal Appeals opinions, DPS argues that
Deputy Kerr could have temporarily detained Peters for reasonable suspicion of
driving while intoxicated based upon the fact that he observed her driving slowly
in the early morning hour on a public roadway. See Foster, 326 S.W.3d at 613;
detain motorist if officer has reasonable suspicion traffic violation was committed
or if offense is committed in officer’s presence).
7
Curtis v. State, 238 S.W.3d 376, 379–80 (Tex. Crim. App. 2007). Foster and
Curtis, however, are both factually distinguishable.
In Foster, a peace officer was stopped at a red light a few blocks from
Austin’s Sixth Street bar district at 1:30 in the morning when he heard a revving
noise and noticed the vehicle immediately behind him lurched forward several
times. Foster, 326 S.W.3d at 610. The officer testified that he decided to detain
Foster, who was driving that vehicle, because he thought Foster’s driving was
“unsafe and—due to where [they] were downtown and the time of night, [the
officer] was concerned that maybe [Foster] was impaired.” Id. at 610–11. He
further testified that, based on his prior training and experience in traffic patrol, it
was common for many people to be impaired in Austin’s Sixth Street bar district
late at night. Id. at 611.
In Curtis, two state troopers detained Curtis after they observed his vehicle
weaving in and out of his lane of traffic over a short distance at 1:00 a.m. Curtis,
238 S.W.3d at 377. Both officers testified that they had received specialized
training in detecting DWIs, and that based on that training, they knew that a
driver’s weaving in and out of a lane was a possible indication that the driver was
intoxicated. Id. at 380. The court concluded that the officers had reasonable
suspicion to stop Curtis, based upon the totality of the circumstances (e.g., the
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officers’ work experience and specialized training in detecting intoxicated drivers,
Curtis’s erratic driving during the early morning hours). Id. at 381.
Unlike these cases, in which the officers testified about how their DWI
training and experience helped them form opinions regarding a driver’s possible
intoxication, the record in the present case is silent regarding Deputy Kerr’s
training and experience. It is also silent with respect to the characteristics of the
area in which Peters was observed driving—as opposed to the defendant in Foster,
who was observed driving in an unsafe manner in the early morning hours near
Sixth Street in Austin. Here, the only relevant evidence in the record is that Peters
was observed driving slowly on the Sam Houston Tollway at 1:40 in the morning.
Without more, we cannot say that Deputy Kerr articulated facts, that when
combined with rational inferences from those facts, lead him to reasonably
conclude that Peters was intoxicated before he detained her.
Accordingly, we conclude that there is not substantial evidence in the record
to support the ALJ’s finding of reasonable suspicion to stop on this basis.
e. Community Caretaking
DPS further contends that, even if there was not reasonable suspicion to stop
Peters based on Deputy Kerr’s suspicion that she was intoxicated, Deputy Kerr’s
detention of Peters was nevertheless appropriate and lawful because he detained
her as part of his “community caretaking” responsibility.
9
Police officers may stop and assist someone as part of their “community
caretaking” responsibility if a reasonable person would believe the driver to be in
need of help. Corbin v. State, 85 S.W.3d 272, 277 (Tex. Crim. App. 2002) (citing
Wright v. State, 7 S.W.3d 148, 151 (Tex. Crim. App. 1999)). The community
caretaking responsibility—which is “totally divorced from the detection,
investigation, or acquisition of evidence relating to the violation of a criminal
statute”—is properly invoked in cases in which the reviewing court determines that
the officer was primarily motivated by the community caretaking purpose—as
opposed to law enforcement—and that the officer had a reasonable belief that the
detained person needed assistance. Corbin, 85 S.W.3d at 277 (quoting Cady v.
Dombrowski, 413 U.S. 433, 441, 93 S. Ct. 2523, (1973)). Simply put, an officer
cannot make a valid community caretaking stop if his primary motivation is
suspicion of criminal wrongdoing. See Corbin, 85 S.W.3d at 277.
In deciding if the officer was primarily motivated by the community
caretaking purpose, courts gives deference to the determination of the fact-finder.
Id. DPS argues that one could logically infer from the facts set forth in Deputy
Kerr’s report that his stop of Peters was primarily motivated by his community
caretaking responsibility, and that it is a logical inference that the ALJ found that
this was Deputy Kerr’s primarily motivation when he detained Peters, and, as such,
we should defer to ALJ’s inferred finding on this issue.
10
Citing to Ortega v. State, DPS argues that there are objective facts
demonstrating that Deputy Kerr was attempting to use his community caretaking
responsibilities when he detained Peters, namely, the fact that Peters was alone in
her vehicle, driving below the speed limit on the North Sam Houston Tollway at
1:40 a.m., and she thereby posed a danger to herself and other motorists. 974
S.W.2d 361 (Tex. App.—San Antonio 1998, pet. ref’d). Unlike Ortega and the
other cases relied upon by DPS, there is nothing in the record to indicate that
Deputy Peters stopped Peters because he was concerned for her safety—as
opposed to believing that she was intoxicated or had violated another law. See
Ortega, 974 S.W.2d at 362 (officer’s report indicated officer stopped driver in
order “to ascertain if [driver] was experiencing vehicle problems”); Munoz v. State,
No. 02-09-00391-CR, 2010 WL 3304242, at *3–4 (Tex. App.—Fort Worth Aug.
19, 2010, no pet.) (mem. op., not designated for publication) (officer testified that
he thought driver was lost and he was concerned for her welfare after observing
her vehicle, which had been traveling twenty-five miles-per-hour in forty-five
mile-per-hour zone, pull off into small, dimly lit parking lot); Tex. Dep’t of Pub.
Safety v. Svoboda, No. 04-05-00796-CV, 2006 WL 1684793, at *1, *3 (Tex.
App.—San Antonio June 21, 2006, pet. denied) (mem. op.) (officers testified that
they observed vehicle traveling at twenty miles-per-hour below posted speed limit
on public roadway; after they witnessed driver pull off onto improved shoulder,
11
officers approached vehicle to find out if driver needed assistance; officer’s report
identified encounter as “welfare check”). In each of these cases, the arresting
officer indicated that he approached the driver out of concern for the person’s
safety, either in his report or during his testimony.
Although it is certainly true that a fact-finder can draw reasonable inferences
from the record, the type of inferences that DPS argues for are not “inferences” at
all—just mere speculation and conjecture. First, there is no evidence that Peters
was “alone” in her vehicle. Second, DPS’s assertion that Peters “posed a danger to
herself and other motorists” is not a reasonable inference to draw from the record
given the fact that there is no evidence of any other vehicles sharing the roadway
with Peters, or that driving slowly is inherently unsafe, regardless of the
circumstances. Although one might surmise that Deputy Kerr could have been
concerned for Peters’s safety, that is not a proper inference to draw from the facts,
particularly when Deputy Kerr stated in his report that he had reasonable suspicion
to contact Peters because he observed her vehicle “traveling 40mph in a 65mph
posted zone.”
Accordingly, we conclude that there is not substantial evidence in the record
to support the ALJ’s finding of reasonable suspicion to stop. See TEX. GOV’T
CODE ANN. § 2001.174(2)(E).
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Conclusion
Having determined that the ALJ’s finding that Deputy Kerr had reasonable
suspicion to stop Peters is not reasonably supported by substantial evidence, we
reverse the judgment of the county civil court at law and render judgment (1)
reversing the ALJ’s order and (2) rendering that DPS’s petition to suspend Peters’s
driving privileges be denied. See TEX. R. APP. P. 43.3 (requiring appellate courts,
as general rule, to render judgment trial court should have rendered); Tex. Dep’t of
Pub. Safety v. Story, 115 S.W.3d 588, 593 (Tex. App.—Waco 2003, no pet.)
(stating Government Code section 2001.174 authorizes reviewing court to either
reverse agency’s decision and render judgment in favor of party seeking review or
reverse agency’s decision and remand for further proceedings); 1 TEX. ADMIN.
CODE § 159.251(b) (2012) (stating that if ALJ finds that DPS did not prove all
requisite facts by preponderance of the evidence, ALJ shall deny DPS’s petition to
suspend driving privileges).
Jim Sharp
Justice
Panel consists of Justices Jennings, Higley, and Sharp.
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