Mireles v. Texas D.P.S., 051299, 04-97-01007-CV

• Decision Date: 12 May 1999
• Docket Number: No. 04-97-01007-CV,04-97-01007-CV
• Citation: 993 S.W.2d 426
• Parties: (Tex.App.-San Antonio 1999) Albert MIRELES Jr., Appellant v. TEXAS DEPARTMENT of PUBLIC SAFETY, Appellee
• Court: Texas Court of Appeals

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993 S.W.2d 426 (Tex.App.-San Antonio 1999) Albert MIRELES Jr., Appellant
v.
TEXAS DEPARTMENT of PUBLIC SAFETY, Appellee No. 04-97-01007-CV In the Fourth Court of Appeals San Antonio May 12, 1999

From the County Court at Law No. 7 of Bexar County, Texas Trial Court No. 240723

Honorable Timothy F. Johnson, Judge Presiding

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George Scharmen, San Antonio, for Appellant.

Anders Cedillos, San Antonio, Loren E. Svor, Kevin M. Givens, Austin, for Appellee.

Sitting: Phil Hardberger, Chief Justice Tom Rickhoff, Justice, Alma L. LOpez, Justice, Catherine Stone, Justice, Paul W. Green, Justice, Sarah B. Duncan, Justice, Karen Angelini, Justice

ON APPELLEE'S MOTION FOR REHEARING

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 The en banc court's opinion of October 30, 1998 is withdrawn and this opinion is substituted in its place.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

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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 Mireles Jr. was stopped for speeding about 12:30 a.m. on June 20, 1997. The arresting officer noted that Mireles 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 Mireles 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 Mireles 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). Mireles 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 Mireles' 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 Mireles and that Mireles 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).

Mireles 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

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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.

Mireles 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 Mireles' body weight and his food and alcohol consumption, could have related the reading on Mireles' 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.6701l-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 6701l-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

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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...