NUMBER 13-06-00349-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant,
v.
DAVID HUTCHESON, Appellee.
On appeal from the 130th District Court
of Matagorda County, Texas.
DISSENTING OPINION
Before Chief Justice Valdez and Justices Benavides and Vela
Dissenting Opinion by Justice Vela I respectfully dissent. I believe that the Department need only have proved that it satisfied the elements of section 724.042 of the Texas Transportation Code in order to justify the denial of Hutcheson's driver's license. The majority's opinion would allow anyone who refuses to give a blood sample pursuant to section 724.042, to raise, well after the fact, an argument that conditions were unsanitary. This could be done without regard to any proof that unsanitary conditions existed. This argument, taken to its logical conclusion, invites any person arrested for driving while intoxicated, who refuses to give a blood sample, to manufacture an "ex post facto" defense that conditions were not sanitary at the time of arrest. Surely this was not the Legislature's intent.
A. Standard of Review
Review of an ALJ's suspension of driving privileges is made 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. Scanio, 159 S.W.3d 712, 715 (Tex. App.-Corpus Christi 2004, pet. denied). Under a substantial evidence review, the reviewing court cannot substitute its judgment for that of the ALJ's, and must affirm the ALJ's decision if it is supported by more than a scintilla of evidence. Mireles, 9 S.W.3d at 131. The issue for the reviewing court is not whether the ALJ made a correct decision, but rather whether there is some reasonable basis in the record for the action taken by the ALJ. Mireles, 9 S.W.3d at 131. The burden for overturning an agency ruling is formidable. Scanio, 159 S.W.3d at 715. Thus, an administrative decision may be sustained even if the evidence preponderates against it. Mireles, 9 S.W.3d at 131.
B. There was substantial evidence to sustain the suspension.
The district court erred in reversing the ALJ's decision to suspend Hutcheson's driver's license. To uphold a license suspension, an ALJ must find that the DPS proved by a preponderance of the evidence the elements set forth in section 724.042 of the Texas Transportation Code. Tex. Dep't of Pub. Safety v. Jackson, 76 S.W.3d 103, 107 (Tex. App.-Houston [14th Dist.] 2002, no pet.); See Tex. Trans. Code Ann. § 724.042 (Vernon Supp. 2006).
Section 724.042 of the Texas Transportation Code provides that the issues to be considered at an administrative hearing regarding license suspension are whether:
(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 . . .
;
(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. Tex. Trans. Code Ann. § 724.042 (Vernon Supp. 2006). If the
ALJ finds in the affirmative on each issue, the license suspension is
sustained. Scanio, 159 S.W.3d at 716.
In Scanio, this court upheld the suspension of a driver's license pursuant to section 724.042. Scanio, 159 S.W.3d at 716. The court found that all of the elements of section 724.042 were met under a substantial evidence review. Id.
Similarly, in this case, the ALJ concluded that all of the elements of section 724.042 of the Transportation Code were proven by the DPS. First, the ALJ found that reasonable suspicion or probable cause existed to stop or arrest Hutcheson. According to the incident and crime report, Hutcheson was pulled over after Whitwell observed him drive through a stop sign and then stop suddenly in the middle of the street. See Garcia v. State, 827 S.W.2d 937, 944 (Tex. Crim. App. 1992) (a traffic violation constitutes probable cause to stop).
The ALJ determined that probable cause existed to believe that Hutcheson was operating a motor vehicle in a public place while intoxicated. The incident and crime report indicated that upon exiting his motor vehicle, Hutcheson had trouble balancing and was incapable or unwilling to perform the sobriety tests as requested by Officer Whitwell. See Stagg v. Texas Dept. of Public Safety, 81 S.W.3d 441, 444 (Tex. App-Austin 2002, no pet.) (physical condition and performance on field sobriety tests support finding of probable cause of intoxication).
The ALJ also determined that Hutcheson was placed under arrest by Officer Whitwell and was requested to submit to the taking of a specimen. The record indicates that Hutcheson was read the statutory warning as required by section 724.015 of the Texas Transportation Code and was asked for a blood specimen. See Tex. Trans. Code Ann. § 724.015 (Vernon Supp. 2006). The ALJ further concluded that Hutcheson refused to submit to the taking of a blood specimen as requested by Officer Whitwell. Hutcheson signed the DIC-24 form refusing to allow his blood to be taken. Tex. Trans. Code Ann. § 724.042 (Vernon Supp. 2006). None of the facts in this case were contested by either party. Therefore, the reviewing court should have affirmed the suspension as the ALJ's decision was supported by more than a scintilla of the evidence. Mireles, 9 S.W.3d at 131.
As already established, the DPS needed only to fulfill the requirements as expressed in section 724.042 to suspend Hutcheson's license. Accordingly, Officer Whitwell did all that was necessary to comply with the requirements of section 724.042. As in Scanio, Hutcheson willingly signed the form acknowledging the fact that if he refused to provide a blood specimen, he would have his license suspended for 180 days. Officer Whitwell followed the statutory procedure by asking for the sample and upon refusal, giving Hutcheson the refusal form to sign. Tex. Trans. Code Ann. § 724.015 (Vernon Supp. 2006); Tex. Dep't of Pub. Safety v. Struve, 79 S.W.3d 796, 800-801 (Tex. App.--Corpus Christi 2002, pet. denied).
C. § 724.017 does not justify refusal.
Hutcheson argues that the request for his blood sample was not valid and therefore his license suspension cannot be upheld. Pursuant to section 2001.174 of the Texas Government Code, a reviewing court "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 in violation of a constitutional or statutory provision." Tex. Gov't Code Ann. § 2001.174(2)(A) (Vernon 2001). Hutcheson urges that section 724.017 of the Texas Transportation Code justifies his refusal to submit to the taking of a blood specimen, therefore affording him an affirmative defense. See Tex. Trans. Code Ann. 724.017 (Vernon 1999). I disagree.
Section 724.017 requires that a blood specimen be taken by a "qualified technician" under sanitary conditions. See Tex. Trans. Code Ann. 724.017 (Vernon 1999). Hutcheson argues that his refusal was justified because the DPS failed to provide a "qualified technician" and sanitary conditions. Hutcheson has presented no evidence to support this conclusion. To suspend a license the DPS must only meet the statutory requirements of section 724.042. See Scanio, 159 S.W.3d at 716. DPS is not required to prove that a qualified person and sanitary place were available at the time of the request in order to suspend a driver's license for refusing to submit to a blood test. They are not issues in a refusal case. Tex. Trans. Code Ann. § 724.042; See also Tex. Dep't of Pub. Safety v. Cortinas, 996 S.W.2d 885, 890 (Tex. App.--Houston [14th Dist.] 1998, no pet.) (addressing the issues that must be proven in a case under chapter 524 of the Transportation Code).
Further, the statutory provision that Hutcheson relies upon does not create an affirmative defense to suspension of his license. Rather, section 724.017 provides a means for excluding illegally taken evidence. Hutcheson's argument becomes material only when a prosecutor attempts to introduce the results of the test. See State v. Laird, 38 S.W.3d 707, 710 (Tex. App.--Austin 2000, pet. ref'd) (results of Laird's blood test were inadmissible because his blood was not taken by a "qualified technician"). In this case, Hutcheson refused to provide a specimen, making section 724.017 inapplicable.
Hutcheson's argument concerning the reason for his refusal should be rejected because it is not part of DPS's burden to prove the reason for his refusal. Further, the law concerning refusals does not create an affirmative defense for the driver's refusal to provide a specimen when requested by an officer. Thus, I believe there was substantial evidence to support the administrative findings. Accordingly, I dissent.
ROSE VELA
Justice
Dissenting Opinion delivered and
filed this 29th day of August, 2007.