dissenting.
I dissent, because I believe that the hearings officer’s finding that the officer had subjective probable cause to arrest petitioner before he administered the field sobriety tests is supported by substantial evidence. “Substantial evidence exists to support a finding of fact when the record, viewed as a whole, would permit a reasonable person to make that finding.” ORS 183.482(8)(c). In that regard, the officer testified on cross-examination:
“Q. * * * Can you tell me at what point you decided you had probable cause to arrest him?
“A. Well, I guess technically * * * I knew that he had made mistakes on pretty much all of the tests. I personally * * * will go through and do at least five tests before I even make a decision.
*636“Q. And that’s what you’re trained to do, but if you look at * * * the test and everything and I’m now asking you to look back with 20/20 hindsight. At what point did you have probable cause?
“A. After the third test.
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“Q. It was like I could arrest him now if I wanted to?
“A. Correct. And again, in the training that I’ve had by the State Police, they’ve * * * gone through and brought up all of these tests. However, the three tests that they, you know, will stipulate on and most of the state troopers that I have talked with will do three tests. They’ll do the HGN, one-leg-stand and the walk-and-turn and that’s it and then they’ll go ahead and make a decision from there.
“Q. Okay. In fact you have a little formula almost. If they do certain on those tests, perform a certain way, then you’d have probable cause?
“A. Correct.”
On redirect examination, the prosecutor asked the officer if he believed he would have had probable cause to arrest petitioner if petitioner had refused to take the field sobriety tests. The officer responded:
“A. I— well, to be honest with you I remember specifically that evening I have never had anybody not do the field sobriety test and just say no. You know, I had no idea what his blood alcohol content was going to be. Based on his driving, you know, which technically, I mean, I guess his driving technically wasn’t really all that bad, you know. I mean he crossed the center line and he was speeding. However, I’ve seen a lot worse than that with somebody that’s had— that has been out and, you know, had a recorded [blood alcohol content] of a .125. I’ve seen a lot worse driving than that. * * * I specifically remember when he said, if I don’t do the test. I remember running through my head, please don’t say that, because— I guess, I don’t know * * *.
“Q. I want to make sure that you understand my question. I’m not talking about evidence that you would have needed to make a conviction.
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*637“Q. I’m talking about whether or not you believe you would have had probable cause to arrest him at that point?
“A. Well, * * * they pay me to be able to make quick decision [s] like that and technically, I guess, at that time if he would have refused the field sobriety tests, then I guess I would probably [be] thinking, oh you’ve got something more to hide than I think you do.[1] And because I can smell the alcohol then I probably would have arrested him at that point in time.” (Emphasis supplied.)
Whether there is substantial evidence to support the hearings officer’s finding depends on whether a reasonable person could have concluded on this record that the officer subjectively believed he had probable cause to arrest petitioner before he asked petitioner to perform field sobriety tests. Shakerin v. MVD, 101 Or App 357, 360, 790 P2d 1180 (1990). In the light of the officer’s other observations, his testimony on redirect examination expresses a subjective belief by the officer that he reasonably believed petitioner to be perceptibly affected by the alcohol petitioner admitted consuming. Pulicella testified that he observed petitioner’s car cross the center line of traffic and then return back to its own lane. The officer then followed petitioner as he drove into the city of Newberg. He observed petitioner drive for three blocks at 45 miles per hour in a 25-mile-per-hour zone, at which point the officer stopped him. The officer asked to see petitioner’s driver’s license. Petitioner had difficulty finding it in his wallet, twice passing over the license before handing it to the officer. The officer noticed that petitioner’s eyes were bloodshot and that there was an odor of alcoholic beverage emanating from the car. The officer asked petitioner if he had been drinking, and petitioner admitted to consuming two beers. At that point, the officer asked petitioner to get out of the car and perform field sobriety tests.
*638Apparently, the majority maintains that a reasonable factfinder could not have made the hearings officer’s finding. In other words, the majority holds that there is no evidence in the record to support the hearings officer’s finding that the arresting officer had subjective probable cause to arrest petitioner before he administered the field sobriety tests. It concedes that “there is no question that the facts support an objective finding of probable cause,” 140 Or App at 627, but concludes from the evidence that “[t]he facts of this case show unequivocally that Pulicella did not ‘actually believe’ that he had probable cause to think petitioner was driving under the influence when he asked petitioner to perform the field sobriety tests.” 140 Or App 628. According to the majority, Pulicella testified only that “it was possible” that petitioner was driving under the influence of intoxicants. 140 Or App 628.
That reasoning demonstrates that the majority is conducting an inappropriate de novo standard of review. The question put to the officer on redirect examination specifically asked him to answer in retrospect whether he “believed” that he had “probable cause” to arrest petitioner before he asked petitioner to take the field sobriety tests. The appropriateness of the question and the answer is supported by the Oregon Supreme Court’s holding in State v. Nagel, 320 Or 24, 32, 880 P2d 451 (1994). In Nagel, as in this case, the officer testified that he would have arrested defendant for DUII even if he had not submitted to the field sobriety tests. In Nagel, the officer never had to make that decision, because the defendant agreed to take the tests. Nevertheless, the court held that the officer’s testimony was sufficient to establish the subjective prong of probable cause.
Additionally, the majority’s literal application of the quoted language in State v. Owens, 302 Or 196, 204, 729 P2d 524 (1986), to the facts in Nagel and to the facts in this case would require an investigating officer to articulate in his or her mind at each step of the investigation, when he or she had probable cause to arrest. In real life, as the officer testified, officers are taught to exhaust all investigative techniques before they make the decision to arrest. That policy works in favor of the accused as well as law enforcement and ought not to be discarded in an hyper-technical application of *639the language in Owens, which does not deal with the question of what evidence will support a finding of subjective probable cause.
In sum, the hearings officer was entitled to draw all reasonable inferences from the evidence and if the inference that he drew is reasonable in the light of the evidence, we are not to substitute our judgment and draw a different inference. City of Roseburg v. Roseburg City Firefighters, Local No. 1489, 292 Or 266, 271, 639 P2d 90 (1981). The police officer testified that because he could smell the alcohol, he would have probably “arrested him at that point in time.” Based on that testimony, and the testimony about the other observations that the officer had made about petitioner before he asked him to take the field sobriety tests, the hearings officer was entitled to infer that “that point in time” was before the officer administered the field sobriety tests. The majority errs in concluding that there is not substantial evidence to support the hearings officer’s finding that the officer had subjective probable cause to arrest petitioner for DUII before he administered the field sobriety tests.
Accordingly, I dissent.
Judges Richardson, Warren and Riggs join in this dissent.In his brief, petitioner says:
“It is of no legal consequence that the officer testified that if he had to arrest Petitioner without [the] benefit of [field sobriety tests], he would have based [the arrest] upon the thinking [that] Petitioner had something ‘to hide.’ ”
As I understand that statement, it means that petitioner does not challenge the rationale for the officer’s subjective belief, nor is that necessarily a proper inquiry. See State v. Cloman, 254 Or 1, 12, 456 P2d 67 (1969).