Texas Department of Public Safety v. Diana Ruiz Gutierrez--Appeal from County Court at Law No 8 of Bexar County

No. 04-02-00836-CV

TEXAS DEPARTMENT OF PUBLIC SAFETY,

Appellant

v.

Diana Ruiz Gutierrez,

Appellee

From the County Court at Law No. 8, Bexar County, Texas

Trial Cause No. 277,238

Honorable H. Paul Canales, Judge Presiding

Opinion by: Sandee Bryan Marion, Justice

Sitting: Paul W. Green, Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: April 9, 2003

REVERSED, LICENSE SUSPENSION ORDER REINSTATED

The Texas Department of Public Safety ("DPS") appeals the trial court's judgment reversing an administrative law judge's order that suspended Diana Ruiz Gutierrez's driver's license. Because all issues of law are settled, our opinion only advises the parties of the court's decision and the basic reasons for it. See Tex. R. App. P. 47.4. We reverse and reinstate the license suspension order.

Background

On May 25, 2002, Officer Dale Hancock responded to a call where he found a wrecked truck belonging to Gutierrez. Gutierrez told Officer Hancock that she was driving home from a party and someone pulled into her lane, causing her to swerve and collide with a concrete barrier. As Officer Hancock spoke with Gutierrez, he noticed signs of intoxication and administered field sobriety tests. After the administration of the field sobriety tests, Officer Hancock determined Gutierrez was intoxicated and placed her under arrest. Once at the police station, Gutierrez refused to take an alcohol concentration test. The DPS suspended Gutierrez's license.

Following an administrative hearing, the administrative law judge ("ALJ") sustained the DPS's suspension of Gutierrez's license. Subsequently, Gutierrez appealed the administrative decision, complaining there was no evidence to substantiate the ALJ's finding that she was actually driving while intoxicated. The trial court reversed the suspension order, holding that the ALJ's finding that Gutierrez was operating a motor vehicle in a public place while intoxicated was not supported by substantial evidence. This appeal by the DPS ensued.

Discussion

Chapter 724 of the Texas Transportation Code applies to the suspension of a person's driver's license for refusing to submit to the taking of a breath or blood specimen if the person is arrested for an offense involving the operation of a motor vehicle. See Tex. Trans. Code Ann. 724.002 (Vernon Supp. 2002). Following a license suspension, a motorist may request an administrative hearing. See id. 723.041. At such a hearing, the ALJ does not have the power to determine an issue of ultimate fact, such as whether a person did in fact operate a vehicle while intoxicated. Church v. State, 942 S.W.2d 139, 140 (Tex. App.--Houston [1st Dist.] 1997, pet. ref'd). Instead, the ALJ is limited to issues set forth in Transportation Code section 724.042. Id. As a result, the issues at a driver's license suspension hearing for the refusal to submit a specimen are whether: (1) reasonable suspicion or probable cause existed to stop or arrest the person; (2) probable cause existed to believe the person was 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. Id. 724.042. If the ALJ makes an affirmative finding on each of these issues, the ALJ will issue an order sustaining the suspension order. Id. 724.043. A suspension order is appealable to the trial court. Id. 724.047 (Vernon 1999).

A trial court may reverse an ALJ's determination if a substantial right of the appellant has been prejudiced because the ALJ's findings, inferences, conclusions, or decisions are not reasonably supported by substantial evidence considering the record as a whole. See Tex. Gov't Code Ann. 2001.174(E) (Vernon 2000). The court of appeals reviews the trial court's substantial evidence review de novo. Texas Dept. of Public Safety v. Valdez, 956 S.W.2d 767, 769 (Tex. App.--San Antonio 1997, no pet.). In determining whether the ALJ's decision was not supported by substantial evidence, this court is governed by the following principles: (1) the trial court will hear and consider evidence to determine whether reasonable support for the ALJ's order exists, but the ALJ remains the primary fact finding body, and the question for the trial court is strictly one of law; (2) the trial court may not substitute its own judgment for that of the ALJ on controverted issues of fact; (3) if the ALJ heard substantial evidence that would support either an affirmative or a negative finding, the trial court must allow the ALJ's order to stand, even if the court would have differed with the result; (4) the trial court may not set aside the ALJ's ruling merely because there was conflicting or disputed testimony; and (5) the trial court is concerned only with the reasonableness of the ALJ's order, not its correctness. Texas Dept. of Public Safety v. Fecci, 989 S.W.2d 135, 139 (Tex. App.--San Antonio 1999, pet. denied). Thus, the trial court here was limited to determining whether substantial evidence supported the ALJ's finding regarding the existence of probable cause. Instead, the trial court incorrectly considered whether substantial evidence supported an ultimate issue of fact. The record reveals that Gutierrez admitted the accident occurred while she was driving home from a party where she had been drinking; Officer Hancock smelled intoxicants on Gutierrez's breath; and he observed her bloodshot eyes, slurred speech, and inability to keep her balance while they spoke. After conducting a series of sobriety tests, Officer Hancock determined that Gutierrez was intoxicated. The ALJ found that reasonable suspicion existed to stop Gutierrez because "while investigating a motor vehicle accident, Officer Hancock came into contact with [Gutierrez] who admitt[ed] driving at the time of the accident and told the officer how it occurred." The ALJ found that probable cause existed to believe that Gutierrez was operating a motor vehicle in a public place while intoxicated because "the officer observed [Gutierrez] to have an odor of intoxicants on her breath, slurred speech, and blood shot eyes. [Gutierrez] also admitted drinking and was unsteady on her feet." We hold that Officer Hancock's testimony constitutes substantial evidence to support these findings. See Fecci, 989 S.W.2d at 140. Accordingly, the trial court erred in reversing the suspension order.

We reverse the trial court's judgment and reinstate the order of the administrative law judge suspending Gutierrez's license.

Sandee Bryan Marion, Justice

PUBLISH