Glenn Reisel v. Texas Department of Public Safety--Appeal from County Court of Karnes County

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MEMORANDUM OPINION
No. 04-04-00002-CV
Glenn REISEL,
Appellant
v.
TEXAS DEPARTMENT OF PUBLIC SAFETY,
Appellee
From the County Court at Law, Karnes County, Texas
Trial Court No. 2693-03
Honorable Alger Kendall, Judge Presiding

Opinion by: Alma L. L pez, Chief Justice

Sitting: Alma L. L pez, Chief Justice

Sarah B. Duncan, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: September 29, 2004

AFFIRMED

Glenn Reisel ("Reisel") appeals the trial court's judgment affirming the administrative decision and order of the State Office of Administrative Hearings ("SOAH") authorizing the Texas Department of Public Safety ("Department") to suspend Reisel's driver's license. Reisel contends that the trial judge erred in affirming the order because the administrative law judge ("ALJ") abused his discretion by admitting certain evidence, releasing requested witnesses from the hearing, and requiring Reisel to subpoena the released witnesses if he wanted them to appear in the future. We affirm.

Background

On January 25, 2003, Reisel was stopped by Department Trooper Paul Quintanilla ("Trooper Quintanilla") for driving his motor vehicle on the wrong side of a public roadway in Karnes County, Texas. Reisel was subsequently arrested, and his breath samples revealed alcohol concentrations of 0.136 and 0.137. As a result of having an alcohol concentration of 0.08 or greater, Reisel's driver's license was suspended.

Reisel requested a hearing, under chapter 254 of the Texas Transportation Code, to contest the suspension of his driver's license. On February 13, 2003, Reisel was given notice that a hearing before an ALJ was scheduled for March 5, 2003. On February 18, 2003, Reisel requested the appearance of the breath test operator and technical supervisor at the driver's license suspension hearing. Upon Reisel's request, the hearing was reset for March 31, 2003. Subsequently, by agreement, the ALJ continued the case and ordered a hearing reset for Monday, April 28, 2003. On Friday, April 25, 2003, Reisel filed a second motion for continuance and a request to transfer the case to the telephonic docket.

Although neither Reisel nor his counsel appeared at the April 28, 2003 hearing, the breath test operator and the certified breath test technical supervisor appeared pursuant to Reisel's request. Over the Department's objection that Reisel's motion was untimely, the ALJ (1) continued the hearing and transferred the case to the telephonic docket for May 30, 2003. By hand notation on the order of continuance, the ALJ released the breath test operator and the breath test technical supervisor and required Reisel to "subpoena [both witnesses] if their presence is wanted." The order also contained the following typed provision: "The Department of Public Safety shall be responsible for promptly notifying breath test technicians and supervisors, if any, who were requested without subpoenas as provided in the Texas Transportation Code 524.038 and 524.039."

The driver's license suspension hearing was held by telephone on May 30, 2003. Reisel did not subpoena either witness nor renew his request for their appearance, and the Department did not produce the breath test operator or the breath test technical supervisor at the hearing. Over Reisel's objections, the ALJ (2) admitted the affidavit of the certified breath test technical supervisor, the intoxilyzer record, and Trooper Quintanilla's sworn report. On June 11, 2003, the ALJ signed an administrative decision and order authorizing the Department to suspend or deny Reisel's driving privileges for 90 days.

Reisel appealed the SOAH decision and order to the Karnes County Court. The Karnes County Court affirmed the SOAH decision and order. Reisel now appeals the Karnes County Court's judgment.

Admission of Evidence

In his first issue, Reisel contends that the ALJ abused its discretion by admitting in evidence the affidavit of the certified breath test technical supervisor, the intoxilyzer record, and the sworn report prepared by the breath test operator, Trooper Quintanilla. Reisel contends that this evidence is inadmissible because neither the breath test operator nor the breath test technical supervisor, whose appearances were requested by Reisel, appeared for the May 30 hearing. See Tex. Transp. Code. Ann. 524.038(d) (Vernon 1999); see also 1 Tex. Admin. Code 159.15(c) (1999). In response, the Department tried to excuse the absence of the requested witnesses by arguing that: (1) the appearance of these witnesses was not required because the ALJ had released the witnesses and required Reisel to subpoena the witnesses in order to secure their appearance at the May 30 hearing; and (2) Reisel waived the appearance of both witnesses by failing to appear and object to the release of the witnesses at the April 28 hearing, failing to subpoena or request their presence at the May 30 hearing, and failing to request an additional continuance upon learning that the witnesses had been released.

Our review of the record of the administrative hearing reveals that Reisel failed to object to the introduction of the peace officer's sworn report ("DPS-1") on the grounds that a requested witness, Trooper Quintanilla, was absent. Instead, Reisel objected to DPS-1 on the grounds that it was "substantially incomplete." The ALJ overruled Reisel's objection and admitted DPS-1 into evidence. Thus, the record reveals that, with regard to DPS-1, Reisel waived his first appellate issue. See Balkum v. Tex. Dept. of Pub. Safety, 33 S.W.3d 263, 266 (Tex. App.-El Paso 2000, no pet.) (holding that defendant "waived any complaint pertaining to the Sixth Amendment's right of confrontation because he did not raise it in the administrative hearing"); Tex. Dept. of Pub. Safety v. Seidule, 991 S.W.2d 290, 294 (Tex. App.-Houston [1st Dist.] 1998, no pet.) (finding waiver of appellate issue where the defendant failed to assert the same grounds in his objection to the admission of evidence at the administrative hearing).

Reisel did, however, object to the affidavit of the certified breath test technical supervisor ("DPS-2") and the intoxilyzer record ("DPS-3") on the grounds that he had requested the appearance of the breath test operator and technical supervisor and that neither appeared at the May 30 hearing. Assuming the trial court erred in admitting DPS-2 and DPS-3, the admission of DPS-1 renders any such error harmless. The factual issues before the ALJ included: (1) whether Reisel had an alcohol concentration level of 0.08 or more, while operating a motor vehicle in a public place; and (2) whether reasonable suspicion to stop or probable cause to arrest Reisel existed. Tex. Transp. Code Ann. 524.035(a) (Vernon 1999); Tex. Pen. Code Ann. 49.01(2)(B) (Vernon 2003). The primary source of the evidence relevant to these issues and supporting the ALJ's findings is DPS-1. Furthermore, most of the information reported in DPS-2 and DPS-3 is also reported in DPS-1; for example, the alcohol concentrations provided in DPS-2 are also reported on DPS-1. Thus, Reisel could not have been prejudiced by the ALJ's error, if any, in admitting the affidavit of the certified breath test technical supervisor and the intoxilyzer record. See Tex. Gov't Code Ann. 2001.174 (Vernon 2000) (requiring a reversal and remand where the substantial rights of the defendant have been prejudiced by the ALJ's error). Reisel's first issue is overruled.

Continuance with Conditions

In his second issue, Reisel contends that the ALJ abused his discretion by releasing the breath test operator and breath test technical supervisor from the hearing and requiring Reisel to subpoena the requested witnesses if he wanted to secure their appearance at the May 30 hearing. Reisel contends that the ALJ did not have authority to release the requested witnesses of their statutory obligation to appear or to impose a subpoena requirement on Reisel's ability to secure the appearance of these particular witnesses. See Tex. Transp. Code. Ann. 524.039(a); see also 1 Tex. Admin. Code 159.15(a) (1999). The Department responds, in part, that Reisel waived the appearance of the breath test operator and technical supervisor by failing to appear and object to the ALJ's order of continuance at the April 28 hearing. The record shows that neither Reisel nor his attorney appeared at the April 28 hearing. Reisel asserted no objections to the conditions in the order of continuance either at the April 28 hearing or at the May 30 hearing, when Reisel's attorney apparently learned of the conditions. Thus, Reisel waived his second appellate issue by failing to object to the entry of the ALJ's order of continuance with conditions. See Balkum, 33 S.W.3d at 266; Seidule, 991 S.W.2d at 294. Reisel's second issue is overruled.

Conclusion

We affirm the county court's judgment.

Alma L. L pez, Chief Justice

1. The ALJ at the April 28, 2003 hearing was the Honorable Cyrena Benson.

2. The ALJ at the May 30, 2003 hearing was the Honorable Nancy Sorenson.

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