TEXAS DEPARTMENT OF PUBLIC SAFETY v. CHRISTINA DIJKMAN--Appeal from County Court at Law No 2 of Hidalgo County

   NUMBER 13-03-458-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

  CORPUS CHRISTI  B EDINBURG

TEXAS DEPARTMENT OF PUBLIC SAFTEY, Appellant,

v.

CHRISTINA DIJKMAN, Appellee.

 On appeal from the County Court at Law No. 2

of Hidalgo County, Texas.

M E M O R A N D U M O P I N I O N

 Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

   Opinion by Chief Justice Valdez

The Texas Department of Public Safety (Athe Department@) appeals from the decision of the county court at law, which reversed the decision of the administrative law judge (AALJ@) suspending the driver=s license of appellee, Christina Dijkman. Because we conclude there was a reasonable basis for the ALJ=s decision to suspend Dijkman=s license based on the statutory requirements for such suspension, we reverse and render.

Background

On January 9, 2003, around 3:00 a.m., Dijkman was stopped by a McAllen police officer for speeding. The officer detected a strong odor of alcohol and observed that Dijkman had bloodshot eyes and was slurring her speech. Dijkman was given field sobriety tests, which she failed, and was placed under arrest. Dijkman was asked to provide a breath specimen which, according to the report of the arresting officer, she refused.

After Dijkman=s license was suspended by the Department, she requested an administrative hearing. Before the ALJ, Dijkman testified that she had no memory of taking any field sobriety tests and, furthermore, that she had not refused to give a breath specimen but had only insisted upon having her lawyer present before she would submit to the breathalyzer. The ALJ concluded that the evidence indicated that Dijkman had been driving while intoxicated and that the Department was authorized to suspend her driver=s license for 180 days.

Dijkman appealed the ALJ decision to the County Court at Law No. 2 of Hidalgo County. She complained on appeal that she had not received discovery prior to the hearing, that her constitutional rights were violated because she was not allowed to speak to her attorney at the time of her arrest, and that after the Miranda warnings were given upon her arrest, she should not have been asked to provide a breath specimen. Without stating any reason, the county court at law reversed the ALJ decision. It is from this reversal that the Department now appeals, arguing that the county court at law erred (1) by impliedly holding that discovery rules had been violated by the Department, (2) by holding that the officer=s refusal to provide counsel after giving Miranda warnings excused Dijkman from the consequences of refusing to provide a breath specimen, and (3) by reversing the ALJ=s finding that the Department had proven the elements of its case.

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. Jackson, 76 S.W.3d 103, 106 (Tex. App.BHouston [14th Dist.] 2002, no pet.). Under a substantial evidence review, the reviewing court cannot substitute its judgment for that of the ALJ 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. Id. This Court will review the lower court=s judgment regarding the ALJ decision de novo. See Tex. Dep=t of Pub. Safety v. Struve, 79 S.W.3d 796, 800 (Tex. App.BCorpus Christi 2002, pet. denied). The burden for overturning an agency ruling is formidable. Tex. Dep't of Pub. Safety v. Scanio, 159 S.W.3d 712, 715 (Tex. App.BCorpus Christi 2004, pet. denied). Thus, an administrative decision may be sustained even if the evidence preponderates against it. Mireles, 9 S.W.3d at 130.

License Suspension

We first address the Department=s second and third issues on appeal, as we find them to be dispositive of the case.[1] SeeTex. R. App. R. 47.1. The license suspension statute, section 724.042 of the Texas Transportation Code, serves the remedial purpose of protecting public safety by quickly removing drunk drivers from the road. See Tex. Transp. Code Ann. ' 724.042 (Vernon 2004); Mireles, 9 S.W.3d at 130. Section 724.042 provides that the issues to be considered at an administrative hearing involving the suspension of a driver=s license are the following: (1) Did reasonable suspicion or probable cause exist to stop or arrest the person? (2) Did probable cause exist to believe that the person was operating a motor vehicle in a public place while intoxicated? (3) Was the person placed under arrest by the officer and asked to submit to the taking of a specimen? and (4) Did the person refuse to submit to the taking of a specimen on request of the officer? See Tex. Transp. Code Ann. ' 724.042. If the ALJ finds in the affirmative on each issue, the license suspension is sustained. See id.; Scanio, 159 S.W.3d at 716.

At the hearing before the ALJ, the Department presented the arresting officer=s report which clearly stated that Dijkman had been traveling at unsafe speeds and exhibited signs of intoxication. The report also included a document entitled AStatutory Warning,@ a copy of which had been given to Dijkman upon her arrest, warning:

You are under arrest for a [DWI] offense. . . . You will be asked to give a specimen of your breath and/or blood. . . If you refuse to give the specimen, that refusal may be admissible in a subsequent prosecution. Your license . . . will be suspended or denied for not less than 180 days, whether or not you are subsequently prosecuted for this offense.

The statutory warning also noted that ASubject [Dijkman] refused to allow the taking of a specimen and further refused to sign below as requested by this officer.@

Given this evidence, the record of the ALJ hearing demonstrated a reasonable basis for the agency's action and thus, the decision of the ALJ should have been affirmed. There was evidence that (1) reasonable suspicion or probable cause existed to stop Dijkman, as she was observed committing a traffic offense, (2) probable cause existed to believe that she was operating a motor vehicle in a public place while intoxicated, given her bloodshot eyes, slurred speech and the odor of alcoholic beverages, (3) she was placed under arrest by the officer and was requested to submit to the taking of a breath specimen, and (4) she refused to submit to the breathalyzer test. See Tex. Transp. Code Ann. ' 724.042.

Dijkman did not contest the first three elements of the statutory test. However, she argued before the county court at law that the police officer erroneously concluded that she had refused to provide a breath specimen when she insisted on first contacting her attorney. However, repeated insistence on speaking with an attorney without acquiescing to a police officer=s request for a breath analysis can be construed as a refusal to take the test. See Griffith v. State, 55 S.W.3d 598, 607 (Tex. Crim. App. 2001). This implied refusal to take the test may then be admitted into evidence without offending the rights against self-incrimination. See id. at 603. In other words, when Dijkman refused to take the breath test, her reason for refusing was based upon a right she did not possess: the right to consult with counsel. Jamail v. State, 787 S.W.2d 381, 382 (Tex. Crim. App. 1990); overruled in part on other grounds, Hardie v. State, 807 S.W.2d 319, 322 (Tex. Crim. App. 1991). Therefore, it would have been error for the county court at law to conclude that the police officer should not have requested a breath sample once Dijkman requested counsel. Dijkman=s refusal to provide a sample without counsel was allowably construed as a simple refusal to take the test, thus satisfying the fourth element of the statutory requirements for license suspension. See Tex. Transp. Code Ann. ' 724.042.

We conclude that the county court at law erred in reversing the findings of the administrative law judge. The judgment of the county court at law is reversed, and we affirm the administrative decision to suspend Dijkman=s license.

Rogelio Valdez,

Chief Justice

Memorandum Opinion delivered and filed

this 4th day of August, 2005.

[1]By it=s first issue, the Department argues about discovery that it asserts the county court at law may have impliedly relied upon in reversing the ALJ decision. However, as we find that Dijkman waived her ability to argue about discovery issues on appeal by not raising them prior to the hearing, we decline to address these issues further here. See Tex. R. App. P. 33.1; Tex. Dep't of Pub. Safety v. Doyle, 987 S.W.2d 897, 900 (Tex. App.BFort Worth 1998, no pet.).