Texas Department of Public Safety v. Jose S. Favela

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-99-00742-CV Texas Department of Public Safety, Appellant v. Jose S. Favela, Appellee FROM THE COUNTY COURT AT LAW OF COMAL COUNTY NO. 99CV-141, HONORABLE BRENDA R. FREEMAN, JUDGE PRESIDING The Texas Department of Public Safety (the Department) appeals from the judgment of the county court-at-law of Comal County that reversed an administrative law judge's order authorizing the Department to suspend Jose S. Favela's driver's license for operating his vehicle in a public place with an alcohol concentration of 0.10 or greater. Tex. Transp. Code Ann. § 524.011 (West 1999).(1) We will reverse the judgment of the county court-at-law. Factual and Procedural Background Officer Wilgen, a patrol officer with the Schertz Police Department, stopped Favela's van for weaving several times from the main lane of IH-35 onto the shoulder. After stopping the van, Wilgen noticed a strong odor of alcohol on Favela's breath. Favela admitted drinking five or six beers and failed three field sobriety tests. Favela gave a breath specimen approximately eighty-three minutes later. At 1:09 a.m. his breath alcohol concentration tested as 0 .181; at 1:11 a.m. as 0.175. Favela requested an administrative hearing to challenge the Department's authority to suspend his driver's license based on his breath test results. Tex. Transp. Code Ann. § 523.031 (West 1999). The administrative law judge (ALJ) upheld the Department's suspension of Favela's license. Favela then appealed to the county court-at-law, raising only the issue that without extrapolation evidence(2) establishing his alcohol concentration at the time of the traffic stop, rather than at the time of the test, there was no evidence to support the ALJ's decision. The county court-at-law agreed with Favela, and found that the ALJ's decision was not supported by substantial evidence. In two appellate issues, the Department contends that the county court-at-law erred in reversing the ALJ's order based on the lack of extrapolation evidence and erred in ignoring the combined force of the breath test and the other evidence indicating intoxication. Discussion Courts review administrative license suspensions under the substantial evidence standard. Mireles v. Texas Dep't of Pub. Safety, 9 S.W.3d 128, 131 (Tex.1999). A reviewing court reverses an ALJ's decision only if substantial rights of the appellant have been prejudiced and the ALJ's findings are not reasonably supported by substantial evidence considering the reliable and probative evidence in the record as a whole. Tex. Gov't Code Ann. § 2001.174(2)(E) (West 2000); see Blankenbeker v. Texas Dep't of Pub. Safety, 990 S.W.2d 813, 818 (Tex. App.--Austin 1990, pet. denied); Texas Dep't of Pub. Safety v. Monroe, 983 S.W.2d 52, 54-55 (Tex. App.--Houston [14th Dist.] 1998, no pet.); Texas Dep't of Pub. Safety v. Latimer, 939 S.W.2d 240, 244 (Tex. App.--Austin 1997, no writ). A court applying the substantial evidence standard of review may not substitute its judgment for that of the agency; the issue is not whether the agency's decision was correct, but only whether the record demonstrates some reasonable basis for the agency's action. Mireles, 9 S.W.3d at 131; City of El Paso v. Public Util. Comm'n, 883 S.W.2d 179, 185 (Tex. 1994). Substantial evidence requires more than a mere scintilla of evidence. See Mireles, 9 S.W.3d at 131; Railroad Comm'n of Tex. v. Torch Operating Co., 912 S.W.2d 790, 792-93 (Tex. 1995). The evidence may preponderate against the agency's decision and still be substantial evidence. Mireles, 9 S.W.3d at 131; Torch Operating Co., 912 S.W.2d 793. We review de novo the decision of the county court-at-law whether substantial evidence supported the ALJ's decision. See Texas Dep't of Pub. Safety v. Valdez, 956 S.W.2d 767, 769 (Tex. App.--San Antonio 1997, no pet.). Unextrapolated breath-test results are substantial evidence to support an ALJ's decision to revoke a license. Mireles, 9 S.W.3d at 131. The court first discussed the principle in criminal cases that unextrapolated breath-test results, although obtained after a lag time between driving and administration of the test, are probative evidence for the trier of fact to consider and weigh, citing Forte v. State, 707 S.W.2d 89, 94-95 (Tex. Crim. App. 1986). Id. The court noted that such evidence was sufficient to satisfy the higher burden of proof in a criminal case; further noting that an administrative decision may be sustained even if the evidence preponderates against it if there is a scintilla of evidence to support the decision. Id. The court held: "If unextrapolated breath-test results are sufficient to sustain a criminal conviction for drunk driving, they are certainly sufficient to sustain an administrative license revocation." Id.; see also Blankenbeker, 990 S.W.2d at 818; Martin v. Texas Dep't of Pub. Safety, 964 S.W.2d 772, 776 (Tex. App.--Austin 1998, no pet.). We find nothing in the record that distinguishes Favela's case from Mireles, Blankenbeker, or Martin.(3) The test occurred approximately eighty-three minutes after he was stopped and his lower alcohol concentration of 0.175 was significantly above 0.10. Further, the record shows additional evidence from which the ALJ reasonably could have inferred the prohibited level of alcohol existed, such as Favela's driving erratically, admitting alcohol consumption, and failing performance on the field sobriety tests. See Martin, 964 S.W.2d at 776. Accordingly, we sustain the Department's issues and conclude that substantial evidence supported the ALJ's decision. Conclusion We have sustained the Department's issues and hold that substantial evidence supported the ALJ's decision. Accordingly, we reverse the judgment of the county court-at-law and render judgment reinstating the ALJ's order of suspension. Lee Yeakel, Justice Before Justices Jones, Kidd and Yeakel Reversed and Rendered Filed: October 5, 2000 Do Not Publish 1. The legislature amended the definition of intoxication to include persons with an alcohol concentration of 0.08 or more. Act of May 28, 1999, 76th Leg., R.S., ch. 234, § 1(2)(B), 1999 Tex. Gen. Laws 1082 (codified as Tex. Penal Code § 49.01). This definition does not apply to Favela's case as it became effective September 1, 1999 and Favela was stopped on February 28, 1999. 2. "Extrapolation evidence" refers to evidence that takes into account factors such as a person's weight, the amount of alcohol consumed, the amount of food eaten, and other metabolic factors, all of which affect the rate at which alcohol is digested or metabolized. This evidence is then used to establish an alcohol concentration at the time of driving, rather than at the time of administering the test for alcohol concentration. See Mireles v. Texas Dep't of Pub. Safety, 9 S.W.3d 128, 130 (Tex. 1999); Martin v. Texas Dep't of Pub. Safety, 964 S.W.2d 772, 776 n.3 (Tex. App.--Austin 1998, no pet.). 3. Favela's trial occurred July 21, 1999. Favela contends that the supreme court's opinion in Mireles represents an unforeseeable change in the law that should not be applied retroactively to him. Favela relied on the first version of the opinion in Mireles by the San Antonio Court of Appeals holding extrapolation evidence was necessary. Disregarding any other problems with Favela's analysis, on May 12, 1999, the San Antonio Court withdrew its original Mireles opinion. Mireles v. Texas Dep't of Pub. Safety, 993 S.W.2d 426, 427 (Tex. App.--San Antonio 1999), aff'd, 9 S.W.3d 128, 130 (1999). Further, at the time of Favela's trial, this Court had held that extrapolation evidence was not necessary. See Blankenbeker v. Texas Dep't of Pub. Safety, 990 S.W.2d 813, 818 (Tex. App.--Austin 1999, pet. denied); Martin, 964 S.W.2d at 776. till be substantial evidence. Mireles, 9 S.W.3d at 131; Torch Operating Co., 912 S.W.2d 793. We revie