
 
 



NUMBER 13-06-00349-CV


COURT OF APPEALS


THIRTEENTH DISTRICT OF TEXAS


CORPUS CHRISTI - EDINBURG

 

TEXAS DEPARTMENT OF PUBLIC SAFETY, 			Appellant,

v.


DAVID HUTCHESON,								Appellee.
 

On appeal from the 130th District Court of Matagorda County, Texas.

 

O P I N I O N


Before Chief Justice Valdez and Justices Benavides and Vela

Opinion by Chief Justice Valdez


	The Texas Department of Public Safety ("the Department") appeals from a judgment
directing the Department to rescind its suspension of David Hutcheson's driver's license.
We affirm.
I. BACKGROUND
	On May 28, 2005, Palacios Police Officer Jacob R. Whitwell observed Hutcheson
drive through a stop sign and stop in the middle of an intersection.  Based on this
observation, Officer Whitwell initiated a traffic stop and observed signs of intoxication. 
After Hutcheson performed and failed field sobriety tests, Officer Whitwell arrested him for
driving while intoxicated.  Officer Whitwell transported Hutcheson to the police annex, read
statutory warnings to him, and asked him to provide a blood specimen. Officer Whitwell did
not request a breath specimen.  Hutcheson refused to provide a blood specimen because
he understood that Officer Whitwell would draw the blood himself.  
	As a result of his purported refusal to submit a blood specimen, Hutcheson's driver's
license was suspended.  See Tex. Transp. Code Ann. § 724.035 (Vernon Supp. 2006). 
Hutcheson requested a hearing before an administrative law judge ("ALJ").  See id. §
724.041 (Vernon Supp. 2006).
	Officer Whitwell did not appear at the hearing before an ALJ, but his sworn report
was admitted into the administrative record.  It states that Hutcheson refused to provide
a blood specimen, but it does not state whether Officer Whitwell requested a breath
specimen in the alternative.  It should be noted that neither Officer Whitwell's report nor
Hutcheson's refusal form state that a qualified individual was to draw the blood in a
sanitary place. Hutcheson testified that Officer Whitwell requested to draw his blood
himself, but Hutcheson refused the request because Office Whitwell did not seem qualified
to draw blood.  Hutcheson also testified that the request was made in a jail cell that did not
look sanitary.  The Department did not object to Hutcheson's testimony and did not present
rebuttal testimony showing that a qualified individual was to draw the blood in a sanitary
place.  The ALJ upheld Hutcheson's driver's license suspension. 
	Hutcheson appealed to the county court, which transferred the case to district court. (1) 
At a hearing in which no record was made, the district court reversed the ALJ's decision
and reinstated Hutcheson's driver's license.  This appeal ensued. 
II. DISCUSSION
	The Department's sole issue on appeal is that the district court erred in reversing
the administrative decision.  It argues that there was substantial evidence to sustain
Hutcheson's driver's license suspension and that Hutcheson's "justified refusal" defense
has no place in a substantial evidence review.  Hutcheson contends that Officer Whitwell
could not have drawn his blood because he was not statutorily authorized to do so.  
	In essence, the Department urges us to insulate the propriety of Officer Whitwell's
request of a blood specimen behind the substantial evidence standard of review.  When
properly framed, however, the issue is whether Officer Whitwell complied with statutory
requirements to properly request a blood specimen. 
A.	Standard of Review
	Normally, courts review administrative license suspension decisions under the
substantial evidence standard.  Mireles v. Texas Dep't of Pub. Safety, 9 S.W.3d 128, 131
(Tex. 1999); see Tex. Transp. Code Ann. § 524.041 (Vernon 2007); Tex. Gov't Code Ann.
§ 2001.174 (Vernon 2000).  A court applying the substantial evidence standard of review
may not substitute its judgment for that of the administrative law judge.  Mireles, 9 S.W.3d
at 131.  The issue for the reviewing court is not whether the administrative law judge's
decision was correct but only whether the record demonstrates some reasonable basis for
the administrative law judge's action.  Id. 
	In this case, however, we are called upon to review the evidence and a question of
statutory interpretation.  Tex. Gov't Code Ann. § 2001.174(2)(A) (providing, in part, that
a court may not substitute its judgment for the judgment of the state agency on the weight
of the evidence but shall reverse or remand the case if the substantial rights of the
appellant have been prejudiced because the administrative decisions are in violation of a
statutory provision).  For purposes of substantial evidence review, a question of statutory
interpretation is a question of law and is not entitled to a presumption of validity.  Hightower
v. State Comm'r. of Educ., 778 S.W.2d 595, 597 (Tex. App.-Austin 1998, no writ).  In the
instant case, the Department has not engaged in an in-depth construction of the statute
at issue.  Cf. Dodd v. Meno, 870 S.W.2d 4, 7 (Tex. 1994) (providing that construction of
a statute by the administrative agency charged with its enforcement is entitled to serious
consideration, if  the construction is reasonable and does not contradict the plain language
of the statute).  Therefore, we will engage in a de novo standard of review because the
issue presented by the Department is a straightforward question of statutory interpretation. 
See In re Humphreys, 880 S.W.2d 402, 404 (Tex. 1994). 
B.	Applicable Law
	We begin our analysis with a review of the issues before the ALJ.  The issues at an
administrative hearing for a refusal to submit a specimen are limited to whether:
	(1)	reasonable suspicion or probable cause existed to stop or arrest the
person;

	(2)	probable cause existed to believe that 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.

Tex. Transp. Code Ann. § 724.042 (Vernon Supp. 2006) (hereinafter referred to as "the
hearing statute").  When dealing with a blood specimen, the code further provides that:
	Only a physician, qualified technician, chemist, registered professional nurse,
or licensed vocational nurse may take a blood specimen at the request or
order of a peace officer under this chapter.  The blood specimen must be
taken in a sanitary place.

Id. § 724.017 (Vernon 1999).
	In construing a statute, our objective is to determine and give effect to the
Legislature's intent.  See Nat'l Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527 (Tex.
2000).  It is presumed that the entire statute is intended to be effective.  Tex. Gov't Code
Ann. § 311.021 (Vernon 2005).  
	The Legislature was very specific in drafting section 724.017 of the transportation
code by restricting who may draw blood to only a physician, qualified technician, chemist,
registered professional nurse, or licensed vocational nurse.  Tex. Transp. Code Ann. §
724.017.  The statute is so specific that we have previously held that even a phlebotomist
employed at a hospital, absent evidence of her qualifications, cannot be classified under
section 724.017's general category of a "qualified technician."  See Cavazos v. State, 969
S.W.2d 454, 456-57 (Tex. App.-Corpus Christi 1998, pet. ref'd) (en banc).  Section
724.017 also states that the authorized individual may take a blood specimen at the
request or order of a peace officer.  Tex. Transp. Code Ann. § 724.017.
	The legislative intent behind section 724.017 was to protect the public's health and
safety.  Id.  Along with authorizing only certain healthcare professionals to draw a
suspected drunk driver's blood, the statue requires that the blood must be drawn in a
sanitary place.  Id.  We note that the Legislature gave law enforcement officers a choice
of requesting either a blood or breath specimen as a means of gathering evidence of
intoxication.  Tex. Transp. Code Ann. 724.012(b), (c).  In situations where a breath
specimen is requested, the Legislature requires minimum qualifications, but it trusts the
Department to determine who is qualified.  Id.  724.016(a) (providing that only an individual
possessing a certificate issued by the Department may take and analyze a breath
specimen).  Regarding blood specimens, the Legislature specifically enumerated those
individuals it felt qualified for the task out of health and safety concerns.  A reading of the
statute that allows anyone to draw a blood specimen and affords redress - if any - only
after the fact renders section 724.017 ineffective in carrying out the Legislature's health
and safety concerns.  Such an interpretation is against our rules of statutory construction. 
See Tex. Gov't Code Ann. § 311.021.
C.	Analysis
	In the instant case, Hutcheson's testimony is that Officer Whitwell requested to draw
Hutcheson's blood specimen himself.  The Department did not object to Hutcheson's
testimony.  Additionally, the Department did not present any evidence showing Officer
Whitwell's medical training in order to establish that he may be a "qualified technician" as
required by section 724.017.  See Cavazos, 969 S.W.2d at 456-57; cf. State v. Bingham,
921 S.W.2d 494, 496 (Tex. App.-Waco 1996, pet. ref'd) (concluding that the term
"qualified technician" includes a phlebotomist whom the hospital has determined is
qualified to draw blood and whose credentials were made part of the record).  The
Department also failed to present any evidence that an authorized individual was present
and able to carry-out Officer Whitwell's request for Hutcheson's blood specimen.  	The Department, and the Dissent as discussed below, invites us to blithely ignore
section 724.017's mandate that only an authorized individual may draw a blood specimen
and to engage in a substantial evidence review of only Hutcheson's refusal. (2)  We
respectfully decline the Department's invitation to cherry-pick which pieces of the statute
are subject to a substantial evidence review and which pieces are, because of
inconvenience, not subject to review.  
	The Legislature made an important policy decision to protect the public's health and
safety by authorizing only certain professionals to take a blood specimen when an
individual is suspected of driving while intoxicated.  When confronted with a choice
between engaging in a substantial evidence review of only Hutcheson's refusal or ensuring
that the Legislature's policy of protecting public health is properly implemented, we choose
to protect public health.  When a blood sample is to be taken, we hold that the Legislature
has issued a mandate to protect the public's health, not a directive to file paper work.  Cf.
Tex. Dep't of Pub. Safety v. Cortinas, 996 S.W.2d 885, 889 (Tex.App.-[14th Dist.] Houston
1998, no pet.) (providing that DPS's notice requirements in license suspension hearings
are to be directory and not mandatory).  The Legislature's policy decision to protect the
public's health and its desire to have efficient administrative hearings are easily
harmonized when the Department presents evidence of its compliance with section
724.017 at administrative hearings.  Tex. Transp. Code Ann. § 724.017.  
D.	Response to the Dissent
	The dissent chooses to place the limitations of a substantial evidence review above
the health and safety provisions of section 724.017.  According to the dissent, section
724.017 is not a public health and safety statute, but an evidentiary statue used only in
criminal cases and not in administrative hearings.  See Tex. Dep't of Pub. Safety v.
Hutcheson, No. 13-06-349, 2007 Tex. App. LEXIS ____ at * ___(Tex. App.-Corpus Christi
Aug. 16, 2007, no pet. h.)  Taken to its logical conclusion, the dissent's rationale would
force Hutcheson to have his blood drawn by a medically unqualified peace officer, in an
unsanitary place, in order to prevent his license from being suspended.  His only recourse
for such an ordeal would be after the fact and in a criminal proceeding where the results
would be excluded for failure to follow section 724.017.  We respectfully disagree with the
dissent's view of section 724.017. 
III. CONCLUSION
	Because Officer Whitwell was not an authorized individual and because there is no
evidence that he requested an authorized individual carry-out the drawing of Hutcheson's
blood specimen, we hold that the Department failed to present substantial evidence that
there was an appropriate request.  We overrule the Department's sole issue. 
	The judgment of the trial court is affirmed.  Tex. R. App. P. 43.2(a).

								_______________________
 ROGELIO VALDEZ,
								Chief Justice


Dissenting Opinion 
by Justice Rose Vela. 

Opinion delivered and filed 
this the 29th day of August, 2007.
1.  The transportation code provides that an appeal from an ALJ's decision must be filed in a county
court at law or in the county court.  However, "[i]f the county judge is not a licensed attorney, the county judge
shall transfer the case to a district court for the county on motion of either party or of the judge."  Tex. Transp.
Code Ann. § 524.041(b) (Vernon 2007).
2.  "The Department is not required to prove that a qualified person and sanitary place were available
at the time of the request in order to suspend a driver's license for refusing to submit to a blood test.  They
are not issues in a refusal case."  Department's Brief, p. 13.  The Department supports this proposition by
citing us to the hearing statute for failure to submit a specimen and to Tex. Dep't of Pub. Safety v. Cortinas,
a case interpreting the hearing statute for suspension of a driver's license upon proof of intoxication. 996
S.W.2d 885, 890 (Tex. App-Houston [1st Dist.] 1998, no pet.).  Both citations are off point.

