      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-10-00856-CV



                             Department of Public Safety, Appellant

                                                  v.

                                      Elisa Suarez, Appellee


                FROM COUNTY COURT AT LAW NO. 1 OF HAYS COUNTY
             NO. 13379-C, HONORABLE ANNA M. BOLING, JUDGE PRESIDING



                             MEMORANDUM OPINION


               The trial court reversed an administrative order authorizing the Department of

Public Safety (DPS) to suspend the driver’s license of Elisa Suarez for a period of two years. The

suspension was based on Suarez’s refusal to submit to the taking of a specimen following her arrest

for the offense of driving while intoxicated. See Tex. Transp. Code Ann. § 724.035(a) (West 2011).

DPS appeals the trial court’s reversal. In three issues on appeal, DPS argues that substantial

evidence supports the administrative findings that (1) the arresting officer had probable cause

to arrest Suarez for DWI, and (2) that Suarez had a prior “alcohol-related contact,” which was

required to enhance her period of suspension from 180 days to two years. See id. § 724.035(b). We

will reverse the trial court’s order and render judgment reinstating the decision of the administrative

law judge (ALJ).
                                         BACKGROUND

               No live testimony was presented at the administrative hearing. Instead, the ALJ

considered the police report of Officer Eric Charleswell of the San Marcos Police Department, the

officer who had arrested Suarez. According to Charleswell’s report, at approximately 6:07 a.m. on

February 6, 2010, he was dispatched to an apartment to investigate a report of an intoxicated and

injured female who had been involved in an automobile accident. Upon Charleswell’s arrival at the

apartment, he made contact with Francesca Flores, who was bleeding from a laceration on her

right forearm. According to Charleswell, Flores, who exhibited signs of intoxication, “stated that

her friend Elisa Suarez was driving her home and crashed her vehicle in a ditch.” When Charleswell

asked Flores what had happened, “she was unsure on what caused the collision but stated that

Suarez was driving.”

               Charleswell next made contact with Madeline Christine Rackley, who was also in the

apartment. Rackley told Charleswell that she had met Suarez, Flores, and Jeremy Schuessler at a

bar for drinks. According to Charleswell, “Rackley stated that she was unsure how much Suarez had

to drink prior to her arriving but observed Suarez drink several Vodka Tonics” and that they left the

bar and went to a tavern “where she observed Suarez drinking beer.” After leaving the tavern, “they

all went to Schuessler’s apartment” where “they played beer pong and played at least two games

from each side.” This meant “that they had at least two beers each.” Rackley also told Charleswell

that Suarez had agreed to drive Flores home and that, “just after they left Schuessler’s apartment,

Suarez crashed the car.”




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                After speaking with Rackley, Charleswell attempted to interview Schuessler, but

Schuessler “was incoherent and at times would stop speaking with a dazed look in his eyes.”

Charleswell then resumed speaking with Rackley, who was now sitting on a bed in Schuessler’s

bedroom. Charleswell observed the outline of a second person “completely under the cover[s] on

the right side of the bed.” Charleswell asked Schuessler who was under the covers, and Schuessler

told him that it was Suarez. Charleswell “pulled the cover[s] off of Suarez and asked her why she

did not come out to talk to me. . . . Suarez stated that she was asleep and did not know that I was

in the room.” Charleswell observed that “Suarez’s clothing was wet and she had debris from the

accident scene still in her hair.”

                When Charleswell asked Suarez about the accident, “she stated that at approximately

0400 hours she was on Sessoms [Street] taking Flores home when a vehicle came into her lane

causing her to veer off of the road and crashing her car.” Charleswell, who was approximately

five feet away from Suarez while they were talking, “could smell the odor of an intoxicating

beverage on her breath” and noticed that her eyes “were red and glossy.” When Charleswell asked

Suarez how much she had to drink, she told him that she had two vodka tonics and a light beer

“but quit drinking at 0200 hours.” Suarez also told Charleswell that she did not call EMS following

the accident because “her phone was damaged in the crash” and “that Flores did not want her to call

for help, so [Suarez] went to bed.” Charleswell then escorted Suarez out of the apartment, asked her

if she would be willing to perform sobriety tests, and, after she refused, placed her under arrest for

DWI. Suarez subsequently refused to provide a sample of her blood.




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               Also admitted into evidence at the hearing was Suarez’s driving record. In a section

of the record entitled, “Enforcement Action History,” Suarez had three reported “actions”: (1) the

pending suspension based on Suarez’s most recent refusal; (2) a 2009 refusal-based suspension; and

(3) a 2007 suspension based on Suarez having a “detectable” amount of alcohol in her system when

she was under 21 years of age. At the hearing, DPS argued that the length of Suarez’s suspension

should be enhanced as a result of the 2009 suspension.

               After hearing argument from the parties and taking the matter under advisement, the

ALJ entered the following “findings of fact”:


       1)      On February 6, 2010, reasonable suspicion to stop the Defendant existed in
               that when [the] officer was investigating the accident Defendant admitted to
               driving the motor vehicle when it ran into a ditch on Sessoms Street [in] Hays
               County, Texas.

       2)      On the same date, probable cause to arrest the Defendant existed in that there
               was probable cause to believe that Defendant was operating a motor vehicle
               in a public place while intoxicated, because in addition to the facts in No. 1,
               Officer observed the Defendant with an alcoholic beverage odor, red glossy
               eyes, hostile, driving the vehicle when involved in a one car accident;
               Defendant refused to perform field sobriety tests.

       3)      Defendant was operating a motor vehicle in a public place in Hays County,
               Texas.

       4)      Defendant was placed under arrest and was properly asked to submit a
               specimen of breath or blood.

       5)      After being requested to submit a specimen of breath or blood, Defendant
               refused.

       6)      Defendant’s argument was that the classic indicators that would be present
               in a normal DWI arrest were absent in this case. Many of these factors, such
               as performance on the field sobriety tests, were absent as a direct result of
               Defendant’s conduct, i.e., her refusal to participate in any of these tests.

                                                 4
               Where many of the missing factors are due to Defendant’s conduct, the
               Officer could reasonably consider that conduct as part of [the] totality of the
               circumstances. See State v. Garrett, 22 S.W.3d 650, 659 (Tex. App.—Austin
               2000).

       7)      Defendant has had one or more alcohol or drug related enforcement contacts
               during the ten years preceding the date of Defendant’s arrest as is indicated
               on Defendant’s driving record; contrary to defendant’s assertion that the
               driving record did not show that defendant was under arrest when she
               refused, the arrest is statutorily necessary for an ALR refusal.


Based on the above findings, the ALJ concluded that DPS proved the statutory requirements for an

administrative license suspension and ordered that DPS was authorized to suspend Suarez’s license

for a period of two years.

               Suarez appealed to the trial court. At the hearing before the trial court, Suarez made

two arguments. First, Suarez contended that Charleswell did not have probable cause to believe

that she was driving while intoxicated. Second, Suarez asserted in the alternative that the length

of her suspension should not have been enhanced because, in her view, DPS presented no evidence

of a prior “alcohol-related contact.” The trial court, after taking the matter under advisement,

entered an order reversing the ALJ’s decision and ordering Suarez’s suspension rescinded. This

appeal followed.


                                   STANDARD OF REVIEW

               “[C]ourts 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). A court

applying the substantial evidence standard of review may not substitute its judgment for that of

the agency. Mireles, 9 S.W.3d at 131. The issue for the reviewing court is not whether the agency’s

                                                 5
decision was correct, but only whether the record demonstrates some reasonable basis for the

agency’s action. Id. Courts must affirm administrative findings in contested cases if there is

more than a scintilla of evidence to support them. Id. However, the question of “whether there

is substantial evidence to support an administrative decision is a question of law, and on questions

of law, neither the trial court nor the administrative law judge is entitled to deference on appeal.”

Texas Dep’t of Pub. Safety v. Alford, 209 S.W.3d 101, 103 (Tex. 2006). Accordingly, we review

de novo the trial court’s determination of whether substantial evidence supports the administrative

decision. See Texas Dep’t of Pub. Safety v. Gonzales, 276 S.W.3d 88, 91 (Tex. App.—San Antonio

2008, no pet.).


                                             ANALYSIS

                  Because the trial court did not specify the basis for its reversal, DPS provides

arguments attacking both theories for reversal that Suarez presented to the trial court. In its first

and third issues, DPS argues that there was substantial evidence supporting the ALJ’s finding

that Charleswell had probable cause to believe Suarez had been driving while intoxicated. In its

second issue, DPS contends that there was substantial evidence supporting the ALJ’s finding that

Suarez had a prior “alcohol-related contact.”

                  We first address the evidence supporting the finding that Suarez’s license should be

suspended. In a case in which DPS seeks to suspend an individual’s license based on a refusal

to submit a specimen, DPS must prove four things at the administrative hearing: (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

                                                   6
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 (West 2011). Suarez challenged only the second requirement,

i.e., the existence of probable cause to believe that she was driving while intoxicated.

               “Probable cause exists where the police have reasonably trustworthy information,

considered as a whole, sufficient to warrant a reasonable person to believe a particular person

has committed or is committing an offense.” Hughes v. State, 24 S.W.3d 833, 838 (Tex. Crim.

App. 2000) (citing Guzman v. State, 955 S.W.2d 85, 87 (Tex. Crim. App. 1997)). “Probable cause

requires more than mere suspicion but far less evidence than that needed to support a conviction

or even that needed to support a finding by a preponderance of the evidence.” Id. In other words,

DPS did not have to prove that Suarez was in fact driving while intoxicated, only that probable cause

existed to believe that she was. See Texas Dep’t of Pub. Safety v. Butler, 110 S.W.3d 673, 677

(Tex. App.—Houston [14th Dist.] 2003, no pet.); see also Church v. State, 942 S.W.2d 139, 140

(Tex. App.—Houston [1st Dist.] 1997, pet. ref’d) (“The statute authorizing the suspension hearing

neither requires nor empowers the ALJ to decide the ultimate issue of whether appellant was actually

operating a motor vehicle while intoxicated.”).

               In this case, the police report provides substantial evidence supporting the

ALJ’s finding that Charleswell had probable cause to believe that Suarez had been operating a

motor vehicle in a public place while intoxicated. In the report, Charleswell states that when he

arrived at the apartment where Suarez was found, both Flores and Rackley informed him that Suarez

had been driving the vehicle that had crashed. Additionally, Rackley informed Charleswell that



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she had observed Suarez drinking beer and “several Vodka Tonics” at two bars on the night of

the accident and that Suarez had been playing “beer pong” at Schuessler’s apartment prior to

driving Flores home. Moreover, when Charleswell encountered Suarez at the apartment, Suarez

admitted that she had been drinking vodka and beer on the night of the accident and that she was

driving the car on Sessoms Street when it crashed. Suarez claimed that she had stopped drinking

at approximately 2:00 a.m. and that the crash did not occur until approximately 4:00 a.m. However,

even assuming Suarez’s approximations of time are accurate, Charleswell could have reasonably

concluded that Suarez was nevertheless intoxicated at the time of the crash, particularly in light of

his observations that Suarez had “the odor of an intoxicating beverage on her breath,” that her eyes

“were red and glossy,” and that her “clothing was wet and she had debris from the accident scene

still in her hair.” Also, when Charleswell found Suarez, she was “completely” under the covers in a

bed and admitted that she had not called 911 to report the accident. Both of these facts, Charleswell

could have reasonably concluded, were suspicious circumstances tending to show that Suarez had

been driving while intoxicated and had wanted to prevent authorities from discovering that fact. We

conclude that the above evidence, considered in its totality, provides a reasonable basis for the ALJ’s

finding that Charleswell had probable cause to believe that Suarez was driving while intoxicated.

See Butler, 110 S.W.3d at 676-77; Texas Dep’t of Pub. Safety v. Pruitt, 75 S.W.3d 634, 640-41

(Tex. App.—San Antonio 2002, no pet.); Texas Dep’t of Safety v. Jones, 938 S.W.2d 785, 787

(Tex. App.—Beaumont 1997, no pet.); see also Texas Dep’t of Pub. Safety v. Varme, 262 S.W.3d

34, 41 (Tex. App.—Houston [1st Dist.] 2008, no pet.) (officer’s report constituted substantial

evidence to support ALJ’s finding that officer had probable cause to arrest individual for DWI);



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State v. Garrett, 22 S.W.3d 650, 655 (Tex. App.—Austin 2000, no pet.) (finding probable cause

existed to arrest defendant for DWI despite refusal of defendant to perform field sobriety tests).

               We sustain DPS’s first and third issues.1

               We next address the evidence supporting the length of the suspension.2 The length

of the suspension is set by statute. “The period of suspension or denial is two years if the person’s



       1
           Suarez devotes much of her briefing on these issues to an argument that was not raised
at either the administrative hearing or during the appeal before the trial court, specifically that
Charleswell did not have the authority to arrest Suarez without a warrant because he did not actually
observe her driving while intoxicated. See Tex. Code Crim. Proc. Ann. art. 14.01(b) (West 2005)
(“A peace officer may arrest an offender without a warrant for any offense committed in his presence
or within his view.”). As DPS observes, because this argument was not raised below, it has been
waived on appeal. See Tex. R. App. P. 33.1. However, even if this argument had been preserved,
it would be without merit. Any peace officer may arrest, without a warrant, persons found in
suspicious places and under circumstances which reasonably show that such persons have been
guilty of a breach of the peace. See Tex. Code Crim. Proc. Ann. art. 14.03(a)(1) (West Supp. 2010).
Driving while intoxicated is a breach of the peace. Gallups v. State, 151 S.W.3d 196, 201
(Tex. Crim. App. 2004). And, under the circumstances of this case as detailed in the police report,
the apartment in which Suarez was found could properly be considered a suspicious place. See id.
(concluding that defendant’s home was suspicious place when defendant was found inside home,
intoxicated, following accident in which defendant had abandoned his wrecked truck and walked
home); Hollis v. State, 219 S.W.3d 446, 459 (Tex. App.—Austin 2007, no pet.) (“A place may
become suspicious because of facts and circumstances known to the officer and any reasonable
inferences that can be drawn from those facts.”).
       2
           As an initial matter, Suarez asserts, without citing to any authority, that this issue is not
“ripe for review” because “the trial court did not address the length of the suspension determined by
the ALJ, nor is it an issue that would warrant summarily reversing the ALJ’s ruling.” However, the
ALJ did make a finding as to the length of the suspension, and the length of the suspension was one
of the grounds argued by Suarez for reversing the ALJ’s decision. Moreover, the ALJ’s decision
authorizes DPS to suspend Suarez’s license for a period of two years, and that suspension will occur
if the ALJ’s decision is reinstated. On this record, we conclude that the length of the suspension
is ripe for review. See Mitz v. Texas State Bd. of Veterinary Med. Exam’rs, 278 S.W.3d 17, 25-26
(Tex. App.—Austin 2008, pet. dism’d) (explaining ripeness doctrine); cf. Waco Indep. Sch. Dist.
v. Gibson, 22 S.W.3d 849, 851-52 (Tex. 2000) (“A case is not ripe when determining whether the
plaintiff has a concrete injury depends on contingent or hypothetical facts, or upon events that have
not yet come to pass.”).

                                                   9
driving record shows one or more alcohol-related or drug-related enforcement contacts, as defined

by Section 524.001(3), during the 10 years preceding the date of the person’s arrest.” Tex. Transp.

Code Ann. § 724.035(b). “Alcohol-related or drug-related enforcement contact” means, among

other things, a driver’s license suspension resulting from a refusal to submit to the taking of a breath

or blood specimen following an arrest for an offense prohibiting the operation of a motor vehicle

while intoxicated. Id. § 524.001(3)(B) (West Supp. 2010).

                As we mentioned above, admitted into evidence at the administrative hearing was

Suarez’s driving record, which included an “enforcement action” showing a refusal-based suspension

in 2009, which was within 10 years of Suarez’s current arrest. At the hearing and before the

trial court, Suarez asserted that this evidence was not sufficient to prove an “alcohol-related contact”

because there was no indication in Suarez’s driving record that her refusal followed an arrest.

However, an arrest is a statutory prerequisite to the requesting of a specimen. See id. § 724.012(a)

(“One or more specimens of a person’s breath or blood may be taken if the person is arrested . . . .”),

(b) (“A peace officer shall require the taking of a specimen of the person’s breath or blood under any

of the following circumstances if the officer arrests the person . . . .”) (emphasis added) (West 2011).

Thus, there can be no refusal of a specimen without the person first being arrested. Accordingly, the

above evidence that Suarez’s license was suspended based on a refusal to provide a specimen is also

evidence that the refusal followed her arrest.

                We sustain DPS’s second issue.3


        3
           DPS also asserts for the first time on appeal that “the ALJ was not statutorily authorized
to make a finding of fact or conclusion of law regarding the length of the suspension in the
first place” and that DPS, not the ALJ, has sole authority to determine the suspension period. This
argument was not raised at the trial court below, and we need not reach it on appeal.

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                                         CONCLUSION

               We reverse the trial court’s order and render judgment reinstating the ALJ’s decision

authorizing DPS to suspend Suarez’s driver’s license for a period of two years.




                                             __________________________________________

                                             Bob Pemberton, Justice

Before Justices Puryear, Pemberton and Rose

Reversed and Rendered

Filed: August 25, 2011




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