*1
Hernandez,
powers
court when
the
considering
exer-
nation.
652-53.
cised at a school
grievance hearing.
finally,
board
Sixth and
school boards have the
First,
noted,
court
as
Hernandez
power to enforce their decisions. The
education code confers on
school board
in governance
board is
final authority
to
power
judgment
exercise
and dis- of the
in
All
schools
its district.
financial
managing
grant
cretion in
its
its district
questions,
that
as
under consideration in
power
duty
govern
the “exclusive
and
to
issue,
hearing
rest with the sound
and oversee the management” of the dis-
board,
grievance
discretion of
all
do
trict public schools. Tex. Educ.Code ÁNN.
personnel
and
decisions. Tex. Educ.Code
(Vernon
11.151(b)
1996); Hernandez,
(Vernon 1996).
§ANN. 11.151
Second,
exists, question been has answered
affirmatively in Id. Hernandez. The rec-
ord us does before not contain sufficient for
information us to determine whether could power board or did exercise this Fifth,
during in question.
Hernandez observed school Jr., Appellant, Albert MIRELES power compel
boards have the the at- of employee ques- tendance witnesses for matter, tioning any in do so as a TEXAS DEPARTMENT of PUBLIC of employment. condition School boards SAFETY, Appellee. routinely hear the litigation issues termination grievance and hearings, as No. 04-97-01007-CV. well as other any process hearing. due Texas, Appeals Court 21.159,21.207, §§ See Tex. Educ.Code Ann. San Antonio. (Vernon 1996). boards can School discipline dismiss or employees otherwise May give who false their statements testimo- ny any the board capaci- before other
ty employment Giving context.
false false other information good
would constitute cause termi- *2 Scharmen, Antonio, for Ap-
George San pellant. Antonio, Cedillos, Loren E. San
Andres Austin, Givens, Svor, Appel- M. for Kevin lee. HARDBERGER, PHIL Chief
Sitting: Justice, RICKHOFF, Justice, TOM LÓPEZ, Justice, CATHERINE ALMA L. GREEN, STONE, Justice, PAUL W. Justice, DUNCAN, Justice, B. SARAH ANGELINI, Justice. KAREN ON APPELLEE’S MOTION REHEARING FOR RICKHOFF, Justice. Opinion by: TOM Safety’s Public Appellee rehearing granted. banc is en motion opinions en court’s October banc opinion 1998 are withdrawn and place. substituted whether we must decide opinion In this an more than hour taken a breath an ar- combined with stop, after a traffic at the time of resting observations officer’s effectively support administra- that a sub- determination judge’s tive law ject showed, most, had a blood-alcohol concentration evidence introduced than 0.10 a motor while he was legally intoxicated at public vehicle in place. Because we find county tests were administered. there reasonable basis the record rejected court at law this contention and *3 determination, for this we affirm. decision, affirmed the ALJ’s prompting appeal.
this
Facts stopped Jr.
Albert Míreles
Standard
of Review
20,
on
speeding about 12:30 a.m.
June
pro
We review administrative
Mí-
arresting
1997. The
officer noted that
ceedings under
substantial evidence
glassy eyes
reles had slurred
and a
speech,
standard of review. This means we review
very
odor
strong
of alcohol on his breath—
original
the order
proceeding
symptoms
all classic
intoxication.
alcohol
determine whether the original order was
swayed
The officer also
noted
Míreles
based on substantial evidence in the rec
tests;
he
sobriety
as walked and failed field
§
ord. Tex.
2001.174
Code
Gov’t
Ann.
he
suspicion
driving
was arrested on
(Vernon Supp.1998); Railroad Comm’n of
later,
while intoxicated. About an hour
at Texas v.
Oil
557
Corp.,
S.W.2d
Graford
a.m.,
1:35
he submitted to breath tests
(Tex.1977).
This
standard
which showed his alcohol concentration to
court
permit
does not
to substitute its
be 0.161 and 0.162.
judgment
agency.
for that of the
Texas
Safety
The Texas
of Public
v.
Health Facilities Comm ’n
Charter
(“DPS”) sent
a
him
advising
Míreles notice
Dallas, Inc.,
452
S.W.2d
Medical -
that it
suspend
would seek to
his driver’s
(Tex.1984).
reviewing
for the
issue
Transp.
license.
See
Tex.
Ann.
agency
court is not whether the
reached
Code
(Vernon
§
Supp.1999).
524.001-051
Mi-
conclusion,
the correct
but rather whether
requested
reles
a
before an admin-
there is some reasonable basis
the rec
(“ALJ”).
Transp.
judge
istrative law
Tex.
agency.
ord for the action taken
(Vernon
§
Supp.1999).
’n,
Ann.
Code
City
El Paso v. Public Util. Comm
arresting
hearing,
At that
officer’s re-
(Tex.1994).
S.W.2d
In mak
port, the results of the breath tests and
determination,
reviewing
court
testimony
of DPS’s breath test techni-
all
probative
the reliable and
considers
supervisor regarding
cal
reli-
the scientific
in the
as a
record
whole.
ability of
were
these breath test results
2001.174(2)(E)
§
Tex. Gov’t Code Ann.
received into evidence. No
re-
(Vernon Supp.1998) Substantial evidence
lating Míreles’ alcohol concentration at the
scintilla,
requires only
a
more than
and the
likely
time of the test to his
concentration
pre
may actually
evidence on the record
at the time he
was offered.
driving
against
agen
ponderate
the decision
cy
had
nonetheless amount
substantial
The ALJ found that
the officer
’n
v.
probable
cause to
Míreles and that
evidence. Railroad Comm
(Tex.
Co.,
had
Torch
Operating
Míreles
an alcohol concentration
1995). Indeed,
a motor
operating
sup
than 0.10 while
if there is evidence to
public
upheld
findings
vehicle in a
and thus
place,
port
negative
either affirmative
matter,
DPS’s
of his driver’s license.
suspension
specific
on
the administrative
524.035(a) (Ver-
Transp.
§
Dep’t
decision must be upheld. Texas
Tex.
Code Ann.
1999).
non
Stacy,
Public
Safety
1997, writ).
no
(Tex.App.
Antonio
- San
county
appealed
law, contending
that there was
Suspension
License
Standard
of his blood-alcohol concentration at the
hearing,
physical
suspension
time he was
or in actual
At
license
had
argued
person
control of a motor vehicle. He
the DPS must
pre-
conclusive
mandatory
constitute
concentration
0.10 while
blood-alcohol
explanation
light
and its
sheds
place.
sumption,
in a public
a motor vehicle
TRansp.
524.035(a)(1)
our case:
§
Ann.
Tex.
Code
(Vernon
An ALJ
not so
Supp.1999).
sure,
upon the
if the
relies
To be
State
concen-
intoxication,
had an alcohol
person
find
then
0.10% definition
time the
less than 0.10 at the
tration of
normally
in the
appear
proof
such
will
TRansp.
was taken.
specimen
showing
Code
form of a chemical
1998).
(Vernon
524.035(d)
in a defendant’s
Ann.
limit on the
any
silent as to
other
statute is
How-
body near the
offense.
statutory
find that
ability to
ever,
necessarily
ALJ's
will
conviction
*4
were satisfied.
requirements
test.
offer of such a
follow from the
First,
still be
of fact must
the trier
argues the
because
ALJ erred
doubt
beyond
convinced
a reasonable
no
that his
there was
alcohol
provides
chemical test
trustwor-
that the
greater
per-
than 0.10
was
concentration
in
concentration
thy evidence of alcohol
ar-
driving.
at
he was
He
cent
breath,
urine.
a
blood or
defendant’s
that
have
gues the
could
Second,
convinced
jury
the
must still be
have
proved
concentration would
been
this
that an infer-
beyond a reasonable doubt
testimony,
an
extrapolation
in which
ex-
the
the
be made from results of
ence can
body
pert,
taking into account Míreles’
a
had
chemical test that the defendant
consump-
his
and alcohol
weight and
food
body
in
concentration
0.10% alcohol
tion,
reading
the
on
could have related
at the time
the offense.
of
to
an
point
Míreles’ breath test
the
hour
from
a defendant
Nothing prevents
actually driving.
before when he was
of
test itself
challenging
validity
the
the
disagree. We
that
concen-
believe
ma-
by attacking
reliability
the
tration
hour or more after the
an
opera-
qualifications
chine or
probative
indeed
of alcohol concentration
any-
does
omitted]
tor.
Nor
[citations
at
time of
a
bolstered
belief
arguing
from
thing prevent a defendant
by our examination of criminal cases.
concentration increased
that his alcohol
gen
in the criminal context have
Courts
time
from the time of the arrest to the
erally
extrapo
found that this
question
way
Article
testing.
In no
does
lation is an issue for the trier of fact to
jury
ig-
encourage a
supra,
67011—
State,
in its decision.
Forte v.
weigh
is-
nore
evidence on the
such defensive
(Tex.Crim.App.1986)
94-95
707 S.W.2d
presump-
in favor of a
sue
intoxication
(interpreting Tex.Rev.Civ. Stat.
art.
tion,
Ann.
mandatory
permissive.
whether
1(a)(2)(b))(nowcodified at Tex. Pe
67011 —
Thus,
(emphasis
original).
49.01(2)(B));
see also
Ann.
nal Code
case, in
must
in a criminal
which the state
State,
(Tex.App.—
Owen v.
Additionally, although facially actually operating rele- the time she was her vant the issue of alcohol concentration car. Id. at 774. *5 test, by a as measured chemical we believe appeals The Austin court of that found arresting
we examine the officer’s the evidence to the support was sufficient statements as well. Our for sub- review ALJ’s conclusion: stantial evidence must take into account all probative the in the record. Department The bore the burden of 2001.174(2)(E)(Vernon an proving Martin had alcohol concen- Ann. Gov’t Code Indeed, Pamph.1999). con- the criminal of tration at least 0.10 when was she text that proof another has found the The the driving. of breath test results prove needed to of- the loss of faculties and the officer’s observations of Martin’s proof fense and the to needed show the reasonably behavior time of arrest the per necessarily mutually se offense are not the an inference that she had “Clearly, showing exclusive: test when alcohol concentration 0.10 she was ' blood had a 0.10 alcohol concentration is driving. The did not have of of probative evidence a loss faculties. disproving hy- the burden of alternative pass of Conversely, evidence his failure to potheses attempting when its sobriety immediately field tests after driv- courts, one, Many including case. this ing his vehicle to make it more tends have sustained convictions for probable that the failed blood or breath intoxicated, in high- while which much accurately test taken an hour later reflect er proof applied, standard of based the driver’s condition at the time of the part with- on after-the-fact test results ...” offense Daricek 875 S.W.2d out Fur- expert extrapolation evidence. 1994, pet. (Tex.App. thermore, nothing Transportation - Austin 'd). Likewise, arresting ref a review of pres- requires Code testimony officer’s bolsters our conclusion ent specific extrapolation evidence. justified in upholding this ALJ was Martin, (citations omit- suspension of Míreles’ license. driver’s ted). fact persuasive Of value is the that our significant Finally, believe it squarely ques sister court has faced the while the statute an from prohibits us ALJ tion before and found the evidence suffi suspension driver’s license upholding cient to support the ALJ’s decision. legal when a chemical test falls Dep’t Safety, Martin v. Public below limit, require extrapolation evi- (Tex.App. does - Austin h.). dence. pet. driving; he 0.10 when BAC exceeded Conclusion person was intoxicat- it is not whether confronted The trier of fact was ed, impaired, i.e. when he physically 1) an unchal- pieces two of evidence here: is no direct evidence driving. There alcohol con- showing test Mireles’ lenged fact; therefore, we are concerned vital this the offense was centration an hour after in- may reasonably be with whether 2) limit; arresting legal well above BAC exceeded 0.10 ferred that Mireles’ testimony that Mireles failed field officer’s stopped. he was imme- sobriety smelled of alcohol tests and diately symptoms While expert tes- The consists medi- alcohol intoxication be caused Jr., A. timony McDougall, George intoxi- cal conditions other than alcohol Su- County Breath Test Technical Bexar cation, reviewing when record as and the arrest- pervisor, was a whole we believe there reasonable regard- ing McDougall officer. testified basis the record this trier fact intoxilyzer, reliability li- suspension of driver’s uphold Mireles’ case, validity in this operation proper cense. results, and Mireles’ breath trial court is af- judgment ex- attempt was made to test results. No firmed. trapolate the test results back Mireles was vehicle. opinion by: Dissenting PAUL W. noted that the time of the officer Justice, GREEN, joined by Justices exhibiting slurred impaired, Mireles was and ANGELINI. DUNCAN of alco- glassy eyes, and odor speech, *6 opinion on motion Dissenting for hol. GREEN, Justice, by: rehearing PAUL W. joined by Justices DUNCAN and are in controlling legal The issues not ANGELINI. in example, It is for that dispute. agreed, of an this review administrative determina- solely
This case is about whether a utilize the substantial evidence tion we showing breath a driver’s blood- specimen (BAC) op. at We majority alcohol concentration in of See excess standard. stop 0.16 hour after a traffic constitutes re- further that substantial evidence agree more than a scintilla of evidence that the review. See to no-evidence equates view driver’s BAC exceeded 0.10 an hour earli- (“Substantial requires id. evidence I it er. would hold that does not. scintilla_”). is, And of more than a it however, majority, departs the con- from course, axiomatic that in order there trolling concluding of standard review evidence, of more than a scintilla was for the trial court “reasonable” probative. must be evidence an administrative driver’s license uphold Furthermore, we there is no di- agree Ac- on the record this case. revocation upon Mi- bearing rect evidence whether cordingly, respectfully I dissent. time he exceeded 0.10 at the reles’ BAC pertinent is clear: the Texas statute although we know he was driving, (DPS) Safety of Public will regard, In this impaired at that time. li- administratively suspend driver’s be consis- agree impairment that can also “the any cense of adult it determines in- than alcohol tent with conditions other of person had an alcohol concentration (“[S]ymptoms id. at 430-31 toxication. See or while a motor [0.10 more] by can alcohol intoxication be caused TRansp. public place.” in a vehicle in- medical conditions other than alcohol (Vernon 1999) 524.012(b)(1) Ann. Code toxication....”). noted, But, impair- added). Thus, the fact to (emphasis vital proved. ment vital fact to be be determined is whether disagreement nothing Our centers on whether there is that show one probative three possible probable the evidence that exists is facts is more than is, Consequently, fact the other. proved; vital to be one them does $56,700 reasonably can be inferred. See intoxilyzer evidence and Currency in U.S. impairment prove tend to that Míreles’ (Tex.1987) (“When circumstances are 0.10 BAC exceeded an hour before the consistent either of with two facts and specimen was obtained. The ma- nothing probable shows that one more jority intoxilyzer insists that the 0.16 re- other, than the neither fact be in- probative sult was of the fact that Míreles’ ferred.”). stop BAC exceeded 0.10 at the time of the along when considered with evidence that Similarly, impairment, evidence of even (“We impaired. Míreles was id. at 429 if shown to be caused alcohol intoxi- believe alcohol concentration an hour cation, can mean things: one three or after stop probative more is indeed 0.10, 0.10, BAC lower than equal to or of alcohol concentration at higher than 0.10. It does not tend to ”); ... stop (impairment, id. prove any a BAC exceeded 0.10 evidence, along intoxilyzer considered particular point time and thus is not uphold suspen- “awas reasonable basis” to probative proved. of the vital fact to be sion). I disagree, because the absence sum, In a 0.16 an hour after evidence, BAC extrapolation of backward evi- stop to no more than a amounts scintilla of impairment equates dence that to a BAC evidence to establish that Míreles’ BAC or higher, support the facts do not exceeded 0.10 the time he driving. a reasonable inference fact. vital legally This evidence is therefore insuffi- know, scientifically because it es- cient to the driver’s license sus- tablished, particular that a BAC level one pension. The evidence intoxication also yields possible hour three facts fails to rise to more a scintilla of regarding tending that Míreles’ lower, higher, stop: that was equaled BAC exceeded 0.10 when he *7 is essentially by same. This admitted stopped. was And if the is added Op- Dep’t DPS. See Tex. Pub. Safety, together, majority as has done (“Unless at all the conclusion, attempt bootstrap to it re- eratoR Manual [food, time, alcohol, type variables size mains legally plus insufficient —zero zero drink, mix, of each type individual oxida- still is zero. rate,
tion and time last are drink] agree I dissent I because Míreles known, the at exact ethanol concentration support that there no was accurately the time of the arrest cannot be finding that his at BAC exceeded 0.10 con- precisely predicted. The alcohol driving. judgment time he was below lower, higher, be centration should be reversed and rendered. same.”). result, As a a one-hour old 0.16 intoxilyzer reading, without reliable ex- superseded majority opin- en banc evidence, trapolation be probative cannot Duncan, by ion written Justice Sarah B. of a hour specific alcohol concentration an previously issued on con- October best, At it can earlier. mean tains an excellent discussion of the rele- the time of the Míreles’ BAC vant science and how it treated these lower, 0.16, higher than or the same. And of cases other types courts this and is, course, way there to determine jurisdictions. opinion Justice Duncan’s just from this how much appendix adopted record attached and is as an Moreover, supplement it might opinion. lower have to this been.
APPENDIX issue, of this importance Because
No. 04-97-01007-CV unanimously Court the members MIRELES, Jr., en this case banc. We Albert consider voted to evidence, considered when conclude
Appellant data scientific the reliable light of statutes, insufficient legally relevant concen- an alcohol an inference of DEPARTMENT TEXAS OF time of of 0.10 at the tration SAFETY, PUBLIC the trial court’s Accordingly, reverse reinstating judgment and render judgment Appellee driver’s license. Míreles’ County at Law No. Court From Background County, Bexar and Procedural Factual stopped approximately Míreles was 240,723 Trial No. Court time, he point in a.m. At that 12:30 zone; m.p.h. he in a 60 driving m.p.h. Johnson, Timothy F. Honorable speech, glassy eyes, a slurred exhibited Presiding Judge breath, alcohol on strong odor of Duncan, B. Justice Opinion by: Sarah balance; he to satis- and was unable poor (joined Angelini) by Justices Green sobriety field tests. Mí- factorily perform Hardberger, opinion by: Phil Concurring and taken was therefore handcuffed reles López) hour la- (joined by custody. Approximately Justice one Chief Justice into ter, speci- two breath provided Míreles Rickhoff, opinion by: Dissenting Tom Jus- specimen, taken 1:35 The first mens. Stone) (joined by tice Justice a.m., showed Míreles’ Phil Sitting: Hardberger, Chief Justice specimen, taken 0.161. The second Rickhoff, Tom Justice a.m., alcohol con- showed Míreles’ 1:38 López, Alma L. Justice The Department to be 0.162. centration Stone, Catherine Justice notice that was gave Míreles therefore Green, Paul W. Justice chapter suspending pursuant his license Duncan, Sarah B. Justice Transportation Code. 524 of the Texas Angelini, Karen Justice ensuing evi- At appealed. 30,1998 and Filed: October Delivered objection, over Míreles’ dentiary hearing, arresting officer’s admitted the AND RENDERED REVERSED testimony of report and the affidavit and *8 ex- presented in case is The issue this Jr., McDougall, the Bexar A. George but it will have tremen- ceedingly narrow Supervisor', Test County Breath Technical dous ramifications for a vast number of intoxilyzer, the reliability of regarding the judge in May an administrative law cases: case, the validi- operation this proper proceed- suspension an automatic license results, breath ty the test and Míreles’ of 0.10 or ing find an alcohol concentration Transp. test results. See Tex Ann. Code of a from evidence stop more at the time (Vernon At the § Pamph.1997). 524.038 (1) time, establishing person the argued hearing, conclusion exceeding speed limit and exhibit- was the failed, has as mat- Department “the ... glassy eyes, strong speech, slurred law, its case” because ter of breath, poor and odor of alcohol the alco- no as to what “there is (2) approximately and one hour the balance hol of Mr. Míreles concentration later, disagreed indi- person’s specimens driving.” the breath time he was ALJ finding Mí- suspension, of 0.161 and and the cated alcohol concentrations sustained in a a motor vehicle operating “was reles 0.162? TX, public place, Loop County, report Bexar from the information in the suspend an grams person’s alcohol concentration of whether to the 0.10 driver’s 524.012(a) § or license.” greater per (emphasis of alcohol 210 liters of Id. add- ed). adult, If person ... the is an the by as determined Defendant’s De- partment suspend must his license if it request- submission a breath ... person determines “the had an alcohol Contending finding sup- ed.” this was not op- or while evidence, [0.10 more] ported by any Míreles appealed erating public a motor vehicle in a to the court county county at law. The 524.012(b)(1) place.” § (emphasis Id. judge disagreed law af- also added); 49.01(2)(B). § finding Tex. Ann. firmed the suspension, Pen.Code that a 0.161 Conversely, if “the is an person adult and alcohol concentration at 1:35 a.m. consti- analysis person’s the breath or substantial to support tuted specimen per- blood determined that the of a or finding ALJ’s 0.10 more alcohol son had an alcohol concentration of a level concentration at the time one specimen below the time the [0.10] hour earlier. taken,” department may “[t]he court, appeals again Míreles now suspend person’s driver’s license.” [the] contending there is evidence to 524.012(c) (em- Transp. § Tex. Code Ann. finding the ALJ’s he “was added). If phasis Department sus- public motor vehicle in a place, Loop license, pends person’s arrested TX, County, Bexar with an alcohol concen- suspension by must send a notice of certi- tration of grams or of alcohol 524.013(a). However, § fied mail. Id. per 210 liters of breath ... as determined suspension does not take effect until the to a Defendant’s submission breath test day arresting fortieth after the date the requested.” ... as of suspension officer’s notice is received presumed or to have been received. Id. Suspension Administrative License 524.021(a). § Texas, In if an adult arrested required If the makes Department intoxicated, driving while and “submits to suspends finding the arrested taking specimen of a of breath blood or license, is final its determination unless the analysis specimen shows person requests arrested before person had an alcohol concentration of judge an administrative law within fifteen more],” or arresting [0.10 officer must days receipt receipt presumed attempt “serve ... serve notice suspension. notice suspension by delivering driver’s license 524.012(d), §§ At hearing, 524.031. person” notice to arrested prove by prepon- must a report send to the evidence, derance of the and the ALJ must Transp. Safety. Tex. Public Code Ann. find, person an al- affirmatively “the had 524.011(b)(1) (Vernon § Pamph.1997); [0.10 more] cohol concentration 49.01(2)(B)(Vernon § Tex. Pen.Code Ann. operating a vehicle in a while motor “(1) 1994). report must identify Transp. public place.” Code Ann. person; arrested the arresting state 524.035(a)(1)(A) (Vernon Pamph.1997) *9 grounds believing officer’s person added); (emphasis Tex. Ann. Pen.Code offense; (3) give committed analy- 49.01(2)(B). § (4) if specimen any; sis of and include Scope of in copy complaint the criminal filed and of Review Standard Tiiansp. case, if any.” Tex. Ann. Code in the Court Trial 524.011(c)(Vernon § Pamph.1997). required findings If the makes the ALJ Upon arresting officer’s receipt suspension, and sustains the arrested county report, Department person may “shall determine the decision to a appeal
435 Transp. have needed and that the courts situation court. Ann. Tex. Code of guiding rule deci- have tried to evolve (Vernon 524.041(a)-(b) In Pamph.1997). § of “guiding rule decision” sion.” Id. This general- is scope of review appeal, this follows: summarized as be record, and standard ly agency “if insufficient rea- legally is Evidence is substantial evidence. review Tex. Gov’t from the minds cannot differ sonable 2001.175(e) (Ver- 2001.174, §§ Ann. Code probative lacks [it] conclusion Transp. Pamph.1997); see also non minds cannot Id. Reasonable force.” (Vernon 524.043(a)-(b) Ann. Code force probative evidence lacks differ that Pamph.1997). in its most fa- if, “viewing the evidence the agen- in evidence review Substantial finding light support vorable cy equivalent context is functional fact, only the evi- considering the vital civil sufficiency review in the usual legal which and the inferences dence context; contexts, is the issue both the evidence finding rejecting and sup- is challenged finding whether contrary are the inferences which and 1 than a mere scintilla” of ported by “more weak finding,” the evidence “is so Compare evidence. Railroad Comm’n no more create a mere to do as Co., Operating v. Torch 912 S.W.2d of its existence.” suspicion surmise or (Tex.1995) (“[s]ubstantial 790, evi- 792-93 not met Id. at 363-64. This standard is is a mere law when the evidence requires only more than as a matter of dence (a) yields reason- “equally ”), such scintilla .... with Formosa Plastics opposing inferences plausible” able Corp. Eng’rs v. and Con- USA Presidio (b) be in- the “vital fact” cannot (Tex.1998) tractors, Inc., 41, 49 S.W.2d in- “piling upon inference ferred without (legally evidence is more than a sufficient Id. at 364-65. ference.” scintilla). mere Evidence “more than a scintilla” there is direct evidence . in the Standard of Review (2) if the fact or there is no direct evidence Appellate Court fact,” of the “vital there is evidence from presents a evidence review Substantial may reasonably which the “vital fact” be question See Firemen’s & Police of law. Calvert, Ev- inferred. See Robert W. “No Brinkmeyer, men’s Civil Serv. Comm’n v. idence” Evidence” “Insufficient (Tex.1984). 953, We there S.W.2d 361, Error, Points 38 Tex. L.Rev. the trial court’s conclusion fore review (1960). supports the ALJ’s substantial case, In this concedes In Humphreys, novo. See re findings de there the “vital direct evidence of denied, (Tex.), cert. fact,” i.e., Míreles’ alcohol concentration 115 S.Ct. 130 L.Ed.2d 513 U.S. at the time he was was 0.10 or more (1994). of a statute interpretation Therefore, concerned stopped. we are also, of law and there question is also aspect quantitative the second fore, under a de novo appeal reviewed on “vi- sufficiency Energy Corp. review—whether the legal See Mitchell standard. (Tex.1997). Ashworth, may reasonably inferred. This tal fact” inquiry presents very often “a close type Waiver “it surprising is not to find' question” disagreement particular argues ... in a case.” first to file result, by failing points error As a this waived “[i]t 364. Calvert, courts, 38 Tex. L.Rev. review.” as well modern commenta- "scintilla 1. Texas tors, Although might legal this be im- distinction applied scope of have review case, is immaterial portant in another sufficiency generally; Justice review Chief *10 hand, Calvert, in- scope only scintilla review is this one because on other stated this applies only the context of volved. of review within h.) adequate 1998, an brief. disagree. App. pet. (holding Míreles’ - Austin substantially complies brief with the brief- that reckless constitutes evidence concentration”). rules, “acquaint[s] “prohibited alcohol the court with the issues,’’and “presents] argument that will Physical Signs of Intoxication enable the court to decide case.” Tex. R.App.P. No At required. stopped, 38.9. more is the time Míreles was he speech, glassy eyes,
exhibited slurred a breath, Substantial Evidence strong odor of alcohol his balance, poor all physical signs classic parties’ arguments are twofold. intoxication, and he failed to perform First, parties dispute whether the evi- sobriety tests satisfactorily. field Howev- dence introduced the hearing at reason- er, recognized, as the has ably fact,” yields an inference of the “vital person may physical signs exhibit of intoxi- ie., Míreles’ alcohol concentration at the for or completely cation a reason reasons stop time of the was 0.10 or more. Sec- consumption. unrelated alcohol Texas ond, parties disagree upon whether the Safety, of Public statutory framework for administrative li- Testing Program Opera- Breath Alcohol suspension cense creates a pre- rebuttable (TLE/br-38 5-16 tor Manual sumption that the arrested alco- (“Certain (Rev.9/96)) illnesses, diseases, or hol concentration at the time of are drugs produce symptoms other able to alcohol concentration similar to ethanol intoxication. Untreated stop. time of the it Although might be diabetics, epileptics or trauma victims customary more to address the statutory all symptoms exhibit similar ethanol interpretation addressing issues before intoxication.”) Dep’t [hereinafter Pub. evidentiary arguments, we address the ar- Operator And, Safety, as the Manual]. guments presented. the order Under- Department recognizes, physical also these standing evidentiary arguments and' signs be aby intoxication exhibited dispositive the related science is person an evidentiary arguments necessary than less 0.10. Id. 5-14—5-15. precursor to understanding proper in- Because physical impairment consis- terpretation statutory framework tent with conditions unrelated alcohol for administrative license suspension. and with alcohol concentrations above and 0.10, yield it reasonably below cannot Speeding inference of the “vital fact”—Míreles’ alco- At stopped, Míreles he was hol or concentration was 0.10 more at the exceeding the maximum legal speed limit. Moran, McLean v. However, people legal speed exceed the (9th Cir.1992) (person 963 F.2d reasons, limit a variety most of sobriety can fail all field tests even blood nothing which have do to with intoxication. 0.10%); alcohol less concentration is Therefore, to infer the “vital fact”—Mí- Loeper, Commonwealth v. 541 Pa. reles’ alcohol concentration was 0.10 or A.2d (“[I]mpairment evi- more at the time of the —from dence is not relevant it does not since was, he shortly evidence that before or logically reasonably tend to exceeding legal speed limit would disprove defendant’s blood patently result, As unreasonable. level was .10% or time that was speeding cannot automobile, she her not drove does tend constitute the “more than a mere scintilla probable make such fact more less required to support evidence” the ALJ’s sup- does afford a basis for finding. But Martin v. Texas Dep’t port a presump- reasonable inference or cf. (Tex. Safety, Pub. regarding tion whether a defendant’s blood
437 it, what he fast he drank when and how or Com greater.”); alcohol level was .10% when, he was a Gonzalez, 116, whether last and and v. 519 Pa. 546 ate monwealth (1988) (“It moderate, heavy drinker. We are 26, or reasonably light, A.2d cannot 83 whether Míreles’ alcohol physical left then to decide [of be inferred from this evidence at the time of impairment] appellant] [the that ... of reasonably be inferred from evidence
driving any particular percentage blood.”). Martin, one hour later. his alcohol concentration in his But see requires least question To decide this (holding that 964 S.W.2d 775-76 evi “pharma- elementary understanding of intoxication and physical signs dence alcohol, is its “absorp- cokinetics” sobriety failed tests constitute “evidence tion, distribution, biotransformation ... alcohol con prohibited suggesting Dubowski, State, Absorp- Kurt excretion.” M. centration”); v. 875 Daricek S.W.2d tion, Al- and Elimination Distribution 1994, 770, pet. 778 (Tex.App. - Austin 10 Safety Aspects, Supp. Highway cohol: 'd) (“[E]vidence of fail defendant’s] ref [the Stud, (1985) 98, [hereinaf- J. 98 on Alcohol sobriety immediately ure field tests pass to Dubowski].2 ter make it his vehicle tends to probable more the failed blood or long alcohol “remains in the stom- So accurately an hour breath test taken later func- ach it does affect individual’s reflect the driver’s condition [sic] It it tioning is when is and behavior. offense.”). time of the reaches the absorbed into the blood produces its charac- system nervous
Breath Test Results
Fitzgerald
F.
teristic effects.” Richard
&
Hume,
Approximately
Single
one hour after the
N.
Chemical Test
David
specimen,
Challenge
A
to Admissi-
Míreles submitted
breath
Intoxication:
23,
bility,
[here-
28
which indicated his alcohol concentration
66 Mass. L.Rev.
point in
The difficul-
Fitzgerald
Hume].
at that
time was 0.161. Three
inafter
&
however,
later,
tests,
a second ties associated with blood
minutes
Míreles submitted
proliferation of
specimen,
which
his alco-
led to the
breath-
indicated
“have
devices,”
to
testing
hol concentration at that
in time was
which can
some extent
point
breath, blood,
0.162.
further
urine
breath test results to blood test
No
convert
however,
taken,
results;
usually
the record is
these tests are
samples were
drank,
weight,
silent as to Míreles’
what
not administered until an hour
more
he
regard
gaze nystagmus
approach
test to determine
science evidence
horizontal
absorption
regarding
and elimination of alcohol
admissibility
expert testimony
light
cautiously,
denied,
931,
of our collective lack of
results),
U.S.
the test
cert.
513
training
go
to
scientific
and our reluctance
323,
(1994).
S.Ct.
130 L.Ed.2d
But
independent
outside the record to conduct
Ellis,
Corp. v.
Maritime Overseas
cf.
However,
way
we know of no
research.
402,
1998)
(Tex.
objec
(requiring
S.W.2d
validity
of the ALJ’s inference
evaluate
testimony), cert.
tion to unreliable scientific
Department’s
other
premise
than to evaluate the
-
-,
541,
denied,
U.S.
119 S.Ct.
that a
(1998). And the
L.Ed.2d
recognized framework, implic- which statutory inferences, and the scien- reliable possible suspend permits the itly that one infer- tific does establish data subsequent proof license other, at than the probable ence more disagree. results alone. is devoid least not when the record interpretation objective statutory the arrested tending to establish give determine and “is to and construction elimination, rather in the person is Legislature’s Liberty intent.” effect to result, gov- absorption, phase.3 As Contractors, v. Garrison Mut. Ins. Co. sufficiency erning legal civil standard of (Tex.1998). Inc., 482, 484 To prohibits Depart- the inference the review *15 we look first “to accomplish purpose, this prove to fulfill its burden to requires ment meaning of the stat plain and common of the by preponderance a in the context of ute’s words” when viewed was 0.10 or Míreles’ alcohol concentration a stat a whole. Id. ‘When the statute as stop. Accordingly, more at the time of the unambiguous, courts need ute is clear and permitted whether the inference was ex rules of construction or not resort at criminal DUI cases the time Forte was it, give trinsic aids to construe but should decided, whether the inference will be and meaning.” its common St. the statute post-Hartman, permitted are immaterial Episcopal Hosp. Agbor, v. Luke’s re- legal sufficiency analysis to the civil (Tex.1997). the Su As S.W.2d quired in this case. recently reiterated: preme Court Because the record does not establish they as find “‘Courts must take statutes eliminating suggest even Míreles was alco- that, they More than should be them. stop, plausible hol is at the time as they as find them. willing to take them his alcohol either concentration was carefully in- search out They should higher stop. or lower at the time statute, giving a full effect to tendment of plausible is Which these two inferences they But must find its all of its terms. probable more cannot be established language in its and not else intent in light this record viewed of the rehable They responsible .... are not where ” Accordingly, data. Míreles’ scientific (quoting legislation.’ omissions' in Id. one hour after the breath test results Arnim, 110 220 S.W. v. Simmons are no of an alcohol concentration (1920)). Nonetheless, are direct or more one hour earlier. Nor attain, object ed to “consider reasonably from fact be inferred enactment, this vital of the statute’s circumstances speeding that Míreles was the evidence and history, statutory legislative former neither tends to physically impaired; law, consequences of a and the common Energy alcohol concentra- prohibited establish Mitchell particular construction.” Ashworth, therefore bare of evi- 943 S.W.2d 438. Corp. tion. The record is by an of a statute or reasonable inferences to And “the construction dence is enti- charged with its execution finding agency the ALJ’s that Míreles was testimony Indeed, (expert is based the factors if the record is silent on elimination, surmise,” absorption speculation, affecting upon "possibility, is extrapola- basis, retrograde questionable whether is "no a reliable scientific rather than to "some evi- tion would amount evidence”). Pharm., See, e.g., Merrell Dow dence.” person’s tied to serious consideration unless the the arrested —to alcohol concentration was 0.10 or agency’s clearly construction is inconsis more pub- “while a motor vehicle in a Legislature’s tent with the intent.” Texas 524.035(a)(1). place.” lic Id. Brushy Water Comm’n v. Creek Mun. Dist., (Tex.1996). 19, 21 Util. argues percep- next tion legislative intent is evidenced legislatures state Other have enacted by statutory provisions prohibiting civil license suspension statutes and crimi- license, from suspending nal expressly mandating DUI statutes sustaining departmen- ALJ from presumption that a permitting suspension, per- tal license if the arrested a speci- concentration subsequent son’s breath test indicates an men is taken same as lower than alcohol concentration of below 0.10 “at the his alcohol concentration at the time of the specimen taken.” not, however, stop.4 This presumption is 524.035(d)(1). 524.012(c)(1), §§ again We expressly mandated the Texas adminis- most, disagree. provisions At these reflect statutes, suspension trative license legislative assumption that the arrested Rather, Department recognizes. the De- person’s alcohol concentration at the time partment argues, provisions several specimen will be taken suspension Texas’ administrative license his alcohol time of the implicitly legislature statutes indicate i.e., absorbing, he was not elimi- still intended this presumption rebuttable nating, alcohol at the time of the If apply. disagree. assumption persons were applied *16 argument, In of its Depart- the whose breath tests showed alcohol concen- points ment statutory provi- first to the trations of 0.10 or more the the sions the requiring Department to decide taken, specimens were would be re- suspend person’s whether to the arrested quired presume to not that Míreles’ alcohol solely license from the arresting officer’s at the concentration time of the was TRánsp. report. See Code Ann. presumption 0.16 or above—the the De- (Vernon 524.012(a)-(b) § Pamph.1997). it partment argues was below —but Because the statute require does not provision suggests pre- 0.16. This thus report retrograde extrapola- to contain a opposite is sumption precisely the tion, 524.011(c), see Department id. the Department presumption the the seeks. argues legislative it evidences a intent to Finally, the Department argues per- subsequent make the breath test results ception of legislative the intent is demon- determinative of the person’s arrested al- by statutory the provisions strated cohol concentration at the driving. time of proving challenging reliability the but, ormay This not true — validity the breath test machine and the true, it is true at the in which stage the results. id. the Department required to decide However, §§ provi- 524.038-.039. these suspension. whether to send a notice of remotely Depart- sions do not address the Nothing in the statutes indicates even ment’s to at the administra- prove burden suggests the “administrative convenience” person’s tive the arrested alcohol permitted preliminary stage at this was more while concentration 0.10 or driv- Department and, intended to relieve the they any might to the extent have expressly placed by otherwise, burden upon they would bearing the issue Legislature legislative Texas the administrative to evidence a intent that appear See, 133, 314, (1996); Finney e.g., Taylor, v. 686 N.E.2d 1010 State v. 132 N.H. denied; 172, (Ind.Ct.App.1997), v. (1989); trans. State 566 A.2d District Ransford v. Korhn, 492, Conn.App. (D.C.1990). 678 A.2d Columbia, 583 A.2d denied, n. cert. 239 Conn. 682 A.2d death, by grief caused those injury, and prove its ease without Department who, of alcohol the influence under statutory presumptions. benefit capable of drugs, juggernauts drive steel sum, license In administrative devastating destruction.” high speeds expressly cre- suspension statutes do McLean, at 1307. But neither F.2d mandatory presump- or rebuttable ate a by impaired drivers tragedy inflicted con- person’s tion that an arrested sensitivity it reheves us of nor our specimen at the time a breath centration the law estab- made to follow promise we his alcohol is the same or lower than taken and the by Legislature the Texas lished And at the time of only hope leg- courts. We Department’s to find such effort find suffi- islature and provisions is not presumption isolated the facts to define cient means directly contrary only unpersuasive but im- licenses of necessary to ensure the ex- legislative intent embodied in the suspended to be drivers continue paired statutes, require terms of the which press automatically.5 prove by a preponder- evidence, require the ALJ ance find, affirmatively the arrested or more Accordingly, neither driving.
while statutory fill nor the framework
statutes evidentiary void. Betty DEVINEY and Merle Boren Gosa, Appellants, Merle Ada Conclusion principles governing legal Applying sufficiency analysis the Su- established Independent Execu NATIONSBANK Texas to the record in this preme Court of Taylor, Estate Winolan tor of the not reveal a “mere scintil- case does even Deceased, and Trustee of Winolan *17 la” evidence to the ALJ’s find- Trust, Clendening, Taylor C. Charles motor “was Clendening Cook, Jr., and Ar Isla R. ... with an alco- public place vehicle in Clendening, Appellees. len K. grams hol concentration of 0.10 No. 10-98-044-CV. per 210 liters of breath.” And filled evidentiary void is not Texas, Appeals Waco. Court presumption express implied statutory suspension administrative license Texas’ 12, 1999. May statutory Ac- statutes or the framework. June 1999. Overruled Rehearing the trial court’s cordingly, we reverse reinstating judgment render judgment and However, take this
Míreles’ license. we reluctance. greatest with the
step others, keenly are many
Like so toll of “the tremendous
personally aware
See.,
two hours of
administered within
e.g.,
Motor
tests were
v. Commissioner
Settani
illegal
Vehicles,
operation
revealed an
time of
Conn.App.
710 A.2d
denied,
testing”),
(1998) (1994
cert.
Pennsylvania
level
the time of
amendment
(1998); Fitzgerald
suspension