Christopher Jaroszewicz v. Texas Department of Public Safety ( 2015 )

ACCEPTED
03-15-00340-CV
7912210
THIRD COURT OF APPEALS
AUSTIN, TEXAS
11/19/2015 4:16:59 PM
JEFFREY D. KYLE
CLERK
CAUSE
NO.
03-­‐15-­‐00340-­‐CV
IN
THE
COURT
OF
APPEALS
FILED IN
3rd COURT OF APPEALS
FOR
THE
AUSTIN, TEXAS
THIRD
JUDICIAL
DISTRICT
OF
TEXAS
11/19/2015 4:16:59 PM
AUSTIN,
TEXAS
JEFFREY D. KYLE
Clerk
__________________________________________________________________
____
CHRISTOPHER
JAROSZEWICZ,
APPELLANT
VS.
TEXAS
DEPARTMENT
OF
PUBLIC
SAFETY,
APPELLEE
__________________________________________________________________
ON
APPEAL
FROM
THE
COUNTY
COURT
AT
LAW
NO.
TWO
TRAVIS
COUNTY,
TEXAS
TRIAL
COURT
NO.
C-­‐1-­‐CV-­‐15-­‐001468
APPELLANT’S
BRIEF
_________________________________________________________________
KEVIN
FINE
State
Bar
No.
00790682
P.O.
Box
312
Boerne,
Texas
78006
830-­‐542-­‐2230/Boerne
512-­‐593-­‐1383/Austin
713-­‐299-­‐1923/Houston
(cell)
888-­‐803-­‐8721/efax
kfine@kevinfinelaw.com
ATTORNEY
FOR
APPELLANT
ORAL
ARGUMENT
IS
WAIVED
IDENTIFICATION OF THE PARTIES
Christopher Jaroszewicz Appellant
Tex. Dep’t Pub. Safety Appellee
Kevin Fine Appellant’s
P.O. Box 312 Counsel
Boerne, Texas 78006
Kevin Givens Appellee’s
P.O. Box 15327 Counsel
Austin, Texas 78761
Wendy L. Harvel Administrative
Law Judge
Honorable Eric M. Shepperd Trial Court Judge
i
TABLE OF CONTENTS
Identification of the Parties.............................................................................. i
Table of Contents............................................................................................ ii
List of Authorities .......................................................................................... iii
Procedural History .......................................................................................... 1
Summary of the Arguments ............................................................................ 1
ISSUE ONE
WHETHER ERROR WAS PRESERVED .......................................... 2
ISSUE TWO
WHETHER THERE WAS REASONABLE SUSPICION TO STOP
APPELLANT FOR SPEEDING? ........................................................ 6
Standard of Review .............................................................................. 6
ISSUE TWO(a)
Whether Evidence of Appellant’s Speed, as Determined by
Radar, was Admissible? ............................................................. 8
ISSUE TWO (b)
Whether a Non-testifying Officer’s Written Legal
Conclusion, that Appellant was Driving at a High Rate of
Speed, without more, is Sufficient to Establish Reasonable
Suspicion? .......................................................................................... 11
PRAYER ...................................................................................................... 14
APPENDIX
1. Administrative Decision 23
2. Court Order 24
3. Tex. Gov. Code § 2001.174 25
4. Tex. Transp. Code § 524.043 26
5. Tex. Transp. Code § 724.042 27
6. Tex. Transp. Code § 724.047 29
ii
TABLE
OF
AUTHORITIES
CASES
Crook v. State, 2013 WL 6164058 (Tex. App. – Houston (14th Dist.]
November 21, 2013).................................................................................. 14
Curran v. State, 2011 WL 446191 (Tex. App. – Amarillo February 8, 2011)
................................................................................................................... 14
Deramus v. State, 2011 WL 582667 (Tex. App. – Fort Worth February 17,
2011) ......................................................................................................... 13
Dillard v. State, 550 S.W.2d 45 (Tex. Crim. App. 1977) ............................. 12
Heredia v. State, 2007 WL 1704952 (Tex. App. – El Paso June 14, 2007) . 13
Hill v. State, 641 S.W.2d 543 (Tex. Crim. App. 1982) .............................. 2, 6
Icke v. State, 26 S.W.3d 913 (Tex. App. – Houston [1st Dist.] 2001, no pet)
................................................................................................................... 13
Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992) ........................ 2, 6, 8
Loesch v. State, 958 S.W.2d 830, 832 (Tex. Crim. App. 1997) ............... 5, 11
Maysonet v. State, 91 S.W.3d 365 (Tex. App. – Texarkana 2002, pet. ref’d)
............................................................................................................... 9, 10
Mireles v. Tex. Dep't of Pub. Safety, 9 S.W.3d 128, 131 (Tex. 1999); .......... 7
Nielsen v. State, 102 S.W.3d 313 (Tex. App. – Beaumont 2003 ____) ....... 13
Ochoa v. State, 994 S.W.2d 283 (Tex. App. – El Paso 1999, no pet.); .......... 9
Samuel v. State, 688 S.W.2d 492 (Tex. Crim. App. 1985), ............................ 3
Simpson v. State, 2008 WL 4367960 (Tex. App. – Amarillo September 25,
2008 ........................................................................................................... 13
Smith v. State, 1998 WL 46736 (Tex. App. – Dallas February 6, 1998) ...... 13
Tex. Dep't of Pub. Safety v. Alford, 209 S.W.3d 101, 103 (Tex. 2006).......... 8
Tex. Dep’t Pub. Safety v. Naraez, 2014 WL 5410758 (Tex. App. – Corpus
Christi October 23, 2014) .......................................................................... 14
Tex. Health Facilities Comm'n v. Charter Med.-Dallas, Inc., 665 S.W.2d
446, 452 (Tex. 1984) ................................................................................... 7
Thomas v. State, 2007 WL 1404425 (Tex. App. – El Paso June 11, 2007) . 13
Thomas v. State, 408 S.W.3d 877, 885 (Tex. Crim. App. 2013). ................... 6
Will. v. State, 621 S.W.2d 609, 612 (Tex. Crim. App. 1981). ........... 5, 11
Zillender v. State, 557 S.W.2d 515, 517 (Tex. Crim. App. 1977) .................. 2
STATUTES
TEX. CODE CRIM. P. art. 38.23 ........................................................................ 3
TEX. GOV'T CODE § 2001.174 ......................................................................... 7
iii
TEX. TRANSP. CODE § 524.043 ....................................................................... 7
TEX. TRANSP. CODE § 724.042 ....................................................................... 5
TEX. TRANSP. CODE § 724.047 ....................................................................... 7
iv
TO THE HONORABLE JUSTICES OF THE THIRD COURT OF
APPEALS:
COMES NOW, Christopher Jaroszewicz, Appellant in the above-
styled and numbered cause, and files this his Appellant’s brief and, with
respect thereto, would show the Court the following:
I. PROCEDURAL HISTORY
Appellant
was
arrested
for
DWI
on
October
11,
2014.
CR
at
42.
He
refused
to
give
a
sample
of
his
breath
or
blood.
CR
43.
Appellant
timely
requested
an
ALR
hearing,
pursuant
to
Chapter
724
of
the
Texas
Transportation
Code,
which
was
held
February
2,
2015.
CR
at
33.
The
ALJ
ruled
against
Appellant
and
authorized
the
Department
to
suspend
Appellant’s
driver’s
license.
CR
at
16.
On
February
19,
2015,
Appellant
timely
appealed
to
the
civil
County
Court
at
Law
No.
Two,
Travis
County,
Texas.
CR
at
4.
On
April
30,
2015,
the
trial
court
took
up
the
matter
of
Appellant’s
appeal.
RR
at
1.
Following
the
hearing,
the
trial
court
upheld
the
ALJ
decision
to
authorize
the
suspension
of
Appellant’s
license.
This
appeal
followed.
II.
SUMMARY
OF
THE
ARGUMENTS
The
arresting
officer
did
not
testify
at
the
ALR
hearing.
The
only
evidence
offered
to
establish
reasonable
suspicion
that
Appellant
was
1
speeding
was
a
two-­‐sentence
conclusion
that
Appellant
was
observed
speeding
and
such
speeding
was
confirmed
by
radar.
However,
neither
statement
should
have
been
allowed
in
evidence
but
should
have
been
excluded.
First,
the
Department
offered
no
evidence
to
establish
the
second
or
third
prongs
of
Kelly
v.
State
infra.
As
such
the
radar
evidence
was
not
admissible
and
should
have
been
excluded.
Second,
the
officer’s
written,
conclusory
statement
that
Appellant
was
traveling
at
a
high
rate
of
speed
falls
short
of
demonstrating
specific
articulable
facts
coupled
with
logical
inferences
from
those
facts
that
there
was
reasonable
suspicion
to
justify
the
traffic
stop
for
speeding.
This
evidence,
too,
should
have
been
excluded.
III.
ISSUE
ONE
WHETHER
ERROR
WAS
PRESERVED?
Appellant first addresses the Department’s contention that his
objection to the evidence was insufficient. In Zillender v. State, 557 S.W.2d
515, 517 (Tex. Crim. App. 1977) the Court of Criminal Appeals recognized
that:
A number of exceptions to the general rule that a party cannot
complain on appeal to the overruling of a general objection or
an imprecise specific objection have been created . . . Thus,
where the correct ground of exclusion was obvious to the judge
and opposing counsel, no waiver results from a general or
imprecise objection. [Emphasis in original.]
2
In Hill v. State, 641 S.W.2d 543 (Tex. Crim. App. 1982), the Court of
Criminal Appeals stated that a “catchall” objection “may have left
something to be desired from the standpoint of clarity,” was nevertheless
sufficient to apprise the court of the nature and basis of the defendant’s
objection. Id. at 544. In Hill the defendant made a general objection to the
admissibility of his post arrest silence after being subjected to a vigilante
arrest at gunpoint. The Court of Criminal Appeals held that such an
objection, under the facts and circumstances of that case was sufficient to
apprise the trial court that his objection to evidence of his post-vigilante
arrest silence was based on TEX. CODE CRIM. P. art. 38.23.
Likewise, in Samuel v. State, 688 S.W.2d 492 (Tex. Crim. App.
1985), the defendant’s objection was more of an afterthought. Counsel,
following an objection to a question as leading, stated “I’ll object to
statements made after [defendant] was under arrest.” The Court of Criminal
Appeals held that this was a sufficient objection, under the facts and
circumstances of that case, to preserve error for violating TEX. CODE CRIM.
P. art. 38.22.
The sole issue in the present case has always been the sufficiency of
the evidence to establish reasonable suspicion to conduct a traffic stop. It
was the first of five issues to be determined by the administrative law judge
3
(ALJ) and the only contested issue at the administrative license revocation
(ALR) hearing. See CR at 16.1 Appellant always maintained, in one form or
another, that the only evidence concerning reasonable suspicion was not
admissible and, therefore, reasonable suspicion could not be established.
Counsel objected to the reasonable suspicion evidence as follows:
Your Honor, we would object to . . . part of the DIC-23 wherein
the officer states . . . his ability to determine an excessive rate
of speed and also wherein he states that he used radar to
determine the actual speed.
CR at 33-34. It is important to note that these arguments are made everyday
in ALR hearings. Counsel for the Department said as much to the trial court
judge on the initial appeal. See RR at 14. That certainly demonstrates that
counsel’s objection was not new or novel to the ALJ or the Departments
ALR prosecutor.
Additionally, at the time the objection was made, the ALJ was holding
Department’s Exhibit 1 in her hands. CR at 33, 42. The officer did not
testify at the ALR hearing and, thus, the sum total of evidence offered to
establish reasonable suspicion was Department’s Exhibit 1, the DIC-23. The
exhibit contained a two sentences purporting to establish reasonable
1
CR
denotes
Clerk’s
Record
followed
by
the
page
number.
RR
will
denote
the
Reporter’s
Record
followed
by
the
page
number.
2
This
issue
is
divided
into
two
parts:
(1)
whether
evidence
of
Appellant’s
speed
as
determined
by
radar
was
admissible?;
and
(2)
whether
a
non-­‐testifying
officer’s
written
legal
conclusion,
that
Appellant
was
driving
at
a
high
rate
of
speed,
without
4
suspicion. The officer, who was the affiant, stated “Your affiant observed a
black 2013 Dodge truck . . . pass WB on W. 6th at a high rate of speed for the
30 mph zone. Your affiant measured the speed at 45 mph using Doppler
radar.” CR at 42. As a result, there were only two means of establishing
reasonable suspicion before the ALJ – observation of speed and use of radar.
Counsel objected to the admissibility of both and, hence, the sufficiency of
evidence to establish reasonable suspicion. Within the confines of an ALR
hearing, where reasonable suspicion is a, if not the, seminal issue anytime a
breath or blood test refusal is involved, such an objection is neither new, nor
novel. TEX. TRANSP. CODE § 724.042.
To establish reasonable suspicion, an officer must have specific
articulable facts, which, based on his experience and personal knowledge,
and coupled with the logical inferences from those facts would warrant the
intrusion on the person detained. These facts must amount to more than a
mere hunch or suspicion. Williams v. State, 621 S.W.2d 609, 612 (Tex.
Crim. App. 1981). The determination of the presence of reasonable
suspicion is a factual one and is made and reviewed by considering the
totality of the circumstances at the time of the stop. Loesch v. State, 958
S.W.2d 830, 832 (Tex. Crim. App. 1997). In other words, in terms of a
traffic stop, there must be some factual basis to conduct the stop.
5
In an ALR setting, where speeding is the legal basis for a traffic stop,
objections to this evidence are limited to the sufficiency of the factual basis
for the officer’s opinion concerning his observations of speed and to an
analysis, under Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992), of
the admissibility of radar evidence used to detect the speed of a vehicle.
There are no other objections.
As has been said, “so long as it appears from an appellate record that
[the court and the opposing counsel understood the objection], it should not
matter to the appellate court whether the objecting party used a particular
‘form of words’—or any particular words at all, if meaning is adequately
conveyed by context.” Thomas v. State, 408 S.W.3d 877, 885 (Tex. Crim.
App. 2013). Under the facts and circumstances of the case at bar, counsel’s
objections were sufficient to apprise the ALJ and the Department’s
prosecutor of the nature and basis of counsel’s objections. See Hill supra.
IV. ISSUE TWO
WHETHER THERE WAS REASONABLE
SUSPICION TO STOP APPELLANT FOR
SPEEDING?2
A. Standard of Review
2
This
issue
is
divided
into
two
parts:
(1)
whether
evidence
of
Appellant’s
speed
as
determined
by
radar
was
admissible?;
and
(2)
whether
a
non-­‐testifying
officer’s
written
legal
conclusion,
that
Appellant
was
driving
at
a
high
rate
of
speed,
without
more,
is
sufficient
to
establish
reasonable
suspicion?
6
“[Reviewing] courts review administrative license suspension decisions
under the substantial evidence standard.” Mireles v. Tex. Dep't of Pub.
Safety, 9 S.W.3d 128, 131 (Tex. 1999); see TEX. TRANSP. CODE § 724.047
(“Chapter 524 governs an appeal from an action of the department,
following an administrative hearing under this chapter, in suspending or
denying the issuance of a license.”); TEX. TRANSP. CODE § 524.043
(establishing rules for appeal but not defining scope of review). Courts
presume the ALJ's decision is supported by substantial evidence and the
complaining party has the burden to prove otherwise. Tex. Health Facilities
Comm'n v. Charter Med.-Dallas, Inc., 665 S.W.2d 446, 452 (Tex. 1984). In
contested cases, if more than a scintilla of evidence supports the
administrative findings, a reviewing court will affirm those findings; “[i]n
fact, an administrative decision may be sustained even if the evidence
preponderates against it.” Mireles, 9 S.W.3d at 131. Under the
Administrative Procedure Act, reviewing courts may not substitute their
judgment for
the judgment of the state agency on the weight of the evidence
on questions committed to agency discretion but . . . (2) shall
reverse or remand the case for further proceedings if substantial
rights of the appellant have been prejudiced because the
administrative findings, inferences, conclusions, or decisions
are: . . . (E) not reasonably supported by substantial evidence
considering the reliable and probative evidence in the record as
a whole. . . .
7
TEX. GOV'T CODE § 2001.174. A court of appeals will review the county
civil court at law's substantial evidence review of the administrative ruling
de novo. See Tex. Dep't of Pub. Safety v. Alford, 209 S.W.3d 101, 103 (Tex.
2006) (noting that ALJ's findings of fact are entitled to deference but that
“whether there is substantial evidence to support an administrative decision
is a question of law” and as such, neither the civil county court at law’s nor
the ALJ’s determination of an issue is entitled to deference on appeal).
B. ISSUE TWO(a)
Whether Evidence of Appellant’s Speed, as
Determined by Radar, was Admissible?
In the present case, the arresting officer did not testify. CR 33-34.
The only evidence offered to establish reasonable suspicion was the DIC-23,
which incorporated an arrest warrant affidavit. CR at 41-42. Concerning the
use of Doppler radar to determine Appellant’s speed, the only evidence
offered was a conclusory statement that “Your affiant measured the speed at
45 mph using Doppler radar.”
The proponent of evidence based on a scientific theory must show, by
clear and convincing evidence, that the evidence is (1) reliable and (2)
relevant to assist the fact finder in fulfilling its duty. Kelly, 824 S.W.2d at
572. To be reliable, evidence derived from a scientific theory must satisfy
three criteria: (1) the underlying scientific theory much be valid; (2) the
8
technique applying the theory must be valid; and (3) the technique must
have been properly applied on the occasion in question. Id. at 573. This test
applies to the admissibility of radar evidence. See Ochoa v. State, 994
S.W.2d 283 (Tex. App. – El Paso 1999, no pet.); and Maysonet v. State, 91
S.W.3d 365 (Tex. App. – Texarkana 2002, pet. ref’d).
In Ochoa, the El Paso court, contrary to most other courts of appeal,
held that all three Kelly criteria had to be met before the radar evidence in
that case could be admitted. Ochoa, 994 S.W.3d at 285. The officer testified
in Ochoa, but was unable to establish the first Kelly prong. That is to say,
the officer could not establish the validity of the underlying scientific theory
of the radar device. Id. Notably, the court held that the officer established
prongs two and three of Kelly by testifying that he had been certified to use
the hand-held radar; that he had calibrated and tested the radar instrument
the day he stopped Ochoa; and that he was able to confirm that radar guns
emit a microwave which strikes an object and returns to the gun and thus
calculates the speed of the object. Id. The El Paso court went on to hold that
admission of the radar evidence was harmless because there was other
evidence in the record to establish the defendant was speeding. Specifically,
the officer testified, without objection from Ochoa, that he observed the
defendant driving at a high rate of speed. Because there was no objection,
9
there was nothing preserved for review as concerned the officer’s stated
observation. Id.
In Maysonet, the Texarkana court held that radar detection is a well-
established scientific theory and, thus, no evidence is required to establish
the first prong of Kelly. Maysonet, 91 S.W.3d at 371. That is to say, the
court of appeals held that the scientific validity of radar detection has been
established as a matter of law. Id. The officer is that case testified that he
had used radar equipment since for three years and had calibrated and tested
the radar unit a day before he stopped Maysonet for speeding. Id. at 370. He
also testified that the gun itself calculates the speed of the object based on a
signal that reflects back to the gun after bouncing off the object. Id. The
court, therefore, held that the radar evidence was admissible against
Maysonet. However, the court of appeals also stated:
Our holding today, how ever, does not mean radar evidence
must not undergo rigorous scrutiny under both the second and
third prongs of the Kelly test, only that the underlying scientific
theory of radar is valid. The State must still establish that the
officers applied a valid technique and that it was correctly
applied on the particular occasion in question.
Id. at 371.
In both Ochoa and Maysonet, the courts of appeal had before them a
record containing the testimony of the arresting officers. In each case, the
officer was able to establish the second and third prongs of Kelly. In the
10
present case, however, the officer did not testify. The only evidence
concerning the radar device offered at the ALR hearing was one sentence
from the DIC-23 – “Your affiant measured the speed at 45 mph using
Doppler radar.” CR at 42. There was no evidence offered to show the
officer’s knowledge and experience of the radar unit, how it operated,
whether he calibrated the unit, or even knew how to calibrate it, whether he
tested the unit, or even knew how to test it, or how long he had been using
radar to detect speed, if ever. In the absence of such evidence, the
Department wholly failed to establish prongs two or three of Kelly and the
radar evidence should have been excluded.
C. ISSUE TWO(b)
Whether
a
Non-­‐testifying
Officer’s
Written
Legal
Conclusion,
that
Appellant
was
Driving
at
a
High
Rate
of
Speed,
without
more,
is
Sufficient
to
Establish
Reasonable
Suspicion?
Once again, in order to establish reasonable suspicion, an officer must
have specific articulable facts, which, based on his experience and personal
knowledge, and coupled with the logical inferences from those facts would
warrant the intrusion on the person detained. These facts must amount to
more than a mere hunch or suspicion. Williams, 621 S.W.2d at 612. The
determination of the presence of reasonable suspicion is a factual one and is
made and reviewed by considering the totality of the circumstances at the
11
time of the stop. Loesch, at 832. In other words, in terms of a traffic stop,
there must be some factual basis to conduct the stop.
In the present case, the officer did testify at the ALR hearing. The
only evidence offered that Appellant was speeding was a two sentence
written statement of the arresting officer. For purposes of this issue, there
was one sentence in the DIC-23 wherein the officer wrote “Your affiant
observed [Appellant] pass WB on W. 6th St. at a high rate of speed.” CR at
42. The record is void of any factual basis for determining whether
Appellant was traveling at a high rate of speed. There were no specific
articulable facts stated in the DIC-23. Neither was there any demonstration
of the officer’s knowledge and experience in making such a determination.
The conclusory statement amounts to nothing more than a mere hunch or
suspicion.
The Department cites several cases where testimony from the
arresting officer, that they observed the defendant traveling at a high rate of
speed, was sufficient to establish reasonable suspicion. In each of these
cases, however, the officer actually testified. Every case cited by the
Department has some factual basis to conclude the defendant was speeding.
The cases recite specific articulable facts, which, coupled with logical
inferences from those facts, give rise to reasonable suspicion to justify a
12
traffic stop. See Dillard v. State, 550 S.W.2d 45 (Tex. Crim. App.
1977)(officer testified he turned around and pursued the vehicle); Icke v.
State, 26 S.W.3d 913 (Tex. App. – Houston [1st Dist.] 2001, no pet)(officer
testified he saw vehicle driving ahead of other cars on the roadway); Nielsen
v. State, 102 S.W.3d 313 (Tex. App. – Beaumont 2003 ____)(officer
testified vehicle was speeding in the turn lane passing other vehicles); Smith
v. State, 1998 WL 46736 (Tex. App. – Dallas February 6, 1998)(not
designated for publication)(Officer testified he heard an engine racing then
observed the vehicle traveling at a high rate of speed); Heredia v. State,
2007 WL 1704952 (Tex. App. – El Paso June 14, 2007)(not designated for
publication)(officer testified he observed vehicle overtaking other vehicles
and that he paced the vehicle to determine its speed); Thomas v. State, 2007
WL 1404425 (Tex. App. – El Paso June 11, 2007)(not designated for
publication)(officer testified he was able to visually estimate the vehicle’s
speed at 60 mph in a 55 mph zone); Simpson v. State, 2008 WL 4367960
(Tex. App. – Amarillo September 25, 2008)(not designated for
publication)(officer testified that he visually estimated the vehicle was
traveling at 70 mph in a 60 mph zone); Deramus v. State, 2011 WL 582667
(Tex. App. – Fort Worth February 17, 2011)(not designated for
publication)(officer testified as to his vast experience in determining the
13
speed of vehicles and that he hear a loud engine noise that was coming from
the subject vehicle); Curran v. State, 2011 WL 446191 (Tex. App. –
Amarillo February 8, 2011)(not designated for publication)(officer testified
driver admitted to the officer he was speeding); Crook v. State, 2013 WL
6164058 (Tex. App. – Houston (14th Dist.] November 21, 2013)(not
designated for publication)(officer testified he observed vehicle traveling
faster than other cars on the roadway); Tex. Dep’t Pub. Safety v. Naraez,
2014 WL 5410758 (Tex. App. – Corpus Christi October 23, 2014)(not
designated for publication)(officer testified the vehicle appeared to be
traveling faster than the posted 30 mph speed limit).
Not a single case cited above in analogous to the case at bar. As
previously stated, here the officer did not testify and the only evidence
offered to establish reasonable suspicion that Appellant was speeding, as
concerns this issue, was an unsupported written statement that Appellant
passed the officer’s location at a high rate of speed. There is no indication in
the record of the officer’s knowledge and experience or facts or inferences
drawn from facts that amount to specific articulable facts to establish the
necessary reasonable suspicion to justify the traffic stop. Therefore, this
evidence, too, should not have been admitted.
14
PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellant prays this
court reverse the ALJ’s finding and the trial court’s finding and render a
decision that the Department is not authorized to suspend Appellant’s
driver’s license and order the Department to take all measures to reinstate
Appellant’s driver’s license forthwith.
RESPECTFULLY
SUBMITTED,
__/s/
Kevin
Fine_______________
KEVIN
FINE
State
Bar
No.
00790682
P.O.
Box
312
Boerne,
Texas
78006
830-­‐542-­‐2230/Boerne
512-­‐593-­‐1383/Austin
713-­‐299-­‐1923/Houston
(cell)
888-­‐803-­‐8721/efax
kfine@kevinfinelaw.com
ATTORNEY
FOR
APPELLANT
15
CERTIFICATE
OF
SERVICE
I
hereby
certify
that
a
true
and
correct
copy
of
the
above
motion
was
provided
to
the
Dep’t
of
Public
Safety,
via
efiling
to
Kevin
Givens,
Kevin.Givens@dps.texas.gov,
on
this
the
16th
day
of
November,
2015.
___/s/
Kevin
Fine_____________
KEVIN
FINE
CERTIFICATE
OF
COMPLIANCE
I
hereby
certify,
pursuant
to
Tex.
R.
App.
P.
9.4(i)(3),
that
this
brief
contains
3915
words
according
to
the
MS
Word
program,
excluding
the
title
page.
SIGNED
this
16th
day
of
November,
2015.
___/s/Kevin
Fine_______________
Kevin
Fine
16
APPENDIX
1. Administrative Decision 23
2. Court Order 24
3. Tex. Gov. Code § 2001.174 25
4. Tex. Transp. Code § 524.043 26
5. Tex. Transp. Code § 724.042 27
6. Tex. Transp. Code § 724.047 29
17
02/03/2015 08:15 FAX 5124754994 ©001/002
DOCKET NO. 2014-12-51051
\S
TEXAS DEPARTMENT OFPUBLIC SAFETY § BEFORE THE STATE OFFICE
§
v- § OF
§
CHRISTOPHER JAROSZEWICZ § ADMINISTRATIVE HEARINGS
ADMINISTRATIVE DECISION
On February 2, 2015, a hearing was held. Having heard and considered the evidence, the
Administrative Law Judge finds that the State Office ofAdministrative Hearings has jurisdiction
over this cause and further finds the facts below were proven by apreponderance of the evidence:
FINP^GS OF FACT
1) On October 11, 2014, reasonable suspicion to stop the Defendant existed, in that the Defendant
drove 45 miles per hour in a 30miles-per-hour zone.
2) On the same date, probable cause to arrest the Defendant existedbecausehehadthe strong odor
of an alcoholic beverage on hisbreath. He exhibited six clues ontheHGN test. He refused to
perform thewalk and turn and onelegstand tests.
3) Defendant was placed under arrest and was properly asked to submit aspecimen ofbreath or
blood.
4) After being requested to submit a specimen ofbreath orblood, Defendant refused.
5) Defendant has had one or more alcohol ordrug related enforcement contacts during theten yeais
preceding the date of Defendant's arrest as isindicated onDefendant's driving record;
CONCLUSIONS OF LAW
Based on the foregoing, the Judge concludes the Department proved the issues set out in Tex.
Transp. Code § 524.035 or724.042 and that Defendant's license is subject to a suspension for 2
yearspursuant to Tex. Transp. Code § 724.035.
In accordance with the above findings and conclusions, the Judge hereby enters the following order
ORDER
The Department is authorized to suspend or deny Defendant's driving privileges for the period
indicated above.
15?2(5?iSidni5Sy«" appCtded ^asuant t0 Tex- Transp. Code. §524.04J and 1Tex. Admin. Code §§
Signed February 2,2015.
WENDYgJL. HARVEJ
ADMINISTRATIVE LAW JUDGE
STATE OFFICE OF ADMINISTRATIVE HEARINGS
1
CAUSE NO. C-l-CV-15-001468
CHRISTOPHER JAROSZEWICZ, § IN THE COUNTY COURT
Appellant,
§
§
§
vs.
§ AT LAW NUMBER TWO
§
§
TEXAS DEPARTMENT OF §
PUBLIC SAFETY,
Appellee.
TRAVISCOUNTY, TEXAS
ORDER
ON the 30* day of April, 2015, the Court heard Appellant Christopher
Jaroszewicz's Petition for Appellate Review of adecision rendered by the State
-CD
Office of Administrative Hearings ("SOAH") suspending his license for two (2) I*
-O
years. ~.<7>
The Court, having considered the Petition, Answer, SOAH administrative = o
:o
!•*»•
• o>
:CO
record on appeal, and argument of counsel, is of the opinion that the decision of
SOAH is supported by substantial evidence and should be affirmed.
IT IS, THEREFORE, ORDERED, ADJUDGED, AND DECREED that the
decision of SOAH to suspend Appellant's license for two (2) years is affirmed.
All other requested relief not expressly granted in this order is denied.
SIGNED on this the 5th day of May, 2015.
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Tex. Gov’t Code § 2001.174
This document is current through the 2015 regular session, 84th Legislature, Chapters: 3-11, 13-20, 22-29, 31-32,
34-46, 48, 51, 53-62, 63, 66-68, 70-81, 83, 85-96, 98-99, 101-102, 104-105, 107-112, 114, 116-130, 132-134, 136-141,
143-149, 151-156, 158-159, 161, 165-172, 174, 176, 178-180, 182, 184, 186-200, 202-207, 209-224, 227, 229-234,
236-241, 244-248, 251-252, 254-255, 257-261, 263-268, 270-287, 289-295, 297-300, 302-311, 314, 316-322, 325,
327-328, 333, 335-354, 356-357, 360-363, 365-367, 369-373, 375-381, 383-393, 395-400, 402-407, 409-414, 416-421,
423-424, 426-428, 430-434, 436, 439-447, 449-456, 458-464, 466-468, 472-479, 482-487, 489-495, 498-500, 502-504,
507-514, 516-526, 528-531, 533-540, 542-548, 550-553, 555-556, 558-560, 563-568, 570, 572-576, 578-584, 586-590,
592-596, 600-601, 605-611, 613-614, 616-622, 624, 626, 628-629, 631-632, 634-646, 648, 650-662, 664-665, 669-671,
673-683, 685-686, 688-696, 698, 700-702, 704-705, 709, 711, 714-715, 717-718, 720, 722-728, 730-733, 735,
737-742, 744, 746-751, 753-764, 767, 769, 771-774, 776, 778-786, 788-796, 798-811, 813-820, 822, 824-825,
827-835, 839-840, 842-844, 848-853, 856-859, 861-865, 867-869, 871, 874-876, 879-884, 886-887, 889-895, 897-907,
909, 913-914, 916-923, 926-928, 930, 933, 936-937, 939, 941-943, 947, 951-954, 956, 958-961, 963-965, 967-978,
980-983, 988, 990-991, 994-999, 1001, 1003, 1005-1008, 1010, 1012-1022, 1024-1030, 1033-1036, 1038-1043, 1045,
1047, 1049-1050, 1052, 1057-1064, 1066, 1069, 1071-1072, 1077-1078, 1081-1087, 1090-1093, 1095-1103,
1105-1107, 1110-1116, 1118-1125, 1127-1130, 1132-1137, 1140, 1142-1147, 1149, 1151-1152, 1154-1156, 1159-1160,
1162-1167, 1169, 1171-1172, 1174-1177, 1180-1181, 1184-1190, 1192, 1194-1201, 1204-1205, 1207-1210, 1212-1213,
1216, 1218, 1220-1221, 1223-1224, 1226-1235, 1237-1241, 1245-1250, 1253-1254, 1256, 1258-1260, 1263-1267,
1269-1270, 1274-1275, 1277
Texas Statutes & Codes Annotated by LexisNexis® > Government Code > Title 10 General Government
> Subtitle A Administrative Procedure and Practice > Chapter 2001 Administrative Procedure >
Subchapter G Contested Cases: Judicial Review
Sec. 2001.174. Review Under Substantial Evidence Rule or Undefined Scope of
Review.
If the law authorizes review of a decision in a contested case under the substantial evidence rule or if the law does not
define the scope of judicial review, a court may not substitute its judgment for the judgment of the state agency on the
weight of the evidence on questions committed to agency discretion but:
(1) may affirm the agency decision in whole or in part; and
(2) shall reverse or remand the case for further proceedings if substantial rights of the appellant have been
prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(A) in violation of a constitutional or statutory provision;
(B) in excess of the agency’s statutory authority;
(C) made through unlawful procedure;
(D) affected by other error of law;
(E) not reasonably supported by substantial evidence considering the reliable and probative evidence in the
record as a whole; or
(F) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of
discretion.
History
Enacted by Acts 1993, 73rd Leg., ch. 268 (S.B. 248), § 1, effective September 1, 1993.
Texas Statutes & Codes Annotated by LexisNexis®
Tex. Transp. Code § 524.043
This document is current through the 2015 regular session, 84th Legislature, Chapters: 3-11, 13-20, 22-29, 31-32,
34-46, 48, 51, 53-62, 63, 66-68, 70-81, 83, 85-96, 98-99, 101-102, 104-105, 107-112, 114, 116-130, 132-134, 136-141,
143-149, 151-156, 158-159, 161, 165-172, 174, 176, 178-180, 182, 184, 186-200, 202-207, 209-224, 227, 229-234,
236-241, 244-248, 251-252, 254-255, 257-261, 263-268, 270-287, 289-295, 297-300, 302-311, 314, 316-322, 325,
327-328, 333, 335-354, 356-357, 360-363, 365-367, 369-373, 375-381, 383-393, 395-400, 402-407, 409-414, 416-421,
423-424, 426-428, 430-434, 436, 439-447, 449-456, 458-464, 466-468, 472-479, 482-487, 489-495, 498-500, 502-504,
507-514, 516-526, 528-531, 533-540, 542-548, 550-553, 555-556, 558-560, 563-568, 570, 572-576, 578-584, 586-590,
592-596, 600-601, 605-611, 613-614, 616-622, 624, 626, 628-629, 631-632, 634-646, 648, 650-662, 664-665, 669-671,
673-683, 685-686, 688-696, 698, 700-702, 704-705, 709, 711, 714-715, 717-718, 720, 722-728, 730-733, 735,
737-742, 744, 746-751, 753-764, 767, 769, 771-774, 776, 778-786, 788-796, 798-811, 813-820, 822, 824-825,
827-835, 839-840, 842-844, 848-853, 856-859, 861-865, 867-869, 871, 874-876, 879-884, 886-887, 889-895, 897-907,
909, 913-914, 916-923, 926-928, 930, 933, 936-937, 939, 941-943, 947, 951-954, 956, 958-961, 963-965, 967-978,
980-983, 988, 990-991, 994-999, 1001, 1003, 1005-1008, 1010, 1012-1022, 1024-1030, 1033-1036, 1038-1043, 1045,
1047, 1049-1050, 1052, 1057-1064, 1066, 1069, 1071-1072, 1077-1078, 1081-1087, 1090-1093, 1095-1103,
1105-1107, 1110-1116, 1118-1125, 1127-1130, 1132-1137, 1140, 1142-1147, 1149, 1151-1152, 1154-1156, 1159-1160,
1162-1167, 1169, 1171-1172, 1174-1177, 1180-1181, 1184-1190, 1192, 1194-1201, 1204-1205, 1207-1210, 1212-1213,
1216, 1218, 1220-1221, 1223-1224, 1226-1235, 1237-1241, 1245-1250, 1253-1254, 1256, 1258-1260, 1263-1267,
1269-1270, 1274-1275, 1277
Texas Statutes & Codes Annotated by LexisNexis® > Transportation Code > Title 7 Vehicles and Traffic
> Subtitle B Driver’s Licenses and Personal Identification Cards > Chapter 524 Administrative
Suspension of Driver’s License for Failure to Pass Test for Intoxication > Subchapter D Hearing and
Appeal
Sec. 524.043. Review; Additional Evidence.
(a) Review on appeal is on the record certified by the State Office of Administrative Hearings with no additional
testimony.
(b) On appeal, a party may apply to the court to present additional evidence. If the court is satisfied that the additional
evidence is material and that there were good reasons for the failure to present it in the proceeding before the
administrative law judge, the court may order that the additional evidence be taken before an administrative law
judge on conditions determined by the court.
(c) There is no right to a jury trial in an appeal under this section.
(d) An administrative law judge may change a finding or decision as to whether the person had an alcohol
concentration of a level specified in Section 49.01, Penal Code, or whether a minor had any detectable amount of
alcohol in the minor’s system because of the additional evidence and shall file the additional evidence and any
changes, new findings, or decisions with the reviewing court.
(e) A remand under this section does not stay the suspension of a driver’s license.
History
Enacted by Acts 1995, 74th Leg., ch. 165 (S.B. 971), § 1, effective September 1, 1995; am. Acts 1997, 75th Leg., ch.
1013 (S.B. 35), § 29, effective September 1, 1997.
Texas Statutes & Codes Annotated by LexisNexis®
Copyright © 2015 Matthew Bender & Company, Inc.
a member of the LexisNexis Group. All rights reserved.
Tex. Transp. Code § 724.042
This document is current through the 2015 regular session, 84th Legislature, Chapters: 3-11, 13-20, 22-29, 31-32,
34-46, 48, 51, 53-62, 63, 66-68, 70-81, 83, 85-96, 98-99, 101-102, 104-105, 107-112, 114, 116-130, 132-134, 136-141,
143-149, 151-156, 158-159, 161, 165-172, 174, 176, 178-180, 182, 184, 186-200, 202-207, 209-224, 227, 229-234,
236-241, 244-248, 251-252, 254-255, 257-261, 263-268, 270-287, 289-295, 297-300, 302-311, 314, 316-322, 325,
327-328, 333, 335-354, 356-357, 360-363, 365-367, 369-373, 375-381, 383-393, 395-400, 402-407, 409-414, 416-421,
423-424, 426-428, 430-434, 436, 439-447, 449-456, 458-464, 466-468, 472-479, 482-487, 489-495, 498-500, 502-504,
507-514, 516-526, 528-531, 533-540, 542-548, 550-553, 555-556, 558-560, 563-568, 570, 572-576, 578-584, 586-590,
592-596, 600-601, 605-611, 613-614, 616-622, 624, 626, 628-629, 631-632, 634-646, 648, 650-662, 664-665, 669-671,
673-683, 685-686, 688-696, 698, 700-702, 704-705, 709, 711, 714-715, 717-718, 720, 722-728, 730-733, 735,
737-742, 744, 746-751, 753-764, 767, 769, 771-774, 776, 778-786, 788-796, 798-811, 813-820, 822, 824-825,
827-835, 839-840, 842-844, 848-853, 856-859, 861-865, 867-869, 871, 874-876, 879-884, 886-887, 889-895, 897-907,
909, 913-914, 916-923, 926-928, 930, 933, 936-937, 939, 941-943, 947, 951-954, 956, 958-961, 963-965, 967-978,
980-983, 988, 990-991, 994-999, 1001, 1003, 1005-1008, 1010, 1012-1022, 1024-1030, 1033-1036, 1038-1043, 1045,
1047, 1049-1050, 1052, 1057-1064, 1066, 1069, 1071-1072, 1077-1078, 1081-1087, 1090-1093, 1095-1103,
1105-1107, 1110-1116, 1118-1125, 1127-1130, 1132-1137, 1140, 1142-1147, 1149, 1151-1152, 1154-1156, 1159-1160,
1162-1167, 1169, 1171-1172, 1174-1177, 1180-1181, 1184-1190, 1192, 1194-1201, 1204-1205, 1207-1210, 1212-1213,
1216, 1218, 1220-1221, 1223-1224, 1226-1235, 1237-1241, 1245-1250, 1253-1254, 1256, 1258-1260, 1263-1267,
1269-1270, 1274-1275, 1277
Texas Statutes & Codes Annotated by LexisNexis® > Transportation Code > Title 7 Vehicles and Traffic
> Subtitle J Miscellaneous Provisions > Chapter 724 Implied Consent > Subchapter D Hearing
Sec. 724.042. Issues at Hearing.
The issues at a hearing under this subchapter are whether:
(1) reasonable suspicion or probable cause existed to stop or arrest the person;
(2) probable cause existed to believe that the person was:
(A) operating a motor vehicle in a public place while intoxicated; or
(B) operating a watercraft powered with an engine having a manufacturer’s rating of 50 horsepower or above
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.
History
Enacted by Acts 1995, 74th Leg., ch. 165 (S.B. 971), § 1, effective September 1, 1995; am. Acts 2001, 77th Leg., ch.
444 (H.B. 63), § 12, effective September 1, 2001.
Texas Statutes & Codes Annotated by LexisNexis®
Copyright © 2015 Matthew Bender & Company, Inc.
a member of the LexisNexis Group. All rights reserved.
Tex. Gov’t Code § 2001.174
Copyright © 2015 Matthew Bender & Company, Inc.
a member of the LexisNexis Group. All rights reserved.
Page 2 of 2
Tex. Transp. Code § 724.047
This document is current through the 2015 regular session, 84th Legislature, Chapters: 3-11, 13-20, 22-29, 31-32,
34-46, 48, 51, 53-62, 63, 66-68, 70-81, 83, 85-96, 98-99, 101-102, 104-105, 107-112, 114, 116-130, 132-134, 136-141,
143-149, 151-156, 158-159, 161, 165-172, 174, 176, 178-180, 182, 184, 186-200, 202-207, 209-224, 227, 229-234,
236-241, 244-248, 251-252, 254-255, 257-261, 263-268, 270-287, 289-295, 297-300, 302-311, 314, 316-322, 325,
327-328, 333, 335-354, 356-357, 360-363, 365-367, 369-373, 375-381, 383-393, 395-400, 402-407, 409-414, 416-421,
423-424, 426-428, 430-434, 436, 439-447, 449-456, 458-464, 466-468, 472-479, 482-487, 489-495, 498-500, 502-504,
507-514, 516-526, 528-531, 533-540, 542-548, 550-553, 555-556, 558-560, 563-568, 570, 572-576, 578-584, 586-590,
592-596, 600-601, 605-611, 613-614, 616-622, 624, 626, 628-629, 631-632, 634-646, 648, 650-662, 664-665, 669-671,
673-683, 685-686, 688-696, 698, 700-702, 704-705, 709, 711, 714-715, 717-718, 720, 722-728, 730-733, 735,
737-742, 744, 746-751, 753-764, 767, 769, 771-774, 776, 778-786, 788-796, 798-811, 813-820, 822, 824-825,
827-835, 839-840, 842-844, 848-853, 856-859, 861-865, 867-869, 871, 874-876, 879-884, 886-887, 889-895, 897-907,
909, 913-914, 916-923, 926-928, 930, 933, 936-937, 939, 941-943, 947, 951-954, 956, 958-961, 963-965, 967-978,
980-983, 988, 990-991, 994-999, 1001, 1003, 1005-1008, 1010, 1012-1022, 1024-1030, 1033-1036, 1038-1043, 1045,
1047, 1049-1050, 1052, 1057-1064, 1066, 1069, 1071-1072, 1077-1078, 1081-1087, 1090-1093, 1095-1103,
1105-1107, 1110-1116, 1118-1125, 1127-1130, 1132-1137, 1140, 1142-1147, 1149, 1151-1152, 1154-1156, 1159-1160,
1162-1167, 1169, 1171-1172, 1174-1177, 1180-1181, 1184-1190, 1192, 1194-1201, 1204-1205, 1207-1210, 1212-1213,
1216, 1218, 1220-1221, 1223-1224, 1226-1235, 1237-1241, 1245-1250, 1253-1254, 1256, 1258-1260, 1263-1267,
1269-1270, 1274-1275, 1277
Texas Statutes & Codes Annotated by LexisNexis® > Transportation Code > Title 7 Vehicles and Traffic
> Subtitle J Miscellaneous Provisions > Chapter 724 Implied Consent > Subchapter D Hearing
Sec. 724.047. Appeal.
Chapter 524 governs an appeal from an action of the department, following an administrative hearing under this chapter,
in suspending or denying the issuance of a license.
History
Enacted by Acts 1995, 74th Leg., ch. 165 (S.B. 971), § 1, effective September 1, 1995.
Texas Statutes & Codes Annotated by LexisNexis®
Copyright © 2015 Matthew Bender & Company, Inc.
a member of the LexisNexis Group. All rights reserved.