Texas Department of Public Safety v. Amir Turcios ( 2016 )

NUMBER 13-14-00332-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant,
v.
AMIR TURCIOS, Appellee.
On appeal from the County Court at Law No. 7
of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Perkes
Memorandum Opinion by Chief Justice Valdez
Appellant Texas Department of Public Safety (Department) appeals the trial court’s
order reversing the suspension of appellee Amir Turcios’ driver’s license for 180 days
following his arrest for driving while intoxicated. We reverse the trial court’s order and
render, reinstating the suspension of Turcios’ driver’s license.
I. Background
Shortly before midnight on December 22, 2013, a police officer stopped Turcios
for driving with a defective right front headlight. Upon making contact with Turcios, the
police officer detected signs of intoxication and administered field sobriety tests, which,
in the officer’s opinion, Turcios failed. During the police investigation, Turcios admitted
that he consumed vodka and marijuana. Based on his investigation, the officer arrested
Turcios for driving while intoxicated. Thereafter, the officer requested that Turcios provide
a blood specimen; Turcios refused.
A. Administrative Hearing
Because Turcios refused to provide a blood specimen, the Department sent a letter
notifying him that his driver’s license would be suspended for 180 days. The notice letter
specifically alleged that on or about December 22, 2013:
1. reasonable suspicion or probable cause existed to stop or arrest
[Turcios].
2. probable cause existed to believe that [Turcios] was operating a motor
vehicle in a public place while intoxicated. . .
3. [Turcios] was placed under arrest by the officer and was requested to
submit to the taking of a specimen.
4. [Turcios] refused to submit to the taking of a specimen on [the] request
of the officer.
Thereafter, an administrative law judge (ALJ) was appointed to determine whether
Turcios’ driver’s license should be suspended in accordance with Texas law. At an
administrative hearing before the ALJ, the Department introduced the police officer’s
report, which contained the facts recited in the background section above. Turcios did
not object to the admissibility of the police officer’s report.
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After the ALJ received the police report in evidence, Turcios testified on his own
behalf. Specifically, Turcios testified that: (1) his vehicle’s headlight was “out”; (2) he told
the police officer at the scene of the traffic stop that he had consumed vodka and
marijuana; (3) he believed that he was “definitely” intoxicated by the vodka and marijuana;
(4) he blew into a “breathalyzer” at the scene of the traffic stop; and (5) he refused to
provide a blood specimen.
After considering the evidence, the ALJ ordered that Turcios’ driver’s license be
suspended for 180 days pursuant to Texas Transportation Code section 724.035. See
TEX. TRANSP. CODE ANN. § 724.035(a) (West, Westlaw through 2015 R.S.) (authorizing a
180-day license suspension for a person who refuses to provide a breath or blood
specimen after being arrested for driving while intoxicated). In support of its decision, the
ALJ entered the following findings of fact:
1. [On December 22, 2013] . . . reasonable suspicion existed to stop
[Turcios] in that . . . [t]he officer observed [Turcios’] vehicle had a non-
working from [sic] headlight.
2. On the same day, probable cause [existed] to arrest [Turcios for driving
while intoxicated] because . . . [the officer] observed [that Turcios] had
an odor of alcohol, slurred speech and he admitted [to] smoking
marijuana. . . .
3. [Turcios] was placed under arrest and was properly asked to submit a
specimen of breath.
4. After being requested to submit a specimen of breath, [Turcios] refused.
B. Appeal to the County Court
Turcios appealed the ALJ’s suspension order to the county court, raising the
following three main issues in his written and oral argument: (1) there was no evidence
that his vehicle had a “non-working from headlight” as the ALJ expressly stated in its first
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finding above; (2) there was no evidence that he refused to provide a “breath” specimen
as the ALJ expressly stated in its fourth finding above; and (3) the ALJ’s decision to
suspend his driver’s license violates his constitutional rights under Missouri v. McNeely.
133 S. Ct. 1552 (2013).
After considering these arguments, the county court reversed the ALJ’s decision.
Specifically, the county court found that:
at least one of [Turcios’] said listed “basis of appeal”1 is true and [Turcios’]
substantial rights and/or constitutional rights have been prejudiced by acts
of the [ALJ] and [the Department]. The Court also finds that there was no
good reason for [the Department’s] failure to present more evidence at the
time of the administrative hearing; and that the [ALJ’s decision]: (1)
exceed[s] statutory authority, (2) [is] made upon unlawful procedure, (3) [is]
affected by error of law, (4) [is] not reasonably supported by substantial
evidence in view of all the evidence in the record, and (5) [is] arbitrary,
capricious, characterized by abuse of discretion or clearly unwarranted
exercise of discretion.
Accordingly, it is therefore ORDERED, ADJUDGED AND DECREED by the
Court that the [ALJ’s] affirmative findings, conclusions, decision and order
be and the same are hereby in all things set aside and reversed; [the
Department’s] order of suspension of [Turcios’ driving license] is in all things
hereby set aside and reversed; [Turcios'] driving privileges are restored
effective immediately and [his driver’s license] shall and must be returned
as soon as possible to him by [the Department.]
This appeal by the Department followed.
II. Discussion
By two issues, which we treat as one, the Department contends that the county
court erred in reversing the ALJ’s suspension order.
1Turcios’ written “basis of appeal” spans nine pages; in substance, however, Turcios’ written and
oral appeal to the county court raised the three issues referenced above.
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A. Applicable Law and Standard of Review
A person whose driver's license is suspended for refusing to provide a specimen
after arrest for driving while intoxicated may challenge such suspension at an
administrative hearing. See TEX. TRANSP. CODE ANN. § 724.041(a), (d) (West, Westlaw
through 2015 R.S.). The issues to be decided at the hearing 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 [operating a motor
vehicle in a public place while intoxicated];
(3) the person was placed under arrest by the officer and was requested to
submit to the taking of a specimen; and
(4) the person refused to submit to the taking of a specimen on request of
the officer.
Id. § 724.042. At the administrative hearing, the Department has the burden to prove
these issues by a preponderance of the evidence. See Dep't of Pub. Safety v. Hirschman,
169 S.W.3d 331, 335–37 (Tex. App.—Waco 2005, pet. denied). If the ALJ finds that the
Department proved each issue, the license suspension is sustained. Id.
As happened in this case, the ALJ's license suspension order may be appealed to
a county court. Id. However, “[t]he burden for overturning an agency ruling is quite
formidable.” Tex. Dep’t of Pub. Safety v. Pucek, 22 S.W.3d 63, 67 (Tex. App.—Corpus
Christi 2000, no pet.). The administrative decision is presumed to be supported by
substantial evidence, and the burden is on the appellant to prove that it should be
reversed. See City of El Paso v. Pub. Util. Comm’n of Tex., 883 S.W.2d 179, 185 (Tex.
1994). Consequently, the county court may not reverse the ALJ’s decision unless the
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appellant demonstrates that his substantial rights were prejudiced because the ALJ’s
administrative decision is:
(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.
Hirschman, 169 S.W.3d at 335–37 (citing TEX. GOV'T CODE ANN. § 2001.174 (West,
Westlaw through 2015 R.S.)). Thus, to reverse the ALJ’s decision, the county court must
conclude: (1) that the ALJ’s decision was erroneous for one of the reasons enumerated
in subsections (A) through (F) above; and (2) that substantial rights of the appellant have
thereby been prejudiced. See Tex. Dep’t of Pub. Safety v. Cantu, 944 S.W.2d 493, 495
(Tex. App.—Houston [14th Dist.] 1997, no writ). The ALJ is the sole judge of the weight
and credibility of the evidence. See Hirschman, 169 S.W.3d at 335–37. A county court
may not substitute its judgment for that of the ALJ as to the weight of the evidence. Id.
We review de novo the county court’s decision to reverse the ALJ’s decision. Id.
As such, we review the ALJ’s decision without affording any deference to the county
court’s determination. Id.
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B. Analysis
In view of the forgoing, we now analyze whether the ALJ’s decision to suspend
Turcios’ driver’s license was erroneous for any of the reasons enumerated in subsections
(A) through (F), and, if so, whether any error prejudiced Turcios’ substantial rights.
1. Reasonable Suspicion for Traffic Stop
At oral argument before the county court, Turcios argued that the ALJ’s finding
regarding reasonable suspicion for the traffic stop lacked substantial evidence. However,
the police officer’s written report indicates that Turcios was pulled over for driving with a
“defective front right headlight.” Furthermore, Turcios admitted at the administrative
hearing that his vehicle’s headlight was “out.” Driving with only one headlight at night is
a traffic offense that provides reasonable suspicion for a traffic stop. See TEX. TRANSP.
CODE ANN. § 547.302 (West Westlaw through 2015 R.S.) (providing that at least one
lighted lamp shall be displayed on each side of the front of a motor vehicle); see also
Francis v. State, 425 S.W.3d 554, 556 (Tex. App.—Fort Worth 2014, no pet.); Williams v.
State, No. 04-02-00747-CR, 2003 WL 21658529, at *1 (Tex. App.—San Antonio July 16,
2003, pet. ref'd) (mem. op., not designated for publication). We conclude that the
assertions contained in the officer’s report, coupled with Turcios’ own admission,
constitutes substantial evidence to support the ALJ’s finding regarding reasonable
suspicion for the traffic stop.
Nonetheless, Turcios asked the county court to reverse the ALJ’s decision based
on the typographical error “from headlight” contained in the ALJ’s first written finding of
fact. Relying on this error, Turcios argued that there was no evidence that his “from
headlight” was not working on the night of his arrest. However, a county court is not
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authorized to reverse an ALJ decision unless the decision prejudices the appellant’s
substantial rights. See Cantu, 944 S.W.2d at 495. Regardless of the ALJ’s error, the
record contains substantial evidence to support a finding of reasonable suspicion for the
traffic stop. As such, we conclude—as did the courts in Alford, Blankenbeker, and
Segrest on analogous facts—that the typographical error “from headlight” contained in
the ALJ’s written findings did not prejudice Turcios’ substantial rights. Tex. Dep’t of Pub.
Safety v. Alford, 209 S.W.3d 101, 103 (Tex. 2006) (concluding there was substantial
evidence to support ALJ’s decision even though the ALJ referenced the wrong citation for
the implied consent statute in its findings); Blankenbeker v. Tex. Dep’t of Pub. Safety, 990
S.W.2d 813, 818–19 (Tex. App.—Austin 1999, pet. denied) (concluding that the driver’s
substantial rights were not prejudiced when the ALJ mistakenly referenced the wrong
offense-date in its findings); see also Tex. Dep’t of Pub. Safety v. Segrest, No. 03-02-
00671-CV, 2003 WL 22348841, at *4 (Tex. App.—Austin Oct. 16, 2003, no pet.) (mem.
op.) (concluding that the driver’s substantial rights were not prejudiced when the ALJ
mistakenly referenced the wrong officer in finding that there was reasonable suspicion to
stop the driver). Therefore, the county court erred to the extent that it reversed the ALJ’s
finding that reasonable suspicion supported the traffic stop.
2. Refusal
At oral argument before the county court, Turcios also argued that the ALJ’s fourth
finding of fact regarding his alleged refusal to provide a specimen lacked substantial
evidence. However, the police officer’s written report indicates that Turcios refused to
provide a blood specimen. Furthermore, Turcios admitted at the administrative hearing
that he refused to provide a blood specimen. We conclude that the assertions contained
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in the police officer’s report, coupled with Turcios’ own admission, constitutes substantial
evidence to support the ALJ’s finding regarding Turcios’ refusal to provide a specimen.
Nonetheless, Turcios argued to the county court that, although he refused to
provide a blood specimen, there was no evidence to support the ALJ’s fourth written
finding that he refused to provide a “breath” specimen. Having reviewed the record, we
find no evidence to support the ALJ’s express finding that Turcios refused to provide a
“breath” specimen. Thus, the ALJ was incorrect in making that finding. As previously
noted, however, a county court is not authorized to reverse the ALJ’s decision unless the
decision prejudices the appellant’s substantial rights. See Cantu, 944 S.W.2d at 495.
Under Texas law, a driver’s refusal to provide either a breath specimen or a blood
specimen is grounds for suspension, and the ALJ is not required to specify the type of
specimen refused. See TEX. TRANSP. CODE ANN. § 724.011(a) (West Westlaw through
2015 R.S.); Tex. Dep’t of Pub. Safety v. Kusenberger, 29 S.W.3d 154, 156–57 (Tex.
App.—San Antonio 2000, no pet.). Furthermore, the length and severity of a license
suspension is the same regardless of which type of specimen is refused. See TEX.
TRANSP. CODE ANN. § 724.035(a). Here, although the ALJ’s finding concerning the type
of specimen refused was incorrect, it is undisputed that Turcios refused to provide a blood
specimen, which was enough to support the ALJ’s suspension. See TEX. TRANSP. CODE
ANN. §§ 724.011(a), 724.035(a). We therefore conclude that ALJ’s written mistake as to
the type of specimen that Turcios refused did not prejudice his substantial rights. See
Alford, 209 S.W.3d at 103; Blankenbeker, 990 S.W.2d at 818–19; Kusenberger, 29
S.W.3d at 157 (affirming the ALJ’s finding that the driver refused to provide a specimen
even though the ALJ mistakenly found that the driver refused to provide a “breath”
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specimen when the evidentiary record supported a finding that the driver refused to
provide a “blood” specimen); see also Segrest, 2003 WL 22348841, at *4.
Turcios also argued that the ALJ could not validly suspend his driver’s license for
refusing to provide a blood specimen because he initially provided a breath specimen at
the scene of the traffic stop; according to Turcios, because he provided one specimen,
he was allowed to refuse a second specimen without risking suspension. However, a
person arrested for driving while intoxicated “is deemed to have consented . . . to submit
to one or more specimens of the person’s breath or blood.” TEX. TRANSP. CODE ANN. §
724.011 (emphasis added); see Kerr v. Tex. Dep’t of Pub. Safety, 973 S.W.2d 732, 735–
36 (Tex. App.—Texarkana 1998, no pet.). As such, a driver’s initial consent to provide a
specimen does not invalidate a license suspension premised on the driver’s refusal to
provide a second specimen. See Tex. Dep’t of Pub. Safety v. Bond, 955 S.W.2d 441,
447 (Tex. App.—Fort Worth 1997, no pet.) (concluding that even if compliance with the
intoximeter test constituted the giving of a specimen under chapter 724, the motorist could
not have refused a second specimen without risking the suspension of his license); Tex.
Dep’t of Pub. Safety v. Watson, 945 S.W.2d 262, 267 (Tex. App.—Houston [1st Dist.]
1997, no writ) (“Even if the [portable breath test] constituted the giving of a specimen
under chapter 724, Watson did not have the luxury of refusing a second specimen under
chapter 724 without the attendant risk of license suspension.”). Because Turcios refused
to provide a blood sample, his license was subject to suspension. Therefore, the county
court erred to the extent that it reversed the ALJ’s finding that Turcios refused to provide
a specimen. See Bond, 955 S.W.2d at 447; Watson, 945 S.W.2d at 267.
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3. Missouri v. McNeely
Finally, at oral argument before the county court, Turcios argued that the ALJ’s
decision to suspend his driver’s license violated his constitutional rights under Missouri v.
McNeely. The entirety of Turcios’ written appeal to the county court on this issue is as
follows:
Concepts of constitutional fundamental fairness prohibit the [ALJ from
suspending Turcios’ driver’s license] because [transportation code section]
724.012(b) is unconstitutional in light of [Missouri v. McNeely] because
[section 724.012(b)] provides for implied consent to an unwarranted blood
draw, which penalized [Turcios] for exercising his constitutional right to
refuse drawing of his blood without a warrant being issued.
Turcios’ reliance on Missouri v. McNeely is misplaced.
First, Missouri v. McNeely did not, as Turcios argues, recognize a constitutional
right to refuse a blood draw; rather, the case clarified when, and under what
circumstances, the Fourth Amendment forbids the State to draw one’s blood without a
warrant. See 133 S. Ct. at 1559–63.
In Missouri v. McNeely, the State arrested the defendant for driving while
intoxicated, searched him without a warrant and without his consent, obtained blood
evidence from the search, and sought to convict him in a criminal trial using the blood
evidence. 133 S. Ct. at 1558. The question for the Supreme Court concerned the
admissibility of the blood evidence—specifically, “whether the natural [dissipation] of
alcohol in the bloodstream presents a per se exigency that justifies an exception to the
Fourth Amendment’s warrant requirement for nonconsensual blood testing in all drunk-
driving cases.” Id. at 1556. The Supreme Court answered that no such per se exception
to the warrant requirement exists in all drunk driving cases. See id. at 1568 (holding that
“in drunk-driving investigations, the natural dissipation of alcohol in the bloodstream does
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not constitute an exigency in every case sufficient to justify conducting a blood test without
a warrant.”). Thus, Missouri v. McNeely did not actually address the question that Turcios
claims it answered—i.e., whether the Fourth Amendment forbids the State to suspend
one’s driver’s license for refusing to provide a blood specimen.
Furthermore, language in the plurality portion of Missouri v. McNeely strongly
suggests that the Supreme Court did not intend to foreclose the availability of
administrative license suspensions as a legal tool to enforce drunk-driving laws. In
holding that the Fourth Amendment forbids warrantless, non-consensual, and non-
exigent blood draws, Justice Sotomayor specifically noted that:
As an initial matter, States have a broad range of legal tools to enforce their
drunk-driving laws and to secure BAC [blood alcohol content] evidence
without undertaking warrantless nonconsensual blood draws. For example,
all 50 States have adopted implied consent laws that require motorists, as
a condition of operating a motor vehicle within the State, to consent to BAC
testing if they are arrested or otherwise detained on suspicion of a drunk
driving offense. See NHTSA Review 173; supra, at 1556 (describing
Missouri’s implied consent law). Such laws impose significant
consequences when a motorist withdraws consent; typically the motorist’s
driver’s license is immediately suspended or revoked[.]
Id. at 1565–66 (emphasis added). Thus, although Missouri v. McNeely does not directly
address whether the Fourth Amendment forbids the State to administratively suspend
one’s driver’s license for refusing a blood draw, there is a strong suggestion in the plurality
opinion that a suspension premised upon such refusal is a constitutionally permissible
“legal tool” to further the State’s interest in preventing drunk-driving. Id. at 1566.2
2 We note that Turcios supplemented his initial brief to inform this Court of the following three cases
that were granted certiorari by the United States Supreme Court on December 11, 2015 and argued on
April 20, 2016: Beylund v. Levi, Minnesota v. Bernard, and North Dakota v. Birchfield. See Beylund, 859
N.W.2d 403, 406 (N.D. 2015), cert. granted, 136 S. Ct. 614 (Dec. 11, 2015) (concluding that state’s criminal
refusal statute did not violate Beylund’s constitutional rights); Bernard, 859 N.W.2d 762 (Minn. 2015), cert.
granted, 136 S. Ct. 615 (Dec. 11, 2015) (same); Birchfield, 858 N.W.2d 302 (N.D. 2015), cert. granted, 136
S. Ct. 614 (Dec. 11, 2015) (same). These cases, however, are distinguishable from the present case
because the statutes at issue in Beylund, Bernard, and Birchfield make it a criminal offense to refuse to
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Finally, as noted by the Department, Missouri v. McNeely is borne out of a different
set of facts, which we believe makes the case inapposite here. In Missouri v. McNeely,
the State forcibly searched the defendant and obtained blood evidence. In other words,
there was actually a Fourth Amendment search, which the Court characterized as one
that “involved a compelled physical intrusion beneath [the defendant’s] skin and into his
veins to obtain a sample of his blood for use as evidence in a criminal investigation.” See
id. at 1558. The Supreme Court observed that “[s]uch an invasion of bodily integrity
implicates an individual's ‘most personal and deep-rooted expectations of privacy.’” Id.
(quoting Winston v. Lee, 470 U.S. 753, 760 (1985)). Thus, the Supreme Court invalidated
warrantless, non-consensual, and non-exigent blood draws because the bodily invasion
itself implicated highly personal privacy expectations of the defendant. Here, in contrast,
the State never actually searched Turcios and never obtained any blood evidence;
instead, the police officer asked Turcios to provide a blood specimen, Turcios refused,
and the police officer abided Turcios’ refusal. By refusing the blood draw, Turcios
effectively thwarted the type of bodily invasion that would have potentially triggered the
Fourth Amendment protection recognized in Missouri v. McNeely—i.e., the protection
against a forced blood draw under circumstances that the Fourth Amendment forbids.
Because the mere suspension of Turcios’ driver’s license does not implicate his “most
provide a specimen. See MINN. STAT. § 169A.20 (West, Westlaw through 2015 R.S.); N.D. CENT. CODE §
39-08-01 (West, Westlaw through 2015 R.S.); Beylund, 859 N.W.2d at 410; Bernard, 859 N.W.2d at 765;
Birchfield, 858 N.W.2d at 304. The Texas statute at issue in this case does not criminalize refusal to provide
a specimen. See TEX. TRANSP. CODE ANN. § 724.048 (West, Westlaw through 2015 R.S.); Reynolds v.
State, 4 S.W.3d 13, 21 (Tex. Crim. App. 1999) (“[A license revocation administrative proceeding] is not a
‘criminal prosecution’ and it is not ‘essentially criminal.’”). The Texas statute is a provision that serves the
purpose of “protecting public safety by quickly removing drunk drivers from the road.” Mireles v. Tex. Dep't.
of Pub. Safety, 9 S.W.3d 128, 130 (Tex. 1999) (per curiam). And even were the Supreme Court to conclude
that criminalizing a refusal is unconstitutional, it would be premature for us to speculate as to how that
analysis would impact, if at all, Texas’s civil statute.
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personal and deep-rooted expectations of privacy,” we conclude that Missouri v. McNeely
is inapposite here. See id.
For these reasons, we conclude that the county court erred to the extent that it
found that the ALJ’s suspension order violated Turcios’ constitutional rights under
Missouri v. McNeely. We sustain the Department’s appellate issues.
III. Conclusion
We reverse the county court’s order and render, reinstating the ALJ’s suspension
order.
/s/ Rogelio Valdez
ROGELIO VALDEZ
Chief Justice
Delivered and filed the
9th day of June, 2016.
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