MALKOWSKY v. TEXAS DEPARTMENT OF PUBLIC SAFETY (2001)

OPINION

Diane Marie Malkowsky appeals the trial judge's order sustaining the administrative suspension of her driver's license for driving while intoxicated (DWI).   We affirm.

Procedural Background

Malkowsky's license was automatically suspended for refusing a breath test after having been stopped on suspicion of DWI. See Tex.Transp.Code Ann. §§ 724.032, 724.035(a)(1) (Vernon 1999).   The “refusal” was caused by her not blowing a sufficient specimen despite multiple attempts, which failure she admits was due solely to her intoxication.   At a contested case hearing, an administrative law judge (ALJ) upheld the suspension.   See Tex.Transp.Code Ann. § 724.043(a) (Vernon 1999);  1 Tex.Admin.Code § 159.31 (2001).   The county court affirmed the ALJ's ruling.   See Tex.Transp.Code Ann. §§ 524.041(a), (b), 724.047 (Vernon 1999);  1 Tex.Admin.Code § 159.37(a) (2001).   Malkowsky appeals.   We have jurisdiction over this appeal.   See Texas Dept. of Pub. Safety v. Barlow, 48 S.W.3d 174, 176 (Tex. 2001).

Refusal of Breath Test

In issue one, Malkowsky claims the trial judge erred in affirming the license suspension because she never refused the breath test.   See Tex.Transp.Code Ann. § 724.042(4) (Vernon 1999);  1 Tex.Admin.Code § 159.19(a)(1)(B)(iv) (2001) (both making refusal to submit a breath specimen an issue at a contested-case hearing on a driver's license suspension).   We disagree.

We review de novo because the facts are undisputed.   Tex.Gov't Code Ann. § 2001.174(2)(D) (Vernon 2000);  In re Humphreys, 880 S.W.2d 402, 404 (Tex.1994).   An officer must serve notice of a person's license suspension if the person “refuses to submit to the taking of a [breath] specimen, whether expressly or because of an intentional failure of the person to give the specimen․ ” Tex.Transp.Code Ann. § 724.032(a) (Vernon 1999) (emphasis added).

The ALJ found as follows:

There is no evidence that Defendant's mental and physical state was a consequence of anything, other than the consumption of alcohol. Based on this, the Court finds that Defendant's physical condition was voluntarily induced;  therefore, this Court further finds that after being requested to submit a specimen of breath, by her failure to produce an adequate specimen for testing, Defendant refused, as is demonstrated by the peace officer's signed statement on the warning form, and by the testimony of Deputy Palmer.

 The question is whether Malkowsky's “failure” to give a breath specimen solely because of her intoxication was a “refusal” under the statute.   It is undisputed that Malkowsky never expressly refused.   On the contrary, the State's own witness testified unequivocally that Malkowsky (1) expressly agreed to give a breath specimen, (2) twice failed in good faith efforts to do so, (3) was not trying to deceive him about her ability to blow the sample, and (4) could not do so solely because of her intoxication and not because of any other medical condition.   Malkowsky obviously did not expressly refuse.   The statute, however, provides a specialized meaning for “refused” that differs from the conventional meaning.   The statute provides for license suspension upon refusal “because of an intentional failure of the person to give the specimen.”   Even though Malkowsky does not contest the fact that she was intoxicated, she does contest the ALJ finding that her inability to blow due to intoxication constitutes an “intentional failure” to give the specimen.

 It is incumbent upon us in construing a statute to attempt to determine the Legislature's intent.   See, e.g., Meritor Automotive, Inc. v. Ruan Leasing Co., 44 S.W.3d 86, 89 (Tex.2001).   Under the specific facts of this case, we hold that failure to produce an adequate breath sample based solely on one's voluntary intoxication is a refusal under section 724.032 because it is “an intentional failure ․ to give the specimen.”   See Tex.Transp.Code Ann. § 724.032(a).   By analogy, voluntary intoxication does not negate the intent or knowledge elements of criminal conduct.   See, e.g., Tex.Penal Code Ann. § 8.04(a) (Vernon 1994);  Rojas v. State, 986 S.W.2d 241, 247 (Tex.Crim.App.1998).   Neither will voluntary intoxication prevent an act from being intentional within the meaning of an insurance policy's intentional-conduct exclusion.   See Wessinger v. Fire Ins. Exch., 949 S.W.2d 834, 839-40 (Tex.App.-Dallas 1997, no writ).   Public policy will not allow Malkowsky to benefit from her intoxication.   See id. at 840 (“From these cases, we glean a general policy in Texas not to excuse conduct simply because the actor was voluntarily intoxicated.”);   cf.  Scott v. Gardner, 137 Tex. 628, 156 S.W.2d 513, 517 (1941) (in negligence case, stating, “To hold otherwise would be to put a premium upon drunkenness.”);  In re Matherly, 177 W.Va. 507, 354 S.E.2d 603, 605 (1987) (in holding driver's silence was a refusal, explaining, “Second, the extreme state of inebriation in which the driver may find himself at the time he is asked to take the test cannot be attributed to divine intervention or the work of Descartes' [D]emon.”);   People v. Carlyle, 130 Ill.App.3d 205, 85 Ill.Dec. 595, 474 N.E.2d 9, 13 (1985) (in holding driver, who claimed incomprehension prevented his express refusal, had nonetheless “refused,” explaining, “To require an express refusal under these facts would exempt from the statutory coverage the precise class of persons-the drunken drivers-whom the implied consent statute was intended to determine and remove from our highways.   Such a narrow construction ․ under these facts would lead to the absurd result of exempting the very intoxicated driver from the penalty provided for refusal to comply․”).

Malkowsky relies on Nevarez v. State, a DWI case.  671 S.W.2d 90 (Tex.App.-El Paso 1984, no pet.).   Malkowsky's reliance on Nevarez is misplaced for several reasons.   First, Nevarez was a DWI case, and the defendant's refusal to take a breath test was inadmissible as a matter of law at that time.  Id. at 92.   Second, the defendant in Nevarez explained that the failure to pass the breath test was because of an asthmatic condition.  Id. Finally, in Nevarez the defendant contested the allegation of intoxication, while in the present case the defendant does not contest the ALJ finding of intoxication.  Id.

Malkowsky's sole excuse is that she did not refuse to take the breath test.   On the contrary, she asserts that she could not pass the breath test because she was intoxicated.   Malkowsky places no evidentiary weight upon the fact that her intentional acts of alcoholic consumption that evening made her so intoxicated that she could not comply with the law by giving an adequate breath sample.   As stated above, we hold that failure to produce an adequate breath sample, for the sole reason that the person is unable to comply because of his voluntary intoxication, is a refusal to give a breath sample as required by section 724.032.

Accordingly, we hold the trial judge did not err in affirming the ALJ's determination that Malkowsky refused to provide a breath sample.

We overrule issue one.

We affirm the judgment.

The remaining portion of the opinion does not meet the criteria for publication and is ordered unpublished.   Tex.R.App.P. 47.

Reasonable Suspicion

In issue two, Malkowsky claims the trial judge erred in affirming the license suspension because the initial stop of Malkowsky's car was not supported by reasonable suspicion.   See Tex.Transp.Code Ann. § 724.042(1) (Vernon 1999);  1 Tex.Admin.Code § 159.19(a)(1)(B)(i) (2001) (both making reasonable suspicion an issue at a contested-case hearing on a driver's license suspension).   We disagree.

We review the ALJ's legal conclusion of reasonable suspicion de novo.   Tex.Gov't Code Ann. § 2001.174(2)(D);  In re Humphreys, 880 S.W.2d at 404;  cf.  Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App.2000) (suppression motion).   We review the ALJ's fact findings for substantial evidence.  Tex.Gov't Code Ann. § 2001.174(2)(E) (Vernon 2000);  1 Tex.Admin.Code § 159.37(a) (2001);  Mireles v. Texas Dep't of Pub. Safety, 9 S.W.3d 128, 131 (Tex.1999).   Malkowsky had the burden to show lack of substantial evidence.  Firemen's & Policemen's Civ. Serv. Comm'n v. Brinkmeyer, 662 S.W.2d 953, 956 (Tex.1984).   Substantial evidence means more than a mere scintilla;  thus, the evidence may preponderate against the agency's decision, yet still suffice.  Mireles, 9 S.W.3d at 131.   The test is whether reasonable minds could have reached the same conclusion as did the ALJ. Texas State Bd. of Dental Examiners v. Sizemore, 759 S.W.2d 114, 116 (Tex.1988).

The stop of Malkowsky's car was a temporary detention for interrogation, not an arrest.  “[T]he reasonableness of a temporary detention must be examined in terms of the totality of the circumstances and will be justified when the detaining officer has specific articulable facts, which taken together with rational inferences from those facts, lead him to conclude that the person detained actually is, has been, or soon will be engaged in criminal activity.”  Woods v. State, 956 S.W.2d 33, 38 (Tex.Crim.App.1997).

The ALJ found as follows:

On November 10, 1999, reasonable suspicion to stop the Defendant existed, in that:  At that time, ․ Deputy Ewald's dispatcher told [the deputy] that a Bronco with a specified license plate number was coming in his direction.   His dispatcher told [the deputy] that this vehicle was reported to be driven by a possibly intoxicated driver, traveling 30 to 35 miles per hour, in what the Deputy believed to be a 70 mile per hour zone, therefore, holding up traffic.   [Deputy Ewald] was told that the Bronco was being followed by the complainant, who was relaying the descriptions and locations by cell-phone.   Approximately six minutes later, Deputy Ewald observed the Defendant driving a Bronco motor vehicle, with the described license plate, coming off of Interstate Highway 10, onto the feeder road in his location, stopping at the stop sign at that intersection.   Based on this, the officer had sufficient reasonable suspicion to briefly detain the Defendant for further investigation․

The tip of a reliable and trustworthy informant who observes an event firsthand can create reasonable suspicion for a stop.   See State v. Stolte, 991 S.W.2d 336, 341 (Tex.App.-Fort Worth 1999, no pet.);  Tribble v. State, 792 S.W.2d 280, 284 (Tex.App.-Houston [1st Dist.] 1990, no pet.).   An informant is inherently reliable if he is a private citizen, whose identity is known, and whose only contact with the police is having witnessed the suspected criminal activity.   See Stolte, 991 S.W.2d at 341;  Tribble, 792 S.W.2d at 284.   This was the case with Gary Gunther, who was driving behind Malkowsky on the freeway and gave his cell phone number and full name to Brookshire Police Department dispatcher Limas, remaining on the phone at least until Deputy Ewald received the dispatch call.   See Stolte, 991 S.W.2d at 341-42 (holding reasonable suspicion existed for officer to stop defendant for DWI when the sole basis was the call of a driver following the defendant, who was driving slowly and weaving on the freeway, when the caller followed the defendant's truck;  described it;  gave its license plate, location, and direction;  and then parked behind the officer after the defendant had been stopped).

Furthermore, the testimony of Gunther's call supports the ALJ's decision.   Gunther reported Malkowsky's position and direction, gave the car's license plate, claimed Malkowsky was driving “recklessly,” and was unsure whether the driver was “intoxicated or just falling asleep.”   Dispatcher Limas relayed all the information to the Austin County Sheriff's Department dispatcher, who broadcast the vehicle's description, license plate number, direction, location, and its “driving erratically,” “slowing down, speeding up, and moving from lane to lane,” and “holding up traffic.”   Austin County Deputy Ewald, who was about six miles from Malkowsky's last reported location, stopped the vehicle about seven minutes after receiving the dispatch call because the license plate number and the vehicle's model and location matched the description.   The stop occurred at 11:15 p.m. on a Friday night.

Malkowsky attacks the above evidence on the following grounds:  (1) the dispatch notes of Gunther's call indicated Malkowsky was driving 30 to 35 miles per hour in a 25-to-70-mile-per-hour zone, which does not constitute reckless driving and which Malkowsky claims was Gunther's only basis for reporting her;  (2) Gunther incorrectly reported the driver was a man;  and (3) Deputy Ewald testified Malkowsky was driving slowly but “fine” when she “pulled up the way everybody else does.”

First, as discussed above, Gunther related more than simply Malkowsky's speed.   Second, the mistake about Malkowsky's sex goes to the weight and credibility of Gunther's information, which was for the ALJ. Cf. Wood v. State, 18 S.W.3d 642, 646 (Tex.Crim.App.2000).   Additionally, the driver's sex was not relayed to Deputy Ewald, so this mistake could have played no part in the stop.   Third, Gunther's information, on which the deputy based his stop, supported the temporary detention, and the deputy did not have to observe the same things personally.   See Stolte, 991 S.W.2d at 341 (holding officer did not need to observe illegal activity when he based the stop on a reliable informant's information).

We hold that substantial evidence supports the ALJ's fact findings and that the ALJ did not err in concluding reasonable suspicion existed.

We overrule issue two.

Conclusion

We affirm the judgment.

The majority's decision constitutes sound public policy.   Were I a legislator, I would vote for it.   As a judge, I cannot bring myself to do so, for that would require me to hold that this statute means the opposite of what it says.

I have railed against drunk drivers for years.   See Cohen, The Case for Admitting Evidence of Refusal to Take a Breath Test, 6 Tex.Tech.L.Rev. 927 (1975).   But there is a greater danger, I believe, in ruling that words mean nothing-or worse, that they mean the opposite of what they say.

Our law is clear.   A driver's license will be suspended if she “refuses to submit to the taking of a [breath] specimen, whether expressly or because of an intentional failure of the person to give the specimen․” See Tex. Transp.   Code Ann. § 724.032(a) (Vernon 1999).   Malkowsky did not do that.   She did not refuse.   She expressly consented.   She did not “intentionally fail” to give a specimen.   She repeatedly tried in good faith to do so.   That is the unequivocal testimony of Deputy Palmer, the State's witness.   He testified Malkowsky was not trying to deceive him.

Malkowsky did the opposite of what the statute condemns, yet, according to the majority, her express consent nevertheless constitutes an implicit refusal.   Under the statute's plain language, Malkowsky should win.   The judgment should be reversed.

The legislature cannot foresee everything, and I doubt it foresaw these facts.   I have found no case like this, despite a national search.¹  That gives us no commission to legislate, however.   Nor do we need to.   Malkowsky's license can be seized after she is convicted, if she is.   Until then, the threat to her of an additional one year in jail for another DWI should be a greater deterrent than the lesser sanctions provided for the offense of driving while her license is suspended.   The public is protected.   The legislature and the English language are respected.

FOOTNOTES

1.   The majority's cases are all different.   In Matherly, the defendant kept silent.   He never agreed to give a breath sample, and he never tried to give one.  354 S.E.2d at 604-06.   In Carlyle, the defendant never consented, he never tried to give a breath sample, and the police took that as a refusal.  85 Ill.Dec. 595, 474 N.E.2d at 9, 10-12.   That is the opposite of what Malkowsky did.   The majority's reliance on criminal law and insurance law cases is misplaced.   In those cases, the offenders argued that, but for their intoxication, they would not have done the act, i.e., that their intoxication negated their intention.   Those courts correctly held that voluntary intoxication was no defense.   Malkowsky argues that, despite her intoxication, she still consented to a breath sample, i.e., that her intoxication affected her physical ability, not her mental state.   Section 724.032 sanctions drivers only for their bad intention, not for their lack of physical ability to comply.

JACKSON B. SMITH, Jr., Justice (Assigned).

Justice COHEN, dissenting.