Opinion
No. 04-05-00089-CV
Delivered and Filed: October 26, 2005.
Appeal from the County Court at Law No. 10, Bexar County, Texas, Trial Court No. 298329, Honorable David J. Rodriguez, Judge Presiding.
Affirmed.
Sitting: Sarah B. DUNCAN, Justice, Karen ANGELINI, Justice, Sandee Bryan MARION, Justice.
MEMORANDUM OPINION
Michael Joseph Lemay appeals the trial court's judgment affirming the suspension of Lemay's driver's license. Lemay argues the trial court erred in affirming the judgment because the administrative law judge's probable cause finding is not supported by substantial evidence. Substantial evidence exists if the record as a whole contains more than a scintilla of evidence to support the challenged finding. Mireles v. Tex. Dep't of Pub. Safety, 9 S.W.3d 128, 131 (Tex. 1999). We review the trial court's judgment de novo. Tex. Dep't of Pub. Safety v. Pruitt, 75 S.W.3d 634, 640 (Tex.App.-San Antonio 2002, no pet.).
In Pruitt, we concluded the probable cause finding was supported by substantial evidence because the agency record contained evidence that the driver was involved in a one-vehicle accident, had a "mild" odor of alcohol on his breath and slurred speech, and admitted alcohol consumption. Id. at 640-41. Accordingly, even if Lemay is correct that the evidence of his impaired balance and failed horizontal gaze nystagmus test (HGN) cannot be considered because it was obtained after his arrest, the record as a whole still contains more than a scintilla of evidence to support the probable cause finding: Lemay was speeding, had a "strong" odor of alcohol on his breath, had slurred speech and red and glassy eyes, admitted consuming wine that night, and initially refused to perform the field sobriety tests. See id.; see also State v. Garrett, 22 S.W.3d 650, 654-55 (Tex.App.-Austin 2000, no pet.) (holding that evidence that driver ran red light, suddenly turned into parking lot of apartment complex in which he did not live, had a strong odor of alcohol on his breath and watery eyes, exhibited unsteadiness, and refused to perform field sobriety tests was sufficient to establish probable cause to arrest driver). We therefore hold the administrative law judge's probable cause finding is supported by substantial evidence and affirm the trial court's judgment.
Lemay argues he was placed under arrest the moment after he refused to perform the field sobriety tests; therefore, his refusal constitutes evidence the trial court and we can consider.