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Click here for the full text of this decision FACTS:On March 7, 2006, Deputy Jim Bingham of the Lynn County Sheriff’s Office received a call reporting a “dark green Ranch King pickup” weaving on Highway U.S. 87 approximately 11 miles north of Tahoka. Bingham left Tahoka heading north on U.S. 87 and located a pickup matching the description facing southbound approximately 10 and one-half miles north of Tahoka on U.S. 87. The pickup was off the roadway between the shoulder and the bottom of a ditch. As Bingham approached, he noticed the engine was running and the brake lights were illuminated. He looked through the driver-side window and observed the gearshift was in the drive position. He also observed driver Stanley Eugene Partee, who appeared to be asleep with his foot on the brake pedal. Partee did not respond when Bingham knocked on the window. Bingham opened the driver-side door and moved the gearshift to the park position. Partee awoke confused. Bingham asked Partee whether he was having any trouble, and Partee responded he was having marital problems. Bingham also asked for his driver’s license. As they were talking, Bingham noticed a strong odor of alcohol emanating from the cab. Bingham asked Partee if he had been drinking, and Partee admitted he had drank a few beers several hours earlier. He also admitted there was alcohol in the pickup. Sheriff Franklin arrived, and being advised of the situation, called Trooper Callaway of the Texas Department of Public Safety to assist. Bingham asked Partee to step out of the pickup. Partee asked the reason for the request, and Bingham explained he could smell a strong odor of alcohol coming from the truck. After Partee refused repeated requests to exit his pickup, Bingham removed him from the cab. Partee was then handcuffed, patted down and permitted to sit on the highway shoulder. Callaway arrived, removed Partee’s handcuffs, helped Partee to his feet and began his interview. Callaway immediately smelled alcohol on Partee. Partee’s speech was slurred, his eyes were bloodshot, he swayed when he stood and he needed the pickup for balance when walking. Partee admitted he had been drinking earlier and acknowledged there were open containers of alcohol in the pickup. Callaway observed a half-empty whiskey bottle in the pickup, and Bingham found an open can of coke in the console containing whiskey. Callaway informed Partee he was going to administer field sobriety tests. Partee refused to cooperate. Partee refused a preliminary breath test and, after he was given statutory warnings and requested to provide a breath test, he again refused. Callaway arrested Partee and placed him in his cruiser. On the way to the jail, Partee passed out several times. Partee requested an administrative hearing to contest the suspension of his driver’s license. After the hearing, the administrative law judge issued an order sustaining the suspension of Partee’s driver’s license pursuant to Texas Transportation Code �724.035. Partee appealed the ALJ’s decision to the Lynn County Court, and the case was subsequently transferred to the 106th Judicial District Court where the court affirmed the ALJ’s decision. HOLDING:Affirmed. Under Texas Government Code �2001.174(2), the court stated, an administrative decision may not be reversed unless it prejudices the substantial rights of an appellant 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.” Beginning its evidentiary review, the court stated that a person commits the offense of driving while intoxicated if the person is intoxicated while operating a motor vehicle in a public place. While there is no statutory definition of the term “operate,” the court noted the Court of Criminal Appeals’ 1995 holding in Denton v. State that a person operates a vehicle “when the totality of the circumstances demonstrate the person took action to affect the functioning of the vehicle in a manner that would enable its use.” In Denton, the CCA held that “while driving does involve operation, operation does not necessarily involve driving.” Applying this rationale, the court found that Partee’s application of the brake pedal, thereby restraining the vehicle’s actual movement, fell within the definition of “operating a motor vehicle.” Moreover, the court found that under �724.042, the DPS did not have to prove Partee was operating a motor vehicle while intoxicated in order to suspend his license. Because a license suspension is a civil matter, the court stated, the DPS needed only to establish that there was probable cause to believe Partee was operating a motor vehicle while intoxicated. Thus, even though Partee was asleep, the court found substantial evidence to support the ALJ’s finding that there was probable cause to believe Partee was operating a motor vehicle when he was discovered by Bingham. Partee also asserted that he was illegally detained when Bingham removed him from his pickup and, as a result, any evidence obtained subsequent to his detention should have been excluded from the administrative proceedings to suspend his license. Under the facts of this case, the court found that Bingham was justified in believing that Partee was operating his vehicle. Accordingly, in light of the totality of the circumstances, the court found substantial evidence to support the ALJ’s determination that reasonable suspicion existed to detain Partee. Finally, Partee contended that there was insufficient evidence for the ALJ to find that Calloway had probable cause to arrest Partee for operating a motor vehicle in a public place while intoxicated. Based upon the record, however, the court found that sufficient probable cause supported a finding of intoxication. OPINION:Pirtle, J.; Campbell and Pirtle, JJ., and Boyd, S.J.

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