Texas Department of Public Safety v. Jenny Kathryn Bruce

Reversed and Rendered and Opinion filed April 18, 2024.

In The

Fourteenth Court of Appeals

NO. 14-23-00506-CV

TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant

V.

JENNY KATHRYN BRUCE, Appellee

On Appeal from the County Court at Law No. 3
Bexar County, Texas
Trial Court Cause No. 2022CV04045

OPINION

In this driver’s license suspension case, the Texas Department of Public
Safety (DPS) appeals a judgment granted in favor of Jenny Kathryn Bruce on the
grounds that: (1) Texas does not recognize the Miranda Confusion Doctrine; (2)
Bruce cannot avail herself of the doctrine even if it were recognized because she did
not request an attorney before refusing to submit to a breath test; and (3) the
Administrative Law Judge’s finding is supported by substantial evidence. We
reverse and render judgment reinstating the license revocation.
BACKGROUND

On February 20, 2022, a Fair Oaks Ranch Police Officer stopped Bruce for a
traffic violation after observing her vehicle fail to maintain a single lane of travel
and swerve over the lane markers several times. After conducting field sobriety tests,
the officer arrested Bruce and gave her DWI statutory warnings. See Tex. Transp.
Code § 724.015. Because Bruce declined the officer’s request to give a breath
specimen, she was served with a notice of license suspension. Following a hearing,
the Administrative Law Judge (ALJ) ordered Bruce’s driver’s license suspended. In
the administrative hearing Bruce asserted via affidavit that she was confused by the
DWI statutory warnings because another officer also read Bruce her Miranda
warnings before Bruce refused the breath test. Bruce asserted that she believed that
the Miranda rights gave her the right to refuse the breath test without consequences.
Bruce did not assert her Miranda rights at the time of her arrest. Bruce appealed that
decision to the County Court at Law, which set aside the order of suspension. DPS
appeals the judgment of the County Court at Law.

On August 23, 2022 the ALJ held a hearing on the suspension of Bruce’s
driver’s license. At the hearing Officer Hayden Griffiths of the Fair Oaks Ranch
Police Department testified that he stopped Bruce’s car after observing a traffic
violation. When he approached Bruce’s car, he noticed an odor of an alcoholic
beverage. Griffiths asked Bruce to perform field sobriety tests, and based on her poor
performance of those tests, he arrested her for DWI. Another Fair Oaks Ranch police
officer, Amanda Hinojosa, arrived on the scene and read Bruce the warnings
required by Miranda v. Arizona, 384 U.S. 436, 479 (1966). After Hinojosa
completed the Miranda warnings, Griffiths read Bruce the statutory warnings
contained in a form known as the DIC-24. Among other things, the DIC-24 warnings
notify an arrestee that if she refuses a breath or blood sample her driver’s license

2
will be suspended for a period not to exceed 180 days. Neither Griffiths, nor
Hinojosa, told Bruce that the Miranda rights did not apply to Bruce’s decision to
submit to a breath or blood sample. Bruce did not ask whether she had a right to an
attorney or otherwise invoke any of her Miranda rights. Bruce did not testify at the
administrative hearing, but her affidavit was admitted into evidence.

After the hearing, the ALJ ordered suspension of Bruce’s driver’s license and
made the following findings of fact:

1. On 02/20/22, reasonable suspicion to stop or detain the
Defendant existed in that a Texas peace officer observed Defendant’s
vehicle failing to maintain a single lane of travel several times by
swerving and crossing over the lane markers multiple times on a Texas
public roadway within the officer’s jurisdiction. The officer initiated a
traffic stop and made contact with Defendant.
2. On the same date, probable cause to arrest Defendant existed, in
that probable cause existed to believe Defendant was operating a motor
vehicle in a public place while intoxicated. In addition to the facts in
No. 1:
• Defendant’s eyes were bloodshot;
• Defendant emitted the strong odor of intoxicants on her breath;
• Defendant admitted drinking alcohol;
• Defendant’s speech was unsure and confused;
• on the horizontal gaze nystagmus test, Defendant exhibited all six
clues, swayed during the test, and had to be reminded multiple times
to keep her head still;
• on the walk-and-turn test, Defendant exhibited five of eight clues;
and
• on the one-leg stand test, Defendant exhibited three of four clues.
3. Defendant was placed under arrest and was properly asked to
submit a specimen of breath or blood.
4. After being requested to submit a specimen of breath or blood,
Defendant refused.

3
Bruce appealed the ALJ decision to the County Court at Law where neither party
presented any additional evidence.

Following a non-evidentiary hearing, the County Court at Law vacated the
ALJ’s decision and reinstated Bruce’s driver’s license. Specifically, the county court
found that “the arresting officers caused [Bruce] to refuse [the breath test] by mixing
Miranda Rights with the DIC-24 Statutory Warning, in making her believe that those
Miranda Rights applied to the Statutory Warning.” DPS timely appealed the county
court’s order.

ANALYSIS1

In three issues DPS challenges the trial court’s order, asserting (1) Texas does
not recognize the Confusion Doctrine; (2) even if Texas recognized the doctrine,
Bruce did not present evidence of the defense; and (3) if the Confusion Doctrine
applies, substantial evidence supports the ALJ’s decision. Bruce did not file a
responsive brief in this court.

I. Standard of Review and Applicable Law

On appeal of an administrative driver’s license suspension to county court,
review is based on the substantial evidence rule. See 1 Tex. Admin. Code §
159.37(d). In reviewing a decision under the substantial evidence rule, a court may
not substitute its judgment for that of the state agency on the weight of the evidence.
See Tex. Gov’t Code § 2001.174. The court should reverse or remand the case for

1
The Texas Supreme Court ordered the Fourth Court of Appeals to transfer this case to our
court. See Tex. Gov’t Code § 73.001. Under the Rules of Appellate Procedure, “the court of
appeals to which the case is transferred must decide the case in accordance with the precedent of
the transferor court under principles of stare decisis if the transferee court’s decision otherwise
would have been inconsistent with the precedent of the transferor court.” Tex. R. App. P. 41.3. We
are unaware of any conflict between the Fourth Court of Appeals precedent and that of this court
on any relevant issue.

4
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.
See Tex. Gov’t Code § 2001.174(2); Tex. Dep’t of Pub. Safety v. Guajardo, 970
S.W.2d 602, 604–05 (Tex. App.—Houston [14th Dist.] 1998, no pet.).

Where there is substantial evidence that would support either affirmative or
negative findings, the administrative order must stand, notwithstanding that the
agency may have struck a balance with which the reviewing court might differ. See
Firemen’s and Policemen’s Civil Serv. Comm’n v. Brinkmeyer, 662 S.W.2d 953,
956 (Tex. 1984). The issue for the reviewing court is not whether the agency reached
the correct conclusion, but whether there is some reasonable basis in the record for
the action taken by the agency. See Mireles v. Texas Dep’t of Pub. Safety, 9 S.W.3d
128, 131 (Tex. 1999). Substantial evidence requires only more than a mere scintilla,
and may even preponderate against the decision of the agency. See id. at 131.

DPS asserts that Bruce did not prove to the county court that the ALJ’s
decision was arbitrary or capricious or not supported by substantial evidence. See
Tex. Gov’t Code § 2001.174(2)(E–F). Pursuant to section 2001.174, we review a
legal determination by the ALJ de novo and review any findings of fact for support
by substantial evidence. Tex. Dep’t of Pub. Safety v. Fecci, 989 S.W.2d 135, 139
(Tex. App.—San Antonio 1999, pet. denied).

5
Bruce’s license was suspended under section 724.035 of the Texas
Transportation Code, putting four fact issues in question at the administrative
hearing: (1) whether probable cause existed to stop or arrest the person; (2) whether
probable cause existed to believe that the person was operating a motor vehicle in a
public place while intoxicated; (3) whether the person was placed under arrest by
the officer and was requested to submit to the taking of a specimen; and (4) whether
the person refused to submit to the taking of a specimen on request of the officer.
Tex. Transp. Code § 724.042. The ALJ must find in the affirmative on each issue in
order to suspend the defendant’s license. See Tex. Transp. Code § 724.043.

In this case, the ALJ found all four factors in favor of suspension of Bruce’s
license. The county court stated that it believed the ALJ abused its discretion by not
considering Bruce’s claim of Miranda Confusion. Bruce did not dispute probable
cause to stop her, or that she was placed under arrest and requested to submit to the
taking of a breath specimen. The Miranda Confusion Doctrine asserted by Bruce
addresses the fourth fact issue, i.e., whether the person refused the breath test.

II. The Miranda Confusion Doctrine

In DPS’s first issue it asserts the trial court erred because Texas has not
recognized the Miranda Confusion Doctrine as a defense to refusal of the breath test.
We agree.

In Texas, a person arrested for DWI does not have the right to consult with
counsel before deciding whether to submit to a breath test. Griffith v. State, 55
S.W.3d 598, 604 (Tex. Crim. App. 2001) (“Administering a breath-alcohol test to
an arrestee after he has made a request for, but not received, the advice of counsel
does not violate the Sixth Amendment right to counsel when a formal adversary
proceeding has not yet been initiated, because the right has not attached.”). The issue
raised by Bruce at the administrative hearing and in the trial court is whether a DWI
6
suspect, who mistakenly believes she has a right to consult with counsel before
deciding whether to take the breath test, is entitled to refuse the test with no
consequences attached.

Bruce argued in the county court that she was in a state of confusion when she
refused the breathalyzer test and that her refusal should be excused, as a matter of
law, under the “Confusion Doctrine.” Bruce contended that the police officers who
arrested her did not explain to her why she could not invoke her Miranda rights
before taking or refusing the breathalyzer test.

A few jurisdictions have recognized the Confusion Doctrine as a defense to
license suspension or revocation, including Alaska, California, Colorado, Hawaii,
Minnesota, Nebraska, New Jersey, North Dakota, and Pennsylvania. See Kurecka v.
State, 67 So. 3d 1052, 1058 n.1 (Fla. Dist. Ct. App. 2010) (collecting cases). See
also Gentry v. State, Dep’t of Justice, Motor Vehicle Div., 282 Mont. 491, 496, 938
P.2d 693, 696 (1997) (citing Blomeyer v. State, 264 Mont. 414, 418–19, 871 P.2d
1338, 1341 (1994)); State v. Severino, 56 Haw. 378, 537 P.2d 1187 (1975); State
Department of Highways v. Beckey, 291 Minn. 483, 192 N.W.2d 441 (1971); and
Rust v. Department of Motor Vehicles, Div. of Driver’s Lic., 267 Cal.App.2d 545,
73 Cal.Rptr. 366 (1968)). Under the Confusion Doctrine, when a police officer
introduces the subject of a DWI arrestee’s right to counsel by giving a Miranda
warning prior to requesting a breath or blood test, the arrestee’s subsequent refusal
to take the designated test until an attorney is consulted might not constitute a
“refusal to submit” to a breath or blood test. Gentry, 938 P.2d at 696.

In states that have adopted the Confusion Doctrine, courts require law
enforcement officers to advise DWI suspects that the right to remain silent does not
include the right to refuse to submit to a chemical test, or the right to prior
consultation with an attorney. See, e.g., Calvert v. State, Dep’t of Revenue, Motor

7
Vehicle Div., 184 Colo. 214, 218, 519 P.2d 341, 343 (1974) (citing State v. Murray,
8 Wash. App. 944, 509 P.2d 1003 (1973)). Those states have also determined that
the question of “officer-induced confusion” is one of fact. McDonnell v. Dep’t of
Motor Vehicles, 45 Cal. App. 3d 653, 658, 119 Cal. Rptr. 804, 808 (Ct. App. 1975);
see also Goodman v. Orr, 19 Cal.App.3d 845, 857, 97 Cal.Rptr. 226 (1971) (holding
that lack of understanding engendered by partial intoxication does not affect the
finality and effectiveness of refusal). Some of the states place the burden on the
defendant motorist to show that they were in fact confused, Severino, 537 P.2d at
1190, while others require police officers to inform suspects who request a lawyer
that the right to counsel does not apply to their decision to submit to breath testing.
See Commonwealth, Dep’t of Transp. v. O’Connell, 521 Pa. 242, 555 A.2d 873
(1989).

Other states have not adopted the Confusion Doctrine. For example, in the
State of Washington, as long as the defendant is advised that his refusal will lead to
license suspension, the Confusion Doctrine does not apply. See State v. Staeheli, 102
Wash.2d 305, 685 P.2d 591 (1984). Illinois has likewise chosen not to adopt the
Confusion Doctrine because the wording of the Illinois implied-consent statute does
not require that a refusal to submit to a breath test be made with full knowledge of
the defendant’s rights and the possible consequences. People v. Mucha, 140
Ill.App.3d 788, 95 Ill.Dec. 42, 488 N.E.2d 1385 (1986). Similarly, Mississippi has
decided not to adopt the Confusion Doctrine because its implied consent statute does
not require a knowing refusal; confusion is immaterial as to the defendant’s rights
once implied consent is read. Sheppard v. Miss. State Highway Patrol, 693 So.2d
1326 (Miss. 1997).

Texas, likewise, has not adopted the Confusion Doctrine. In addressing a
similar argument in a criminal case, the Court of Criminal Appeals noted that

8
preventing the collection of a breath sample because a defendant has requested
counsel “would severely restrict police officers in the pursuit of lawfully collecting
evidence of intoxication and . . . would do nothing to further protect the privilege
against self-incrimination.” McCambridge v. State, 712 S.W.2d 499, 506 (Tex.
Crim. App. 1986). In McCambridge, the court addressed the question of whether
police are forbidden from seeking a suspect’s breath sample once the suspect has
invoked her right to counsel under Miranda. Id. The court held that, “A rule that
focuses on preventing collection of a breath sample, merely because a defendant has
been informed of his right to have counsel present if he is interrogated, would
severely restrict police officers in the pursuit of lawfully collecting evidence of
intoxication and, more significantly, do nothing to further protect the privilege
against self-incrimination.” Id. In finding McCambridge lacked a remedy under
Miranda, the court did not imply that a remedy would never be available to a suspect
who was confused when faced with Miranda warnings and a breath-testing decision
without the benefit of requested counsel. Id. at 507, n.18. The court explained,
however, that the Texas statutory warnings do not require a police officer to inform
a suspect that Miranda warnings do not apply to the breath-testing decision, and it
would be inappropriate for the court to expand the statutory warnings absent
legislative authority. Id.

As noted by the court in McCambridge, the implied-consent statute in Texas
does not require police officers to advise persons arrested for DWI that the rights to
counsel or to remain silent do not attach to their decision to submit to a breath test.
Tex. Transp. Code § 724.015. The implied-consent statute establishes a presumption
that those who have elected to enjoy the privilege of driving will, in turn, be required
to submit to chemical testing if they are suspected of driving under the influence.
The Confusion Doctrine is a judicially imposed rule that Texas has not adopted.

9
By reading the required statutory and Miranda warnings, the officers in this
case did all that was necessary under Texas law. Under the relevant statutes, police
officers are not required to inform arrested persons that having an attorney present
is not an option in deciding whether to submit to a breath test, even where a
defendant becomes confused after being told that one has a right to an attorney but
is at the same time not allowed access to one. Fecci, 989 S.W.2d at 140 n.1. As the
Court of Criminal Appeals recognized, the legislature is free to enlarge the statutory
warnings and require police officers to inform a suspect that Miranda warnings do
not apply to the breath-testing decision, but it would be inappropriate for this court
to expand the statutory warnings absent legislative authority. See McCambridge, 712
S.W.3d at 507, n.18. We sustain DPS’s first issue.2

CONCLUSION

The judgment of the county court is reversed, and judgment is rendered that
the order of the administrative court is reinstated.

/s/ Jerry Zimmerer
Justice

Panel consists of Chief Justice Christopher and Justices Zimmerer and Wilson.

2
Having sustained DPS’s first issue we need not address its second and third issues.

10