Thursday, May 31, 2007

Summary 2007 WY 90

Summary of Decision issued May 30, 2007

[SPECIAL NOTE: This opinion uses "Universal Citation" and was given an "official" citation when issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will note that all of the paragraphs are numbered. When you need to provide a pinpoint citation, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion should include the reporter page number. If you need assistance, please contact the Wyoming State Law Library.]

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Peterson v. Wyoming DOT, Drivers’ License Division

Citation: 2007 WY 90

Docket Number: 06-209

Appeal from the District Court of Uinta County, the Honorable Dennis L. Sanderson, Judge

Representing Appellant (Petitioner): Mike Cornia, Evanston, Wyoming.

Representing Appellee (Respondent): Patrick J. Crank, Attorney General; Robin Sessions Cooley, Deputy Assistant Attorney General; Douglas J. Moench, Senior Assistant Attorney General.

Issue: Whether the hearing examiner acted arbitrarily and capriciously in considering the breath test results.

Facts/Discussion: After being arrested for driving under the influence, the Wyoming DOT notified Peterson that his driver’s license would be suspended. Peterson requested and received a contested case hearing before the OAH who upheld the suspension. The district court also upheld the suspension.
Standard of Review:
The Court reviewed the case as if it came directly from the administrative agency. Where both parties present evidence, the Court reviews the entire record to determine if the agency findings are supported by substantial evidence.
Peterson contended that because he was not strictly observed for fifteen minutes prior to having his breath analyzed for alcohol content, the hearing examiner should have excluded the breathalyzer test conducted at the police station. Wyo. Stat. Ann. § 31-6-105(a) sets forth the exclusive means and the mandatory procedure for determining an arrested suspect’s blood alcohol level. The Department of Health Rules and Regulations provides the subject must be observed for a minimum of fifteen minutes prior to testing to prevent residual mouth alcohol. The record showed that in compliance with the rule, the officer began observing Peterson at 1:25 am and continued to do so until at least 1:40 am. Because the first breath test occurred at 1:45 am, twenty minutes after the observation period began, Peterson contended he was not observed in accordance with the rules. The Court stated the record on appeal sufficiently established that Peterson was observed for the required amount of time. The machine was turned on, calibrated and relevant information entered between 1:39 and 1:45 am. The record did not indicate that the officer did not continue to observe Peterson while readying the machine. The Court noted that compliance does not require the officer to stare fixedly on the test subject.
The Court declined to adopt a strict compliance policy with the rules governing the administration of alcohol tests. Compliance is a question of fact to be decided under the circumstances of each case. The State’s prima facie showing of compliance with the regulation was sufficient.

Holding: The Court concluded that substantial evidence supported the hearing officer’s conclusion that the five minutes in question were allowable to prepare the machine and that the proposed suspension should be upheld.


J. Hill delivered the decision.

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