Summary 2010 WY 119

Summary of Decision issued August 19, 2010

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

Case Name: Schouboe v. Wyo. Dept. of Trans.

Citation: 2010 WY 119

Docket Number: S-09-0190

Appeal from the District Court of Teton County, the Honorable Nancy J. Guthrie, Judge.

Representing Schouboe: Gerard R. Bosch and Mark J. Longfield, of Law Offices of Jerry Bosch, LLC, Wilson, Wyoming.

Representing State DOT: Bruce A. Salzburg, Wyoming Attorney General; Robin Sessions Cooley, Deputy Attorney General; Douglas J. Moench, Senior Assistant Attorney General; and Kenneth J. Miller, Assistant Attorney General.

Facts/Discussion: Schouboe appealed a hearing examiner’s order upholding his implied consent suspension. Schouboe contended that WYDOT did not prove he was in actual physical control of his vehicle. Schouboe was found asleep in his truck, with the keys on his console, stopped in the middle of a county road. He was arrested for DUI and after transport to Sublette County Detention Center, refused chemical testing.
Schouboe’s argument could be narrowed down to whether the hearing examiner’s conclusion that Schouboe was in actual physical control of his vehicle was based on substantial evidence. Schouboe contended it was improper for WYDOT to rely solely upon the certified administrative record to sustain its burden. The Court stated that using the certified record to prosecute administrative suspensions is a valid method still used by agencies and approved by the Court in Drake v. State. Unlike Arkansas, the Court has not adopted a bright-line rule that actual physical control begins when the keys are located in the ignition.

Conclusion: The facts were that Schouboe was parked in the middle of a county road, seated in the driver’s seat, and slumped over the steering wheel with the keys on the console. The Court concluded the hearing examiner had substantial evidence to conclude that Schouboe was in actual physical control of his vehicle.

Affirmed.

J. Hill delivered the decision.

Link: http://tinyurl.com/252uzb2 .

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