Summary 2011 WY 20

Summary of Decision February 9, 2011

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Case Name: Hwang v. State (Department of Transportation)

Citation: 2011 WY 20

Docket Number: S-10-0120

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=461740

Appeal from the District Court of Albany County, Honorable Jeffrey A. Donnell, Judge

Representing Appellant (Plaintiff): R. Michael Vang, Fleener & Vang, Laramie, Wyoming.

Representing Appellee (Defendant): Bruce A. Salzburg, Attorney General; Robin Sessions Cooley, Deputy Attorney General; Douglas J. Moench, Senior Assistant Attorney General; John S. Shumway.


Date of Decision: February 9, 2011

Facts: Appellant challenges an order of the district court, affirming an order from the Office of Administrative Hearings (OAH) upholding the suspension of his driver’s license. He contends that the police officer who administered his breath test failed to comply with the fifteen-minute observation period required under the Wyoming Department of Health, Rules and Regulations for Chemical Analysis for Alcohol Testing, ch. III, § 1(a)(i) (2004).

Issues: Whether the arresting officer presented sufficient facts to find that the Appellant violated the elements of Wyoming’s Implied Consent law, specifically that the officer presented sufficient “admissible” evidence to support that he complied with the 15 minute observation period for admission of a chemical test pursuant to Wyoming Statute § 31-6-105(a).

Holdings: The hearing examiner’s decision is supported by substantial evidence. The Operational Checklist, which was prepared contemporaneously with the breath test, showed that Appellant was observed for the eighteen-minute period that elapsed between 12:33 a.m., when the officer checked his mouth, and 12:51 a.m., when his first breath sample was taken. This evidence was corroborated by the Intoximeter printout, and by the officer’s offense report and testimony. Further, the hearing examiner’s finding that the officer’s testimony was more credible than Appellant’s testimony and proffered cell phone records is reasonable in light of Appellant’s level of intoxication during the observation period. There is relevant evidence which a reasonable mind might accept in support of the agency’s conclusions. Thus, the record contains substantial evidence to support the hearing examiner’s conclusion that the officer observed Appellant for fifteen minutes prior to taking a breath sample.

Appellant also argues that he should be allowed to supplement the record with certified copies of his phone records and the live testimony of his employer or, alternatively, that the case should be remanded so that he can provide this evidence to the OAH. However, there is no merit in this argument. Appellant has not applied to this Court for leave to present additional evidence pursuant to W.R.A.P. 12.08. In addition, Appellant has failed to show good cause why he did not present the evidence in his contested case hearing. Appellant had the opportunity to present his evidence when the case was before the hearing examiner, and his failure to do so does not warrant the consideration of additional evidence on appeal.

Affirmed.

J. Burke delivered the opinion for the court.