Summary 2012 WY 146

Summary of Decision November 20, 2012

Justice Hill delivered the opinion for the Court. Affirmed.

Case Name: TODD L. ROMSA v. STATE OF WYOMING, ex rel., WYOMING DEPARTMENT OF TRANSPORTATION.

Docket Number: S-12-0005

URL: http://www.courts.state.wy.us/Opinions.aspx

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

Representing Appellant: R. Michael Vang of Fleener & Vang, LLC, Laramie, WY.

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; Robin Sessions Cooley, Deputy Attorney General; Douglas J. Moench, Senior Assistant Attorney General; and Michael T. Kahler, Senior Assistant Attorney General.

Date of Decision: November 20, 2012

Facts: After being arrested for driving while under the influence (DWUI) in violation of Wyo. Stat. Ann. § 31-5-233(b) (LexisNexis 2011), Todd L. Romsa submitted a request for contested case hearing before the Office of Administrative Hearings (OAH). Romsa asked the OAH to rule that the procedure used by the arresting officer to conduct the chemical breath test upon which his arrest was based did not comply with Wyo. Stat. Ann. § 31-6-105(a) (LexisNexis 2011) and, therefore, the proposed suspension of his driver’s license must be vacated. The OAH hearing examiner issued an Order Upholding Per Se Suspension on June 9, 2011. Romsa petitioned the district court to review the order of the OAH and on November 11, 2011, that court affirmed the OAH’s order. Romsa appealed the order of the district court.

Issues: Romsa presents two issues for our consideration:

I. It is improper for OAH to apply a presumption that the underlying chemical test result is valid where the certified record establishes a failure to comply with Wyoming Statute § 31-6-105(a).

II. If OAH is allowed to apply the presumption that a chemical test is valid, then [Romsa] should be allowed under Rule 12.08 of the Wyoming Rules of Appellate Procedure to provide evidence to rebut the arresting officer’s claims that he complied with Wyoming Statute § 31-6-105(a), where this evidence was not available to [Romsa] at the time of his implied consent administrative proceeding.

Holdings: The Court found that the certified record presented by the WYDOT at the administrative hearing established that the arresting officer performed the chemical analysis of Romsa’s breath “according to the methods approved by the department of health,” (specifically, Rules and Regulations for Chemical Analysis for Alcohol Testing, Ch. III, § 1(a)(i)), and as a result, it was proper for the OAH to apply a presumption that the underlying chemical test result was valid. § 31-6-105(a); Special Rules Relating to Driver’s Licenses, Ch. VI § 2(c).

Romsa did not present any evidence at the administrative hearing to rebut the presumption that the breath test results were accurate (Special Rules Relating to Driver’s Licenses, Ch. VI, § 2 (c)), and failed to meet the requirements of W.R.A.P. 12.08 that would allow this Court to “order the additional evidence to be taken before the agency.” Consequently, the Court affirmed the district court’s Order Affirming Per Se Suspension and affirmed the Order Upholding Per Se Suspension by the Office of Administrative Hearings.

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

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

Summary 2011 WY 20

Summary of Decision February 9, 2011

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it is issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

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

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.

Summary 2011 WY 1

Summary of Decision January 4, 2011

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it is issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

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

Case Name: Bowen v. Wyo. Dep’t of Transp.

Citation: 2011 WY 1

Docket Number: S-10-0063

URL: http://tinyurl.com/22p97rn

Appeal from the District Court of Goshen County, The Honorable Keith G. Kautz, Judge

Representing Appellant (Petitioner): James A. Eddington of Jones & Eddington Law Offices, Torrington, Wyoming.

Representing Appellee (Respondent): Bruce A. Salzburg, Wyoming Attorney General; Robin Sessions Cooley, Deputy Attorney General; Douglas J. Moench, Senior Assistant Attorney General; Jackson M. Engels, Assistant Attorney General.

Date of Decision: January 4, 2011

Facts: Appellant’s drunken driving resulted in both a criminal prosecution for driving while under the influence of alcohol in violation of Wyo. Stat. Ann. § 31-5-233(b) (LexisNexis 2007), and an administrative license suspension proceeding, as mandated by Wyo. Stat. Ann. § 31-6-102 (LexisNexis 2007). In the criminal case, the appellant moved to suppress the breathalyzer evidence, alleging that the trooper performing the test was not properly trained on the device used to administer it. (The trooper used an updated version of the breathalyzer device.) The appellant’s motion was heard and denied by a decision letter dated April, 2009. The appellant entered a conditional guilty plea and Judgment and Sentence was entered in June of 2009. At the OAH contested case hearing, the appellant took the same position he had taken in the criminal case: the trooper was not properly trained on the breathalyzer device and thus the suspension was improper. Relying upon the circuit court’s previous finding in the criminal case that the trooper was properly certified to operate the device, the OAH upheld the suspension in their May, 2009 decision. The appellant sought review of both the OAH decision and the Judgment and Sentence in the criminal matter. After briefing by both parties, the district court entered its decision and order on appeal affirming the decisions in both the criminal and administrative proceedings.

Issues: Whether the appellant was collaterally estopped from relitigating the question of the admissibility of his breath test results in his administrative license suspension hearing after the circuit court had already decided that issue against him in a criminal proceeding.

Holdings: Only the administrative appeal was before the Court for review. The OAH’s determination was affirmed. The issue raised in the appeal was one of first impression for the Court. The Court was unable to find authority from any other jurisdiction addressing the particular factual scenario. Nevertheless, the Court found the application of collateral estoppel to these facts to be clear and straightforward: 1) the issue was identical in both proceedings: whether the trooper was properly trained to perform the breath test using the EC/IR II making the breath-test results admissible; 2) the circuit court’s determination that the trooper was properly trained and that the breath test was admissible was a final determination of that issue; 3) the appellant, the party against whom collateral estoppel was asserted, was a party to both proceedings; 4) finally, the prior criminal case afforded the appellant a full and fair opportunity to litigate the issue. Noting the limited nature of their decision in this matter, the Court concluded that the doctrine of collateral estoppel precluded the appellant from relitigating the question of whether his breath test results were legally obtained.

J. Voigt delivered the opinion for the court.

Summary 2009 WY 137

Summary of Decision issued November 10, 2009

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

Case Name: Faber v. State, DOT

Citation: 2009 WY 137

Docket Number: S-09-0099

Appeal from the District Court of Sublette County, the Honorable Marvin L. Tyler, Judge.

Representing Appellant Faber: Elizabeth Greenwood and Inga L. Parsons of Pinedale, Wyoming.

Representing Appellee State: Bruce A. Salzburg, Wyoming Attorney General; Robin Sessions Cooley, Deputy Attorney General; Douglas J. Moench, Senior Assistant Attorney General; Michael T. Kahler, Assistant Attorney General.

Facts/Discussion: Faber appealed from the district court’s Order Affirming Agency Order Upholding Implied Consent Suspension and Associate Agency Order Upholding Commercial Disqualification.
In reviewing findings of fact, the Court examines the entire record to determine whether there is substantial evidence to support the agency’s findings. In the instant case, the Court stated there was substantial evidence in the form of eye-witness testimony of Faber’s refusal to provide a breath sample for chemical analysis. In addition, Faber did not testify at the contested case hearing and he did not cite to cases or statutes supporting his contentions.

Conclusion: Substantial evidence supported the Hearing Examiner’s finding that the petitioner intentionally failed to provide the breath samples necessary for the breath test requested by the booking officer. Such intentional failure constituted a refusal to take the breath test, which refusal led to the statutory implied consent suspension of the petitioner’s driving privileges and the additional statutory disqualification from driving a commercial motor vehicle. The officer was not required to offer a blood or urine test.

Affirmed.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/yh5ju75 .

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

Summary 2008 WY 91

Summary of Decision issued August 1, 2008

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

Case Name: In re Hittner

Citation: 2008 WY 91

Docket Number: S-07-0262

Appeal from the District Court of Laramie County, the Honorable Nicholas G. Kalokathis, Judge.

Representing Appellant: Frank R. Chapman and Tamara K. Schroeder of Chapman Valdez, Casper, Wyoming.

Representing Appellee: Bruce A. Salzburg, Attorney General; and Robin Sessions Cooley; Deputy Attorney General.

Facts/Discussion: Hittner sought review of an order of the district court which affirmed orders of the Office of Administrative Hearings upholding the “implied consent” suspension of Hittner’s driver’s license and upholding Hittner’s commercial vehicle disqualification as imposed by the WYDOT.
Duty to Inform: Hittner’s claim that the arresting officer failed to inform him he had no right to consult with an attorney before taking the breath test was contradicted by his testimony at the administrative hearing where he stated he was told that he could not contact an attorney.
Refusal of Test: Hittner claimed he did not refuse the second breath test; he was physically unable to do what was required because of ill health. Hittner’s argument contradicts the arresting offer’s view of the circumstances. The Court would not second guess the factual finding of the hearing officer that the officer’s evidence was more credible.

Holding: The Court held there was substantial evidence in the record to sustain a conclusion that Hittner was given complete implied consent advisements and that he was not misled in any way about what his rights were. The district court’s order affirming the hearing officer’s orders with respect to Hittner’s driver’s licenses was affirmed.

Affirmed.

J. Hill delivered the decision.

Link: http://tinyurl.com/63keql .

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

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.

Affirmed.

J. Hill delivered the decision.

Link: http://tinyurl.com/3yghaj .