Summary 2014 WY 46

Summary of Decision April 9, 2014

Justice Davis delivered the opinion of the Court. Reversed.

Case Name: SAMUEL P. SNELL v. THE STATE OF WYOMING

Docket Number: S-13-0164

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

Appeal from the District Court of Campbell County, the Honorable Thomas W. Rumpke, Judge

Representing Appellant: Office of the State Public Defender: Diane Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; Diane E. Courselle, Director, and Grant Smith of the Defender Aid Program, University of Wyoming College of Law. Argument by Mr. Smith.

Representing Appellee: Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Jeffrey Pope, Assistant Attorney General; Caitlin Young, Assistant Attorney General. Argument by Ms. Young.

Date of Decision: April 9, 2014

Facts: Appellant Samuel P. Snell was arrested and charged with driving while under the influence of alcohol. He filed a motion to suppress the results of his blood alcohol concentration (BAC) test, claiming that the affidavit supporting the search warrant authorizing his blood to be taken for testing failed to demonstrate probable cause. The motion was denied, and Appellant was subsequently convicted by a jury of driving with a BAC of at least 0.08% for a fourth or subsequent time in ten years, a felony. He now challenges the district court’s denial of the motion to suppress as well as the sufficiency of the evidence to support his conviction.

Issue: Did the affidavit supporting the application for a warrant to draw Appellant’s blood contain sufficient information for a judicial officer to make an independent judgment that there was probable cause that Appellant had been driving while intoxicated?

Holdings/Conclusion: We find that the affidavit in support of the search warrant is deficient because it contains bare conclusions. Consequently, we must hold that the district court erred in denying Appellant’s motion to suppress the results of his BAC test. We reverse.

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 quotation, 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 2014 WY 13

Summary of Decision January 27, 2014

Justice Voigt delivered the opinion for the court. Affirmed.

Case Name: ROBERT OLAF ANDERSON v. THE STATE OF WYOMING

Docket Number: S-13-0019

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

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

Representing Appellant: Office of the State Public Defender: Diane M. Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; Kirk A. Morgan, Senior Assistant Appellate Counsel. Argument by Mr. Morgan.

Representing Appellee: Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Jeffrey S. Pope, Assistant Attorney General. Argument by Mr. Pope.

Date of Decision: January 27, 2014

Facts: A jury convicted the appellant of felony driving while under the influence of alcohol. He now challenges two rulings of the district court—one concerning discovery and one concerning the admissibility of evidence—and also alleges his trial counsel was ineffective.

Issues: 1. Did the district court abuse its discretion by denying in part the appellant’s pretrial Request for IntoxNet Database Pursuant to W.S. § 31-6-105(e) and Proof of Compliance with Statutory Predicate for Admission of a Chemical Test Result Under W.S. 31-6-105(a)? 2. Did plain error occur, in the form of a violation of the appellant’s constitutional right to confrontation, when the State’s expert witness testified as to the operation, maintenance, and accuracy of the breath alcohol test machine used in this case? 3. Was the appellant’s trial counsel ineffective in not calling an expert witness to testify as to the effect of diabetes on the results of a breath alcohol test?

Holdings: Finding no error, we affirm the appellant’s conviction for felony driving while under the influence of alcohol.

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 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 2012 WY 101

Summary of Decision July 25, 2012

Chief Justice Kite delivered the opinion for the Court. Affirmed.

Case Name: PATRICK R. ESPINOZA v. STATE OF WYOMING, ex rel., WYOMING DEPARTMENT OF TRANSPORTATION

Docket Number: S-11-0291

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, Wyoming.

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; Robin Sessions Cooley, Deputy Attorney General; Douglas J. Moench, Senior Assistant Attorney General; Kristin M. Nuss, Senior Assistant Attorney General.

Date of Decision: July 25, 2012

Facts: After stopping Patrick R. Espinosa for failing to maintain a single lane of travel while driving on Interstate 80 (I-80) in Laramie, Wyoming, an Albany County Sheriff’s deputy arrested Mr. Espinoza for driving while under the influence of alcohol. The Wyoming Department of Transportation (WYDOT) suspended Mr. Espinoza’s driver’s license, and he objected. At the contested case hearing, Mr. Espinoza claimed the deputy was not justified in stopping him. The Office of Administrative Hearings (OAH) upheld the suspension, and the district court affirmed. The Court concluded the deputy had probable cause to stop Mr. Espinoza for a traffic violation and affirmed.

Issues: The issue presented for the Court’s review was whether the evidence supported the conclusion that the deputy had probable cause to stop Mr. Espinoza for violating Wyo. Stat. Ann. § 31-5-209 (LexisNexis 2011), which requires vehicles be driven “as nearly as practicable entirely within a single lane” of traffic.

Holdings: Mr. Espinoza claimed the deputy’s report improperly stated that the lane violations occurred at milepost 312 when milepost 312 is actually further down the highway. The deputy’s report stated: “I noted that in the 312 milepost, the pickup went across the centerline then drifted back across the right lane and across the fog line before regaining a single lane of travel.” The Court did not read the deputy’s report as stating that the violations occurred precisely at milepost 312. There is obviously a typographical error when it states “in the 312 milepost.” The lane breaches occurred within close proximity milepost 312, and a reasonable interpretation of the report is that the deputy was simply referencing the nearby milepost. Moreover, the lane violations are shown on the DVD, so the fact that the deputy may have made a slight mistake in locating them was largely irrelevant. The Court concluded that the record contained substantial evidence that the deputy had probable cause to stop Mr. Espinoza for failing to maintain his lane of travel in violation of § 31-5-209. Affirmed.

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 2012 WY 65

Summary of Decision May 9, 2012


[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]

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

Case Name: RICKY D. MILLER and CHRISTOPHER L. GONZALEZ v. WYOMING DEPARTMENT OF HEALTH, TOM FORSLUND, Director, TOM JOHNSON, Chemical Testing Supervisor, JAMES L. MOORE, Laboratory Supervisor

Docket Number: S-11-0197

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=465570

Appeal from the District Court of Laramie County, the Honorable Michael K. Davis, Judge
Representing Appellant (Plaintiff/Defendant): Cole N. Sherard, Wheatland, WY.

Representing Appellee (Plaintiff/Defendant): Gregory A. Phillips, Wyoming Attorney General, and Robin Sessions Cooley, Deputy Attorney General.

Date of Decision: May 9, 2012

Facts: After being separately cited and arrested for driving while under the influence of alcohol (DWUI) in violation of Wyoming law, Ricky D. Miller and Christopher L. Gonzalez petitioned the district court for review of agency inaction by the Wyoming Department of Health (WDOH). Miller and Gonzalez requested that the district court require the WDOH to retroactively decertify the chemical test operators (hereinafter “officers”) who had performed chemical tests of Miller’s and Gonzalez’s breath to determine the quantity of alcohol in their respective bodies. On motion by the WDOH, Tom Forslund, in his official capacity as director, Tom Johnson in his official capacity as chemical testing laboratory manager, and James L. Moore, in his official capacity as laboratory supervisor (collectively referred to as “Department”), the district court dismissed the “Petition for Judicial Review” on the grounds that Miller and Gonzalez lacked standing to bring the action and that the matter is not ripe for review. Miller and Gonzalez challenged the order dismissing their petition.

Issues: Miller and Gonzalez presented two issues for consideration: Is the Appellants’ Petition for Judicial Review, challenging the WDOH failure to decertify the officers’ certification to perform chemical analysis ripe for review by this Court? Do the Appellants have standing to petition the district court to order the WDOH to decertify these officers for failing to comply with [its] own administrative rules and regulations for chemical testing?

Holdings: Miller and Gonzalez lacked standing to bring the action set forth in their “Petition for Judicial Review.” Affirmed.

Justice Hill delivered the opinion for the court.

Summary 2012 WY 33

Summary of Decision March 6, 2012

[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] 

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

Case Name:  Michaels v. State, ex. rel., Dept. of Transportation      

Citation:  2012 WY 33

Docket Number: S-11-0156

URL:  http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=465127

Appeal from the District Court of Big Horn County, The Honorable Steven R. Cranfill, Judge

Representing Appellant (Petitioner):  Donna D. Domonkos, Cheyenne, Wyoming.

Representing Appellee (Respondent):  Gregory A. Phillips, Wyoming Attorney General; Robin Sessions Cooley, Deputy Attorney General; Douglas J. Moench, Senior Assistant Attorney General; Donna A. Murray, Senior Assistant Attorney General.

Date of Decision: March 6, 2012

Facts:  Petitioner was arrested for driving while under the influence of alcohol in violation of Wyo. Stat. Ann. § 31-5-233(b) (LexisNexis 2009).  The Wyoming Department of Transportation (the State) notified him that it was suspending his driver’s license for ninety days.  Petitioner requested an administrative hearing.  After the hearing, the Office of Administrative Hearings (OAH) upheld the suspension. 

Petitioner appealed the suspension to the district court, which affirmed the OAH decision.  He then appealed to this Court, claiming § 31-5-233(b) prohibits drinking and driving, his condition at the time of his arrest was the result of a diabetic ketoacidosis state not the result of drinking alcohol, therefore, the State did not meet its burden of proving that probable cause existed to believe he violated the statute. 

Issues:  1) Whether the OAH decision is in accordance with the law and, if so, 2) whether it was supported by substantial evidence.

Holdings:  The Court held as a matter of law that § 31-5-233(b) was intended to apply when a person drives or is in actual control of a motor vehicle after consuming alcohol beyond the legal limit or to a degree rendering him incapable of safely driving.  Therefore, the OAH’s ruling that § 31-5-233(b) did not distinguish between alcohol concentration caused by consuming alcoholic beverages and alcohol concentration caused by some other factor is incorrect.  However, the Court also held that the State met its burden of proving that probable cause existed at the time of the arrest to believe that Petitioner  had violated § 31-5-233(b), and the Court affirmed  the OAH’s order upholding the suspension of his driver’s license.

C. J. Kite delivered the opinion for the court.

Summary 2011 WY 145

Summary of Decision October 20, 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: Orchard v. State of Wyoming, Department of Transportation

Citation: 2011 WY 145

Docket Number: S-11-0084

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=464647

Appeal from the District Court of Carbon County, Honorable Wade E. Waldrip, Judge

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

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

Date of Decision: October 20, 2011

Facts: Appellant was arrested for driving while under the influence of alcohol. As a result, the Wyoming Department of Transportation advised him that it was suspending his driver’s license pursuant to Wyo. Stat. 31-6-102. Appellant contested the suspension before the Office of Administrative Hearings (OAH), and the OAH upheld the suspension. He sought review in the district court, and the court affirmed the OAH’s order. Appellant challenges the district court’s order, contending that the police officer who arrested him lacked reasonable suspicion to initiate the traffic stop.

Issues: Whether the arresting officer presented sufficient facts within his Officer’s Signed Statement and certified record to support his claim that he received an anonymous REDDI report and observed sufficient facts while on routine traffic patrol that would allow him to make contact with the Licensee and ultimately arrest him for “driving while under the influence of alcohol” (DWUI).

Holdings: The Fourth Amendment to the United States Constitution protects persons from unreasonable searches and seizures. A routine traffic stop constitutes a seizure within the meaning of the Fourth Amendment even though the purpose of the stop is limited and the resulting detention quite brief. The decision to stop an automobile is justified when the officer has probable cause to believe a traffic violation has occurred or when the officer has a reasonable articulable suspicion that the particular motorist is engaged in criminal activity. An officer’s personal observation of a traffic violation provides probable cause to initiate a stop. An investigatory stop may be justified by reasonable suspicion where a police officer is able to point to specific and articulable facts which, taken together with rational inferences drawn from those facts, reasonably warrant that intrusion. Reasonable suspicion, like probable cause, is dependent upon both the content of information possessed by police and its degree of reliability.

In cases where reasonable suspicion originates from an anonymous informant’s tip to the police, the tip may provide reasonable suspicion for an investigatory stop if it carries sufficient indicia of reliability. Where an anonymous informant makes no prediction of future behavior indicating a special familiarity with the respondent’s affairs, the investigating officer is required to corroborate the tip in some other fashion, usually by observing either a traffic violation or driving indicative of impairment.

In the present case, the arresting officer’s narrative stated that, as he passed a vehicle matching the description in the REDDI report, he noticed that the vehicle drifted over the double yellow centerline. The officer further stated that he turned around to follow the vehicle, and then noticed that they did not activate their blinker when turning right into a gas station. The officer activated his emergency overhead lights and initiated a traffic stop of Appellant’s vehicle.

Appellant does not dispute that the officer’s observations, as presented in his narrative report, provide sufficient justification for a stop. He contends, however, that the officer did not see Appellant driving his vehicle. He argues that the video recordings of the traffic stop and the witness testimony indicate that the officer never saw a traffic violation and simply approached Appellant as he was gassing up his car for the next morning and his car happened to match a REDDI report.

The hearing examiner’s findings are supported by substantial evidence, and that those findings support a determination that the stop of Appellant’s vehicle was reasonable under either a reasonable suspicion or probable cause analysis. An observed violation of a traffic law, by itself, provides an officer with probable cause to initiate a traffic stop. Observation of traffic violations may also provide sufficient corroboration of a REDDI report to justify an intrusion based on reasonable suspicion that a motorist is driving while under the influence. The arresting officer’s signed statement indicated that he observed Appellant commit two traffic violations, and the statement was supported by the videos presented at the contested case hearing. In one of the recordings, Appellant can be heard asking the officer why he was stopped. This statement indicates that Appellant was indeed “stopped” by the officer, and it appears to contradict Appellant’s claim that he had been parked at the gas station for three to five minutes before being approached by the officer. Further, in response to Appellant’s inquiry as to why he was stopped, the officer stated that he stopped him for drifting over the centerline and failing to use his turn signal.

In addition, the testimony from the witness who was present when the arresting officer received the REDDI alert does not contradict any material fact set forth in the arresting officer’s narrative. Although the witness’s statements may create a dispute as to whether the officer received the report while he was “on routine patrol,” this alleged inconsistency in the officer’s narrative does not negate the possibility that the officer observed Appellant between the time that the officer left the restaurant and stopped Appellant at the gas station.

The Department of Transportation’s certified record, which included the arresting officer’s signed statement, constitutes relevant evidence that a reasonable mind might accept as adequate to support the determination that the arresting officer had probable cause or reasonable suspicion to initiate a traffic stop of Appellant’s vehicle.

Finally, Appellant contends that the arresting officer did not have probable cause to make an arrest. Appellant, however, did not raise this issue in the proceedings before the OAH. With the exception of certain jurisdictional or fundamental issues, the court will not consider issues raised for the first time on appeal. This rule is equally applicable to appeals from administrative decisions as to those from district courts. Appellant has made no argument and has offered no authority indicating that he presents a “jurisdictional” or “fundamental” issue.

Affirmed.



J. Burke delivered the opinion for the court.

Summary 2011 WY 17

Summary of Decision February 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: Wyoming Department of Transportation v. Potvin

Citation: 2011 WY 17

Docket Number: S-10-0125

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=461726

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

Representing Appellant (Reposndent): 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; and Jackson M. Engels, Assistant Attorney General.

Representing Appellee (Petitioner): Gerard R. Bosch and Mark J. Longfield, Law Offices of Jerry Bosch, Wilson, Wyoming.

Date of Decision: February 4, 2011

Facts: The Appellant challenges a district court order which reversed an order of an independent hearing examiner to the effect that Appellee was required to surrender his driver’s license because he refused to submit to a chemical test for the purpose of ascertaining if his blood alcohol/controlled substance content exceeds the statutory limit. The district court reversed the hearing examiner’s decision on the basis that WYDOT failed to present substantial evidence at the hearing to establish that the police officers had probable cause to believe that Appellee had been driving, or was in actual physical control, of a motor vehicle upon a public street or highway while under the influence of alcohol.

Issues: Whether there substantial evidence to support the hearing examiner’s finding that there was probable cause to arrest Appellee for driving while under the influence of alcohol.

Holdings: Given the entirety of the facts and circumstances called to the hearing examiner’s attention, there was substantial evidence to support his ultimate finding that the police had probable cause to contact Appellee and to question him about a hit and run accident and eventually to request that he voluntarily submit to a chemical breath or blood test, which he refused. Likewise, the record contains substantial evidence to support the hearing examiner’s findings that Appellee and his roommate were not credible witnesses. The hearing examiner’s conclusions were not arbitrary and capricious in light of the evidence presented.

The order of the district court must be reversed and determination made by the hearing examiner will be sustained. The matter is remanded to the district court with directions to the district court to further remand to the hearing examiner to accomplish this result.

J. Hill delivered the opinion for the court.

Summary 2011 WY 4

Summary of Decision January 19, 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: Robison v. State

Docket Number: S-10-0050

URL: http://tinyurl.com/4a3k9ku

Appeal from the District Court of Campbell County, Honorable John R. Perry, Judge

Representing Appellant (Defendant): Diane Lozano, State Public Defender; Tina N. Kerin, Appellate Counsel; and David E. Westling, Senior Assistant Appellate Counsel.

Representing Appellee (Plaintiff): Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Paul S. Rehurek, Senior Assistant Attorney General.

Date of Decision: January 19, 2011

Facts: Appellant’s arrest was facilitated by a Report Every Drunk Driver Immediately (REDDI) alert that was called into the police department by an employee of the a café and lounge. The report was to the effect that a very drunk patron had left that establishment after he was refused service. Police were provided a description of the vehicle Appellant was driving. That report was forwarded via dispatch to an officer who was near the lounge and arrived on the scene as Appellant was driving away in the vehicle described in the REDDI report. The officer stopped Appellant. He ascertained that Appellant did not have a driver’s license (it was suspended). He also ascertained that Appellant was intoxicated and he was placed under arrest for that reason. The officer did not observe Appellant driving in a manner that would have suggested he was an impaired driver. The stop and subsequent arrest was based solely on the REDDI report.

Appellant was found guilty, after a jury trial, of driving while under the influence of alcohol in violation of Wyo. Stat. 31-5-233(b)(ii)(A) (2007). He appeared before the district court on November 9, 2009, for a Sentencing Enhancement Hearing pursuant to Wyo. Stat. 31-5-233(e) (fourth or subsequent offense. He contends that the district court imposed an illegal sentence by considering a prior conviction that occurred outside the five-year time limit set by the governing statute. He also contends that trial counsel’s failure to file a motion to suppress evidence obtained in connection with an illegal traffic stop constituted ineffective assistance of counsel and denied him due process of law.

Issues: Whether the failure of Appellant’s trial counsel to file a motion to suppress evidence based upon an illegal traffic stop constituted ineffective assistance of counsel which denied him due process of law. Whether the trial court imposed an illegal sentence by considering a conviction outside of the five-year time limit delineated by Wyo. Stat. 31-5-233(e) as a fourth or subsequent conviction so as to sentence Appellant to a felony.

Holdings: Although an anonymous REDDI report requires independent police corroboration (see McChesney v. State, 988 P.2d 1071 (Wyo. 1999)), the tip in the present action was not anonymous. The police department received detailed information from a lounge employee, who was identified as such to dispatch. Moreover, the vehicle described in that report was observed within minutes, if not seconds, driving away from the lounge. The limitations on stops such as those described in McChesney are not at issue here. When reviewing a claim of ineffective assistance of counsel, the paramount determination is whether, in light of all the circumstances, trial counsel's acts or omissions were outside the wide range of professionally competent assistance. To warrant reversal on a claim of ineffective assistance of counsel, an appellant must demonstrate that his counsel failed to render such assistance as would have been offered by a reasonably competent attorney and that counsel's deficiency prejudiced the defense of the case. Defense counsel’s failure to file a motion to suppress, given the facts and circumstances detailed above, does not suggest that counsel was unaware of a potential defense for his client. Rather, it suggests counsel was aware of REDDI report jurisprudence and recognized that his client did not have such a potential defense. Appellant’s defense attorney was thus not ineffective.

It can be distilled from Wyo. Stat. 31-7-102(a)(xi) (2007) that the actual date of the unlawful conduct to be punished, where multiple offenses are being considered, may have nothing to do with determining the five-year period that applies. Appellant in the present action was arrested for driving under the influence, in the state of Missouri, on June 16, 2002. A waiver, plea and judgment were entered on May 22, 2003, but sentence was deferred until December 15, 2004, when Appellant’s probation was revoked. Hence the five-year counting period began on December 14, 2004. The next occurrences were two DUIs that were based on two different stops that both occurred on July 7, 2007. Judgment in those two cases was entered on November 1, 2007 (they constituted the second and third qualifying convictions). The fourth “conviction” occurred on October 5, 2009. Judgment of conviction for the fourth DUI charge occurred on November 12, 2009. The counting period for the earliest charge was December 14, 2004, until October 5, 2009, a period of less than five years. Had Appellant successfully fulfilled the terms of his probation for his Missouri offense, then he might not have been “convicted” as contemplated by 31-7-102(A)(xi). However, on December 15, 2004, Appellant’s probation was revoked and sentence was imposed. On that date he was burdened by a “conviction” for the 2002 DUI as the term “conviction” is contemplated by the Wyoming statute. Thus, the district court’s sentence did not constitute an illegal sentence or a sentence that was otherwise erroneous as a matter of law.

The sentence imposed by the district court is affirmed.

J. Hill delivered the opinion for the court.

Summary 2010 WY 40

Summary of Decision issued April 2, 2010

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

Case Name: Fuentes v. Jednat

Citation: 2010 WY 40

Docket Number: S-09-0009

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

Representing Appellant Fuentes: William R. Fix and Jenna V. Manraccia of William R. Fix, PC, Jackson, Wyoming.

Representing Appellee: Katherine L. Mead and Bradford S. Mead of Mead & Mead, Jackson, Wyoming for Margred and Paul Jednat; and Laurence W. Stinson of Bonner Stinson, PC, Cody, Wyoming for James Lewis.

Facts/Discussion: While they were driving in downtown Jackson, Fuentes and her daughter were rear-ended by a drunk, eighteen-year-old Jonathan Jednat. Jonathan was living with his uncle James Lewis in Jackson and driving a car Lewis had given to Jonathan’s parents for Jonathan’s use.
Fuentes argued that her claim against Jonathan’s relatives was a new claim and not a renewal of the case against Jonathan. She relied upon a theory of negligent entrustment arguing that because it is a different kind of breach of the duty of reasonable care than is driving while under the influence, the damages claimed are different. The Jednats argued that since Fuentes and her daughter have recovered their damages once, they cannot recover again.
The Court rejected Fuentes’ position. In her action against Jonathan, she presented evidence on all of her injuries and her daughters’ injuries, and damages resulting from the accident. The jury determined those damages and returned a verdict in her favor. Fuentes failed to establish how the damages caused by the Jednats’ and Lewis’ alleged fault differed from the damages resulting from Jonathan’s fault. When a judgment includes a determination of the entirety of recoverable damages suffered by the plaintiff for an indivisible injury and provides for their recovery by the plaintiff against one or more of the defendants, payment of the full amount of recoverable damages constitutes a satisfaction of the plaintiff’s rights against all tortfeasors legally responsible for the plaintiff’s indivisible injury.

Conclusion: The Court found no genuine issue of material fact and the Jednats and Lewis were entitled to judgment as matter of law. Neither Fuentes nor her daughter has a claim against the Jednats or any other possible defendant in the case, including Lewis.

Affirmed.

J. Hill delivered the decision.

Link: http://tinyurl.com/yafphhz .

[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 using the Universal Citation format, please contact the Wyoming State Law Library.]

Summary 2009 WY 43

Summary of Decision issued March 25, 2009

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

Case Name: Colyer v. State, Dep’t of Transportation

Citation: 2009 WY 43

Docket Number: S-08-0183

Appeal from the District Court of Fremont County, the Honorable Norman E. Young, Judge.

Representing Appellant Colyer: Vance Countryman, PC, Lander, Wyoming.

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

Facts/Discussion: Colyer’s driver’s license was suspended because he refused to submit to a chemical test of his blood alcohol content after a traffic stop. That suspension was affirmed after a contested case hearing and again after a petition for review was filed in the district court. The focal issue is whether the arrest was unlawful, which, if so, would negate the Appellant’s statutorily implied consent to chemical testing and would require reversal of the driver’s license suspension. The Court stated the dispositive issue was whether Colyer’s detention by a Bureau of Indian Affairs (BIA) officer on the Wind River Indian Reservation rendered unlawful the otherwise lawful arrest of him by a Fremont County deputy sheriff.

Colyer relied almost exclusively on Marshall v. State ex rel. DOT and United States v. Atwell. The State relied primarily upon Pogue v. Allison and United States v. Santiago.
The hearing examiner concluded that the BIA officer’s detention was not unlawful stating that he had jurisdiction to stop the vehicle and once he determined that Colyer was not Native American had the authority to detain him until the Sheriff’s Deputy arrived to take custody. Jurisdiction for the detention of Colyer was conferred on the BIA officer by the deputy sheriffs while on route to the scene and because the BIA officer had reasonable cause to believe a crime was occurring and that it involved an immediate threat of serious bodily injury or death. The Court was not comfortable with the hearing officer’s legal analysis stating that the “peace officer” to which reference is made in § 7-2-101 on its face does not include BIA officers, the incident did not involve extraterritorial authority because neither officer left his respective territorial jurisdiction and the reasoning of Santiago did not apply.
The Court noted this was not a unique question. It reviewed cases from courts around the country noting the decision in Oliphant v. Suquamish Indian Tribe where the United State Supreme Court detailed the history of the congressional presumption that Indian tribes did not have criminal jurisdiction over non-Indians on reservations and then stated that the tribes are to promptly deliver up any non-Indian offender rather than try and punish him themselves. In Duro v. Reina, the United States Supreme Court stated that tribal officers may exercise their power to detain the offender and transport him to the proper authorities. Viewing the facts of the instant case in the context above, the Court concluded that nothing occurred in the detention of Colyer to render his arrest unlawful.

Conclusion: Colyer was lawfully detained by the BIA officer pending his lawful arrest by the deputy sheriff. The State proved by a preponderance of the evidence the statutory elements required for the suspension of Colyers’ driver’s license due to his refusal to submit to a chemical test of his blood alcohol content.

Affirmed.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/d78vk7 .

[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 148

Summary of Decision issued December 15, 2008

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

Case Name: State, DOT v. Robbins

Citation: 2008 WY 148

Docket Number: S-08-0077

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

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

Representing Appellee Robbins: Mike Cornia, Evanston, Wyoming.

Facts/Discussion: Robbins initiated this declaratory judgment action to challenge the constitutionality of the statutes under which the Wyoming DOT disqualified him from operating commercial motor vehicles. Rather than deciding the constitutional question, the district court ruled that the DOT lacked authority to disqualify Robbins because he had not been convicted of any crime relating to driving while under the influence of alcohol. On this basis, the district court ruled that the DOT lacked subject matter jurisdiction, and in turn, the district court lacked jurisdiction to consider the declaratory judgment action.

The district court’s decision hinged upon the statutory provision that any person is disqualified from driving a commercial motor vehicle for a period of not less than one year if convicted of driving or in actual physical control of a commercial motor vehicle while the alcohol concentration of the person’s blood, breath or other bodily substance is o.o4%.

The DOT’s authority to disqualify Robbins from operating commercial motor vehicles is found in the statutes. The DOT had subject matter jurisdiction to decide the disqualification case. The statutes also provide the district court with subject matter jurisdiction over Robbins’ declaratory judgment action. Even though Robbins dismissed his petition for judicial review of the DOT’s decision, he may still challenge the constitutionality of the underlying statutes through a declaratory judgment action.

Holding: Even though Robbins dismissed his petition for judicial review of the DOT’s decision, he may still challenge the constitutionality of the underlying statutes through a declaratory judgment action. The Court reversed the district court’s decision that it lacked subject matter jurisdiction. The Court remanded the case to the district court to consider Robbins’ declaratory action challenging the constitutionality of the statutes under which the DOT disqualified him from driving commercial vehicles.

Reversed and remanded.

J. Burke delivered the decision.

Link: http://tinyurl.com/5lvao4 .

[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 73

Summary of Decision issued June 26, 2008

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

Case Name: Johnson v. City of Laramie

Citation: 2008 WY 73

Docket Number: S-07-0093

Petition for Writ of Review from the District Court of Albany County, the Jeffrey A. Donnell, Judge.

Representing Appellant: R. Michael Vang of Brown & Hiser, LLC, Laramie, Wyoming.

Representing Appellee: Ashley Castor, Assistant City Attorney, Laramie City Attorney’s Office.

Facts/Discussion: Johnson was arrested for driving under the influence. He filed a motion to suppress on the grounds that the breath analysis instrument was not in compliance with the Wyoming Chemical Testing Program’s rules and regulations. He argued that annually meant once every 365 days. The prosecution maintained that annually meant once per calendar year. Johnson entered a conditional guilty plea reserving the right to appeal the municipal court’s ruling on his motion to suppress.
The Court questioned the wisdom of accepting a conditional guilty plea in this instance because a conviction potentially could have been obtained using other existing evidence. The Court has stated that a trial court should only approve a conditional appeal if assured that the decision of the appellate court will dispose of the case.
A year is statutorily defined by the Wyoming legislature as “a calendar year.” Had the authors of the Wyoming Testing Program’s rules and regulations not wanted to follow the existing statutory definition, they easily could have specified that testing occur at least once every 365 days.

Holding: The Court found the term “annually” as used in the Wyoming Chemical Testing Program’s rules and regulations is unambiguous. It refers to once every calendar year.

Affirmed.

J. Golden delivered the decision.

Link: http://tinyurl.com/5ukhos .

[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 144

Summary of Decision issued September 17, 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: Seteren v. State

Citation: 2007 WY 144

Docket Number: 06-199

Appeal from the District Court of Sheridan County, the Honorable John C. Brackley, Judge

Representing Appellant (Defendant): D. Terry Rogers, Interim State Public Defender; Donna D. Domonkos, Appellate Counsel.

Representing Appellee (Plaintiff): Patrick J. Crank, Attorney General; Terry L. Armitage, Deputy Attorney General; and D. Michael Pauling, Senior Assistant Attorney General.

Issues: Whether the district court erred in sentencing Appellant for the felony of having four DUI convictions within five years, given that the earliest of those convictions occurred on May 24, 2001 and that he entered a guilty plea to the most recent charge on April 18, 2006. Whether Appellant was denied his constitutional right to a speedy trial under the facts of this case.

Facts/Discussion: Appellant entered a guilty plea to felony level driving under the influence of alcohol. Wyo. Stat. Ann § 31-5-233 (b)(i) and (e). The facts are not contested.
Standard of Review: The Court deemed the language of the governing statute to be plain and unambiguous. The standard of review for constitutional questions is de novo. The Court applies the same facts to the same standards as did the district court.
The Five-Year Period: The Court stated that based on Appellant’s testimony and the materials in the record on appeal, appellant was convicted of DUI four times in the course of five years and he was properly sentenced for that crime. The Court noted the Legislature might wish to consider altering the focus of the statute so that the crime would be complete once a fourth conviction was achieved so long as all four incidents of conduct occurred within a five-year period.
Speedy Trial: Appellant conceded that Wyoming’s speedy trial rule was not violated by the circumstances of the case. The Court must also apply the four-part test articulated in Barker v. Wingo including: the length of the delay; the reason for the delay; the defendant’s assertion of the right; and the prejudice to the defendant. The speedy trial clock begins to run upon arrest or when charges are filed. The speedy trial guarantee is no longer applicable once charges are dismissed. The speedy trial clock resumes running when a second charge is filed that is closely related to the first charge. The Court reviewed the record and stated the delay was not extraordinary and it appeared Appellant acquiesced in the delay until he thought the speedy trial clock had run. The reasons appeared to be the trial court’s crowded docket combined with some inattention to speedy trial concerns.

Holding: The district court did not err in sentencing Appellant as it did because he had been convicted of DUI four times in the previous five years. Appellant’s constitutional rights to a speedy trial were not violated. The judgment and sentence of the district court are affirmed.

Affirmed.

J. Hill delivered the decision.

Link: http://tinyurl.com/34tb96 .