317 P.3d 1142
Wyo.2014Background
- On Sept. 8–9, 2009, McCallie drove a commercial vehicle to an Evanston, WY port of entry; a port worker smelled alcohol and McCallie agreed to portable breath tests that read 0.12% and 0.06% (pre-trooper).
- A state trooper arrived, smelled a moderate odor of alcohol, noted normal speech but poor balance, and obtained a portable breath test of 0.05%.
- Trooper administered field sobriety tests (HGN, walk-and-turn, one-leg stand) and then arrested McCallie; Intoximeter results were 0.043% and 0.04%.
- DOT received the trooper’s signed statement and disqualified McCallie’s commercial driver’s license for one year under WY statute prohibiting driving a commercial vehicle at ≥ 0.04% BAC.
- McCallie contested the administrative hearing; the hearing examiner upheld the disqualification, the district court affirmed, and McCallie appealed to the Wyoming Supreme Court.
Issues
| Issue | McCallie’s Argument | DOT’s Argument | Held |
|---|---|---|---|
| Whether trooper had probable cause to arrest | Trooper lacked probable cause: observations minimal (moderate odor, normal speech, poor balance); FSTs flawed and unscored; alternative explanations (mouthwash, caffeine, uneven surface, boots) | Totality of circumstances (port worker report, odor, poor balance, admission of drinking, PBT and FST results) provided probable cause | Probable cause supported by substantial evidence; arrest valid |
| Whether license disqualification under §31-7-305(a)(ii) was supported | BAC readings caused by medicated mouthwash, not drinking; examiner’s findings contained inaccuracies | Multiple tests showed BAC at or above 0.04% and McCallie admitted driving the commercial vehicle; examiner properly disqualified | Disqualification upheld; substantial evidence supports that McCallie drove with BAC ≥ 0.04% |
Key Cases Cited
- Bradshaw v. Wyoming Dep’t of Transportation, 135 P.3d 612 (Wyo. 2006) (facts showing staggering gait, slurred speech, smell of alcohol and admissions supported probable cause)
- Batten v. Wyoming Dep’t of Transportation, 170 P.3d 1236 (Wyo. 2007) (substantial evidence standard and acceptance of field sobriety tests in probable cause analysis)
- Keehn v. Town of Torrington, 834 P.2d 112 (Wyo. 1992) (probable cause defined under totality of circumstances)
- Kimsey v. Wyoming Dep’t of Transportation, 39 P.3d 425 (Wyo. 2002) (totality-of-circumstances approach to probable cause review)