KARA WALTERS, Aрpellant (Petitioner), v. STATE OF WYOMING ex rel. WYOMING DEPARTMENT OF TRANSPORTATION, Appellee (Respondent).
S-12-0213
IN THE SUPREME COURT, STATE OF WYOMING
May 13, 2013
2013 WY 59
APRIL TERM, A.D. 2013. Appeal from the District Court of Albany County, The Honorable Jeffrey A. Donnell, Judge.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be made before final publicatiоn in the permanent volume.
DAVIS, Justice.
[¶1] Appellant Kara Walters was charged with driving while under the influence (DWUI) in Laramie, Wyoming. The Wyoming Department of Transportation (WYDOT) suspended her driver‘s license, and she requested an evidentiary hearing before the Office of Administrative Hearings (OAH). An OAH hearing examiner upheld
ISSUES
[¶2] 1. Did the arresting officer properly advise Ms. Walters as to implied consent as required by
2. Does this Court have jurisdiction to consider challenges to a municipal ordinance that were not and could not have been raised in a license suspension hearing?
FACTS
[¶3] A City of Laramie police officer observеd Walters drive her vehicle through a flashing red light a little before one o‘clock in the morning on February 6, 2012, and made a traffic stop. When he approached the vehicle and spoke with her, he detected the odor of a flavored alcoholic beverage. He then administered field sobriety and nystagmus tests, and arrested Walters for DWUI based upon the results.
[¶4] Walters was then taken to the Albany County detention center where the arresting officer read her the standard implied consent advisement required by
[¶5]
[¶6] At the OAH hearing, Ms. Walters argued that she had not been properly advised as to implied consent. She conceded that the officer read the advisement required by
[¶7] The OAH hearing examiner rejected her argument, stating that:
The suspension of driving privileges is civil in nature and is controlled by Wyoming law. The evidence in this matter clearly established Officer Terry arrested Walters for DWUI, read Walters the implied consent advisement required under Wyoming law and Walters agreed to submit to a chemical test without the need to obtain a search wаrrant. Thus, the proposed suspension action should be upheld. The issues and argument raised by Walters’ counsel have no merit in this civil proceeding. The arguments may have some bearing in the underlying criminal action in the Laramie Municipal Court but that issue is not one this Office has authority to determine.
The hearing examiner upheld the suspension.
[¶8] In the district court, Ms. Walters argued that the suspension should be stayed pending a decision in three declaratory judgment actions. In those cases, counsel for Walters challenged other administrative suspensions relating to the Laramie ordinance. In the alternative, she challenged the Laramie ordinance on a number of other grounds, contending as follows:
- The arresting officer should have advised her of the аggravated offender provisions of the Laramie ordinance before asking her to submit to a chemical test (referring to the mandatory sentence of seven days for a BAC over 0.15% under the ordinance).
- The arresting officer‘s advisement concerning the effect of a refusal to submit a BAC test under the Laramie ordinance was improper and implicated her due process rights.
- The definition of “chemical test refusal” in the Laramie ordinance is overly broad and vague.
- The existence of a mandatory minimum jail sentence as a result of refusing a breath test creates a critical stage for purposes of the right to an attorney, and should have required that she be allowed an oрportunity to retain counsel before deciding whether to undergo chemical testing or not.
- A mandatory minimum jail sentence for refusing a chemical test results in double jeopardy.
- Walters was not properly advised on implied consent because she was told she could go to jail for refusing a chemical test but not that she could go to jail if she tested over 0.15% BAC.
- State law preempts the Laramie ordinance, which is in conflict with it.
[¶9] The district court did not stay the administrative suspension pending a decision in the declaratory judgment actions. It found that it only had jurisdiction to consider whether Walters was properly advised as to implied consent and declined to address the other issues, because that they must bе pursued in a criminal appeal or declaratory judgment action. The court affirmed the hearing examiner‘s conclusion that Ms. Walters was properly advised in accordance with Wyoming law. This appeal was timely perfected.
STANDARD OF REVIEW
[¶10] We review an administrative agency‘s decision “as if it had come directly to us from the administrative agency,” giving no deference to the district court‘s decision. Dale v. S & S Builders, LLC, 2008 WY 84, ¶ 8, 188 P.3d 554, 557 (Wyo. 2008) (quoting Newman v. State ex rel. Wyo. Workers’ Safety & Comp. Div., 2002 WY 91, ¶ 7, 49 P.3d 163, 166 (Wyo. 2002)). We review questions of statutory interpretation de novo, and affirm an agency‘s conclusions if they are in accordance with the law. Id. at ¶ 26, 188 P.3d at 561-62; Escarcega v. State ex rel. Wyo. Dep‘t of Transp., 2007 WY 38, ¶ 7, 153 P.3d 264, 267 (Wyo. 2007). We review an agency‘s findings of fact following a contested case hearing for substantial evidence.
DISCUSSION
Adequacy of Implied Consent Advisements.
[¶11] The scope of an OAH hearing on a driver‘s license suspension for DWUI is limited by statute to the following:
(b) The scope of a hearing for the purposes of this act shall cover the issues of whether a peace officer had probable cause to believe the arrested person had been driving or was in actual physical control of a motor vehicle upon a public street or highway in this state in violation of W.S. 31-5-233(b) or any other law prohibiting driving under the influence as defined by W.S. 31-5-233(a)(v), whether the person was placed under arrest, or if a test was administered, whether the test results indicated that the person had an alcohol concentration of eight one-hundredths of one percent (0.08%) or more, and whether, except for the persons described in this act who are incapable of cooperating with the administration of the test, he had been given the advisements required by W.S. 31-6-102(a)(ii).
[¶12] Ms. Walters contends that she was not given proper implied consent advisements. She asserts that she was “threatened” by the advisements regarding possible jail time under the city ordinance, and that her BAC results were therefore inadmissible for purposes of her driver‘s license suspension. We have recognized that breath test results may be suppressed in driver‘s license suspension proceedings if an individual is “tricked or misled” with respect to his or her implied consent advisements. In re Hittner, 2008 WY 91, ¶ 12, 189 P.3d 872, 876 (Wyo. 2008) (quoting Nesius v. State Dep‘t of Revenue & Taxation, 791 P.2d 939, 943–44 (Wyo. 1990)). However, “[w]here an officer informs a suspect that the officer intends to do something that the offiсer is legally authorized to do under the circumstances, such conduct does not amount to coercion.” State v. LeClercq, 243 P.3d 1093, 1099 (Idaho Ct. App. 2010).
[¶13] The arresting officer read Ms. Walters the implied consent advisements required by
[¶14] Walters also argues that the advisement given by the arresting officer was misleading because she was not told that she faced the same minimum mandatory jail sentence if she had a BAC оver 0.15% as she did if she refused the chemical test. A conviction for DWUI may have many consequences. At the time of Walters’ arrest, the maximum penalty for driving while under the influence under state law ranged from six months in jail up to two years in prison depending on how many prior convictions an individual has.
[¶15] On the administrative side, use of expensive interlock devices may be required for periods ranging from one year to life in the case of repeat offenders.
[¶16] As to practical consequences, individuals convicted of DWUI may lose their jobs because their employers’ insurance carriers will no longer insure company vehicles if they operate them. Private insurance costs will almost certainly rise. Criminal convictions for DWUI may affect a person‘s ability to obtain employment or gain entry to
[¶17] However, the Wyoming Legislature chose to require only the following advisements prior to chemical DWUI testing:
(ii) For tests required under this act, the arrested person shall be advised that:
(A) Repealed by Laws 2011, ch. 178, § 2 [eff. July 1, 2011].
(B) If the results of the test indicate the person is under the influence of alcohol or a controlled substance, he may be subject to criminal penalties, his Wyoming driver‘s license or his privilege to operate a motor vehicle shall be suspended for ninety (90) days and he may be required to drive only vehicles equipped with an ignition interlock device;
(C) After undergoing all chemical tests required by the peace officer at a plaсe and in a manner prescribed by and at the expense of the agency employing the peace officer, the arrested person may go to the nearest hospital or clinic and secure any additional tests at his own expense;
(D) Repealed by Laws 2009, ch. 160, § 2.
[¶18] “[A] basic tenet of statutory construction is that omission of words from a statute is considered to be an intеntional act by the legislature, and this court will not read words into a statute when the legislature has chosen not to include them.” Adelizzi v. Stratton, 2010 WY 148, ¶ 11, 243 P.3d 563, 566 (Wyo. 2010) (citation omitted). The doctrine of expressio unius est exclusio alterius requires us to construe a statute “that enumerates the subjects or things on which it is to operate, or the persons affected, or forbids certain things . . . as excluding from its effect all those not expressly mentioned.” Cathcart v. Meyer, 2004 WY 49, ¶ 40, 88 P.3d 1050, 1066 (Wyo. 2004) (citing In re West Highway Sanitary & Imp. Dist., 77 Wyo. 384, 317 P.2d 495, 504 (1957)). See also The Adeline, 13 U.S. (1 Cranch) 244, 253, 3 L. Ed. 719 (1815) (“Now the constructiоn must depend on the evident meaning and intent of the legislature, as clearly to be gathered from a view of the whole provision; and it may be adopted as a fundamental rule, that where there is an express provision, there shall not be a provision by implication; expressio unius est exclusio alterius.“).
[¶19] The legislature rationally chose to require the advisements listed in
[¶20] Whether the combination of advising Walters of the consequence of refusing a blood alcоhol test while not explaining the higher penalty for testing at or above .15% might make the breath test inadmissible in a criminal case is a separate issue that is not before us. In this administrative proceeding, the OAH hearing examiner and the district court both correctly held that Walters was adequately advised as required by statute.
Issues Relating to Laramie Ordinance
[¶21] In Sandoval, we held that “Wyoming law . . . does not authorizе the OAH to consider municipal ordinances when determining whether to rescind or sustain a driver‘s license suspension.” 2012 WY 160, ¶ 15, 291 P.3d at 295. We reached the same conclusion in Regan v. State ex rel. Wyoming Department of Transportation, 2012 WY 161, 292 P.3d 849 (Wyo. 2012), recognizing that:
To the extent that [appellants] wish to extend their challenge to the constitutionality or validity of the Laramie municipal ordinances, we agree with the OAH and the district court that such a challenge was beyond the scope of the OAH рroceeding and must be brought in a separate declaratory judgment action or in the criminal proceeding on the DWUI citation. Having concluded that the OAH was without jurisdiction to rule on the challenges to the Laramie implied consent ordinances, we must likewise conclude that this Court is without jurisdiction to consider and rule on those issues.
Id. at ¶¶ 22–23, 292 P.3d at 854–55 (citation omitted).3
[¶22] Ms. Walters claims that she “had the right . . . to an attorney as soon as she was told that her choice of submitting to a chemical test would result in a possible minimum mandatory jail sentence.” In her criminal prosecution for DWUI, she may certainly argue that those proceedings reached a critical stage when she was advised of the Laramie municipal ordinances, thus triggering thе right to counsel. But see Mogard v. City of Laramie, 2001 WY 88, ¶¶ 20–26, 32 P.3d 313, 320–24 (Wyo. 2001) (holding that implied consent advisement procedures were not a critical stage implicating the right to counsel in criminal DWUI proceedings). However, this claim was not and could not have been brought before the OAH examiner under
[¶23] Finally, Walters asserts that the City of Laramie is preempted from enforcing DWUI laws that conflict with Wyoming state statutes on the same topic. Challenges to the constitutionality and validity of municipal ordinances are “beyond the scope of the OAH proceeding and must bе brought in a separate declaratory judgment action or in the criminal proceeding on the DWUI citation.” Regan, ¶ 22, 292 P.3d at 854. That contention therefore was not and could not have been considered by the OAH hearing examiner. See id. at ¶ 23 (concluding that the OAH hearing examiner and this Court were without jurisdiction to rule on challenges to the Laramie ordinances).4
CONCLUSION
[¶24] The heаring examiner correctly determined that Ms. Walters was properly advised as required by statute. Her other claims were not and could not have been presented in a license suspension proceeding. Affirmed.