*1 NESIUS, Anthony M. (Petitioner),
Appellant Wyoming DEPARTMENT OF
STATE TAXATION, AND MOTOR
REVENUE (Re- DIVISION, Appellee VEHICLE
spondent). 89-188.
No.
Supreme Wyoming. Court
March 1990. Whitehead, Gage & Moxley T.
Robert Davidson, P.C., Cheyenne, appellant. for Gen., Meyer, Atty. B. Peter J. Joseph Gen., H. Mulvaney, Deputy Atty. Kristin Lee, Gen., for Atty. Cheyenne, Asst. Sr. appellee. THOMAS, C.J., CARDINE,
Before URBIGKIT, GOLDEN, MACY and JJ. GOLDEN, Justice. (Nesius) on was arrested appellant 4, 1988, driv- evening February for (DWUI). At under the influence while jail after his arrival point
some asked take a breath evening, Nesius was take the test and test.1 He refused to Nesius suspended.2 driver’s license was blood, or urine for “Implied of his breath Wyoming's to Chemi- tests Under Consent 1. 31-6-106, determining purpose or con- the alcohol through Testing,” cal W.S. 31-6-101 W.S. of his substance content blood.” trolled 31-6-102(a)(i). for DWUI “who drives or an arrested individual physical control of a motor vehicle is in actual * * * consent, given have is deemed 31-6-102(d) act, states that: 2. W.S. provisions this to a chemical test to the *2 940 suspen- [Appellant] properly of hearing to contest the II. was advised received a
sion; hearing examiner sustained the implied the Wyoming the consent law? granted suspension.4 The district court support find sufficient evidence to We review,5 petition of and on June Nesius’s hearing decision. We af- examiner’s the 26, 1989, affirming it issued an order the firm, prospective with a modification but suspension. Advisement” “Wyoming Implied Consent appeal, Nesius seeks reversal of the On be- possibility to alleviate the of confusion hearing suspension examiner’s of his driv- the chemical tween the advisement about er’s license. warnings. test and Miranda contends that: Nesius BACKGROUND jurisdictional sworn statement I. The Nesius, accompanied by his attor presented according to the stat- was not ney, hearing testified before the examiner ute. 14, 1988, given on March that he was signed A. The statement must con- warnings upon his arrival at the Miranda by stat- tain the information mandated alleges jail. Nesius he made his demand to ute. speak attorney being given with an after suspension B. The order is reversible “Wyo warnings the Miranda and that the procedure act under the administrative ming Implied Consent Advisement” form having as been obtained without observ- was never read to him. Since Nesius did procedure required by ance of law. subpoena deputy, oppor not the he had no II. The refusal to take a chemical test is tunity question hearing.6 him at the by give adequate failure to ad- excused of the visement law. The state’s evidence consisted of the offi- submit, to be the A. The refusal statement,7 signed on which was writ- cer’s suspension, voluntary must be basis for ten, report.” The attached “see attached knowing. and report was in narrative form and consisted appellant’s B. The unadvised refusal pages. objected to the of three Nesius voluntary. was not report. hearing the ex- statement and objection aminer overruled the and admit- The state asks whether: report into signed ted the statement and arresting I. The officer’s state- evidence, apparently as a “certified report ment and attached arrest were pursuant record.”8 properly submitted law? 31-6-102(d) provides [signed] person "The under arrest refuses 7. W.S. [for DWUI] If a by request peace the officer shall contain: upon the of a officer to submit statement submitted * * * given. shall be to a chemical test none (i) probable cause to believe the arrested His peace officer shall submit his driving physical person con- was or in actual department to the revenue and [of statement trol of a motor vehicle: Upon receipt of the statement the (A) public highway taxation]. department On a street or in this Wyo- suspend person’s state; shall * * * (6) ming for six months (B) driver’s license While under the influence of alcohol or provided in this act. to review as degree a controlled substance to a which ren- incapable safely driving him the ve- dered 31-6-103(a) hearing provides for a be-
3. W.S.
hicle; and
examiner,
timely.
hearing
request
if the
is
a
fore
(ii)
person refused to submit to a test
That the
suspension.
stays
also
It
peace
upon
request
of the
officer.”
hearing,
hearing
4. "At the conclusion of
Wyoming
8. The
State Tax Commission has
suspension
shall order that the
either
examiner
I,
6(e)
Chapter
promulgated rules found in
§
31-6-103(b).
W.S.
be rescinded or sustained.”
For Hear-
the "Rules of Practice and Procedure
Hearing
Independent
Before The
Examin-
31-6-104(a) provides for district court
5. W.S.
er.”
suspension
hearing examiner’s
review of the
(e)
any hearing held in
with
For
accordance
a driver’s license.
Implied Consent Law
Administra-
and/or
officer,
Suspension,
subpoenaed,
Per Se
W.S. 31-6-101
arresting
is
tive
through
6. The
unless
31-6-106,
Department
hearing. Depart-
of Revenue
required
appear
not
at the
Hull,
by
present
direct
and Taxation
evidence
751 P.2d
ment Revenue and Taxation
351,
record,
they
testimony or
whichever
(Wyo.1988).
certified
person
place
pre-
in a
report, the of-
a
at a
and
manner
According to the attached
expense
speeding,
scribed
the offi-
pickup
observed Nesius’s
ficer
twice,
agency.
line
drive
cer’s
officer stated that the
the center
onto
cross
warning
given
It
above
was
while Nesius
highway
of the
four times.
was
the shoulder
*3
jail.
in the
on
that Nesius had balance
goes
to note
alcohol,
of
and had red
problems, smelled
report
The
also
that Nesius re-
states
admitted, in the
watery eyes.
and
Nesius
fused
the
test.
Nesi-
to take
breath
When
The
report,
he had drunk two beers.
that
if he
to
us was asked
intended
have the
poor per-
Nesius’s
report also chronicles
expense,
test
his own
he
administered at
sobriety
in various field
tests.
formance
attorney
he
see an
indicated that wanted to
observations, the officer be-
From these
consenting to
before
the test. Nesius was
he
to arrest Nesi-
probable
lieved
had
cause
Suspension
then
a
of
and
issued
“Notice
for
us
DWUI.
10
Temporary Wyoming Driver’s License.”
report
police
In the
the
officer additional-
hearing
“Implied
The
his
officer issued
1)
that9
he
ly stated Nesius was advised
Suspension”
of
on March
Consent Order
DWUI; 2) his failure
under arrest for
was
18,
hearing
The
officer
that
1988.
ruled
requested
required
of
to submit to all
tests
state,
record,
through
had
the
the certified
blood, breath,
purpose
or urine for the
his
by a preponderance
established
of the evi-
determining the alcohol or controlled
of
necessary
the
dence each of
four elements
his
would result
substance content of
blood
uphold
suspension.11
hearing
to
the
in the
for
months of his
suspension
six
found,
alia,
inter
officer
that Nesius “was
privilege
his
Wyoming driver’s license and
requirement
the
to submit to all
advised of
vehicle; 3)
operate
if a test was
to
a motor
consequences
requested tests and the
of
he
and
results indicated was un-
taken
the
taking
refusing
a
or
to take
test.”
alcohol, he may
the influence of
be
der
DISCUSSION
subject
penalties
Wyo-
to criminal
and
privileges
argument
Nesius’s first
focuses on
ming
license and his
to
driver’s
report,
suspend-
the officer’s use of the attached
operate a motor vehicle would be
statement,
4)
signed
the
to doc
days;
and
he
be taken
instead of
ninety
ed for
argues that the
and
ument the arrest.
hospital
the nearest
or clinic
secure
Nesius
to
31-6-102(d) is
expense
mandato
language
tests
own
of W.S.
any
required
or all
at his
statutory elements must be
ry; all of the
he could have the tests administered
or
31-6-102(f).
shall be made
10. See W.S.
so desire. The
record
certified
part
proceedings
record of
before
a
of the
the
Hearing Examiner and shall consist of:
the
31-6-103(b),
scope
the
W.S.
the
of
Under
11.
(i)
signed
peace
officer's
statement
issues,
following
hearing
to
four
is limited
the
cause;
probable
hearing examiner decides:
which the
(ii)
opportu-
suspension
and
The notice
probable
peace
a
had
cause
officer
[W]hether
nity
hearing;
for
person had
to
the
been driv-
believe
arrested
license,
(iii)
copy
temporary
if is-
of the
A
ing
physical
of a
was in actual
control
or
sued;
highway
upon public street or
motor vehicle
a
(iv)
operational
check list
chemical
* *
in
the influence of
this state while under
*;
provided
and
test result
degree
a
substance to a
alcohol or
controlled
(v)
is material to
other evidence which
All
reviewed,
safely
incapable of
driv-
which rendered him
added)
being
(emphasis
the matter
vehicle,
person
the
was
the
whether
upheld the
use of
“certi-
We have
state’s
arrest,
placed
he
hearings.
whether
refused
suspension
See
under
Drake
fied record"
peace
Department
request of
upon
Revenue and
a test
v. State ex. rel.
submit to
*
*
* *
* *
1319,
Taxation,
(Wyo.1988); and
P.2d
1322
751
and
he had been
officer
whether
State, Department
Revenue and
v.
Hooten
Wyoming driver’s license or
that his
advised
1323,
Taxation,
(Wyo.1988).
1325
751 P.2d
privilege
operate
be
a motor vehicle shall
(6)
if he
suspended
six months
refused
for
administered,
can be
the chemical tests
9.Before
(90)
ninety
suspended for
test
to a
and
submit
arresting
required to read to the
officer is
subject
penalties
days
criminal
if
him to
"Wyoming Implied
Ad
Consent
individual the
and the results indi-
he
to the test
submitted
(the language
W.S. 31—6—
mirrors
visement”
Chastain,
person is
of alco-
under the influence
102(a)(ii)(A)
(C)).
cate the
through
State
1979).
(Wyo.
hol.
P.2d
signed
reports
signed
found on the
statement.12 The rea-
“unsworn”
to their
state-
requirement, according
son for this
to Nesi-
truly
ments.
If Nesius
believed that the
us,
signed
is
statement is deemed
report
officer attached a false or inaccurate
statement,
pen-
a
to the
sworn
statement,
he should have
perjury.13
alties for
Nesius claims that
subpoenaed
testify
the officer to
at the
statement contains
because
hearing.
Urbigkit
correctly
Justice
has
(all
required
none of the
elements
of the
noted:
will be the driver and not the
“[i]t
are, instead,
necessary
found on
elements
responsibility
State that will bear the
report),
the attached “unsworn”
the state’s
challenging
validity
implied-eon-
the statute.
certified record violates
suspension
through subpoena-
sent
action
*4
argument
The force of Nesius’s
is under-
testify
the officer to
when the decision
cut, however,
acknowledges
he
because
challenge
véracity
validity
is made to
the
or
signed
incorporate
that the
statement could
Hull,
of the filed form.”
945
436,
(1951);
opinion and conclu
STATE Department, Highway Dorothy State Alejandro MARTINEZ C. (Defendants), Motel, Martinez, Appellants Fleetwood A. d/b/a (Plaintiffs), Appellants v. Alejandro Dorothy C. MARTINEZ and Martinez, Motel, A. Fleetwood d/b/a (Plaintiffs). Appellees CHEYENNE, Supreme Wyoming. Court of Wyo- CITY OF State of ming Wyoming Highway State 4,May 1990. Department, (Defendants). Appellees Department, (Defendants). Appellees