Appeal from the District Court of Sublette County. The Honorable Marvin L. Tyler, Judge.
The opinion of the court was delivered by: Voigt, Chief Justice.
Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.
[¶1] This is an appeal from the district court's Order Affirming Agency Order Upholding Implied Consent Suspension and Associated Agency Order Upholding Commercial Disqualification, filed April 13, 2009. Finding no error of law below, and finding sufficient evidence that the petitioner intentionally failed or refused to perform the offered breath test after an arrest for driving under the influence of intoxicating liquor (DWUI), we affirm the order of the district court affirming the orders of the Office of Administrative Hearings (OAH).
[¶2] Did the Hearing Examiner correctly conclude that the petitioner's failure to provide a sufficient breath sample constituted a refusal for purposes of Wyoming's implied consent laws, and that offer of a blood or urine test was not required following the refusal?
[¶3] On November 9, 2007, the petitioner was arrested for DWUI, in violation of Wyo. Stat. Ann. § 31-5-233 (LexisNexis 2009). He was taken to the Sublette County Detention Center where, as part of the booking process, he was given his implied consent advisements.*fn1 The petitioner agreed to a breath test, but failed in three attempts to produce a sufficient breath sample for testing. The booking officer considered the petitioner's conduct to be a refusal to submit to required chemical testing. The refusal led to the suspension of the petitioner's driving privileges for six months, and his disqualification from driving a commercial motor vehicle for one year, pursuant to Wyo. Stat. Ann. §§ 31-6-107 and 31-7-305 (LexisNexis 2009). The petitioner contested the suspensions and requested a contested case hearing before the OAH.
[¶4] At the contested case hearing, held on April 30, 2008, the petitioner raised the inter-related issues of whether his failure to provide sufficient breath samples was intentional, and whether, given the failure of that testing, the officer was obligated to offer blood or urine testing. The Hearing Examiner found and concluded that the petitioner's failure to provide an adequate breath sample was caused by his intentional refusal to follow the officer's instructions, and that the petitioner had, therefore, refused chemical testing. The OAH determination was affirmed upon review in the district court. This appeal followed.
[¶5] The appeal of a district court's review of administrative agency action is treated by this Court as if the matter came directly from the agency, and we give no special deference to the decision of the district court. Dale v. S & S Builders, LLC, 2008 WY 84, ¶ 8, 188 P.3d 554, 557 (Wyo. 2008). The scope of our review is dictated by Wyo. Stat. Ann. § 16-3-114(c)(ii) (LexisNexis 2009), which provides as follows:
(c) To the extent necessary to make a decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. In making the following determinations, the court shall review the whole record or those parts of it cited by a party and due account shall be taken of the rule of prejudicial error. The reviewing court shall:
(ii) Hold unlawful and set aside agency action, findings and conclusions found to be:
(A) Arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law; (B) Contrary to constitutional ...