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Schouboe v. Wyoming Dep't of Transportation

August 19, 2010

ERIC SCHOUBOE, APPELLANT (PETITIONER),
v.
WYOMING DEPARTMENT OF TRANSPORTATION, APPELLEE (RESPONDENT).



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

The opinion of the court was delivered by: Hill, Justice.

Before KITE, C.J., and GOLDEN, HILL, VOIGT*fn1, and BURKE, JJ.

[¶1]Eric Schouboe appeals a hearing examiner‟s order upholding his implied consent suspension. Schouboe contends that the Wyoming Department of Transportation (WYDOT) did not prove he was in actual physical control of his vehicle. We affirm.

ISSUES

[¶2] Schouboe lists five issues:

I. Did the Wyoming Department of Transportation (WYDOT) carry its burden to establish the necessary element of "actual physical control" by a preponderance of the evidence in [Shouboe‟s] Implied Consent Suspension?

II. Whether the Office of Administrative Hearing‟s (OAH) finding of fact that the "keys were not in the ignition" is supported by substantial evidence?

III. Whether the OAH‟s finding of fact that the "keys were not in the ignition" constitutes an abuse of discretion?

IV. Whether the OAH‟s conclusion that [Shouboe] could have awakened and driven away at any moment is supported by substantial evidence?

V. Whether the OAH‟s conclusion that [Shouboe] could have awakened and driven away at any moment constitutes an abuse of discretion?

The State rephrases the issues as follows:

I. Does substantial evidence exist to support the hearing examiner‟s conclusion that [Schouboe] had been driving or was in actual physical control of a motor vehicle upon a public street or highway?

II. Was the decision of the hearing examiner arbitrary ...


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