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, and BURKE, JJ.
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 publication in the permanent volume.
[¶1] The Appellant, Wyoming Department of Transportation (WYDOT), challenges a district court order which reversed an order of an independent hearing examiner (hearing examiner) to the effect that Appellee, Steven Potvin (Potvin), was required to surrender his driver's license because of the effect of the implied consent suspension statute. That statute provides for the suspension of a driver's license based upon a person's refusal to submit to a chemical test for the purpose of ascertaining if that person's blood alcohol/controlled substance content exceeds the statutory limit. The request for such a test is usually made when a person is arrested, and the arresting officer has probable cause to believe that the arrested person was either driving, or in actual physical control, of a motor vehicle while under the influence of alcohol or a controlled substance. Wyo. Stat. Ann. § 31-5-233(b) (LexisNexis 2009). If a person refuses the request to be subjected to a chemical test, then that individual's driver's license can be suspended on the basis of that refusal. Wyo. Stat. Ann. § 31-6-102(a), (d) and (f) (LexisNexis 2009). Potvin's driver's license was suspended under that statute. The suspension of his license was stayed in accordance with Wyo. Stat. Ann. §§ 31-6-103 and 36-7-105(a)(i) (LexisNexis 2009) when he requested a hearing on the implied consent suspension. At the close of Potvin's hearing, the hearing examiner was required to order that the suspension be either rescinded or sustained. In this instance, the hearing examiner sustained the suspension of Potvin's driver's license.
[¶2] Potvin filed a petition for review in the district court in accordance with W.R.A.P
12. The district court reversed the hearing examiner's decision on the basis that WYDOT failed to present substantial evidence at the hearing into this matter so as to establish that the police officers had probable cause to believe that Potvin had been driving, or was in actual physical control, of a motor vehicle upon a public street or highway while under the influence of alcohol. We will reverse the district court's order and reinstate that of the hearing examiner.
[¶3] WYDOT raises this issue:
Was there substantial evidence to support the hearing examiner's finding that Officer Horsely had probable cause to arrest [Potvin] for driving while under the influence of alcohol?
Potvin posits these issues:
I. The [hearing examiner's] finding that a reasonable articulable suspicion existed is not supported by substantial evidence that is admissible, reliable or trustworthy.
II. The [hearing examiner's] finding that probable cause existed is not supported by substantial evidence that is admissible, reliable, or trustworthy.
III. The [hearing examiner's] unsubstantiated selection of evidence is arbitrary and capricious.
WYDOT identifies two additional issues based on the content of Potvin's brief:
I. Is there substantial evidence to support the hearing examiner's finding that reasonable suspicion existed to contact [Potvin] ...