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Sonny Hwang v. State of Wyoming

February 9, 2011

SONNY HWANG, APPELLANT (PLAINTIFF),
v.
STATE OF WYOMING, DEPARTMENT OF TRANSPORTATION, APPELLEE (DEFENDANT).



Appeal from the District Court of Albany County The Honorable Jeffrey A. Donnell, Judge

The opinion of the court was delivered by: Burke, 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] Appellant, Sonny Hwang, challenges an order of the district court, affirming an order from the Office of Administrative Hearings (OAH) upholding the suspension of Mr. Hwang's driver's license. Mr. Hwang contends that the police officer who administered his breath test failed to comply with the fifteen-minute observation period required under Department of Health Rules and Regulations. We affirm.

ISSUE

[¶2] Mr. Hwang presents the following issue:

Did the arresting officer present sufficient facts to find that the Licensee violated the elements of Wyoming's Implied Consent law, specifically that the officer presented sufficient "admissible" evidence to support that he complied with the 15 minute observation period for admission of a chemical test pursuant to Wyoming Statute § 31-6-105(a).

The Wyoming Department of Transportation (WYDOT) states the issue as follows:

Were the hearing examiner's findings regarding the credibility of the officer and the certified record based upon substantial, credible evidence?

FACTS

[¶3] On June 12, 2009, at approximately 11:59 p.m., Mr. Hwang was stopped by Officer Drinkle of the Laramie Police Department for driving without his headlights illuminated. While speaking with Mr. Hwang, Officer Drinkle smelled a strong odor of alcohol and noticed that Mr. Hwang's eyes were red and glassy and that his speech was slurred. Mr. Hwang admitted to having seven drinks that evening. After performing poorly on the horizontal gaze nystagmus test and the "walk and turn" test, Mr. Hwang was arrested for driving while under the influence of alcohol in violation of Wyo. Stat. Ann. § 31-5-233(b) (LexisNexis 2009). For purposes of this appeal, Mr. Hwang stipulates that there was probable cause for the arrest.

[¶4] After the arrest, Officer Drinkle transported Mr. Hwang to the Albany County Detention Center, where he gave Mr. Hwang a breath test using an Intoximeter EC/IR. Prior to administering the breath test, Officer Drinkle read Mr. Hwang the implied consent advisement pursuant to Wyo. Stat. Ann. § 31-6-102. That statute provides that an individual who is arrested for driving under the influence is deemed to have given consent to a chemical test. Officer Drinkle asked Mr. Hwang if he would submit to a breath test and Mr. Hwang consented.

[¶5] In conjunction with his administration of the breath test, Officer Drinkle used the Wyoming Chemical Testing Program Intoximeter EC/IR Operational Checklist (Checklist) to document the results of the test. Officer Drinkle recorded times in the appropriate spaces on the Checklist using his wristwatch. The Checklist indicated that Officer Drinkle gave Mr. Hwang the implied consent advisement at "00:30," or 12:30

a.m., checked Mr. Hwang's mouth at 12:33 a.m., and took breath samples at 12:51 a.m. and 12:55 a.m. Officer Drinkle testified that he calibrated his watch with the clock at the detention center. The Intoximeter also had an internal clock and the printout from the machine indicated that Mr. Hwang gave his first breath sample at 12:51 and his second breath sample at 12:55. The Intoximeter printout and the Checklist reported that Mr. Hwang had a .15% blood alcohol content level at 12:51 a.m. In an offense report prepared one week ...


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