Appeal from the District Court of Albany County The Honorable Jeffrey A. Donnell, Judge
The opinion of the court was delivered by: Kite, Chief 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 typographical or other formal errors so correction may be made before final publication in the permanent volume.
[¶1] Richard Vasco was arrested for interference with a police officer and for driving under the influence of alcohol. He refused to submit to chemical testing, and the Wyoming Department of Transportation (WYDOT) advised him that it was suspending his driver's license for six months. He requested a hearing, at the conclusion of which the Office of Administrative Hearings (OAH) upheld the suspension. Mr. Vasco sought review in the district court, which affirmed the OAH order. Mr. Vasco appealed to this Court, claiming the arresting officer lacked probable cause to arrest him. We affirm.
[¶2] The issue for our determination is whether probable cause existed to arrest Mr. Vasco for interference, such that the evidence that he had been driving under the influence of alcohol obtained thereafter was admissible and sufficient to support suspending his driver's license.
[¶3] On October 9, 2009, Laramie Police Officer Matthew Leibovitz responded to a report of a hit-and-run accident. While en route, he learned that the driver had left the accident scene on foot. He also learned that the vehicle involved, a 2008 black Nissan Titan, was registered to Richard Vasco who resided at an apartment on Baker Street in Laramie. After confirming that other officers were at the accident scene, Officer Leibovitz went to the Baker Street address. No one answered at the residence but Officer Leibovitz observed a man walking toward the apartment complex. Having had previous contact with him, the officer recognized the man as Mr. Vasco.
[¶4] Officer Leibovitz approached and asked Mr. Vasco to identify himself. Mr. Vasco responded that he was "Christopher" and attempted to walk past the officer. Officer Leibovitz told him to stop, advised him that he was investigating a hit-and-run accident and asked him for identification. Mr. Vasco produced his wallet, opened it enough to show a driver's license, but closed it before the officer could read the driver's license. Officer Leibovitz asked him three more times for identification; each time, Mr. Vasco produced, opened and closed the wallet before the officer could read the driver's license.
[¶5] During this exchange, Officer Leibovitz smelled alcohol on Mr. Vasco's breath and noticed his eyes were red and glassy and he was swaying. He asked Mr. Vasco where he was coming from; Mr. Vasco could not provide an answer. He asked Mr. Vasco if he had been driving recently; Mr. Vasco said he had not been. He asked Mr. Vasco where his vehicle was; Mr. Vasco did not answer. Mr. Vasco kept saying that he was going inside and attempting to walk past Officer Leibovitz.
[¶6] Officer Leibovitz again told Mr. Vasco to stay put and informed him that he was a suspect in the hit-and-run accident. He told Mr. Vasco that if he did not provide identification he would take him into custody for interfering with a police officer. Mr. Vasco nudged by him, stating "Let's go into my residence." Officer Leibovitz placed him under arrest for interference and searched him. In Mr. Vasco's rear pocket, he found a set of keys with a Nissan remote control. He later confirmed that the keys belonged to the black Nissan Titan involved in the accident.
[¶7] Officer Leibovitz took Mr. Vasco to the detention center. He read the Wyoming implied consent advisement to him and Mr. Vasco refused to submit to a breath test. The officer issued citations for DUI, interference, hit-and-run and failure to maintain automobile liability insurance.*fn1
[¶8] Subsequently, WYDOT gave notice to Mr. Vasco that it was suspending his driver's license for six months because of his refusal to submit to a chemical test. Mr. Vasco requested a hearing. At the hearing, he argued that Officer Leibovitz did not have probable cause to arrest him for interference or DUI. The OAH found otherwise and issued an order upholding the suspension. Mr. Vasco sought review in the district court, which affirmed the OAH order. Mr. Vasco then appealed to this Court.
[¶9] We accord no deference to a district court decision reviewing an administrative agency order. Batten v. Wyo. Dep't of Transp. Drivers' License Div., 2007 WY 173, ¶ 6, 170 P.3d 1236, 1239 (Wyo. 2007). Instead, we review the case as if it came directly from the administrative agency. Id. As provided by Wyo. Stat. Ann. § 16-3-114(c)(ii)(E) (LexisNexis 2009), we apply the substantial evidence standard when reviewing an agency's evidentiary findings. When the burdened party prevailed before the agency, we will determine if substantial evidence exists to support the finding for that party by considering whether there is relevant evidence in the entire record which a reasonable mind might accept in support of the agency's conclusions. Schouboe v. Wyo. Dep't of Transp., 2010 WY 119, ¶ 5, 238 P.3d 1246, 1248 (Wyo. 2010), quoting Dale v. S & S Builders, LLC, 2008 WY 84, 188 P.3d 554 (Wyo. 2008). On the question of probable cause, we apply the substantial evidence standard of review to ...