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Mark Orchard v. the State of Wyoming

October 20, 2011

MARK ORCHARD, APPELLANT (PLAINTIFF),
v.
THE STATE OF WYOMING, DEPARTMENT OF TRANSPORTATION, APPELLEE (DEFENDANT)



Appeal from the District Court of Carbon County The Honorable Wade E. Waldrip, 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, Mark Orchard, was arrested for driving while under the influence of alcohol. As a result, the Wyoming Department of Transportation advised him that it was suspending his driver's license pursuant to Wyo. Stat. Ann. § 31-6-102. Appellant contested the suspension before the Office of Administrative Hearings (OAH), and the OAH upheld the suspension. He sought review in the district court, and the court affirmed the OAH's order. Appellant challenges the district court's order, contending that the police officer who arrested him lacked reasonable suspicion to initiate the traffic stop. We affirm.

ISSUE

[¶2] Appellant presents the following issue:

1. The only issue presented for appeal is whether or not the arresting officer presented sufficient facts within his Officer's Signed Statement and certified record to support his claim that he received an anonymous REDDI report and observed sufficient facts while on routine traffic patrol that would allow the arresting officer to make contact with the Licensee and ultimately arrest him for "driving while under the influence of alcohol" (DWUI).

The Wyoming Department of Transportation (WYDOT) phrases the issues as follows:

1. Did the OAH correctly conclude that [the arresting officer] had reasonable suspicion to initiate a traffic stop on Appellant?

2. Did the OAH correctly conclude that [the arresting officer] had probable cause to arrest Appellant for driving while under the influence of alcohol?

FACTS

[¶3] On December 17, 2009, an officer of the Baggs Police Department received a Report Every Drunk Driver Immediately (REDDI) alert involving a purple Dodge pickup traveling north from Cowpoke Lane in Baggs, Wyoming. A short time later, the officer passed a vehicle with the same description driving south through town. According to the officer's narrative report, as he was passing the pickup he observed the vehicle cross the double yellow centerline. The officer turned around to follow and noticed that the driver failed to use a turn signal when turning right into a gas station. The officer activated his emergency lights and initiated a traffic stop.

[ΒΆ4] As the officer exited his patrol car, Appellant left the pickup and walked toward the officer. Appellant exhibited poor balance and had difficulty walking. Upon making contact with Appellant, the officer detected a strong odor of alcohol on his breath. Appellant stated that he had been drinking at a local establishment. The officer requested that Appellant perform field sobriety maneuvers, including the horizontal gaze nystagmus, one leg stand, and walk and turn tests. Appellant stated that he would not be able to pass, but agreed to perform the tests. The officer's report indicated that, during the horizontal gaze nystagmus test, Appellant lacked smooth pursuit in both eyes and sustained distinct nystagmus at maximum deviation. Appellant was unable to complete the other tests. The officer then asked Appellant to submit to a preliminary breath test, which he refused. Based on the officer's observations during the traffic stop and Appellant's performance ...


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