Appeal from the District Court of Big Horn County The Honorable Steven R. Cranfill, Judge S-11-0156
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] Brady L. Michaels was arrested for driving while under the influence of alcohol in violation of Wyo. Stat. Ann. § 31-5-233(b) (LexisNexis 2009). The Wyoming Department of Transportation (the State) notified him that it was suspending his driver's license for ninety days. Mr. Michaels requested an administrative hearing. After the hearing, the Office of Administrative Hearings (OAH) upheld the suspension.
[¶2] Mr. Michaels appealed the suspension to the district court, which affirmed the OAH decision. He then appealed to this Court, claiming § 31-5-233(b) prohibits drinking and driving, his condition at the time of his arrest was the result of a diabetic ketoacidosis state not the result of drinking alcohol, therefore, the State did not meet its burden of proving that probable cause existed to believe he violated the statute.
[¶3] We hold as a matter of law that § 31-5-233(b) was intended to apply when a person drives or is in actual control of a motor vehicle after consuming alcohol beyond the legal limit or to a degree rendering him incapable of safely driving. Therefore, the OAH's ruling that § 31-5-233(b) does not distinguish between alcohol concentration caused by consuming alcoholic beverages and alcohol concentration caused by some other factor is incorrect. However, we also hold that the State met its burden of proving that probable cause existed at the time of the arrest to believe that Mr. Michaels had violated § 31-5-233(b), and we affirm the OAH's order upholding the suspension of his driver's license.
[¶4] The issues Mr. Michaels presents for this Court's determination are whether the OAH decision is in accordance with the law and, if so, whether it was supported by substantial evidence.
[¶5] On the evening of April 16, 2010, Wyoming Highway Patrol Trooper Rodney Miears was patrolling on U.S. Highway 20 in Big Horn County, Wyoming. At approximately 6 p.m., he observed a vehicle approaching him at a high rate of speed. His radar showed the vehicle was traveling 96 miles per hour in the posted 65 mile per hour zone. Trooper Miears pursued the vehicle, activating his flashing lights as he approached, and the vehicle pulled over. Trooper Miears pulled up behind the vehicle, got out of his patrol car and approached the driver's side window. He informed the occupant that he had stopped him for speeding. He requested a driver's license, proof of insurance and registration. According to the trooper's report, the occupant, Mr. Michaels, was difficult to understand, slurred his words and had watery, blood-shot eyes.
[¶6] Trooper Miears returned to his patrol car to fill out a citation for speeding. Mr. Michaels got out of his vehicle and approached the patrol car twice. The second time, Trooper Miears asked him if he had been drinking. Mr. Michaels responded, "no." Trooper Miears asked, "You haven't?" and Mr. Michaels again said, "no." Trooper Miears told him to get back in his vehicle. A few minutes later, Mr. Michaels got out of his vehicle again. A second trooper who arrived at the scene asked Mr. Michaels to stay in his vehicle, but Mr. Michaels continued to walk toward Trooper Miears' patrol car.
[¶7] The second trooper advised Mr. Michaels that Trooper Miears was
going to have him perform field sobriety tests. Trooper Miears told
Mr. Michaels that he could smell the odor of alcohol coming from him.
He then had Mr. Michaels perform the sobriety tests, including the
horizontal gaze nystagmus, walk and turn and one leg stand. Mr.
Michaels failed the tests. The trooper administered a portable breath
test which showed an alcohol concentration of .17%. A second test
showed a .16% alcohol concentration. Trooper Miears arrested Mr.
Michaels for driving while under the influence of alcohol in violation
of § 31-5-233(b), which prohibits a person from driving if he has an
alcohol concentration of 0.08% or more. He placed Mr. Michaels in the
patrol car, gave him the implied consent advisement required under
Wyo. Stat. Ann. § 31-6-102 (LexisNexis 2009) and transported him to
the Big Horn County jail. A third breath test given at the jail still
showed a .16% alcohol concentration. Upon being advised of his right
to have additional tests performed at his own expense, Mr. Michaels
requested to be taken to the hospital for a blood test.*fn1
Trooper Miears also provided Mr. Michaels with written notice
that his driver's license was being suspended for ninety days.
[¶8] Mr. Michaels subsequently made a written request for a contested case hearing before the OAH. A hearing was convened. As a preliminary matter, Mr. Michaels stated he would stipulate that Trooper Miears had probable cause to stop him for speeding, but contested whether probable cause existed to arrest him for violating § 31-5-233(b). For its case, the State relied on the certified record. Mr. Michaels called three witnesses: his physician, Dr. Joel Pull, who testified that Mr. Michaels suffered from Type I Diabetes and he believed Mr. Michaels was in a ketoacidosis*fn2 state on the night of his arrest, not under the influence of alcohol; his wife, Kristy Michaels, who testified that her husband quit drinking alcohol after he was diagnosed with Diabetes in 2009 and she did not observe him drinking nor did he smell like alcohol on the day of his arrest; and a co-worker, Nate Mattison, who also testified that Mr. Michaels had quit drinking and did not appear to be intoxicated on the day he was arrested. Mr. Michaels also testified that he had not consumed alcohol on the day he was arrested.
[¶9] After the hearing, the OAH issued its order upholding the suspension of Mr. Michaels' driver's license. In pertinent part, the OAH found and concluded as follows:
17. The evidence in this case clearly established Michaels was stopped for speeding 96 mph in a 65 mph zone. This is a traffic violation and provided probable cause to initiate a traffic stop.
18. The evidence in this case established Trooper Miears observed that Michaels had bloodshot and watery eyes, slurred speech, poor balance, the smell of an alcoholic beverage coming from his person and that Michaels was behaving erratically. This is probable cause to continue detention and determine if Michaels was under the influence. The record is clear that Michaels was not asked the preliminary questions concerning medical and physical conditions prior to submitting to field sobriety maneuvers. As such, Trooper Miears was not aware Michaels was a Blood glucose levels rise (usually higher than 300 mg/dL) because the liver makes glucose to try to combat the problem. However the cells cannot pull in that glucose without insulin.
Diabetic ketoacidosis is often the first sign of type 1 diabetes in people who do not yet have other symptoms. It can also occur in someone who has already been diagnosed with type 1 diabetes. Infection, injury, a serious illness, or surgery can lead to diabetic ketoacidosis in people with type 1 diabetes. Missing doses of insulin can also lead to ketoacidosis in people with diabetes.
Symptoms can include: deep, rapid breathing, dry skin and mouth, flushed face, fruity smelling breath, decreased consciousness, and dulled senses. http://medlineplus.gov diabetic until after Michaels had been arrested, booked into jail and submitted to a breath test. The evidence is also clear that Michaels was in a ketoacidosis state at the time the field sobriety maneuvers were administered and at the time chemical testing was performed. A person in a ketoacidosis state may exhibit signs of poor balance and slurred speech. This raises questions as to the validity of the Walk and Turn and One Leg Stand maneuvers and the results of those two maneuvers will not be considered by this Office. At the time Trooper Miears arrested Michaels he was aware Michaels smelled of alcohol, had bloodshot and watery eyes, had exhibited erratic behavior, had been speeding, showed six signs of impairment on the Horizontal Gaze Nystagmus and that Michaels had submitted to portable breath tests with results of 0.17 and 0.16. Based upon the information available to Trooper Miears, at the time of the arrest, he had probable cause to arrest Michaels for DWUI. * * * *
21. Wyo. Stat. Ann. §31-6-102(e)(LEXIS 2009) provides for a ninety day suspension if a person submits to a chemical test with an alcohol concentration of 0.08 percent or greater.
22. Alcohol concentration is defined by Wyo. Stat. Ann. § 31-5-233 (a)(i)(LEXIS 2009) as the number of grams of alcohol per two hundred ten liters of breath.
23. Wyo. Stat. Ann. §31-5-233(d)(LEXIS 2009) in part, provides that the fact a person is entitled to use controlled substances is not a defense to a charge of DWUI.
24. * * * The evidence in this case clearly established Michaels submitted to a properly administered breath test and the result was 0.16 percent [alcohol concentration]. The evidence reflected Michaels' [alcohol concentration] may have been the result of his ketoacidosis state caused by this diabetes. The statutes do not provide a distinction between [alcohol concentration] caused by consumption of alcoholic beverages and [alcohol concentration] caused by some other factor. Michaels submitted to a ...