Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Ricky D. Miller and Christopher v. Wyoming Department of Health

May 9, 2012

RICKY D. MILLER AND CHRISTOPHER L. GONZALEZ, APPELLANTS (PETITIONERS),
v.
WYOMING DEPARTMENT OF HEALTH, TOM FORSLUND, DIRECTOR, TOM JOHNSON, CHEMICAL TESTING SUPERVISOR, JAMES L. MOORE, LABORATORY SUPERVISOR, APPELLEES (RESPONDENTS).



Appeal from the District Court of Laramie County The Honorable Michael K. Davis, 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] After being separately cited and arrested for driving while under the influence of alcohol (DWUI) in violation of Wyoming law, Ricky D. Miller and Christopher L. Gonzalez petitioned the district court for review of agency inaction by the Wyoming Department of Health (WDOH). Miller and Gonzalez requested that the district court require the WDOH to retroactively decertify the chemical test operators (hereinafter "officers") who had performed chemical tests of Miller's and Gonzalez's breath to determine the quantity of alcohol in their respective bodies. On motion by the WDOH, Tom Forslund, in his official capacity as director, Tom Johnson in his official capacity as chemical testing laboratory manager, and James L. Moore, in his official capacity as laboratory supervisor (collectively referred to as "Department"), the district court dismissed the "Petition for Judicial Review" on the grounds that Miller and Gonzalez lacked standing to bring the action and that the matter is not ripe for review. Miller and Gonzalez now challenge the order dismissing their petition. We affirm.

ISSUES

[¶2] Miller and Gonzalez present two issues for our consideration:

1. Is the Appellants' Petition for Judicial Review, challenging the WDOH failure to decertify the officers' certification to perform chemical analysis ripe for review by this Court?

2. Do the Appellants have standing to petition the district court to order the WDOH to decertify these officers for failing to comply with [its] own administrative rules and regulations for chemical testing?

FACTS

[¶3] Miller and Gonzalez were separately arrested for DWUI in violation of Wyoming law prohibiting driving while legally intoxicated, as determined by blood alcohol content (BAC). To determine their blood alcohol content, both submitted to chemical breath testing on an Intoximeter EC/IR II. Miller was tested by a Platte County deputy sheriff. Gonzalez was tested by a Guernsey police officer. Both officers were initially certified to perform chemical breath testing by the WDOH.

[¶4] Breath test results showed that both Miller and Gonzalez were driving under the influence of alcohol in violation of Wyoming law. Both Miller and Gonzalez have the DWUI administrative and/or criminal processing pending, including revocation of their driver's licenses by the Wyoming Department of Transportation.

[¶5] On April 5, 2011, Miller and Gonzalez sent a letter to the WDOH requesting that it retroactively decertify the officers' permits to perform chemical breath testing "for failing to maintain their certification requirements in accordance with W.S. § 31-6-105, et al and Wyoming Department of Health Rules and Regulations for Chemical Analysis for Alcohol Testing Chapter IV, Permit Requirements." The WDOH did not respond to the letter.

[¶6] On April 22, 2011, Miller and Gonzalez filed a "Petition for Judicial Review" with the district court. The petition asserted that the Department "improperly certified or failed to decertify chemical test operators who have not properly received and maintained their certification requirements for chemical testing under WDOH Rules for Chemical Testing and W.S. § 31-6-105." Miller and Gonzalez argued that both of the Department's officers who performed the chemical breath tests on Miller and Gonzalez, respectively, were "either not properly certified and/or failed to properly maintain their certification and should have been decertified in accordance with W.S. § 31-6-105." Miller and Gonzalez requested that the district court require the Department to decertify the officers, retroactive to the dates their respective certifications lapsed.

[¶7] On May 13, 2011, the Department filed a motion to dismiss the petition. The Department maintained that Miller and Gonzalez lacked standing to bring the action and, therefore, the petition must be dismissed under W.R.C.P. 12(b)(6) for failure to state a claim upon which relief may be granted. Miller and Gonzalez responded to the motion on June 3, 2011, arguing that they "have a legally recognizable interest in the officers' certification to conduct chemical testing" as they "will be aggrieved and adversely affected if the breath tests are allowed to stand when the officers conducting the test were not properly certified." Specifically, Miller and Gonzalez "each ... [have] a driver's license . that will be suspended if this court does not intervene."

[¶8] On June 21, 2011, a hearing was held on the matter. On July 7, 2011, the district court entered its "Order Granting Respondents' Motion to Dismiss Petition for Review." The court granted the motion to dismiss "based on the doctrines of ripeness and standing." It found that Miller and Gonzalez "lack standing to bring this action as the Respondents are sufficiently removed from the Driving While Under the Influence (DWUI) process," and that the "matter is not ripe for consideration by [the district court] as the DWUI administrative and/or criminal processes are still pending."

[¶9] Miller and Gonzalez timely appealed the district court's order dismissing their petition.

STANDARD OF REVIEW

[¶10] As the motion to dismiss filed in the district court was brought pursuant to W.R.C.P. 12(b)(6) for failure to state a claim upon which relief can be granted, and Miller and Gonzalez are now appealing the district court's order dismissing their petition, we review the order as follows:

When reviewing a W.R.C.P. 12(b)(6) dismissal, this Court accepts all facts stated in the complaint as being true and views them in the light most favorable to the plaintiff. We will sustain a W.R.C.P. 12(b)(6) dismissal only when it is certain from the face of the [petition] that the [petitioner] cannot assert any facts which would entitle him to relief.

Herrig v. Herrig, 844 P.2d 487, 490 (Wyo. 1992) (citations omitted).

[¶11] "A motion to dismiss, even though sparingly granted, is the proper method for testing the legal sufficiency of the allegations and will be sustained when the complaint shows on its face that the plaintiff is not entitled to relief." Mummery v. Polk, 770 P.2d 241, 243 (Wyo. 1989).

[¶12] Furthermore, as the WDOH is an "agency" as defined by the Wyoming Administrative Procedure Act, Wyo. Stat. Ann. § 16-3-101(b)(i) (LexisNexis 2011) ("Agency" means any . department. of the state, a county, city or town[.]), this Court reviews the final judgment of a district court regarding action taken by an administrative agency under Wyo. Stat. Ann. § 16-3-115 (LexisNexis 2011).

We structure our review as though the appeal were directly from the agency, giving no special deference to the findings of the district court, and we apply the same standard of review used by district courts under Wyo. Stat. Ann § 16-3-114 (LexisNexis 2005).

Escarcega v. State ex rel. Wyo. DOT, 2007 WY 38, ¶ 6, 153 P.3d 264, 267 (Wyo. 2007).

[¶13] Under Wyo. Stat. Ann. § 16-3-114(a) (LexisNexis 2011), "any person aggrieved or adversely affected in fact . by other agency action or inaction . is entitled to judicial review in the district court for the county in which the administrative action or inaction was taken[.]" According to W.R.A.P. 12.09(a), judicial review "shall be limited to a determination of the matters specified in ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.