Appeal from the District Court of Platte County The Honorable John C. Brooks, 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] Ricky D. Miller challenges a hearing examiner's order upholding his per se driver's license suspension. Miller claims that his breath test was invalid because the test operator was not properly certified. We affirm.
[¶2] Miller presents one issue:
1. Was the Office of Administrative Hearing's conclusions of law in error when it upheld the Wyoming Department of Transportation's "per se" suspension of [Miller's] driver's license when the chemical breath test was performed by an operator who was no longer certified to perform a breath test analysis in accordance with W.S. § 31-6-105(a) and Wyoming Department of Health Rules and Regulations?
[¶3] On October 15, 2010 a Guernsey police officer arrested Ricky D. Miller for driving under the influence (DUI). At the Platte County Detention Center Miller submitted to a breath test on an Intoximeter EC/IR machine. Corporal Mandy Karr of the Platte County Sheriff's Department performed the test, which showed that Miller's blood alcohol content was .25%, well over the legal limit of .08%. On the operation checklist for the test, Corporal Karr indicated that she was currently certified by the State of Wyoming as an operator. On November 15, 2010 the Wyoming Department of Transportation (WYDOT) advised Miller that his driver's license would be suspended for 90 days, whereafter he requested a contested case hearing.
[¶4] The Office of Administrative Hearings (OAH) held a contested case hearing on February 3, 2011. At the hearing and in post-hearing briefing, Miller challenged the validity of his breath test, arguing that Corporal Karr did not have a valid operator's permit because she did not perform the tests required to maintain her certification. The OAH rejected Miller's argument, stating:
The evidence in this case is not in dispute. Corporal Karr obtained her certification as an EC/IR operator on December 17, 2009; she performed one test in January 2010 and did not perform a test in February, March or April 2010. Under the DOH Rules, Corporal Karr should have been decertified. However, DOH did not receive a request to decertify Corporal Karr and pursuant to DOH's Rules Ch. 4, § 3, the permit shall be considered valid until the agency deems otherwise and provides notice of decertification. Since DOH did not determine Corporal Karr should be decertified and did not notify her that her permit was invalid, Corporal Karr's permit to perform chemical testing remained valid. The proposed suspension action should therefore be upheld.
The district court affirmed the OAH decision, and this appeal followed.
[¶5] Prior to this appeal, in April of 2011, Miller sent a letter to the Department of Health (DOH) requesting that Corporal Karr be retroactively decertified. Miller v. Wyo. Dep't of Health, 2012 WY 65, 275 P.3d 1257 (Wyo. 2012). The DOH did not respond, and Miller subsequently filed a petition for review of agency inaction. The district court denied the petition stating that Miller lacked standing and the matter was not ripe for review. Miller appealed to this Court, and in an opinion published May 9, 2012, this Court affirmed the district court. We stated in our ruling:
It is apparent that WDOH's Rules and Regulations for Chemical Analysis for Alcohol Testing, ch. 4, §§ 2(ii)(A) and 3 are not entirely consistent regarding whether the Department has a mandatory requirement to revoke certification for failure to properly maintain certification. And further adding to the uncertainty is § 4 that states that once an officer is initially certified, his permit "shall be considered valid until the state agency deems otherwise, and so notifies the permittee." Nevertheless, the question the district court was faced with is: When it "accepts all facts stated in the complaint as being true and views them in the light most favorable to the [petitioner]," is it "certain from the face of the [petition] that the [petitioner] cannot assert any facts which would entitle him to relief?" Herrig, 844 P.2d at 490 (citations omitted). In this case, in order to remedy Miller's and Gonzalez's injury, then, the district court would have had to order the Department to decertify the officers' permits retroactive to the dates their respective certifications lapsed.
While there is uncertainty in the WDOH's Rules and Regulations for Chemical Analysis for Alcohol Testing regarding when and under what circumstances the Department has an obligation to revoke an officer's permit to perform chemical tests for failure to properly maintain his certification, we agree with the Department that there is "no authority to decertify officers retroactively, which is the only remedy that would provide the relief sought by Miller and Gonzalez."
Miller, ¶¶ 38-39, 275 P.3d at 1265 ...