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Todd L. Romsa v. State of Wyoming

November 20, 2012

TODD L. ROMSA, APPELLANT (PETITIONER),
v.
STATE OF WYOMING, EX REL., WYOMING DEPARTMENT OF TRANSPORTATION, APPELLEE (RESPONDENT).



Appeal from the District Court of Albany County The Honorable Jeffrey A. Donnell, Judge

The opinion of the court was delivered by: Hill, Justice.

Before KITE, C.J., and GOLDEN*fn1 , HILL, VOIGT, and BURKE, JJ.

[¶1] After being arrested for driving while under the influence (DWUI) in violation of Wyo. Stat. Ann. § 31-5-233(b) (LexisNexis 2011), Todd L. Romsa submitted a request for contested case hearing before the Office of Administrative Hearings (OAH). Romsa asked the OAH to rule that the procedure used by the arresting officer to conduct the chemical breath test upon which his arrest was based did not comply with Wyo. Stat. Ann. § 31-6-105(a) (LexisNexis 2011) and, therefore, the proposed suspension of his driver's license must be vacated.*fn2 The OAH hearing examiner issued an Order Upholding Per Se Suspension on June 9, 2011. Romsa petitioned the district court to review the order of the OAH and on November 11, 2011, that court affirmed the OAH's order. Romsa now appeals the order of the district court. We affirm the order of the district court affirming the order of the hearing examiner that suspended the driver's license of Romsa.

ISSUES

[¶2] Romsa presents two issues for our consideration:

I. It is improper for OAH to apply a presumption that the underlying chemical test result is valid where the certified record establishes a failure to comply with Wyoming Statute § 31-6-105(a).

II. If OAH is allowed to apply the presumption that a chemical test is valid, then [Romsa] should be allowed under Rule 12.08 of the Wyoming Rules of Appellate Procedure to provide evidence to rebut the arresting officer's claims that he complied with Wyoming Statute § 31-6-105(a), where this evidence was not available to [Romsa] at the time of his implied consent administrative proceeding.

FACTS

[3] On April 10, 2011 Romsa was arrested for DWUI in violation of § 31-5-233(b).*fn3

According to the Wyoming Highway Patrol officer (arresting officer), Romsa was observed driving approximately 80 mph in a 55 mph zone; he failed to acknowledge the pursuing officer for one quarter of a mile despite the fact that the officer had activated his overhead lights, and he otherwise engaged in indecisive driving according to the officer's experience and training. After Romsa pulled over in his vehicle and stopped on the side of Interstate 80, the officer approached the vehicle and as Romsa rolled down his window, the officer smelled a strong odor of an alcoholic beverage emanating from the vehicle. Romsa admitted that he had been drinking alcohol that day and agreed to submit to field sobriety tests. According to the officer, "6 of 6 clues of impairment were easily observed in Mr. Romsa's eyes" during the "Horizontal Gaze Nystagmus" test; Romsa failed the walk and turn test as "7 out of 8 clues of impairment were easily observed;" and "Mr. Romsa exhibited 2 out of 4 clues of impairment" during the one leg stand test. Romsa also agreed to blow into the officer's portable breath test machine, which produced a result of .125.

[¶4] Consequently, the officer placed Romsa under arrest for DWUI at approximately 1634 hours (4:34 p.m.) and he was taken to the Albany County Detention Center for a breath test to determine his blood alcohol content.

[¶5] Pursuant to the arresting officer's Incident Report, once at the detention center, Romsa was read the Wyoming Implied Consent Form at 1725 hours (5:25 p.m.) and Romsa agreed to submit to a chemical test of his breath. The Wyoming Chemical Testing Program Intoximeter OR/IR II With Dry Gas -- Operational Checklist (hereinafter "Operational Checklist") prepared by the arresting officer indicates that at 1729 hours (5:29 p.m.) it was discovered that Romsa had "chew" (chewing tobacco) in his mouth and he was required to "spit it out." At 1729 hours, the officer then began a mandatory fifteen-minute observation period, which is required by Department of Health (DOH) Wyoming Chemical Testing Program rules and regulations prior to chemical breath testing. DOH Rules and Regulations for Chemical Analysis for Alcohol Testing, Ch. III, § 1(a)(i) (2004).

[¶6] According to the Incident Report,

Mr. Romsa submitted to the first breath test (#3438) at 1749 hours [5:49 p.m.] on 04/10/11. Mr. Romsa blew so hard into the machine that it caused an alcohol abort and a new test (#3439) had to be run on the Intox. Machine.

On the next test (#3439), Mr. Romsa provided another sample of his breath at 1755 hours [5:55 p.m.] and the result was a B.A.C. of .100. On the second attempt, Mr. Romsa failed to provide a sufficient air sample by blowing to [sic] lightly into the machine. On the third attempt, Mr. Romsa successfully provided a breath sample and the resulting B.A.C. was .108. Of note, I believe Mr. Romsa was trying to provide a sample of his breath in all of the above instances; he was simply confused as to how to properly provide a sample of his breath in the Intox. Machine.

[¶7] By letter dated April, 20, 2011, Romsa was notified by the Wyoming Department of Transportation (WYDOT) that as a result of his April 10, 2011 arrest for DWUI, his driver's license would be suspended. Evidently having anticipated the driver's license suspension, Romsa submitted a written request for a contested case hearing on April 13, 2011, and the hearing request was referred to the OAH "pursuant to Wyo. Stat. Ann § 31-7-105(b), the Wyoming Department of Transportation Rules and Regulations, Driver's Licenses, Ch. 1 (2009) and the Rules for Contested Case Practice and Procedure before the Office of Administrative Hearings (2008)," and the matter was deemed "appropriate for contested case hearing pursuant to the Wyoming Administrative Procedure Act, Wyo. Stat. Ann. §§ 16-3-101 through 115."

Contested Administrative Hearing

[¶8] The contested administrative hearing was set for June 2, 2011. In addition to the date of the hearing, Romsa was notified in the Notice of Evidentiary Hearing filed on May 10, 2011 that he would be allowed to "introduce physical evidence at the hearing, including documents and/or video or audio tape recordings" as long as he provided the evidence to the OAH prior to the hearing.

[¶9] Also on May 10, 2011, an entry of appearance was filed with the OAH by an attorney representing Romsa, and the attorney was notified that the discovery file had already been sent to Romsa when WYDOT received his request for contested hearing.

[¶10] On May 16, 2011, Romsa filed a Request for Decision on the Pleadings and Motion to Vacate Proposed Suspension. Accordingly, Romsa asked that the "matter be decided on the pleadings and information contained in the certified record in this case." (Emphasis added.) Romsa submitted no additional evidence and relied solely on the certified record.

[¶11] The certified record was provided by WYDOT and contained, in relevant part:

1. The arresting officer's Signed Statement,

2. The Incident Report "about [the officer's] contact with, investigation, arrest and chemical testing of Romsa,"

3. The Wyoming Chemical Testing Program Intoximeter EC/IR-EC/IR II With Dry Gas Operational Checklist (Operational Checklist),

4. A breath test record printout for test #3438 "which reflected a test at 1749 [5:49 p.m.] and noted a Test Status: Mouth alcohol," (Test #3438), and

5. A breath test record printout for test #3439 (Test #3439) reflecting Romsa's breath samples given at 1755 (5:55 p.m.) and 1759 (5:59 p.m.) with results of 0.100 and 0.108 BAC. [Emphasis added.]

[¶12] In his written argument, Romsa stated that: "The only issue in this case is whether the arresting officer observed the Licensee for the appropriate 15 minute observation period after the arresting officer received a mouth alcohol abort message for the Licensee's very first breath sample." Romsa argued:

In the current case, the Operational Checklist shows that [the arresting officer] started the 15 minute observation period at '1729 hrs discovered Mr. Romsa had chew in [his] mouth, had him spit it out.' Mr. Romsa's first reading was at '17:49' and the 'Test Status:' at bottom of the Subject Test shows an abort message of mouth alcohol. . [The arresting officer] immediately restarted the EC/IR up again and received two valid test results at '17:55' and '17:59' respectively. The first test was six (6) minutes after the mouth alcohol abort message and the second was ten (10) minutes after the mouth alcohol abort message. Because [the arresting officer] failed to wait the required 15 minutes after receiving the mouth alcohol abort message, the officer failed to comply with the rules and regulations for admission of the chemical test result and the proposed suspension must be vacated.

[¶13] Romsa relied upon the DOH Rules and Regulations for Chemical Analysis for Alcohol Testing.This rule provides:

(i) Subject must be observed for a minimum of fifteen (15) minutes prior to testing to prevent residual mouth alcohol. All foreign material (except dentures) must be removed from the mouth at the start of observation period and subject must not be allowed to smoke, eat, drink, or place anything in their oral cavity, etc. If the subject vomits or regurgitates, the observation period must be restarted after rinsing the mouth with water. A ...


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