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.
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] This opinion encompasses two separate appeals from two separate appellants, but both appeals challenge the implied consent advisement as affected by the same Laramie ordinance. While the appeals have not been consolidated, we join them for the purposes of opinion.
[¶2] Kyle Regan and Joseph Parsons, in separate incidents, were both arrested for driving while under the influence (DWUI). Following their arrests, each appellant consented to chemical testing. Regan's test showed that he had a 0.26 percent blood alcohol concentration, and Parsons' test showed that he had a 0.16 percent blood alcohol concentration. Based on the test results, each appellant had his driver's license administratively suspended. Each appellant likewise challenged the administrative suspension, claiming that his consent to chemical testing was invalid because he had been threatened with jail time under a local Laramie ordinance if he did not consent to the testing. In each case, the Office of Administrative Hearings (OAH) issued an order upholding the suspension, and each appellant appeals that order.
[¶3] Regan and Parsons both present the same issues on appeal:
I. This matter should be stayed pending resolution of pending declaratory judgment action involving enforcement of Laramie Municipal Ordinance 1592.
II. [Were Appellants] read proper implied consent advisements after being arrested for a DWUI under Laramie Enrolled Ordinance 1592?
III. Does the creation of minimum mandatory jail time for an alleged refusal to submit to a chemical test under Laramie's new DWUI constitute a "critical stage" for purposes of application of the Wyoming right to an attorney and distinguish the case from Mogard v. City of Laramie, 2001 WY 88, ¶¶ 26-31, 32 P.3d 313, 324-25 (Wyo. 2001)?
IV. Are Laramie's new drinking and driving laws in conflict with State law and therefore preempted?
[¶4] On April 17, 2011, at 2:23 a.m., Officer Christopher Cleven was on patrol in Laramie, Wyoming, when he observed a vehicle being driven erratically. Officer Cleven followed the vehicle for several blocks and then initiated a traffic stop. He made contact with the driver, Kyle Regan, and noticed a strong odor of alcohol coming from the vehicle. Officer Cleven also observed that Regan's eyes were bloodshot and glassy and that Regan had difficulty retrieving his driver's license and proof of insurance.
[¶5] Officer Cleven asked Regan to exit the vehicle and then directed him through standardized field sobriety tests. Regan performed poorly on the tests and showed a lack of balance. Officer Cleven asked Regan if he felt that he had had too much to drink to be driving, and Regan responded, "Yes I have and I'm (sic) genuinely do not know what I was thinking." Officer Cleven then arrested Regan for DWUI and transported him to the Albany County Detention Center.
[¶6] At the detention center, Officer Cleven read Regan the Wyoming Implied Consent Advisement, which informed Regan that failure to submit to chemical testing would result in a six-month driver's license suspension for a first offense and an eighteen-month suspension for subsequent refusals or offenses. Regan refused to submit to chemical testing. Officer Cleven described the subsequent events as follows:
* * * I then read him the Chemical Test Refusal Warning Form*fn2 at which time he asked if he could think about it and after approximately ten minutes he advised me that he would provide a breath sample and I gave him the Wyoming Implied Consent Advisement in which he did sign this agreeing to a breath sample, however it should be noted that he originally signed the refuse to submit to any chemical test and he then scratched this out and signed the line above it stating that he would agree.
[¶7] After obtaining Regan's consent to the chemical testing, Officer Cleven administered the test. The chemical breath test showed that Regan had a 0.26 percent blood alcohol concentration, and based on those results, Officer Cleven issued Regan a citation for DWUI, confiscated his driver's license, and issued him a Notice of Suspension and Temporary Wyoming Driver's License. On April 26, 2011, the Wyoming Department of Transportation (WYDOT) notified Regan that due to his ...