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McCallie v. State ex rel., Dept. of Transp.

Supreme Court of Wyoming

February 4, 2014

James C. McCALLIE, Appellant (Petitioner),
v.
STATE of Wyoming, ex rel., DEPARTMENT OF TRANSPORTATION, Appellee (Respondent).

Page 1143

Representing Appellant: Dana J. Lent, Attorney at Law, Torrington, Wyoming.

Representing Appellee: Peter K. Michael, Attorney General; Robin Sessions Cooley, Deputy Attorney General; Douglas J. Moench, Senior Assistant Attorney General; Jackson M. Engels, Assistant Attorney General.

Before KITE, C.J., and HILL, VOIGT [*], BURKE, and DAVIS, JJ.

BURKE, Justice.

[¶ 1] The Department of Transportation disqualified James McCallie from driving commercial vehicles for one year on the basis that he had driven a commercial vehicle with a blood alcohol concentration of 0.04% or greater. [1] After a contested case hearing, the hearing examiner upheld the disqualification. Mr. McCallie challenges the agency's decision on appeal, claiming generally that the hearing examiner's findings of fact are unsupported by substantial evidence. Our review of the record reveals substantial evidence supporting the hearing examiner's decision, and we will affirm.

ISSUES

[¶ 2] Mr. McCallie presents two issues:

1. Were the hearing examiner's findings of fact regarding probable cause for arrest supported by substantial evidence?
2. Was the order upholding the disqualification of Mr. McCallie's commercial driver's license supported by accurate findings of fact and substantial evidence?

FACTS

[¶ 3] Mr. McCallie drove his commercial vehicle to the port of entry near Evanston, Wyoming, at about 10:45 p.m., on September

Page 1144

8, 2009. He parked and entered the office. A port authority worker commented that Mr. McCallie smelled of alcohol. He explained that he was using a medicated mouthwash to treat a gum infection caused by impacted wisdom teeth. He agreed to take a portable breath test, which indicated a blood alcohol level of 0.12%. Mr. McCallie requested a second test, which was administered approximately ten minutes later. The second test indicated a blood alcohol level of 0.06%.

[¶ 4] Believing that Mr. McCallie was driving while under the influence of alcohol, the port authority worker contacted the highway patrol. The Trooper arrived, smelled a " moderate" amount of alcohol on Mr. McCallie's breath, and observed that his speech was " normal" but his balance was " poor." The Trooper administered another breath test, and the result was 0.05% blood alcohol. The Trooper asked Mr. McCallie if he had been drinking, and he responded that he had been drinking the previous night, and also drank part of a beer approximately 12 hours earlier. The Trooper administered field sobriety tests, and observed that in the horizontal gaze nystagmus test Mr. McCallie displayed " maximum deviation." In the walk and turn test he " left gaps of over 1/2 inch on three steps, stepped offline once." In ...


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