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State ex rel. Wyoming Department of Transportation v. Icenhower

Supreme Court of Wyoming

December 11, 2014

STATE OF WYOMING ex rel. WYOMING DEPARTMENT OF TRANSPORTATION, Appellant (Respondent),
v.
MARK ICENHOWER, Appellee (Petitioner)

Appeal from the District Court of Laramie County. The Honorable Steven K. Sharpe, Judge.

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

For Appellee: No appearance.

Before BURKE, C.J., and HILL, KITE, DAVIS, and FOX, JJ.

OPINION

Page 290

DAVIS, Justice.

[¶1] Mark Icenhower was arrested for driving while under the influence of alcohol. The arresting highway patrol trooper read him the statutorily required implied consent advisement before requesting that he submit to a breath test. Mr. Icenhower initially refused to take the test until the trooper said that a search warrant would be obtained and that Mr. Icenhower could be taken to the hospital, tied down, and have blood drawn. After considering that scenario, he submitted to a breath test, which he failed. The trooper then issued Mr. Icenhower a notice of license suspension.

[¶2] Mr. Icenhower requested a contested case hearing before the Office of Administrative Hearings (OAH). He asserted that there was no probable cause to arrest him, and that he was not given the proper implied consent advisement due to the trooper's statements concerning the potential forced blood draw. The Wyoming Department of Transportation (WYDOT) responded in support of its proposed statutory ninety day suspension. A contested case hearing was held, and after considering the evidence, the hearing examiner upheld the proposed suspension. Mr. Icenhower then filed a petition for review in the district court. Although it concluded there was substantial evidence for the examiner's finding of probable cause, the district court determined that Mr. Icenhower was misled and tricked into submitting to the breath test by the trooper's statements about forcibly obtaining a blood sample if he did not cooperate. As a result, it reversed the OAH.

[¶3] WYDOT timely perfected its appeal to this Court and challenges the district court's order. We reverse the district court's decision and remand for reinstatement of the OAH's order upholding the suspension.

ISSUE

[¶4] WYDOT presents the following issue, which we have abridged:

Did the hearing examiner err as a matter of law in concluding that the patrolman did not illegally coerce Icenhower into undergoing a chemical test of his breath?

FACTS

[¶5] On a summer night in 2011, Highway Patrol Trooper Tyrel Cross stopped Mr. Icenhower's vehicle because he failed to signal when changing lanes. While talking to him, Trooper Cross smelled the odor of alcohol emanating from inside the vehicle. The trooper asked Mr. Icenhower if he had been

Page 291

drinking, and he admitted he had been, but not very much. Three field sobriety tests were conducted, and Icenhower failed them all.

[¶6] Based on his observations and the results of the field sobriety tests, Trooper Cross informed Mr. Icenhower that he was under arrest for Driving While Under the Influence (DWUI). He then read him the standard implied consent advisement required by Wyo. Stat. Ann. § 31-6-102(a)(ii).[1] Although Mr. Icenhower eventually submitted to a breath test, he initially declined, as the following dialogue reflects:

Trooper Cross : Sir, you are under arrest and charged with DWUI under Wyoming state statute 31-5-233. Do you understand that?
Mr. Icenhower : Yes, sir.
Trooper Cross : Okay. You are required to take a chemical test or tests to determine the quantity of alcohol or controlled substance present. If you refuse to comply with these requirements, I am authorized to apply for a search warrant. Do you understand that?[2]
Mr. Icenhower : Yes, sir.
Trooper Cross : Proceedings under the implied consent law are civil in nature, not criminal and as a matter of law you have no right to consult with an attorney before taking a chemical test or tests of your blood, breath, or urine, do you understand that?
Mr. Icenhower : Um, explain it. So I can't call for an attorney?
Trooper Cross : Not for this, sir.
Mr. Icenhower : Okay.
Trooper Cross : Because this is a civil matter.
Mr. Icenhower : Okay.
Trooper Cross : If the results of the test indicate that you are under the influence of alcohol or any controlled substance you may be subject to criminal penalties, and your driving privileges will be suspended for ninety days, and you may be required to drive only vehicles equipped with ignition Interlock device. Do you understand that?
Mr. Icenhower : Yes, sir.
Trooper Cross : After undergoing all tests requested by me, at a place and in a manner proscribed by and at the expense of my agency, you may be taken to the nearest hospital or clinic to secure any additional tests at your own expense, do you understand that?
Mr. Icenhower : Yes, sir.
Trooper Cross : I am requesting you to take a breath test at my agency's expense, do you ...

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