Leavitt v. State ex rel. Wyoming Department of Transportation

         Appeal from the District Court of Teton County The Honorable Timothy C. Day, Judge

          Representing Appellant: R. Michael Vang of R. Michael Vang, P.C., Laramie, Wyoming; Timothy K. Newcomb, Laramie, Wyoming. Argument by Mr. Vang.

          Representing Appellee: Peter K. Michael, Wyoming Attorney General; Misha Westby, Deputy Attorney General; Michael T. Kahler, Senior Assistant Attorney General; Samuel S. Voyles, Assistant Attorney General. Argument by Mr. Kahler.

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

          FOX, Justice.

         [¶1] Appellant, Dale B. Leavitt, sought a declaratory judgment that the Wyoming Constitution prohibits a law enforcement officer from using the "deemed consent" provision of Wyo. Stat. Ann. § 31-6-102(a)(i) to perform a warrantless chemical test incident to the lawful arrest of a motorist. The district court dismissed his action for lack of a justiciable controversy. Mr. Leavitt claims that he has presented a justiciable controversy because the declaration he sought would exclude from evidence his breath sample indicating a blood alcohol concentration (BAC) above 0.08% and therefore overturn the suspension of his driver's license. We affirm.

         ISSUE

         [¶2] Mr. Leavitt frames the issue as a constitutional question, reworded as: whether article 1, section 4 of the Wyoming Constitution precludes a law enforcement officer from relying on Wyo. Stat. Ann. § 31-6-102(a)(i) to obtain a driver's breath sample without a warrant. However, because we affirm the district court's dismissal of Mr. Leavitt's claim for want of justiciability, the underlying constitutional question is not properly before this Court and we decline to consider it. We discern from Mr. Leavitt's brief the threshold issue, also presented by the State, which we state as: Did Mr. Leavitt's request for a declaration that a law enforcement officer may not rely on Wyo. Stat. Ann. § 31-6-102(a)(i) to "deem" a driver's consent to chemical testing present a justiciable claim?

         FACTS

         [¶3] When Officer Aitken of the Jackson Police Department stopped Mr. Leavitt for speeding and crossing over the center yellow line, he smelled alcohol on Mr. Leavitt's breath and asked him to perform field sobriety tests, which Mr. Leavitt failed. As a result, Officer Aitken arrested Mr. Leavitt for driving while under the influence (DWUI) pursuant to Wyo. Stat. Ann. § 31-5-233. He then read Mr. Leavitt the implied consent advisements set out in Wyo. Stat. Ann. § 31-6-102(a)(ii) and asked Mr. Leavitt if he would consent to a breath test to measure his BAC. Mr. Leavitt agreed to take the test and provided a breath sample which indicated his BAC to be 0.17%, in violation of Wyo. Stat. Ann. § 31-5-233(b).

         [¶4] The Wyoming Department of Transportation (WYDOT) therefore suspended Mr. Leavitt's driver's license for ninety days pursuant to Wyo. Stat. Ann. § 31-6-102(e).^[1] After a telephonic hearing, the Office of Administrative Hearings (OAH) upheld the suspension, finding that Officer Aitken had lawfully stopped and arrested Mr. Leavitt. In its order, the OAH found that Officer Aitken read the implied consent advisement pursuant to Wyo. Stat. Ann. § 31-6-102(a)(ii), and that Mr. Leavitt "agreed" to submit to the breath test.

         [¶5] Mr. Leavitt appealed the OAH decision to the Teton County District Court.^[2] While that appeal was pending, Mr. Leavitt filed a "Request that District Court Declare the 'is Deemed to Have Given Consent' to Warrantless Chemical Testing Provision of W.S. § 31-6-102(a)(i) Violates Article 1 §§ 4, 6 and 36 of the Wyoming Constitution" (the Request), thus initiating a separate civil action seeking a declaratory judgment that the Wyoming Constitution prohibits a law enforcement officer from relying on Wyo. Stat. Ann. § 31-6-102(a)(i) to obtain a driver's breath sample without a warrant. In the Request, Mr. Leavitt conceded:

The OAH concluded that the certified record and audio and video recording of the Plaintiff's detention and DUI arrest also established that Officer Aitken provided the Plaintiff with proper implied consent advisements and determined the record supported a finding that the Plaintiff agreed to provide breath samples after the implied consent advisements.

(Emphasis added.) Relying on the OAH's finding that Mr. Leavitt agreed to provide the breath sample, the district court concluded that the Request did not present a justiciable controversy and granted WYDOT's motion to dismiss the action. ...