DALE B. LEAVITT, Appellant (Plaintiff),
v.
STATE OF WYOMING, ex rel., WYOMING DEPARTMENT OF TRANSPORTATION, Appellee (Defendant).
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. ...