Harvey v. State

• Decision Date: 25 April 2011
• Docket Number: No. S–10–0194.,S–10–0194.
• Citation: 2011 WY 72,250 P.3d 167
• Parties: Ronald A. HARVEY, Appellant (Petitioner),v.The STATE of Wyoming, DEPARTMENT OF TRANSPORTATION, Appellee (Respondent).
• Court: Wyoming Supreme Court

250 P.3d 167

2011 WY 72

Ronald A. HARVEY, Appellant (Petitioner),

v.The STATE of Wyoming, DEPARTMENT OF TRANSPORTATION, Appellee (Respondent).

No. S–10–0194.

Supreme Court of Wyoming.

April 25, 2011.

Representing Appellant: R. Michael Vang, Fleener & Vang, LLC, Laramie, Wyoming.Representing Appellee: Bruce A. Salzburg, Attorney General; Robin Sessions Cooley, Deputy Attorney General; Kenneth J. Miller, Senior Assistant Attorney General; Douglas J. Moench, Senior Assistant Attorney General.Before KITE, C.J., and GOLDEN, HILL, VOIGT, and BURKE, JJ.BURKE, Justice.

[¶ 1] Appellant, Ronald Harvey, challenges an order from the district court affirming the suspension of his driver's license under Wyo. Stat. Ann. § 31–6–102 (LexisNexis 2009).¹ Appellant contends the trooper who stopped him did not have probable cause to justify the stop. We affirm.

ISSUE

[¶ 2] Mr. Harvey presents the following issue:

Did the arresting officer present sufficient facts to find that Mr. Harvey violated the elements of Wyoming's Implied Consent law, specifically that the officer presented sufficient “admissible” evidence to support that he observed a valid violation of Wyoming Statute § 31–5–921(d)?

The Department phrases the issue as follows:

Did the hearing examiner correctly find that [the highway patrolman] had reasonable suspicion to contact Appellant for failure to equip his forklift with a slow moving vehicle emblem?

FACTS

[¶ 3] On June 19, 2009, a Wyoming highway patrolman observed a forklift traveling at approximately five miles per hour on the shoulder of Highway 70 near Encampment, Wyoming. Upon passing the forklift, the trooper noticed that no “slow moving vehicle” emblem was displayed on the vehicle. The trooper initiated a traffic stop and Appellant identified himself as the driver.

[¶ 4] The trooper issued a written warning to Appellant for failing to display a slow moving vehicle emblem on the forklift in violation of Wyo. Stat. Ann. § 31–5–921(d). While issuing the warning, the trooper smelled a strong odor of alcohol coming from Appellant. When asked how much he had to drink that day, Appellant responded that he had “one beer” half an hour earlier. The trooper asked Appellant to step down from the forklift so that he could make sure Appellant was not impaired. While the trooper was administering field sobriety tests, another trooper arrived to assist with the stop. The second trooper found an open container of beer in the forklift sitting next to the driver's seat. When the trooper who had stopped Appellant asked him about the beer, Appellant said that it was his second beer. After Appellant performed poorly on two of three field sobriety tests and registered a .18% blood alcohol concentration on a portable breath test, the trooper placed him under arrest for driving while under the influence in violation of Wyo. Stat. Ann. § 31–5–233(b). Appellant was subsequently transported to the Carbon County Detention Center, where he consented to a second breath test after the trooper read the implied consent advisement pursuant to Wyo. Stat. Ann. § 31–6–102(a)(ii). The second breath test, which was administered using an Intoximeter EC/IR, showed that Appellant had a .135% blood alcohol concentration.

[¶ 5] Based on the results of the breath test, the Department of Transportation sent Appellant notice of its intent to suspend his driver's license pursuant to Wyo. Stat. Ann. § 31–6–102(e). Appellant requested a contested case hearing before the Office of Administrative Hearings (OAH), but he subsequently waived his right to present oral argument and instead submitted written argument to the hearing examiner. Appellant argued that the trooper did not have probable cause to justify the traffic stop because no statute or regulation required him to display a slow moving vehicle emblem on the forklift. He also argued that the field sobriety tests were not properly administered and should not be considered in determining whether the trooper had probable cause for the arrest. The hearing examiner subsequently issued an order upholding the suspension of Appellant's driver's license, concluding that the stop was justified based upon a violation of Wyo. Stat. Ann. § 31–5–921(d) and that the field sobriety tests were properly administered. Appellant filed a petition for review in district court. The district court affirmed the OAH's order and this appeal followed.

STANDARD OF REVIEW

[¶ 6] We review an administrative agency's decision in accordance with the Wyoming Administrative Procedure Act, which provides that the reviewing court shall:

(ii) Hold unlawful and set aside agency action, findings and conclusions found to be:

(A) Arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law;

(B) Contrary to constitutional right, power, privilege or immunity;

(C) In excess of statutory jurisdiction, authority or limitations or lacking statutory right;

(D) Without observance of procedure required by law; or

(E) Unsupported by substantial evidence in a case reviewed on the record of an agency hearing provided by statute.

Wyo. Stat. Ann. § 16–3–114(c); Dale v. S & S Builders, LLC, 2008 WY 84, ¶ 9, 188 P.3d 554, 557–58 (Wyo.2008). We apply the substantial evidence standard of review to the hearing examiner's factual findings concerning whether the trooper had probable cause to initiate the traffic stop, but review the constitutionality of the particular seizure de novo. Batten v. Wyo. DOT Drivers' License Div., 2007 WY 173, ¶ 16, 170 P.3d 1236, 1242 (Wyo.2007). This case requires interpretation of the statute relating to the display of emblems on slow moving vehicles. Statutory interpretation is a question of law and is reviewed de novo. Sinclair Oil Corp. v. Wyo. Dep't of Revenue, 2010 WY 122, ¶ 7, 238 P.3d 568, 570 (Wyo.2010).

DISCUSSION

[¶ 7] Appellant asserts the only issue in this case is “whether or not the officer could legitimately stop Mr. Harvey for allegedly failing to have a slow moving vehicle emblem on his ‘forklift.’ ” ² Appellant does not dispute that he failed to display a slow moving vehicle emblem on the forklift while operating it on the highway. Rather, he argues that the failure to display such an emblem was not a violation of Wyo. Stat. Ann. § 31–5–921(d) and, accordingly, did not provide the trooper with probable cause to initiate the traffic stop.

[¶ 8] The Fourth Amendment to the United States Constitution and Article 1, § 4 of the Wyoming Constitution protect persons from unreasonable searches and seizures. Appellant does not indicate whether his argument is based on the protections of the Fourth Amendment to the U.S. Constitution or Article 1, § 4 of the Wyoming Constitution. In Vasquez v. State, 990 P.2d 476 (Wyo.1999), we noted that “a litigant must provide a precise, analytically sound approach when advancing an argument to independently interpret the state constitution.” Id. at 484 (citing Dworkin v. L.F.P., Inc., 839 P.2d 903, 909 (Wyo.1992); Saldana v. State, 846 P.2d 604, 621–24 (Wyo.1993) (Golden, J., concurring)). Appellant does not argue that Article 1, § 4 provides greater protection than the Fourth Amendment under the circumstances of this case. Accordingly, we do not conduct a separate analysis under Article 1, § 4.

[¶ 9] A routine traffic stop constitutes a seizure within the meaning of the Fourth Amendment “even though the purpose of the stop is limited and the resulting detention quite brief.” Damato v. State, 2003 WY 13, ¶ 9, 64 P.3d 700, 704 (Wyo.2003). The reasonableness of a traffic stop is analyzed under the two-part test established in Terry v. Ohio, 392 U.S. 1, 19–20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968). That test asks (1) whether the initial stop was justified, and (2) whether the officer's actions during the detention were “reasonably related in scope to the circumstances that justified the interference in the first instance.” Damato, ¶ 9, 64 P.3d at 705. A decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred. Fertig v. State, 2006 WY 148, ¶ 27, 146 P.3d 492, 501 (Wyo.2006); see also Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996).

[¶ 10] As indicated in the trooper's incident report and in the written warning issued to Appellant, the trooper stopped Appellant for failing to display a slow moving vehicle emblem on his forklift, believing that was a violation of Wyo. Stat. Ann. § 31–5–921(d). That statute provides as follows:

§ 31–5–921. Farm and other vehicles and equipment; slow moving vehicle emblems.

...

(d) Every farm tractor and every self-propelled unit of farm equipment or implement of husbandry and special mobile equipment designed for operation at speeds not in excess of twenty-five (25) miles per hour shall at all times be equipped with a slow moving vehicle emblem mounted on the rear except as provided in subsection (e) of this section.

Appellant contends that application of this statute was improper because he was not operating a farm vehicle as contemplated by the statute and because a forklift is not “special mobile equipment designed for operation at speeds not in excess of twenty-five (25) miles per hour.” We disagree.

[¶ 11] The issue raised is one of statutory interpretation. We apply our usual rules relating to statutory interpretation:

Statutory interpretation is a question of law. Our paramount consideration is the legislature's intent as reflected in the plain and ordinary meaning of the words used in the statute. Initially, we determine whether the statute is clear or ambiguous.

A statute is clear and unambiguous if its wording is such that reasonable persons are able to agree on its meaning with consistency and predictability. Conversely, a statute is ambiguous if it is found to be vague or uncertain and subject to varying interpretations. If we determine that a statute is clear and unambiguous, we give effect to the...