Colyer v. State, Dept. of Transp.

• Decision Date: 25 March 2009
• Docket Number: No. S-08-0183.,S-08-0183.
• Citation: 2009 WY 43,203 P.3d 1104
• Parties: David R. COLYER, Appellant (Petitioner), v. The STATE of Wyoming, DEPARTMENT OF TRANSPORTATION, Appellee (Respondent).
• Court: Wyoming Supreme Court

203 P.3d 1104

2009 WY 43

David R. COLYER, Appellant (Petitioner), v. The STATE of Wyoming, DEPARTMENT OF TRANSPORTATION, Appellee (Respondent).

No. S-08-0183.

Supreme Court of Wyoming.

March 25, 2009.

Representing Appellant: Vance Countryman of Vance T. Countryman, P.C., Lander, Wyoming.

Representing Appellee: Bruce A. Salzburg, Attorney General; Robin Sessions Cooley, Deputy Attorney General; Douglas J. Moench, Senior Assistant Attorney General; Michael T. Kahler, Assistant Attorney General.

Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.

VOIGT, Chief Justice.

[¶ 1] The appellant's driver's license was suspended because he refused to submit to a chemical test of his blood alcohol content after a traffic stop. That suspension was affirmed after a contested case hearing and again after a petition for review was filed in the district court. The focal issue is whether the arrest was unlawful, which, if so, would negate the appellant's statutorily implied consent to chemical testing, and would require reversal of the driver's license suspension. We affirm, although not precisely on the basis upon which the hearing examiner and district court determinations rested.

ISSUE

[¶ 2] The appellant presents the following issue in this appeal:

Whether Wyoming Statutes Section 7-2-106 [(LexisNexis 2007)] authorizes a Bureau of Indian Affairs officer to detain and/or arrest a non-Indian person on the Wind River Indian Reservation.

[¶ 3] The State phrases the issue somewhat differently:

[Whether] the district court correctly affirm[ed] the hearing officer's finding that [the] Bureau of Indian Affairs officer [] had authority to detain appellant on the Wind River Indian Reservation once he determined that appellant was not Native American, until Fremont County Sheriff's deputies arrived to take control of the scene?

[¶ 4] We will state what we consider to be the dispositive issue as follows: Whether the appellant's detention by a Bureau of Indian Affairs officer on the Wind River Indian Reservation rendered unlawful the otherwise lawful arrest of the appellant by a Fremont County deputy sheriff?

FACTS

[¶ 5] The facts in this case are not contested. We will set forth those facts of which the deputy sheriff was aware at the time he arrested the appellant for drunk driving:

1. Law enforcement officers in Fremont County received a REDDI (Report Every Drunk Driver Immediately) report at approximately 1:08 a.m., on March 2, 2006. The initial report and pre-arrest follow-up investigation indicated that a 1992 white Cadillac coupe bearing license plate number 10-34CC had driven into a pole and trash can at a convenience store in Riverton. Because the vehicle was registered to a person who resided in nearby Lander, a Fremont County deputy sheriff drove southward out of Riverton toward Lander on U.S. 789 in an attempt to intercept the vehicle.

2. A Bureau of Indian Affairs (B.I.A.) officer radioed that he had located the vehicle headed westward on 17 Mile Road, in an area that is within the Wind River Indian Reservation. The B.I.A officer advised that "the vehicle was all over the road and had left the road way on the shoulder and then drove back onto the roadway."

3. As the deputy sheriff drove toward the location described by the B.I.A. officer, he heard another B.I.A. officer radio that he had just seen the vehicle and was turning around to catch up with it. The second B.I.A. officer stated that the vehicle had accelerated to about 75 miles per hour in a 55 miles per hour zone, and was driving "all over the road." He also, before the arrest, told the deputy sheriff that the driver of the vehicle had not dimmed his headlights as he approached, and that he had seen the vehicle drift across the fog line on the highway.

4. The second B.I.A. officer stopped the vehicle and detained its driver, the appellant, until the deputy sheriff arrived. The appellant admitted to the B.I.A. officer that he "had been drinking."

5. The deputy sheriff arrived and approached the appellant, who was standing outside his vehicle. The appellant again admitted that he had been drinking, and the deputy sheriff noted a "distinct odor of alcoholic beverage" coming from the appellant, noted that the appellant's speech was very slurred, and noted that the appellant was very unsteady on his feet.

6. At the deputy sheriff's request, the appellant attempted to perform various field sobriety maneuvers, with minimal success. A portable alco-sensor test revealed the appellant's blood alcohol level to be .080%. In response to the deputy's direct question, the appellant answered that he "had drunk way too much to be driving." He was then arrested for driving while under the influence of alcohol.

[¶ 6] In addition to these pre-arrest facts, it is important to note that, after he was arrested, the appellant refused to submit to a chemical test to determine his blood alcohol content. There is also an unverified presumption throughout this record and in the briefs that, had the appellant been a tribal member, he would have been arrested by the B.I.A. officers, rather than being detained for formal arrest by the deputy sheriff.

STANDARD OF REVIEW

[¶ 7] The question before us— whether the appellant's detention by the B.I.A. officers rendered the subsequent arrest unlawful—is purely a question of law that we review de novo. Worcester v. State, 2001 WY 82, ¶ 13, 30 P.3d 47, 52 (Wyo.2001); Marshall v. State ex rel. DOT, 941 P.2d 42, 44 (Wyo.1997). That review takes place within the context of the statutorily based standards for the review of administrative agency action. Batten v. Wyo. DOT Drivers' License Div., 2007 WY 173, ¶ 6, 170 P.3d 1236, 1240 (Wyo.2007). We may sustain the decision of the lower tribunal on any basis found in the record. Van Order v. State, 600 P.2d 1056, 1058 (Wyo.1979).

DISCUSSION

[¶ 8] This discussion logically must begin with an analysis of the statutory significance of an arrest in the context of driving while under the influence and implied consent to chemical testing for blood alcohol content. Wyo. Stat. Ann. § 31-5-233(b) (LexisNexis 2007) prohibits "driving while under the influence" (DWUI). Wyo. Stat. Ann. § 31-6-102(a) (LexisNexis 2007) provides that a person lawfully arrested for DWUI is "deemed to have given consent" to a chemical test to determine his or her blood alcohol content. Wyo. Stat. Ann. §§ 31-6-102(d) and (f), and 31-6-107(a) (LexisNexis 2007) require the Wyoming Department of Transportation to suspend the driver's license or driving privileges of anyone who, having been lawfully arrested for DWUI, refuses to consent to a chemical test to determine his or her blood alcohol content.

[¶ 9] A person who has been arrested for DWUI and who has refused to consent to a chemical test to determine his or her blood alcohol content may request a hearing to determine the following issues: (1) whether the arresting officer had probable cause to believe the person was driving under the influence; (2) whether the person was placed under arrest; (3) whether the person refused to submit to a chemical test upon request of "the peace officer"; (4) whether, if the person did submit to a chemical test, the result was a blood alcohol concentration of 0.08% or more; and (5) whether the person was advised that his driver's license would be suspended upon refusal to submit to chemical testing. Wyo. Stat. Ann. § 31-6-103(a), (b) (LexisNexis 2007). The hearing is civil, rather than criminal in nature, and the State's burden of proof is the standard civil burden of producing a preponderance of the evidence. Bradshaw v. Wyo. DOT Drivers' License Div., 2006 WY 70, ¶ 18, 135 P.3d 612, 618 (Wyo.2006).

[¶ 10] The above-described process is exactly what happened to the appellant. He drove a motor vehicle while under the influence of alcohol, he was arrested, he refused to submit to a chemical test to determine his blood alcohol content, and his driver's license was thereafter suspended.¹ He contended in his administrative hearing and in his petition to the district court, and he now contends on appeal, that B.I.A. officers are not "peace officers" as defined by Wyo. Stat. Ann. § 7-2-101(a)(iv) (LexisNexis 2007), and that, therefore, the two B.I.A. officers had no authority to detain him while waiting for the deputy sheriff to arrive. His conclusion is that his arrest was, therefore, unlawful.²

[¶ 11] It is this contention that became the focus of the agency hearing and of the district court proceedings. Our review, however, guides us to look at two of the precepts within this statutory scheme. First, the scope of the hearing officer's review, as provided by Wyo. Stat. Ann. § 31-6-103(b), and as it relates to this case, is whether the arresting peace officer had probable cause to make the arrest, and second, the request to submit to a chemical test must be made by a peace officer. The point we wish to make is that neither of these precepts is at issue; the arrest was made by a deputy sheriff, who is a peace officer under the statute, and the request for a chemical test was similarly made by a deputy sheriff. What has happened in this case is that the parties have skipped over the actual question presented by the facts: does the detention of the appellant by the B.I.A. officers prior to his arrest make the arrest unlawful as a matter of law?

[¶ 12] The appellant relies almost solely upon two cases in arguing that his arrest was unlawful. First, he cites Marshall v. State ex rel. DOT, 941 P.2d 42, 46 (Wyo.1997), wherein we concluded that college campus police officers "do not have authority to make arrests outside their territorial boundaries absent fresh pursuit." While this is a correct recitation of the holding of the case, it is inapplicable to the issue at hand, because the facts of Marshall do not resemble the facts of this case. In Marshall, a campus police officer observed what he believed to be a stolen car drive past...