Drake v. State ex rel. Dept. of Revenue and Taxation
| Decision Date | 28 March 1988 |
| Docket Number | No. 87-265,87-265 |
| Citation | 751 P.2d 1319 |
| Parties | Sumner E. DRAKE, Petitioner, v. STATE of Wyoming, ex rel. DEPARTMENT OF REVENUE AND TAXATION, Respondent. |
| Court | Wyoming Supreme Court |
Robert J. Reese of Reese & Mathey, Green River, for petitioner.
Joseph B. Meyer, Atty. Gen., Peter J. Mulvaney, Deputy Atty. Gen., David Mark Quiner, Asst. Atty. Gen., Cheyenne, for respondent.
Before BROWN, C.J., and THOMAS, CARDINE, URBIGKIT and MACY, JJ.
Petitioner Sumner E. Drake (Drake) challenges an order suspending his driver's license under the Wyoming implied consent statutes, §§ 31-6-101 through 31-6-106, W.S.1977 (Cum.Supp.1986). He raises this issue:
"Whether a license suspension is valid when based solely on documents which were requested withdrawn by the city prosecutor, and which were submitted contrary to District Court Rules."
We affirm.
At about 2:00 a.m. on the morning of October 30, 1986, two officers of the Green River Police Department found Drake passed out next to his plate in the Cowboy Cafe. The officers were looking for Drake to investigate a hit and run accident that had taken place nearby. The officers noticed Drake's pickup in the cafe parking lot, and damage to the pickup was consistent with evidence found at the accident scene.
While the officers were inside the cafe, a waitress told them that Drake had been in the cafe for about thirty minutes. The officers spent some time trying to awaken Drake but met with no success. They noticed a strong odor of alcohol about him at this time. In their next attempt to revive him the officers picked Drake up to his feet and allowed the cook at the cafe to pass an ammonia capsule under his nose. This, too, failed to awaken him. The officers then carried him outside where the cool night air seemed to bring him around. He still was unable to stand on his own or speak coherently.
At this time, based on evidence from the accident scene, the testimony of persons in the cafe that Drake had driven there, Drake's possession of the keys to the accident vehicle and his condition at that time, the reporting officer arrested him for DWUI, hit and run, property damage and failure to report an accident. The officers advised him that he was under arrest, but they were unsure if he understood.
He then was searched, placed in a police car and driven to the Sweetwater County Jail. When the car reached the jail, Drake had to be awakened and helped inside. Once in the jail, he seemed more coherent, realized where he was, and resisted incarceration slightly. Officers again advised him of the charges against him and his rights under the implied consent statutes. At this time he admitted driving the hit and run vehicle to the Cowboy Cafe, but said that he did not remember driving into anything. When asked to submit to a breath-alcohol test, Drake refused. He then was booked and jailed.
Drake's refusal to submit to the breath-alcohol test worked an automatic suspension of his driving privileges for six months under § 31-6-102(d), W.S.1977 (Cum.Supp.1986). 1 Drake requested a hearing on the suspension from the State Tax Commission, Department of Revenue and Taxation (Department), and a hearing was scheduled for August 5, 1987.
At the hearing, Drake's attorney appeared alone, having advised his client not to appear or testify. The attorney explained that there were factual issues in dispute and that the only issues were issues of law. He went on to move for dismissal based on two grounds: (1) that there was no attorney for the Department present; and (2) that a letter from the Green River City Prosecutor in the record indicated that a request had been sent to the Department for return of the arrest documentation pursuant to a plea agreement that the City had reached with Drake. The Department did not respond to this request before the hearing took place. Instead, it submitted its case based entirely on the arrest documentation as a certified record. Petitioner did not subpoena the arresting officer as a witness for the hearing.
After considering the documentation and petitioner's arguments, the hearing examiner made findings of fact consistent with the arrest report. His conclusions of law based on those facts were that there had been probable cause to believe petitioner had been driving his car while under the influence of alcohol, that he had been arrested for DWUI and that, after being advised of his rights under the implied consent statutes, he refused a breath test. This refusal was ruled to properly work a six-month suspension of his driving privileges.
Petitioner then filed a petition in the district court for review of the hearing examiner's decision on August 14, 1987. The district court stayed the suspension pending appeal and certified the case to this court on November 6, 1987, pursuant to Rule 12.09, Wyoming Rules of Appellate Procedure.
Drake makes two arguments under his issue. The first argument is that, by not appearing either personally or through an attorney at the August 5, 1987, hearing before the independent hearing examiner, the Department failed to prosecute under Rule 101(b) of the Uniform Rules for the District Courts of the State of Wyoming. 2 These rules, it is urged, apply to a Department implied consent hearing because § 16-3-107(c), (f) and (g), W.S.1977 (Cum.Supp.1987) of the Wyoming Administrative Procedure Act, allows a district court to enforce compliance with a subpoena or other discovery order in a contested case before an administrative agency.
Drake also points to Chapter I, § 6(b)-(e) of the Rules and Regulations of the Wyoming State Tax Commission concerning procedures for a hearing before an independent hearing examiner which provide:
He argues that because these rules allow any party to represent himself or to use an attorney, there is some kind of an implied requirement that the Department must appear either personally or through an attorney.
This novel cross-referencing of court rules, statutes and agency rules ignores one important rule of law long recognized by this court:
In the Matter of GP, Wyo., 679 P.2d 976, 996 (1984).
The Department has properly promulgated the rules set forth above for hearings before a hearing examiner on an implied consent driver's license suspension. The Department has the statutory authority to promulgate such rules under §§ 16-3-101 through 16-3-106, W.S.1977 (October 1982 Replacement and Cum.Supp.1987). See also Yeik v. Department of Revenue and Taxation, Wyo., 595 P.2d 965, 968-969 (1979). Section 6(e) of the Department's hearing rules set out above clearly allows the Department to present evidence at an implied consent suspension hearing " * * * by direct testimony or, certified record, whichever they so desire. * * * " (Emphasis added.) Drake was expressly informed that the Department could submit its case by certified record on the refusal form given to him at the time of his arrest.
We hold that the Uniform District Court Rules apply to this type of hearing only insofar as § 16-3-107(c), (f) and (g) expressly say they do. Further, we hold that this implied consent hearing was held in compliance with the properly promulgated rules and regulations of the Department. The way the Department presented its case provides no basis for reversal. See also State of Wyoming, Department of Revenue and Taxation v. Hull, Wyo., 751 P.2d 351 (198...
To continue reading
Request your trial
-
McGuire v. State, Dept. of Revenue and Taxation, 90-197
...license suspensions are civil proceedings that are separate and distinct from criminal DWUI prosecutions. Drake v. State ex rel. Dept. of Rev. and Tax., 751 P.2d 1319, 1322 (Wyo.1988). Appellant's argument that the hearing officer erred in interpreting W.S. 31-7-128 as lengthening the perio......
-
Nesius v. State Dept. of Revenue and Taxation, Motor Vehicle Div.
...suspension hearings. Hooten v. State, Dept. of Revenue & Taxation, 751 P.2d 1323, 1325 (Wyo.1988); Drake v. State ex rel. Dept. of Revenue & Taxation, 751 P.2d 1319, 1322 (Wyo.1988). The approved arrangement included a signed report of the individually involved arresting officer and an oppo......
-
French v. Amax Coal West
...(quoting Fullmer v. Wyoming Employment Sec. Com'n, 858 P.2d 1122, 1123-24 (Wyo.1993) and citing Drake v. State ex rel. Dept. of Revenue and Taxation, 751 P.2d 1319, 1322 (Wyo.1988)). The issues determined by the medical hearing panel in French's case are not found within the definition of a......
-
Schouboe v. Wyo. Dep't Of Transp.
...WY 91, 189 P.3d 872 (Wyo.2008)), it is nonetheless a valid method still used by agencies and approved of by this Court in Drake v. State, 751 P.2d 1319, 1322 (Wyo.1988). WYDOT has broad discretion to administer the implied consent laws. Id. We also note that submission of the certified reco......