Flauding v. State ex rel. Wyo. Dep't of Transp.

Decision Date24 November 2021
Docket NumberS-21-0106
Citation2021 WY 131
CourtWyoming Supreme Court

Appeal from the District Court of Carbon County The Honorable Dawnessa A. Snyder, Judge

Representing Appellant:

R Michael Vang of R. Michael Vang P.C., Laramie, Wyoming

Representing Appellee:

Bridget Hill, Wyoming Attorney General; Misha Westby, Deputy Attorney General; Michael T. Kahler, Senior Assistant Attorney General



[¶1] Steven Flauding Jr. was arrested for driving while under the influence of alcohol. Law enforcement administered a breathalyzer test that indicated Mr. Flauding had a blood alcohol concentration greater than .08%. The Wyoming Department of Transportation (WYDOT) suspended his driver's license and operating privileges pursuant to Wyo. Stat. Ann. § 31-6-102(e). Mr. Flauding challenges the Office of Administrative Hearing's (OAH) decision upholding the suspension. He contends that the OAH could not consider the results of the breathalyzer test because law enforcement interfered with his statutory and substantive due process right to obtain an independent chemical test. We affirm.


[¶2] Mr. Flauding raises one issue for our review, which we restate as follows:

Does substantial evidence support the OAH's finding that law enforcement did not interfere with Mr. Flauding's right to obtain an independent chemical test under Wyo. Stat. Ann. § 31-6-102(a)(ii)(C) and § 31-6-105(d)?

[¶3] On July 30, 2020, Sergeant Joel Robertson of the Rawlins Police Department was out on routine patrol at approximately 11:15 p.m. when he noticed dust being kicked up off of South Higley Boulevard. He looked toward the area and observed a vehicle's taillights and a headlight in the sagebrush off the main roadway. He drove as close as he could to the vehicle, exited his patrol car, and walked toward it.

[¶4] He observed a man in a white shirt duck behind the vehicle, a yellow jeep. He yelled to him, "what are you doing, can I see your hands," but got no response. He repeated his request, and the man walked around the vehicle with his hands in the air. He said his name was Steve Flauding, and that he was disposing of tree branches. When he was asked if he had identification, Mr. Flauding patted his pockets and said, "I don't." Mr. Flauding did not have his wallet, but he did have proof of insurance inside the vehicle.

[¶5] Sergeant Robertson observed that Mr. Flauding's eyes were heavy, and that he smelled strongly of alcohol. He was also unsteady, and his speech was slurred. When he was asked if he had been drinking, he admitted, "I've had a couple." He changed his story multiple times when he was asked how much he had to drink, when he began drinking, and where he was drinking, but he ultimately admitted to consuming six twelve-ounce beers.

[¶6] Sergeant Robertson arrested Mr. Flauding for driving while under the influence of alcohol in violation of Wyo. Stat. Ann. § 31-5-233(b)(i). He searched Mr. Flauding's pockets, which contained a set of keys and a flashlight, but no wallet. He placed Mr. Flauding in the back seat of the patrol vehicle and informed him of his rights and obligations under the implied consent law. He told Mr. Flauding that if a chemical test indicated that he was under the influence of alcohol, he might be subject to criminal penalties and/or a suspension of his driving privileges. He also further informed him that after undergoing all law enforcement-required chemical tests, he could "be taken to the nearest hospital or clinic to secure any additional test at [his] own expense."

[¶7] Sergeant Robertson told Mr. Flauding that he was required "to take a breath test at [the] agency's expense," and then asked if he would agree to take the test. Mr. Flauding asked why he was not given a breath test, and the officer explained that that was what he was attempting to do. Mr. Flauding asked hypotheticals as to what would happen if he "blew" certain concentrations, but he ultimately agreed to take the breathalyzer test.

[¶8] Before he drove Mr. Flauding to the detention center in Rawlins, Sergeant Robertson asked Mr. Flauding for his wife's phone number. He responded that he could not remember, and that he left his phone at home because he had not planned to be gone long. He said that his wife should be at their residence, so the officer asked his dispatcher to contact her to ask her to retrieve the jeep. Another officer was sent to the Flauding residence and knocked on the doors, but no one answered. Other attempts to locate Mrs. Flauding were also unsuccessful.

[¶9] A breathalyzer test was completed at the detention center. It showed that Mr. Flauding's blood alcohol concentration was greater than .08%. He was informed of the results, and he responded, "that's perfect" and "that's a lot for six beers." He questioned the accuracy of the test, asserting "there's no way I blew that," and that the machine was "a liar." He then suggested that the testing should be reported as a .06, and he also insisted that he was never on a public road anyway.

[¶10] Sergeant Robertson read the following advisement to Mr. Flauding for a second time:

According to Wyoming State Statute 31-6-105, you may, at your own expense, have a qualified person of your own choosing administer a chemical test or tests in addition to this test. Your failure or inability to obtain an additional test or tests shall not preclude the admissibility in evidence of this test.

He reiterated that if Mr. Flauding did not agree with the breathalyzer test (which he did not) that he could take him to the hospital where the hospital personnel would draw his blood for testing, but that he would have to pay for it. He told him that the test cost $150.00.

[¶11] Mr. Flauding requested an independent test. He indicated that he had $150.00 in his wallet, and Sergeant Robertson asked him where his wallet was. Instead of answering the question, Mr. Flauding asserted that the county was required to pay for the test. Sergeant Robertson told Mr. Flauding that he was required to pay for any additional test, but that since he had no means to pay, he would call the hospital to see if it would perform the test and bill him.

[¶12] Sergeant Robertson then contacted the hospital, and a hospital representative told him that a lab draw to determine blood alcohol concentration ("BAC") was not a service the hospital would bill for. The representative told the officer that it would require advance payment before performing the test. Mr. Flauding admitted that he had no means to pay for the test, but he again asserted that the county had to pay for it, and he promised he would pay the county back later. Since he could not pay for the test, Sergeant Robertson did not drive Mr. Flauding to the hospital, and instead booked him into the detention center.

[¶13] The Wyoming Department of Transportation (WYDOT) notified Mr. Flauding that his driver's license would be suspended for ninety days, and that he was disqualified from holding a commercial driver license for one year. On August 13, 2020, he requested a contested case hearing on the suspension.

[¶14] After several agreed-to continuances, a contested case hearing was held before an OAH hearing examiner on October 20, 2020. The examiner heard testimony from Sergeant Robertson, and also received and reviewed body camera footage from the arrest.

[¶15] Mr. Flauding's counsel argued at the hearing that: (1) the evidence was insufficient to show that Mr. Flauding was operating and/or exercising physical control over a motor vehicle on a public street or highway in violation of Wyo. Stat. Ann. § 31-5-233; and (2) that Mr. Flauding was not afforded the opportunity to obtain an independent blood test pursuant to Wyo. Stat. Ann. § 31-6-102(a)(ii)(C). Counsel contended that the arresting officer unreasonably interfered with his client's attempt to obtain an independent test, and that therefore the results of the breathalyzer test could not be considered.

[¶16] The hearing examiner found that the officer did not interfere with Mr. Flauding's attempt to obtain an independent test, but that the test was instead unavailable to him because he did not have the means to pay for it. The examiner also found that the breathalyzer results could be considered because failure or inability to obtain an independent chemical test did not make the breath test inadmissible under Wyo. Stat. Ann. § 31-6-105(d). The OAH therefore upheld WYDOT's license suspension and commercial driver's license disqualification.

[¶17] Mr. Flauding appealed the OAH decision to the district court, and asked that court to find that the arresting officer unreasonably interfered with his right to obtain an independent test as he had claimed before the OAH. The district court found the OAH's findings to be supported by substantial evidence, upheld the admissibility of the BAC evidence, and affirmed the OAH's decision. Mr. Flauding timely appealed.


[¶18] When we consider an appeal from a district court's review of an administrative agency's decision, we examine the case as if it came directly from the agency, giving no deference to the district court's decision. Casiano v. State ex rel. Wyoming Dep't of Transportation 2019 WY 16, ¶ 6, 434 P.3d 116, 119 (Wyo. 2019); Morris v. State ex rel. Dep't of Workforce Servs., Workers' Comp. Div., 2017 WY 119, ¶ 23, 403 P.3d 980, 986 (Wyo. 2017). The Wyoming Administrative Procedure Act governs our review:

(c) To the extent necessary to make a decision and when presented, the reviewing court shall decide all relevant

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