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

• Decision Date: 22 October 2021
• Docket Number: S-21-0093
• Citation: 2021 WY 116
• Parties: RICKY D. JOHNSON, Appellant (Petitioner), v. STATE OF WYOMING ex rel., WYOMING DEPARTMENT OF TRANSPORTATION, Appellee (Respondent).
• Court: Wyoming Supreme Court

2021 WY 116

RICKY D. JOHNSON, Appellant (Petitioner),
v.
STATE OF WYOMING ex rel., WYOMING DEPARTMENT OF TRANSPORTATION, Appellee (Respondent).

No. S-21-0093

Supreme Court of Wyoming

October 22, 2021

Appeal from the District Court of Park County The Honorable Bobbi Overfield, Judge.

Representing Appellant:

Stephen Joseph Darrah, Darrah Law Office, P.C., Powell, Wyoming; R. Michael Vang, R. Michael Vang, P.C., Laramie, Wyoming.

Representing Appellee:

Bridget L. Hill, Attorney General; Misha Westby, Deputy Attorney General; Michael T. Kahler, Senior Assistant Attorney General; Ryan J. Thompson, Assistant Attorney General.

Before FOX, C.J., and DAVIS, KAUTZ, BOOMGAARDEN, and GRAY, JJ.

FOX, Chief Justice.

[¶1] Powell police arrested Ricky D. Johnson for driving while under the influence of alcohol in violation of Wyo. Stat. Ann. § 31-5-233. A breath test showed his blood alcohol content was above the legal limit. Mr. Johnson was advised of his right to obtain an independent chemical test at his own expense, and he chose to exercise it. Officers transported him to the Powell Valley Healthcare Emergency Room, but he never obtained the test. His license suspension was affirmed after a hearing before the Office of Administrative Hearings (OAH) and by the district court. We affirm.

ISSUES

[¶2] The dispositive issues are:

I. Whether substantial evidence supports the OAH's fact finding that law enforcement officers did not interfere with Mr. Johnson's right to obtain an independent blood test under Wyo. Stat. Ann. §§ 31-6-102(a)(ii)(C) and 31-6-105(d)

II. Whether the statutes and substantive due process required law enforcement officers to do more than allow Mr. Johnson to go to the nearest hospital or clinic to obtain a test

FACTS

[¶3] Powell Police Officer Danny Hite stopped Mr. Johnson after he observed him fail to signal a turn and fail to maintain a single lane of travel. Mr. Johnson admitted to drinking several beers before driving. After Mr. Johnson failed a roadside sobriety test, Officer Hite arrested him for DWUI under Wyo. Stat. Ann. § 31-5-233(b)(i) and transported him to the Powell Law Enforcement Center. Mr. Johnson was read the Wyoming implied consent advisement pursuant to Wyo. Stat. Ann. § 31-6-102, and he submitted to a chemical breath test which indicated his blood alcohol concentration (BAC) was 0.150%, which exceeded the legal limit (0.08%). He was advised he could, at his own expense, "have any qualified person of his own choosing administer a chemical test or tests" pursuant to Wyo. Stat. Ann. § 31-6-105(d).^[1] Mr. Johnson requested his own

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blood test, and officers transported him to the Powell Valley Healthcare Emergency Room.

[¶4] The nurse testified that when law enforcement officers arrived at the hospital with Mr. Johnson, the nurse was confused because "normally [the officers] have a kit . . . and it's secured in front of the patient and the nurse and the officer. And then they . . . package it all up, seal it up, and they send it to their lab . . . to be tested." The nurse was also concerned about chain of custody, because he said the officers indicated Mr. Johnson would take the sample with him to jail and have it tested on his own later. Although this confusion was never resolved, the parties disagree whether it was the reason Mr. Johnson did not obtain a test.

[¶5] Sergeant Sapp, who was present during Mr. Johnson's arrest and hospital visit, testified that Mr. Johnson appeared confused about why he was at the hospital because each time he told Mr. Johnson that the officers did not require him to provide a blood sample he responded, "That's okay, I'll give you guys whatever you need." Sergeant Sapp testified, once Mr. Johnson understood he was not required to have his blood drawn, he said, "Oh, . . . if you don't need my blood, then let's go." At that point, Sergeant Sapp said, "Okay, I guess we aren't drawing blood," placed Mr. Johnson back in handcuffs, and took him to jail.

[¶6] Mr. Johnson testified that he understood he was at the hospital because he had requested his own blood test and that it was not required by the officers. He testified the nurse requested the officers provide the Wyoming Chemical Testing Program (WCTP) approved blood sample kit, which is supplied to law enforcement officers, but the officers refused to provide it and then unilaterally decided he would not get his own blood test.

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Mr. Johnson contends he never revoked his request for an independent chemical blood test.

[¶7] The Wyoming Department of Transportation suspended Mr. Johnson's driver's license for 90 days, and Mr. Johnson requested a contested case hearing. The hearing examiner weighed Officer Hite's documentation showing Mr. Johnson withdrew his request for an independent chemical blood test against Mr. Johnson's testimony that he was denied the test. The hearing examiner found Officer Hite's report more reliable and credible than Mr. Johnson's testimony because it was made shortly after the incident, and because Mr. Johnson was under the influence of alcohol at the time. The hearing examiner determined the Department of Transportation made a prima facie showing that Mr. Johnson's chemical test was administered in accordance with the law, therefore the test was valid and showed he had a BAC over the legal limit. The OAH upheld Mr. Johnson's suspension, and Mr. Johnson appealed to the district court. Johnson v. State ex rel., Wyo. Dep't of Transp. [Johnson I], 2020 WY 19, ¶ 4, 458 P.3d 40, 42 (Wyo. 2020).

[¶8] At the same time, Mr. Johnson filed a petition requesting the district court declare that law enforcement officers violated his statutory and due process rights to independent testing. Id. at ¶ 5, 458 P.3d at 42. The district court stayed Mr. Johnson's license suspension while it considered his declaratory judgment action, which it then dismissed. Id. We affirmed that dismissal on appeal. Id. at ¶ 16, 458 P.3d at 46.

[¶9] The district court lifted the stay on Mr. Johnson's administrative appeal and granted the parties' stipulated motion to present additional evidence to the OAH. The court remanded the case to the OAH to take additional evidence in continuation of the contested case hearing. After receiving that evidence, ^[2] the OAH entered its order upholding the suspension of Mr. Johnson's license. Mr. Johnson petitioned the district court for review. The district court affirmed the OAH order and found that Mr. Johnson's due process rights had not been violated, and Mr. Johnson appealed.

STANDARD OF REVIEW

[¶10] "We review an appeal from the district court's review of an administrative agency's decision as if it had come directly from the agency and give no deference to the district court's decision." Painter v. Hallingbye, 2021 WY 78, ¶ 10, 489 P.3d 684, 688 (Wyo. 2021) (citing Mirich v. State ex rel. Bd. of Tr. of Laramie Cnty. Sch. Dist. Two, 2021 WY 32, ¶ 15, 481 P.3d 627, 632 (Wyo. 2021)). This Court's review of an

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administrative agency decision is limited to a determination of matters specified in Wyo. Stat. Ann. § 16-3-114(c), which provides:

(c) To the extent necessary to make a decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. In making the following determinations, the court shall review the whole record or those parts of it cited by a party and due account shall be taken of the rule of prejudicial error. 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.

(LexisNexis 2021); W.R.A.P. 12.09(a). Whether Mr. Johnson was afforded his statutory and due process rights is a mixed question of fact and law. We review an agency's fact findings to determine whether they are supported by substantial evidence. Painter, 2021 WY 78, ¶ 11, 489 P.3d at 689 (citing Exaro Energy III, LLC v. Wyo. Oil & Gas Conservation Comm'n, 2020 WY 8, ¶ 10, 455 P.3d 1243, 1248 (Wyo. 2020)). We review the OAH's conclusion of law that Mr. Johnson's statutory rights were not violated de novo. Painter, 2021 WY 78, ¶ 10, 489 P.3d at 689 (quoting Hayse v. Wyo. Bd. of Coroner Standards, 2020 WY 4, ¶ 4, 455 P.3d 267, 270 (Wyo. 2020)). Likewise, we review the district court's conclusion that Mr. Johnson's substantive due process rights were not violated de novo. WyoLaw, LLC v. Off. of Att'y Gen., Consumer Prot. Unit, 2021 WY 61, ¶ 33, 486 P.3d 964, 974 (Wyo. 2021) (quoting Sam v. State, 2017 WY 98, ¶ 76, 401 P.3d 834, 859 (Wyo. 2017) ("Issues of constitutionality present questions of law, which we review de novo.")); see also Johnson I, 2020 WY 19, ¶ 10, 458 P.3d at 44 ("[A]dministrative agencies have no authority to rule on the constitutionality of statutes.").

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DISCUSSION

I. Substantial Evidence Supports the OAH's Fact Finding that Law Enforcement Officers Did Not Interfere With Mr. Johnson's Right to Obtain an Independent Blood Test Under Wyo. Stat. Ann. §§ 31-6-102(a)(ii)(C) and 31-6-105(d)

[¶11] Mr. Johnson contends officers deprived him of his rights by failing to provide...