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

Citation497 P.3d 895
Decision Date22 October 2021
Docket NumberS-21-0093
Parties Ricky D. JOHNSON, Appellant (Petitioner), v. STATE of Wyoming EX REL., WYOMING DEPARTMENT OF TRANSPORTATION, Appellee (Respondent).
CourtUnited States State Supreme Court of Wyoming

497 P.3d 895

Ricky D. JOHNSON, Appellant (Petitioner),


Supreme Court of Wyoming.

October 22, 2021

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.


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.


[¶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.


[¶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 blood

[497 P.3d 898

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. 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...

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