Orchard v. State

• Decision Date: 20 October 2011
• Docket Number: No. S–11–0084.,S–11–0084.
• Citation: 262 P.3d 197,2011 WY 145
• Parties: Mark ORCHARD, Appellant (Plaintiff),v.The STATE of Wyoming, DEPARTMENT OF TRANSPORTATION, Appellee (Defendant).
• Court: Wyoming Supreme Court

262 P.3d 197

2011 WY 145

Mark ORCHARD, Appellant (Plaintiff),

v.The STATE of Wyoming, DEPARTMENT OF TRANSPORTATION, Appellee (Defendant).

No. S–11–0084.

Supreme Court of Wyoming.

Oct. 20, 2011.

Representing Appellant: R. Michael Vang, Fleener & Vang, LLC, Laramie, Wyoming.Representing Appellee: Gregory A. Phillips, Attorney General; Robin Sessions Cooley, Deputy Attorney General; Douglas J. Moench, Senior Assistant Attorney General; Michael T. Kahler, Assistant Attorney General.Before KITE, C.J., and GOLDEN, HILL, VOIGT, and BURKE, JJ.BURKE, Justice.

[¶ 1] Appellant, Mark Orchard, was arrested for driving while under the influence of alcohol. As a result, the Wyoming Department of Transportation advised him that it was suspending his driver's license pursuant to Wyo. Stat. Ann. § 31–6–102. Appellant contested the suspension before the Office of Administrative Hearings (OAH), and the OAH upheld the suspension. He sought review in the district court, and the court affirmed the OAH's order. Appellant challenges the district court's order, contending that the police officer who arrested him lacked reasonable suspicion to initiate the traffic stop. We affirm.

ISSUE

[¶ 2] Appellant presents the following issue:

1. The only issue presented for appeal is whether or not the arresting officer presented sufficient facts within his Officer's Signed Statement and certified record to support his claim that he received an anonymous REDDI report and observed sufficient facts while on routine traffic patrol that would allow the arresting officer to make contact with the Licensee and ultimately arrest him for “driving while under the influence of alcohol” (DWUI).

The Wyoming Department of Transportation (WYDOT) phrases the issues as follows:

1. Did the OAH correctly conclude that [the arresting officer] had reasonable suspicion to initiate a traffic stop on Appellant?

2. Did the OAH correctly conclude that [the arresting officer] had probable cause to arrest Appellant for driving while under the influence of alcohol?

FACTS

[¶ 3] On December 17, 2009, an officer of the Baggs Police Department received a Report Every Drunk Driver Immediately (REDDI) alert involving a purple Dodge pickup traveling north from Cowpoke Lane in Baggs, Wyoming. A short time later, the officer passed a vehicle with the same description driving south through town. According to the officer's narrative report, as he was passing the pickup he observed the vehicle cross the double yellow centerline. The officer turned around to follow and noticed that the driver failed to use a turn signal when turning right into a gas station. The officer activated his emergency lights and initiated a traffic stop.

[¶ 4] As the officer exited his patrol car, Appellant left the pickup and walked toward the officer. Appellant exhibited poor balance and had difficulty walking. Upon making contact with Appellant, the officer detected a strong odor of alcohol on his breath. Appellant stated that he had been drinking at a local establishment. The officer requested that Appellant perform field sobriety maneuvers, including the horizontal gaze nystagmus, one leg stand, and walk and turn tests. Appellant stated that he would not be able to pass, but agreed to perform the tests. The officer's report indicated that, during the horizontal gaze nystagmus test, Appellant lacked smooth pursuit in both eyes and sustained distinct nystagmus at maximum deviation. Appellant was unable to complete the other tests. The officer then asked Appellant to submit to a preliminary breath test, which he refused. Based on the officer's observations during the traffic stop and Appellant's performance on the field sobriety tests, the officer placed him under arrest for driving while under the influence of alcohol. A breath test was subsequently administered at the Carbon County jail, which showed that Appellant had a .135% blood alcohol content.

[¶ 5] WYDOT notified Appellant of its intent to suspend his driver's license for driving while under the influence, as required by Wyo. Stat. Ann. § 31–6–102. Appellant requested a contested case hearing, and a hearing was held on March 4, 2010. Appellant appeared via telephone and the Department relied on its certified record, which included the arresting officer's narrative report. Appellant contested the officer's version of the events, arguing that the officer had not made contact with him until three to five minutes after he had parked his vehicle to get gas. Appellant presented three video recordings of the arrest, two of which were taken from the arresting officer's dashboard camera, and another that was taken from an assisting officer's camera. He noted that none of the recordings actually showed him driving or showed the officer's initial contact with him.

[¶ 6] Each of the videos of the incident appears to have been taken after Appellant was stopped at the gas station. The first video was taken from a moveable camera that was initially inside the arresting officer's vehicle. The hearing examiner noted that the video was “not very helpful because the camera was continuously moving around, as if [the arresting officer] believed it was not activated.” The hearing examiner also noted that, in the video, Appellant “repeatedly asked if he could be given a break and repeatedly stated that he had too much to drink and would not be able to do the field sobriety maneuvers.” The second video, which was taken from inside of the arresting officer's vehicle, showed Appellant during transport to the detention facility after his arrest. In this video, Appellant asked the arresting officer why he was stopped, and the officer told Appellant that he stopped him for drifting over the centerline and for failing to use his turn signal when turning into the gas station. The third video was taken from the assisting officer's vehicle, which arrived on the scene after the stop.

[¶ 7] Appellant also presented testimony of a witness who stated that she observed the arresting officer receive the REDDI alert at a restaurant in Baggs, and that she subsequently observed the officer's vehicle with its overhead lights illuminated and Appellant's pickup parked at the gas station. Appellant argued that this testimony indicated that the officer had not observed him driving his vehicle. Finally, Appellant noted that both the time of the incident and the time it was reported were listed as 8:48 p.m. on the arresting officer's case report. Based on this evidence, Appellant asserted that the Department did not prove that the arresting officer had reasonable suspicion to make a traffic stop because the officer had lied about observing Appellant crossing the double yellow centerline and about observing Appellant failing to use his turn signal.

[¶ 8] The hearing examiner found the officer's statements to be more credible than Appellant's version of the events and explained:

14. This Office disagrees with counsel for Orchard. The alleged inconsistencies in the timing of the REDDI Report and [the arresting officer's] contact with Orchard are not sufficient to refute [the arresting officer's] sworn statements regarding his observation of traffic violations. In addition, Orchard's testimony was less credible than [the arresting officer's] more contemporaneous written report due to Orchard's undisputed intoxication and [the witness's] testimony did not have any bearing on what occurred while [the arresting officer] was driving past Orchard just prior to stopping Orchard because she was still in the restaurant. Finally, Orchard did not subpoena [the arresting officer] and did not properly challenge his sworn statements.

The hearing examiner ultimately determined that the arresting officer had reasonable suspicion to initiate the traffic stop because he “properly corroborated the REDDI Report by observing driving indicative of impairment and observed Orchard commit two traffic infractions, crossing over the double yellow centerline and failing to use a turn signal while turning into the Conoco station parking lot.” ¹

[¶ 9] The district court upheld the hearing examiner's decision, finding “no reason to reverse the conclusions of the Office of Administrative Hearings in determining that, based on the facts as found by the Hearing Officer, [the arresting officer] had reasonable suspicion to initiate a traffic stop of Mr. Orchard.” Appellant subsequently filed this timely appeal.

STANDARD OF REVIEW

[¶ 10] When we consider an appeal from a district court's review of an administrative agency's decision, we review the case as if it had come directly from the administrative agency. Batten v. Wyo. DOT Drivers' License Div., 2007 WY 173, ¶ 6, 170 P.3d 1236, 1239 (Wyo.2007). Review of an administrative agency's action is governed by the Wyoming Administrative Procedure Act, which provides that 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.

Wyo. Stat. Ann. § 16–3–114(c) (LexisNexis 2009). We apply the substantial evidence standard of review to the hearing examiner's findings of fact. Batten, ¶ 12, 170 P.3d at 1241.

Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion.

[ Bradshaw v. Wyo. Dep't of Transp. Drivers' License Div., 2006 WY 70, ¶ 11, 135 P.3d 612, 616 (Wyo.2006).]

Phrased another way, “[f]indings of fact are supported by substantial evidence if, from the evidence preserved in the record, we can conclude a reasonable mind might accept the...