Regan v. State

• Decision Date: 20 December 2012
• Docket Number: Nos. S–12–0074,S–12–0075.,s. S–12–0074
• Citation: 292 P.3d 849
• Parties: Kyle F. REGAN, Appellant (Petitioner), v. STATE of Wyoming, ex rel., WYOMING DEPARTMENT OF TRANSPORTATION, Appellee (Respondent). Joseph B. Parsons, Appellant (Petitioner), v. State of Wyoming, ex rel., Department of Transportation, Appellee (Respondent).
• Court: Wyoming Supreme Court

292 P.3d 849

Kyle F. REGAN, Appellant (Petitioner),

v.STATE of Wyoming, ex rel., WYOMING DEPARTMENT OF TRANSPORTATION, Appellee (Respondent).

Joseph B. Parsons, Appellant (Petitioner),

v.State of Wyoming, ex rel., Department of Transportation, Appellee (Respondent).

Nos. S–12–0074, S–12–0075.

Supreme Court of Wyoming.

Dec. 20, 2012.

Representing Appellants: R. Michael Vang of Fleener & Vang LLC, Laramie, WY.

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; Robin Sessions Cooley, Deputy Attorney General; Douglas J. Moench, Senior Assistant Attorney General; and Michael T. Kahler, Senior Assistant Attorney General.

Before KITE, C.J., and GOLDEN ^*, HILL, VOIGT, and BURKE, JJ.

HILL, Justice.

[¶ 1] This opinion encompasses two separate appeals from two separate appellants, but both appeals challenge the implied consent advisement as affected by the same Laramie ordinance. While the appeals have not been consolidated, we join them for the purposes of opinion.

[¶ 2] Kyle Regan and Joseph Parsons, in separate incidents, were both arrested for driving while under the influence (DWUI). Following their arrests, each appellant consented to chemical testing. Regan's test showed that he had a 0.26 percent blood alcohol concentration, and Parsons' test showed that he had a 0.16 percent blood alcohol concentration. Based on the test results, each appellant had his driver's license administratively suspended. Each appellant likewise challenged the administrative suspension, claiming that his consent to chemical testing was invalid because he had been threatened with jail time under a local Laramie ordinance if he did not consent to the testing. In each case, the Office of Administrative Hearings (OAH) issued an order upholding the suspension, and each appellant appeals that order.

ISSUES

[¶ 3] Regan and Parsons both present the same issues on appeal:

I. This matter should be stayed pending resolution of pending declaratory judgment action involving enforcement of Laramie Municipal Ordinance 1592.

II. [Were Appellants] read proper implied consent advisements after being arrested for a DWUI under Laramie Enrolled Ordinance 1592?

III. Does the creation of minimum mandatory jail time for an alleged refusal to submit to a chemical test under Laramie's new DWUI constitute a “critical stage” for purposes of application of the Wyoming right to an attorney and distinguish the case from Mogard v. City of Laramie, 2001 WY 88, ¶¶ 26–31, 32 P.3d 313, 324–25 (Wyo.2001)?

IV. Are Laramie's new drinking and driving laws in conflict with State law and therefore preempted?

FACTS

Kyle Regan

[¶ 4] On April 17, 2011, at 2:23 a.m., Officer Christopher Cleven was on patrol in Laramie, Wyoming, when he observed a vehicle being driven erratically. Officer Cleven followed the vehicle for several blocks and then initiated a traffic stop. He made contact with the driver, Kyle Regan, and noticed a strong odor of alcohol coming from the vehicle. Officer Cleven also observed that Regan's eyes were bloodshot and glassy and that Regan had difficulty retrieving his driver's license and proof of insurance.

[¶ 5] Officer Cleven asked Regan to exit the vehicle and then directed him through standardized field sobriety tests. Regan performed poorly on the tests and showed a lack of balance. Officer Cleven asked Regan if he felt that he had had too much to drink to be driving, and Regan responded, “Yes I have and I'm (sic) genuinely do not know what I was thinking.” Officer Cleven then arrested Regan for DWUI and transported him to the Albany County Detention Center.

[¶ 6] At the detention center, Officer Cleven read Regan the Wyoming Implied Consent Advisement, which informed Regan that failure to submit to chemical testing would result in a six-month driver's license suspension for a first offense and an eighteen-month suspension for subsequent refusals or offenses. Regan refused to submit to chemical testing. Officer Cleven described the subsequent events as follows:

* * * I then read him the Chemical Test Refusal Warning Form ¹ at which time he asked if he could think about it and after approximately ten minutes he advised me that he would provide a breath sample and I gave him the Wyoming Implied Consent Advisement in which he did sign this agreeing to a breath sample, however it should be noted that he originally signed the refuse to submit to any chemical test and he then scratched this out and signed the line above it stating that he would agree.

[¶ 7] After obtaining Regan's consent to the chemical testing, Officer Cleven administered the test. The chemical breath test showed that Regan had a 0.26 percent blood alcohol concentration, and based on those results, Officer Cleven issued Regan a citation for DWUI, confiscated his driver's license, and issued him a Notice of Suspension and Temporary Wyoming Driver's License. On April 26, 2011, the Wyoming Department of Transportation (WYDOT) notified Regan that due to his chemical testing results, WYDOT was suspending his driver's license for a period of ninety days, beginning on May 17, 2011.

Joseph Parsons

[¶ 8] On the evening of May 19, 2011, Officer Jay Peyton was on patrol in Laramie, Wyoming, when he observed a pickup truck traveling north on 9th Street in excess of the posted speed limit. Officer Peyton turned around and followed the truck to make a traffic stop. While following the truck, Officer Peyton observed the truck “swerving badly” in its lane and at one point nearly hit a parked vehicle. Officer Peyton initiated a traffic stop and made contact with the truck's driver, Joseph Parsons. He noticed a strong odor of alcohol coming from the truck and also observed that Parsons' eyes were bloodshot and glossy and his eyelids were droopy. In responding to Officer Peyton's initial questions, Parsons slurred his words, had difficulty forming complete sentences and had difficulty retrieving his driver's license.

[¶ 9] Officer Peyton asked Parsons to exit the vehicle and then directed him through standardized field sobriety tests. Parsons failed the sobriety tests and based on that failure and “the totality of the circumstances,” Officer Peyton then arrested Parsons for DWUI and transported him to the Albany County Detention Center.

[¶ 10] Officer Peyton described his advisements to Parsons and the subsequent events as follows:

I transported Parsons to the Albany County Detention Center (ACDC) for booking. Once at the ACDC I read Parsons the Wyoming Implied Consent Advisement and requested that he agree to a chemical breath test. Parsons agreed to the chemical breath test. I checked Parsons' mouth for any foreign objects and found nothing. I waited the required 15 minute observation period and started the test. Just before the first breath sample was to be taken Parsons asked for a drink of water. I explained to Parsons that he was not allowed to have anything in his mouth for at least 15 minutes prior to the chemical breath test and the test had already been started. Parsons stated that he wanted to speak with his lawyer. I explained to Parsons that he did not have the right to speak with his lawyer prior to taking the breath test in order to decide whether or not to take the test. Parsons stated that he had changed his mind and that he was refusing to take the chemical breath test. I read Parsons the Refusal of a Chemical Test Advisement.² Parsons changed his mind again and stated that he would take the chemical breath test. Parsons registered at a .169% BAC according to the Intoximeter. Parsons was transferred over to the custody of the deputies at ACDC.

[¶ 11] Based on Parsons' chemical testing results, Officer Peyton cited Parsons for DWUI and issued him a Notice of Suspension and Temporary Wyoming Driver's License. On May 23, 2011, the Wyoming Department of Transportation (WYDOT) notified Parsons that due to his chemical testing results, WYDOT was suspending his driver's license for a period of ninety days, beginning on June 19, 2011.

OAH Ruling

[¶ 12] Regan and Parsons each requested a hearing to contest WYDOT's administrative suspension of his driver's license, and the OAH held separate evidentiary hearings for each appellant. Before the OAH, neither Regan nor Parsons contested the lawfulness of law enforcement's initial contact or the probable cause for their arrests. They instead challenged the implied consent advisement they were given, contending that the advisement was improper because it went beyond the advisement prescribed by statute and included a warning of the consequences under Laramie's implied consent ordinances. They also challenged the validity of the Laramie ordinances, arguing that the ordinances conflicted with state law, were vague and overbroad, and infringed on the constitutional right to an attorney.

[¶ 13] The OAH issued orders upholding the administrative suspensions of Regan's and Parson's driver's licenses. The orders were separate but virtually identical. The OAH rulings explained:

The suspension of driving privileges is civil in nature and is controlled by Wyoming law. In order for a person to make a choice to take or refuse a chemical test, the person must be informed of the consequences of taking or refusing the chemical test as provided for under the Wyoming implied consent law. The evidence in this matter clearly established [the officer] arrested Regan[/Parsons] for DWUI, read Regan[/Parsons] the implied consent advisement required under Wyoming law and Regan[/Parsons] eventually agreed to submit to a chemical test. As such, the proposed suspension action should be upheld. The issues and argument raised by Regan's/[Parson's] counsel have no merit in this civil proceeding. The arguments may have some bearing in the underlying criminal action in the Laramie Municipal Court but that issue is not one this Office has authority upon which to rule. Additionally, it should be noted Regan[/Parsons] was specifically notified if he submitted...