Smith v. STATE EX REL. DEPT. OF TRANSP.

• Decision Date: 04 October 2000
• Docket Number: No. 00-71.,00-71.
• Parties: Eugene P. SMITH III, Appellant (Petitioner), v. STATE of Wyoming ex rel. WYOMING DEPARTMENT OF TRANSPORTATION, Appellee (Respondent).
• Court: Wyoming Supreme Court

11 P.3d 931

Eugene P. SMITH III, Appellant (Petitioner), v. STATE of Wyoming ex rel. WYOMING DEPARTMENT OF TRANSPORTATION, Appellee (Respondent).

No. 00-71.

Supreme Court of Wyoming.

October 4, 2000.

Representing Appellant: R. Michael Vang of Kirkwood, Nelson & Vang, P.C., Laramie, Wyoming.

Representing Appellee: Gay Woodhouse, Attorney General; Rowena L. Heckert, Deputy Attorney General; and Dennis M. Coll, Senior Assistant Attorney General.

Before LEHMAN, C.J., and THOMAS, GOLDEN, HILL & KITE, JJ.

KITE, Justice.

Appellant Eugene P. Smith III was arrested by Laramie Police Officer Charles Donnelly for driving while under the influence of alcohol. He refused to take the chemical tests as required by Wyoming's implied consent law which resulted in an automatic six-month suspension of his driver's license for a first offense. Subsequent to a contested case hearing, the Office of Administrative Hearings issued an Order Upholding Implied Consent Suspension. Mr. Smith filed a Petition for Judicial Review contending lack of foundation for admission of the field sobriety tests and lack of requisite probable cause for the arrest. The district court upheld the license suspension, and we affirm.

ISSUES

Mr. Smith presents these issues for our review:

Was a proper foundation established for admission of the standardized field sobriety maneuvers utilized by the arresting officer to create his probable cause to arrest Mr. Smith, where the arresting officer failed to follow the necessary procedures for giving these tests?

Absent the field sobriety tests, did the arresting officer have probable cause to make a DWUI arrest?

Appellee State of Wyoming ex rel. Wyoming Department of Transportation restates the issues as follows:

I. Were the procedures and results of the field sobriety tests and the HGN test admissible under Rule 702, Wyo.R.Evid.?

II. Did Officer Donnelly have probable cause to arrest Smith for DWUI and request him to submit to a chemical test of breath?

FACTS

On May 15, 1999, at approximately 7:18 p.m., Officer Donnelly stopped Mr. Smith for driving his vehicle forty-two miles per hour in a thirty-mile-per-hour zone. As Officer Donnelly approached the vehicle, Mr. Smith rolled down his window approximately two inches and attempted to pass his driver's license and insurance papers out through the opening. Because Mr. Smith experienced difficulty putting the papers through the narrow space, Officer Donnelly asked him to roll the window down further, and Mr. Smith complied. Officer Donnelly took the driver's license and noticed that Mr. Smith's eyes were bloodshot and glassy and there was an odor of an alcoholic beverage coming from inside the vehicle. He asked Mr. Smith if he had been drinking, and Mr. Smith replied that he consumed a couple of drinks with dinner. The officer asked Mr. Smith to step out of his vehicle. Mr. Smith hesitated and then asked Officer Donnelly to write him a ticket for speeding and let him go. Officer Donnelly again told Mr. Smith to exit the vehicle. Mr. Smith got out of the vehicle, and Officer Donnelly conducted three standardized field sobriety tests-the horizontal gaze nystagmus¹ test, the walk and turn test, and the one-leg stand test.

Officer Donnelly scored Mr. Smith a six on the horizontal gaze nystagmus test (zero to six with zero reflecting no impairment), a three on the walk and turn test (zero to nine with zero reflecting no impairment), and no points on the one-leg stand test (zero to five with zero reflecting no impairment).² On the bases of the speeding violation, the admitted alcohol consumption, the odor of alcohol, the general observations of Mr. Smith's behavior, and the results of the field sobriety tests, Officer Donnelly determined that he had probable cause to believe Mr. Smith was operating a motor vehicle while intoxicated to a degree which rendered him incapable of driving the vehicle safely.

Mr. Smith was transported to the Albany County Detention Center and was read the implied consent form. He refused to submit to chemical tests. He was then read his Miranda rights, and he declined to answer any questions. Mr. Smith was issued citations for speeding and driving while under the influence of alcohol and was also issued a notice of suspension of his driver's license.

STANDARD OF REVIEW

Mr. Smith claims the foundation for the field sobriety tests was inadequate for admission. Absent the results of those tests, he contends there was insufficient evidence of probable cause for a warrantless arrest and, therefore, his suspension should be reversed. We noted in Nellis v. Wyoming Department of Transportation, 932 P.2d 741, 743 (Wyo.1997) (some citations omitted), that the appropriate standard of review for driver's license suspension proceedings presenting issues of this nature is as follows:

Rule 12.09, of the Wyo. R.App. P. provides that judicial review of an action by an administrative agency must be consistent with Wyo. Stat. § 16-3-114(c) (1990), which provides:

"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;

"... or

"(E) Unsupported by substantial evidence in a case reviewed on the record of an agency hearing provided by statute."

When a case initiated in an administrative agency comes before this court on appeal we do not give any special deference to the decision of the district court. Instead, we review the case as if it came to us directly from the agency. The deference normally accorded the findings of fact by a trial court is extended to an administrative agency, and the agency's determination of the facts will not be overturned unless clearly contrary to the overwhelming weight of the evidence on record. On review, we examine the entire record to determine whether substantial evidence is present to support the findings of fact by the hearing examiner. "Substantial evidence is relevant evidence which a reasonable mind might accept in support of the conclusions of an agency." Stuckey v. State, ex rel. Wyoming Worker's Compensation Div., 890 P.2d 1097, 1099 (Wyo. 1995). There must be more than a mere scintilla of evidence or a simple suspicion for the fact to be established.

DISCUSSION

A. Hearing Examiner Properly Admitted Field Sobriety Test Results

The admissibility of scientific and technical evidence in a judicial proceeding is governed by W.R.E. 702 and the four-part test set out in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). See Seivewright v. State, 7 P.3d 24 (Wyo.2000)

; Bunting v. Jamieson, 984 P.2d 467 (Wyo.1999); Kumho Tire Company, Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). It is the "general rule that administrative agencies acting in a judicial or quasi judicial capacity are not bound by technical rules of evidence that govern trials by courts or juries." Story v. Wyoming State Board of Medical Examiners, 721 P.2d 1013, 1018 (Wyo.1986). For this reason, we do not believe a Daubert analysis is necessary to address the evidentiary questions raised in this appeal.

The Wyoming Administrative Procedure Act, Wyo. Stat. §[§ ] 16-3-101 to -115 (1990 & Supp.1995), sets the broad standard for admissibility of evidence at an administrative hearing: The evidence must be of the type that is "commonly relied upon by reasonably prudent men in the conduct of their serious affairs." Section 16-3-108(a).

Thornberg v. State ex rel. Wyoming Workers' Compensation Division, 913 P.2d 863, 867 (Wyo.1996).

We recently described the standard of an abuse of discretion as "reaching the question of reasonableness of the choice made by the trial court." Vaughn v. State, 962 P.2d 149, 151 (Wyo.1998). In Vaughn, we confirmed the following definition:

"Judicial discretion is a composite of many things, among which are conclusions drawn from objective criteria; it means [exercising] sound judgment ... with regard to what is right under the circumstances and without doing so arbitrarily or capriciously. Byerly v. Madsen, 41 Wash.App. 495, 704 P.2d 1236 (1985)."

Vaughn, 962 P.2d at 151 (quoting Martin v. State, 720 P.2d 894, 897 (Wyo.1986)

). This definition is equally useful for all rulings tested by the abuse of discretion standard.

Shryack v. Carr Construction Company, Inc., 3 P.3d 850, 855 (Wyo.2000).

This Court has permitted a hearing examiner to rely on field sobriety tests, including the horizontal gaze nystagmus test, in addition to the officer's personal observations to determine whether the officer had probable cause during the course of a drunk driving stop. Nellis, 932 P.2d at 744; Nesius v. State Department of Revenue and Taxation, Motor Vehicle Division, 791 P.2d 939, 941-42 (Wyo.1990). In the criminal context, a significant number of courts have held that admission of sobriety tests, including the horizontal gaze nystagmus test, is appropriate as long as a proper foundation as to the techniques used and the officer's training, experience, and ability to administer the test has been laid. State v. Ito, 90 Hawai`i 225, 978 P.2d 191, 201 (1999); Ballard v. State, 955 P.2d 931 (Alaska Ct.App.1998); Zimmerman v. State, 693 A.2d 311 (Del.Super.Ct.1997); State v. Taylor, 694 A.2d 907 (Me.1997); Hawkins v. State, 223 Ga.App. 34, 476 S.E.2d 803 (1996); People v. Berger, 217 Mich.App. 213, 551 N.W.2d 421 (1996); Schultz v. State, 106 Md.App. 145, 664 A.2d 60 (1995); Emerson v. State, 880 S.W.2d 759 (Tex.Crim.App.), cert. denied, 513 U.S. 931, 115 S.Ct. 323, 130 L.Ed.2d 284 (1994); People v. Buening, 229 Ill.App.3d 538, 170 Ill.Dec. 542, 592 N.E.2d 1222 (1992), appeal denied, 146 Ill.2d 634, 176 Ill.Dec. 806, 602 N.E.2d 460 (1992); State ex rel. Hamilton v. City Court of City of Mesa, 165 Ariz. 514, 799 P.2d 855 (1990); State v. Murphy, 451 N.W.2d 154 (Iowa 1990); State v. Armstrong, 561 So.2d 883 (La.Ct....