State, Dept. of Revenue and Taxation v. Hull

• Decision Date: 02 March 1988
• Docket Number: No. 87-178,87-178
• Parties: STATE of Wyoming, DEPARTMENT OF REVENUE AND TAXATION, Appellant (Respondent), v. Michael Alan HULL, Appellee (Petitioner).
• Court: Wyoming Supreme Court

Page 351

751 P.2d 351

STATE of Wyoming, DEPARTMENT OF REVENUE AND TAXATION, Appellant (Respondent), v. Michael Alan HULL, Appellee (Petitioner).

No. 87-178.

Supreme Court of Wyoming.

March 2, 1988.

Joseph B. Meyer, Atty. Gen., Peter J. Mulvaney, Deputy Atty. Gen., Mark Quiner, Asst. Atty. Gen., for appellant (respondent).

Norman E. Young of Hill, Young & Barton, Riverton, for appellee (petitioner).

Before BROWN, C.J., and THOMAS, CARDINE, URBIGKIT and MACY, JJ.

URBIGKIT, Justice.

A motor vehicle driver, stopped by a police officer for observed erratic driving, refused to take a blood-alcohol test. Suspension under the Wyoming implied-consent law as confirmed by an administrative hearing based on the state department implied-consent form as evidence, was reversed on appeal to the district court as insufficiently justified by the form as hearsay evidence. We reverse for reinstatement of the suspension.

Appellant, State of Wyoming, Department of Revenue and Taxation, phrases the issues as whether the district court erred in:

1. "RULING THAT THE HEARING EXAMINER'S DECISION WAS BASED SOLELY UPON HEARSAY WHEN THIS ISSUE WAS FIRST PRESENTED BY APPELLEE ON APPEAL TO THE DISTRICT COURT;"

2. "FINDING THE HEARING EXAMINER'S DECISION WAS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE;"

3. "APPELLEE WAIVED HIS DUE PROCESS RIGHTS TO CONFRONTATION AND CROSS-EXAMINATION BY FAILING TO SUBPOENA THE ARRESTING OFFICER."

FACTS

In September 1986, at 2:30 a.m., appellee Michael Alan Hull, when driving home, was stopped for a suspected driving-while-under-the-influence violation. The police officer became suspicious, and effectuated the stop when appellee failed to start up immediately from a flashing red traffic light and demonstrated a somewhat erratic driving pattern ending in failure to yield to the officer's police car operating with its emergency lights on. Hull admitted he had been drinking that day, but contended that it was sometime earlier. ¹ Evidence supporting suspension is solely derived from the Department of Revenue and Taxation's form used to report implied-consent violations to the department. The procedure followed by the department is to send a notice of suspension and temporary Wyoming driver's license form FSFR-6(4/86) to the licensee, which form advises of right to hearing, and further:

"If you want to have the Peace Officer at the hearing, YOU MUST specifically request the Officer be Subpoenaed and YOU will be liable for any expenses incurred because of the Subpoena. This request may be made at the time you request the hearing."

A hearing was requested in this case and was convened October 21, 1986, involving the hearing officer, Hull and his attorney, but without subpoena for the arresting officer. The hearing examiner accepted the completed state report in evidence without objection, and read its text to the attorney and license-suspended driver.

Modest conflict existed between the text of the report and the subsequent testimony of the driver about the swerving in his driving, but the principal conflict arose wherein the driver said that he started to take the first alcohol-influence test as a heel-to-toe observation, and then refused to take other tests, as compared to the report which recited that four other tests, horizontal gaze nystagmus, one-leg stand, alphabet, and finger count, were given, all of which demonstrated insobriety.

Hull presented two defenses at the suspension hearing, those being insufficient evidence to establish probable cause, and that the City of Riverton ordinance under which Hull was charged did not incorporate the state statutory implied-consent law. Argument was presented to the court that this latter issue was pending before a district judge of that judicial district and that a decision would be forthcoming before the end of the year. As a consequence of the diligence of that argument and the absolute conflict between the statement and the testimony about the tests given, by stipulation and request of Hull the hearing was continued until January, 1987. A hearing officer specifically asked counsel for the driver: "Do I have your word that you would request a subpoena of the officer?" to which the response was given, "Oh yeah, yeah. We'll get him here." Further inquiry later substantiated that the attorney would get the police officer by subpoena to the continued January hearing date.

When the hearing was reconvened on January 20, 1987, the police officer was again not present, the explanation by driver's counsel for his absence being that he had "overlooked doing it." At this juncture, for the first time the argument was made that the report form alone was not sufficient to establish the burden of proof and persuasion required on the four issues necessary to be demonstrated to uphold the validity of the suspension upon refusal to take the implied-consent tests. Those criteria had at the first hearing been enunciated by the hearing examiner as (1) driving under the influence; (2) arrested; (3) advised to submit, or the consequence being suspension; and (4) refusal to take the test, all of which are consistent with the scope of the revocation hearing provided by § 31-6-103(b), W.S.1977, 1987 Cum.Supp.

The only issue addressed in the second hearing was the factual basis of the contention of driving under the influence, focusing on the dispute between the report and Hull as to whether a number of tests were taken, or whether he simply discontinued the first test and refused to take any others.

The generic substantive question of this proceeding is whether the Department of Revenue and Taxation can impress the burden of subpoenaing the arresting officer on the driver, or whether the department in the first instance is obligated to undertake that burden by subpoenaing the arresting officer to be available to testify at each administrative hearing. The procedural problems portrayed are: first, the failure to object to the introduction of the evidence; ² second, the assumption of responsibility by the driver to request the arresting officer's presence at the second hearing, an assumption which was not fulfilled; and third, that the record presented to this court on appeal does not include a written transcription of the hearing tape recordings as is required by our case of recent vintage of Lindsey v. State, Wyo., 725 P.2d 649 (1986).

We are going to surmount the disaffinity of all of these procedural imbroglios in the interest of judicial economy and the immediate operation of the implied-consent process within the Wyoming Department of Revenue and Taxation by addressing the principal issue: whether the use of this implied-consent report form alone is sufficient to support a license suspension.

The parameters of this question involve two aspects: admissibility of this document, and due-process considerations. This implied consent form ³ required by § 31-6-102(g), W.S.1977, 1987 Cum.Supp. is a public record ⁴ and falls within Rule 803(8), W.R.E. as a hearsay exception:

"The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

* * *

* * *

"(8) Public records and reports.--Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or (C) in civil actions and proceedings and against the state in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness; * * *." (Emphasis added.)

Further, the legislature has provided that the form shall be treated like any other document executed under oath, by providing in § 31-6-102(g), W.S.1977, 1987 Cum.Supp.:

"(g) For the purposes of this section, the signed statement submitted by the peace officer shall be deemed a sworn statement and shall be subject to penalties for perjury."

We would answer the first inquiry by recognizing that § 31-6-102(g) provides a basis for admissibility and for our conclusion that the legislature intended that the statement could be used as dispositive evidence although subject to contest by other available evidence with weight to be given by the factfinder.

Additionally, the department's form provides places, as does the National Safety Council's Alcohol Influence Report Form, Erwin, Defense of Drunk Driving Cases: Criminal/Civil, § 7.09, (Figures 7-4, 7-4A), for the officer to list the specific reasons causing the officer to suspect the individual is under the influence. Thus, the department's form is not just a bare affidavit that some jurisdictions have struck down as too conclusory when the officer only swears in the form to have had "reasonable grounds" for stopping the vehicle and requesting the test. Jaubert v. Department of Public Safety, La.App., 323 So.2d 212 (1975).

The second aspect of the form is a due-process inquiry of a right to cross-examination and a right of confrontation as guaranteed by the United States and Wyoming Constitutions. This second issue has been currently addressed by other jurisdictions which have found, as we now agree, that the right can be derived by the availability of the police officer, provided that the subpoena responsibility remains with the driver. Hull relies primarily on a Colorado Court of Appeals decision, Kirke v. Colorado Department of Revenue, Motor Vehicle Division, Colo.App., 724 P.2d 77 (1986), as the foundational basis of his constitutional attack. The court in Kirke held that the licensee's due-process rights were violated when only hearsay evidence was used to prove one of the elements in the revocation hearing. However, the Colorado Supreme Court reversed the...