Kimsey v. Wyoming Department of Transportation

2002 WY 15, 39 P.3d 425, 2002 Wyo. LEXIS 15, 2002 WL 112576
CourtWyoming Supreme Court
DecidedJanuary 30, 2002
DocketNo. 00-177
StatusPublished
Cited by2 cases

This text of 2002 WY 15 (Kimsey v. Wyoming Department of Transportation) is published on Counsel Stack Legal Research, covering Wyoming Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kimsey v. Wyoming Department of Transportation, 2002 WY 15, 39 P.3d 425, 2002 Wyo. LEXIS 15, 2002 WL 112576 (Wyo. 2002).

Opinion

LEHMAN, Chief Justice.

[T1] Appellant Edward Gerald Kimsey appeals from the Office of Administrative Hearing's (OAH) order, which upheld the appellee Wyoming Department of Transportation's (WYDOT) implied consent suspension of Kimsey's driver's license for a six-month period.

[T2] We affirm.

ISSUES

[T3] Kimsey submits the following issues for our analysis:

1. Was the Administrative Hearing Officer's finding "that there existed probable cause to believe Licensee had been driving or was in actual physical control of a motor vehicle upon a public street or highway in this state in violation of Wyo. Stat. § 81-5-288(b) (1995)" supported by substantial evidence?
2. Was the Administrative Hearing Officer's finding that "Licensee refused to submit to all required chemical tests" supported by substantial evidence?
8. Was the Administrative Hearing Officer's denial of Motion for New Trial And/Or Relief From Judgment an abuse of discretion?

FACTS

[T4] After a night out drinking, Kimsey arrived home in the early morning hours of February 27, 2000, to find a message on his answering machine informing him that his wife had been arrested and was being detained at the Cody Law Enforcement Center (Law Center). Kimsey called the Law Center to inquire about his wife, and the dispatcher told him that his wife had indeed been arrested and that she would have to spend the night in jail. The dispatcher [427]*427transferred Kimsey's call to Officer Schwindt who advised Kimsey that his wife had been arrested for driving while under the influence of alcohol, that he could not speak to her over the telephone or personally, and that she would not be released until later in the day. Both the dispatcher and Officer Schwindt believed Kimsey to be intoxicated based on their conversations with him on the telephone.

[T5] Just a few minutes after this telephone conversation ended, Kimsey showed up at the Law Center, He picked up an in-house telephone and waited for several minutes without ever trying to dial a number. When he finally hung up the telephone, the dispatcher called him to find out who he was and what he wanted. Kimsey identified himself and asked about his wife. The dispatcher asked Officers Melson and Johnson to speak with Kimsey because she believed he was intoxicated.

[T6] Officer Johnson had exited the building just moments before Kimsey arrived at the Law Center, Upon receiving the request from the dispatcher, Officer Johnson returned to the building and noticed a Dodge truck that was not there when he left just moments before and was now parked in front of the building. Officer Johnson ran a registration check on the vehicle and discovered that it belonged to Kimsey and his wife. Officer Johnson approached Kimsey and asked him if the Dodge truck was his. Kim-sey said that it was. When Officer Johnson asked Kimsey how he had gotten to the Law Center, Kimsey told him that he had driven his vehicle and added "but I'm O.K." Officer Johnson asked Kimsey if he had been drinking. Kimsey said that he had been drinking a little and again indicated that he was all right to drive.

[T7] Officer Johnson proceeded to explain the cireumstances surrounding Kim-sey's wife's arrest. Officer Melson arrived and joined the conversation. The dispatcher was stationed just a few feet away and overheard the entire exchange.

[T81 During this discussion, Officer Johnson noticed that Kimsey's speech was slurred, he was unsteady on his feet, and he smelled strongly of alcohol. When Johnson told Kimsey that he thought he was too intoxicated to be driving, 'Kimsey assured Johnson that he was "O.K." Officer Johnson asked Kimsey to perform sobriety tests. Kimsey declined and stated he just wanted to get his wife and they would walk home. When Officer Johnson persisted with his request, Kimsey said that he did not drive to the Law Center. Officer Johnson asked how his truck got to the Law Center, and Kimsey initially answered that he did not know. He then stated that maybe his wife had driven it there. Officer Johnson again asked Kimsey to perform sobriety tests, and Kimsey again refused.

[T9] Officer Johnson informed Kimsey he was under arrest for driving while under the influence of alcohol, handcuffed him, and escorted him to the jail. Officer Johnson read Kimsey the implied consent advisement and asked Kimsey to take a breathalyzer test, which Kimsey refused. Kimsey was remanded to the custody of the jail. He was again asked to take the test after he had been booked, and again he refused. The detention officer explained to Kimsey that he would not be released until a breathalyzer test read zero and placed Kimsey into the intoxication room.

[T10] Kimsey did not reach a zero alcohol level until 7:00 p.m., approximately seventeen hours after being arrested. As Kimsey was being released, he signed a document stating that he had initially refused to submit to chemical testing. He claims he did not understand that he was signing a refusal to submit to chemical testing form and that he did so only so that he could be released from jail.

[T11]} The OAH heard the matter and upheld the implied consent suspension. Kimsey filed a Motion for New Trial and/or Relief from Judgment, which the OAH denied. Kimsey then petitioned the district court for review of the OAH's order, and the district court certified the case to this court pursuant to W.R.A.P. 12.09(b).

STANDARD OF REVIEW

[112] When the district court certifies an administrative agency's decision di[428]*428rectly to this court, we review that agency decision under the same appellate standards applicable to the reviewing court of the first instance. Wesaw v. Quality Maintenance, 2001 WY 17, ¶ 8, 19 P.3d 500, ¶ 8 (Wyo.2001). Our judicial review is limited to those considerations specified in Wyo. Stat. Ann. § 16-3-114(c) (LexisNexis 2001), which provides:

To the extent necessary to make a decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. In making the following determinations, the court shall review the whole record or those parts of it cited by a party and due account shall be taken of the rule of prejudicial error. The reviewing court shall:
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(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;
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(E) Unsupported by substantial evidence in a case reviewed on the record of an agency hearing provided by statute.

[113] In reviewing findings of fact, we examine the entire record to determine if there is substantial evidence to support an agency's findings. Wesaw, ¶ 9. If the agency's findings are supported by substantial evidence, we cannot properly substitute our judgment for that of the agency and must uphold the findings on appeal. Id. Substantial evidence is relevant evidence that a reasonable mind might accept in support of the conclusions of the agency. It is more than a sceintilla of evidence. Id.

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Bluebook (online)
2002 WY 15, 39 P.3d 425, 2002 Wyo. LEXIS 15, 2002 WL 112576, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kimsey-v-wyoming-department-of-transportation-wyo-2002.