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McCoy v. Crook County Sheriff's Dept.9/16/1999
erson shall, in the discretion of the officer, either be given a traffic citation or be taken without unnecessary delay before the proper Judge . . . .
(Emphasis added.) The term "this act" refers to §§ 31-5-101 through 31-5-1214, which includes Wyoming's drunk driving statute, Wyo. Stat. Ann. § 31-5-233. Finally, Wyo. Stat. Ann. § 31-5-1205(k) (Michie 1997) specifically allows the officer discretion to arrest, cite or issue a summons for violation of § 31-5-233.
Obviously, the statutes authorize officers to arrest and detain drunk drivers. However, none of the statutes mandate the arrest of such persons. To the contrary, the statutes emphasize officer discretion in determining the appropriate action to take with drunk drivers.
In Keehn v. Town of Torrington, 834 P.2d 112, 115-16 (Wyo. 1992) we stated:
Subsumed within the general duty to apprehend, arrest, and remove drunk drivers from Wyoming's roadways is the duty to investigate potential DWUI violations. This brings us to the precise duty issue raised by this appeal: What is the nature and extent of a peace officer's duty to investigate a potential DWUI violation when, during an unrelated traffic stop, it is reasonably suspected that the driver has been drinking alcoholic beverages. While this case presents the opportunity to define specifically a peace officer's duty in this respect, we decline to do so both on the ground that it is beyond our arena of expertise and on the
ground that rigid rules are not consistent with the realities of law enforcement. Consequently, we resort to traditional tort principles and hold that a peace officer's duty to investigate a potential DWUI violation during an unrelated traffic stop is dictated by what a reasonable peace officer of ordinary prudence would do under like circumstances.
Keehn bypassed the precise issue of whether there is a legally enforceable duty to arrest and stated simply that officers had a duty to investigate potential DUI violations. Keehn further recognized the fact that rigid rules are simply not compatible with the realities of law enforcement in today's society. Wyoming statutes recognize that fact as well by granting to peace officers the discretion to arrest or issue a traffic ticket as the situation, in the officer's judgment, dictates. Indeed, to impose upon peace officers the duty to arrest and detain all potential DUI violators would force police to choose between potential liability on the one hand for false arrest and on the other hand for failure to make an arrest. Such a choice would effectively paralyze the government's right to carry out its essential functions free of the threat of undue litigation. See Shore v. Town of Stonington, 444 A.2d 1379, 1384 (Conn. 1982).
We hold that the decision to arrest is a discretionary function, not mandated by Wyoming statutes, and that, in the absence of a legal duty to arrest, the negligence claim against the officers must be dismissed. Having determined that appellants' first issue is dispositive, we find it unnecessary to address the remaining issues of proximate cause and qualified immunity.
The decision of the district court is affirmed.
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