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Nesius v. State Dept. of Revenue & Tax.3/15/1990
The appellant (Nesius) was arrested on the evening of February 4, 1988, for driving while under the influence (DWUI). At some point after his arrival at the jail that evening, Nesius was asked to take a breath test. He refused to take the test and his driver's license was suspended. Nesius received a hearing to contest the suspension; the hearing examiner sustained the suspension. The district court granted Nesius's petition of review, and on June 26, 1989, it issued an order affirming the suspension.
On appeal, Nesius seeks reversal of the hearing examiner's suspension of his driver's license.
Nesius contends that:
I. The jurisdictional sworn statement was not presented according to the statute.
A. The signed statement must contain the information mandated by statute.
B. The suspension order is reversible under the administrative procedure act as having been obtained without observance of procedure required by law.
II. The refusal to take a chemical test is excused by failure to give adequate advisement of the law.
A. The refusal to submit, to be the basis for suspension, must be voluntary and knowing.
B. The appellant's unadvised refusal was not voluntary.
The state asks whether:
I. The arresting officer's signed statement and attached arrest report were properly submitted pursuant to law?
II. [Appellant] was properly advised of the Wyoming implied consent law?
We find sufficient evidence to support the hearing examiner's decision. We affirm, but with a prospective modification of "Wyoming Implied Consent Advisement" to alleviate the possibility of confusion between the advisement about the chemical test and Miranda warnings.
BACKGROUND
Nesius, accompanied by his attorney, testified before the hearing examiner on March 14, 1988, that he was given his Miranda warnings upon his arrival at the jail. Nesius alleges he made his demand to speak with an attorney after being given the Miranda warnings and that the "Wyoming Implied Consent Advisement" form was never read to him. Since Nesius did not subpoena the deputy, he had no opportunity to question him at the hearing.
The state's evidence consisted of the officer's signed statement, on which was written, "see attached report." The attached report was in narrative form and consisted of three pages. Nesius objected to the statement and the report. The hearing examiner overruled the objection and admitted the signed statement and report into evidence, apparently as a "certified record."
According to the attached report, the officer observed Nesius's pickup speeding, cross the center line twice, and drive onto the shoulder of the highway four times. It goes on to note that Nesius had balance problems, smelled of alcohol, and had red and watery eyes. Nesius admitted, in the report, that he had drunk two beers. The report also chronicles Nesius's poor performance in various field sobriety tests. From these observations, the officer believed he had probable cause to arrest Nesius for DWUI.
In the report the police officer additionally stated Nesius was advised that 1) he was under arrest for DWUI; 2) his failure to submit to all required tests requested of his blood, breath, or urine for the purpose of determining the alcohol or controlled substance content of his blood would result in the suspension for six months of his Wyoming driver's license and his privilege to operate a motor vehicle; 3) if a test was taken and the results indicated he was under the influence of alcohol, he may be subj
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