 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Department of Revenue And Taxation v. Hull3/2/1988
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. 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
Page 1 2 3 4 5 Wyoming DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|