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Allen v. State4/2/2002
ng odor of alcohol" coming from appellant and observed alcohol containers in the station wagon.
[ ] At the hospital, Officer Schell believed Mr. Fink's medical condition to be "[c]ritical, very serious" and Mr. Fink was "obviously seriously injured." A nurse informed him that Mr. Fink was "serious" ("she couldn't give . . . much more"), but Officer Schell did not know that Mr. Fink's death was imminent. Mrs. Fink apparently suffered a broken ankle and a "possible bruised heart . . .." Officer Schell again contacted appellant at the hospital and noticed an "odor of alcohol I had noticed earlier when I initially contacted him on the scene." Officer Schell informed appellant that "due to the serious bodily injury, we [are] going to need to draw a blood sample . . .." Appellant replied, "[f]ine. I haven't had anything to drink." Officer Schell stated that he did not advise appellant in accordance with the implied consent statutes "[b]ecause of the serious bodily injury at the time," but informed appellant prior to obtaining the blood sample that appellant was "going to be charged with DUI . . .." At Officer Schell's direction, a paramedic drew the blood sample. Officer Schell testified that appellant was not under arrest at that time and had not yet been issued a citation. Officer Schell later issued appellant a citation (the record does not indicate the cited offense), but did not place appellant in custody. Appellant was scheduled to be released from the hospital.
[ ] Relying primarily on Van Order, 600 P.2d 1056, the district court denied appellant's motion, finding that the factual circumstances gave "rise to the vehicular homicide charges or the potential for those charges," that "serious, if not critical" injuries were involved, that Officer Schell had probable cause to draw appellant's blood based on the evidence he had obtained to that point, and had the blood not been drawn, it would have been "lost forever . . .."
[ ] We review a district court's denial of a motion to suppress for an abuse of discretion. Madrid v. State, 910 P.2d 1340, 1344 (Wyo. 1996).
"Findings on factual issues made by the district court considering a motion to suppress are not disturbed on appeal unless they are clearly erroneous. Hyde v. State, 769 P.2d 376, 378 (Wyo.1989); Roose v. State, 759 P.2d 478, 487 (Wyo.1988). * * * Since the district court conducts the hearing on the motion to suppress and has the opportunity to: assess the credibility of the witnesses; the weight given the evidence; and make the necessary inferences, deductions and conclusions, evidence is viewed in the light most favorable to the district court's determination. United States v. Werking, 915 F.2d 1404, 1406 (10 th Cir.1990)." Madrid, 910 P.2d at 1344 (quoting Wilson v. State, 874 P.2d 215, 218 (Wyo. 1994)).
Appellant does not advance an independent state constitutional analysis on this issue.
[ ] Wyo. Stat. Ann. § 31-6-102 provides, in pertinent part:
(a) If arrested for an offense as defined by W.S. 31-5-233:
(i) Any person who drives or is in actual physical control of a motor vehicle upon a public street or highway in this state is deemed to have given consent, subject to the provisions of this act, to a chemical test or tests of his blood, breath or urine for the purpose of determining the alcohol concentration or controlled substance content of his blood. The test or tests shall be:
(A) Incidental to a lawful arrest;
(B) Given as promptly as possible after the arrest;
(C) Administered at the direction of a peace officer who has probable cause to believe the person was driving or in actual physical control of a motor vehicle upon a public str
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