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Mogard v. City of Laramie9/24/2001
Certified Question from the District Court of Albany County The Honorable Jeffrey A. Donnell, Judge
[ ] The appellant, Bennie J. Mogard, was arrested in Laramie for driving while under the influence. Upon being advised of the implied consent to chemical testing provisions of Wyo. Stat. Ann. § 31-6-102(a)(ii) (LexisNexis 2001), the appellant asked to speak to an attorney before submitting to the test. That request was denied. Subsequently, based upon this denial, he filed a Motion to Suppress Breath Test in the municipal court. Citing Wheeler v. State, 705 P.2d 861, 863 (Wyo. 1985), the municipal judge denied the motion on the ground that there is no constitutional right to counsel prior to taking a breath test. The appellant then utilized W.R.Cr.P. 11(a)(2) to enter a conditional guilty plea, preserving his right to appeal the specific issue raised in his motion.
[ ] In the district court, the appellant and the City of Laramie filed a Joint Motion for Certification of Question to the Wyoming Supreme Court. The district court obliged with an Order Certifying Question to the Wyoming Supreme Court. This Court agreed to accept certification, and we granted leave to the State of Wyoming to file a brief as amicus curiae.
THE CERTIFIED QUESTION
Does Article 1, Section 10 of the Wyoming Constitution give a defendant a limited right to consult with an attorney before deciding whether or not to submit to chemical testing for blood alcohol?
THE STATUTORY CONTEXT
[ ] Wyo. Stat. Ann. § 31-5-233 (LexisNexis 2001) forbids what is commonly known as driving while under the influence (DWUI). Wyo. Stat. Ann. § 31-6-102(a)(i) provides that, when someone is arrested for DWUI, he 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." Before a chemical test may be administered to the arrested person, he must be advised of certain legal effects of either taking or refusing to take the test. Wyo. Stat. Ann. § 31-6-102(a)(ii). These implied consent statutes are the exclusive procedures to be followed in determining the blood-alcohol level of a person arrested for DWUI. Van Order v. State, 600 P.2d 1056, 1058 (Wyo. 1979) (citing State v. Chastain, 594 P.2d 458, 461 (Wyo. 1979), overruled on other grounds by Olson v. State, 698 P.2d 107 (Wyo. 1985)).
STATE CONSTITUTIONAL ANALYSIS
[ ] This Court has previously held that neither the Fifth nor the Sixth Amendments to the United States Constitution grants an accused a right to counsel before deciding whether to submit to chemical testing upon an arrest for DWUI. Nesius v. State Dept. of Revenue and Taxation, Motor Vehicle Div., 791 P.2d 939, 942-44 (Wyo. 1990); Wheeler, 705 P.2d at 863-64. However, in several cases in recent years, we have indicated an interest in performing a separate state constitutional analysis when issues arise under both the federal and state constitutions. That is what the appellant now seeks.
[ ] Our "separate state constitutional analysis" jurisprudence has undergone a fairly rapid transformation. Saldana v. State, 846 P.2d 604 (Wyo. 1993), illustrates the various views of state constitutional analysis then held by members of this Court. The primary issue in Saldana was the reasonableness of a search and seizure. Interestingly enough, Saldana raised this issue solely under Wyo. Const. art. 1, § 4, rather than the Fourth Amendment to the United States Constitution. Writing for the majority, Justice Thomas relied almost exclusively on the Fourth Amendment and federal precede
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