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Mogard v. City of Laramie9/24/2001
in the 1887 criminal code from which we could conclude that, in the state constitution adopted a few years later, the framers meant something broader in their use of the phrase "in all criminal prosecutions" than did the framers of the United States Constitution.
MATTERS OF PARTICULAR STATE OR LOCAL CONCERN
[ ] Once again, it is helpful to refer to Gunwall in applying this factor:
Is the subject matter local in character, or does there appear to be a need for national uniformity? The former may be more appropriately addressed by resorting to the state constitution. Gunwall, 720 P.2d at 813 (footnote omitted).
As examples of matters of local concern, the Gunwall court cites to Coyle v. Smith, 221 U.S. 559, 31 S.Ct. 688, 55 L.Ed. 853 (1911) ("each state has the power to locate its own seat of government, to determine when and how it shall be changed from one place to another, and to appropriate its own public funds . . .") and Cooley v. Board of Wardens of Port of Philadelphia, to Use of Soc for Relief of Distressed Pilots, Their Widows and Children, 53 U.S. 299, 13 L.Ed. 996 (1851) ("pilotage does not require uniform national rule"). Gunwall, 720 P.2d at 813 n.11.
[ ] The subject matter here, of course, is the right to counsel prior to chemical testing in a DWUI prosecution. Unlike the location of the seat of a local government, or pilotage rules, the right to counsel is a fundamental personal right identified in both the federal and the state constitutions. In that regard, we have previously held that, while the federal constitution sets the minimum standards to be followed, states are free under their own constitutions to "enlarge" rights. Shongutsie v. State, 827 P.2d 361, 367 (Wyo. 1992), receded from on other grounds by Murray v. State, 855 P.2d 350 (Wyo. 1993) (quoting Richmond v. State, 554 P.2d 1217, 1223 (Wyo. 1976)). At the same time, however, it cannot be said that the right to counsel in the chemical testing situation is particularly a matter of local or state concern, so no presumption or inference arises that the state would have some particular interest in setting a different standard than did the framers of the federal constitution. All citizens of every state in the union share the need for this protection. Stated conversely, we know of nothing to suggest that the people of Wyoming are in greater need of the right to counsel under these circumstances than are the people of any other state.
[ ] The appellant contends in his brief that the more limited matter of particular state concern is driving while under the influence. Rather than developing that independent theme, however, he argues the importance to any arrested person of the availability of counsel. But to follow up on the appellant's theme, we note that we have previously identified the objectives of the implied consent laws:
"'(1) to discourage individuals from driving an automobile while under the influence of intoxicants[;] (2) to remove the driving privileges from those individuals disposed to driving while inebriated[;] and (3) to provide an efficient means of gathering reliable evidence of intoxication or nonintoxication.'" Farmer v. State, Dept. of Transp. , 986 P.2d 165, 167 (Wyo. 1999) (quoting Department of Licensing v. Lax, 125 Wash.2d 818, 888 P.2d 1190, 1193 (1995)).
We also concluded that a delay in chemical testing "'generally favors the DWI suspect by giving time for the body to "burn off" alcohol.'" Farmer, 986 P.2d at 167 (quoting Lax, 888 P.2d at 1193). We have made it clear that the implied consent statutes are meant to assist the state in achieving these objectives, not to give additional rights to arrestees:
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