                IN THE SUPREME COURT, STATE OF WYOMING

                                       2014 WY 160

                                                          OCTOBER TERM, A.D. 2014

                                                                  December 11, 2014

STATE OF WYOMING ex rel.
WYOMING DEPARTMENT OF
TRANSPORTATION,

Appellant
(Respondent),
                                                     S-14-0074
v.

MARK ICENHOWER,

Appellee
(Petitioner).

                    Appeal from the District Court of Laramie County
                        The Honorable Steven K. Sharpe, Judge

Representing Appellant:
      Peter K. Michael, Wyoming Attorney General; Robin Sessions Cooley, Deputy
      Attorney General; Douglas J. Moench, Senior Assistant Attorney General; Jackson
      M. Engels, Senior Assistant Attorney General

Representing Appellee:
      No appearance


Before BURKE, C.J., and HILL, KITE, DAVIS, and FOX, JJ.


NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third.
Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building,
Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be
made before final publication in the permanent volume.
DAVIS, Justice.

[¶1] Mark Icenhower was arrested for driving while under the influence of alcohol.
The arresting highway patrol trooper read him the statutorily required implied consent
advisement before requesting that he submit to a breath test. Mr. Icenhower initially
refused to take the test until the trooper said that a search warrant would be obtained and
that Mr. Icenhower could be taken to the hospital, tied down, and have blood drawn.
After considering that scenario, he submitted to a breath test, which he failed. The
trooper then issued Mr. Icenhower a notice of license suspension.

[¶2] Mr. Icenhower requested a contested case hearing before the Office of
Administrative Hearings (OAH). He asserted that there was no probable cause to arrest
him, and that he was not given the proper implied consent advisement due to the
trooper’s statements concerning the potential forced blood draw. The Wyoming
Department of Transportation (WYDOT) responded in support of its proposed statutory
ninety day suspension. A contested case hearing was held, and after considering the
evidence, the hearing examiner upheld the proposed suspension. Mr. Icenhower then
filed a petition for review in the district court. Although it concluded there was
substantial evidence for the examiner’s finding of probable cause, the district court
determined that Mr. Icenhower was misled and tricked into submitting to the breath test
by the trooper’s statements about forcibly obtaining a blood sample if he did not
cooperate. As a result, it reversed the OAH.

[¶3] WYDOT timely perfected its appeal to this Court and challenges the district
court’s order. We reverse the district court’s decision and remand for reinstatement of
the OAH’s order upholding the suspension.

                                         ISSUE

[¶4]   WYDOT presents the following issue, which we have abridged:

             Did the hearing examiner err as a matter of law in concluding
             that the patrolman did not illegally coerce Icenhower into
             undergoing a chemical test of his breath?

                                         FACTS

[¶5] On a summer night in 2011, Highway Patrol Trooper Tyrel Cross stopped Mr.
Icenhower’s vehicle because he failed to signal when changing lanes. While talking to
him, Trooper Cross smelled the odor of alcohol emanating from inside the vehicle. The
trooper asked Mr. Icenhower if he had been drinking, and he admitted he had been, but
not very much. Three field sobriety tests were conducted, and Icenhower failed them all.



                                             1
[¶6] Based on his observations and the results of the field sobriety tests, Trooper Cross
informed Mr. Icenhower that he was under arrest for Driving While Under the Influence
(DWUI). He then read him the standard implied consent advisement required by Wyo.
Stat. Ann. § 31-6-102(a)(ii).1 Although Mr. Icenhower eventually submitted to a breath
test, he initially declined, as the following dialogue reflects:

               Trooper Cross: Sir, you are under arrest and charged with
               DWUI under Wyoming state statute 31-5-233. Do you
               understand that?

               Mr. Icenhower: Yes, sir.

               Trooper Cross: Okay. You are required to take a chemical
               test or tests to determine the quantity of alcohol or controlled
               substance present. If you refuse to comply with these
               requirements, I am authorized to apply for a search warrant.
               Do you understand that?2

               Mr. Icenhower: Yes, sir.

               Trooper Cross: Proceedings under the implied consent law
               are civil in nature, not criminal and as a matter of law you
               have no right to consult with an attorney before taking a
               chemical test or tests of your blood, breath, or urine, do you
               understand that?

               Mr. Icenhower:       Um, explain it.      So I can’t call for an
               attorney?

               Trooper Cross: Not for this, sir.

               Mr. Icenhower: Okay.

               Trooper Cross: Because this is a civil matter.

               Mr. Icenhower: Okay.

               Trooper Cross: If the results of the test indicate that you are
               under the influence of alcohol or any controlled substance
1
  Trooper Cross read the implied consent advisement from a card provided to him by WYDOT that
reflected the July 1, 2011 changes to Wyoming’s implied consent laws.
2
  While Trooper Cross was making this statement, transmissions on his radio interrupted him, and he
therefore read this portion to Mr. Icenhower again.


                                                 2
you may be subject to criminal penalties, and your driving
privileges will be suspended for ninety days, and you may be
required to drive only vehicles equipped with ignition
Interlock device. Do you understand that?

Mr. Icenhower: Yes, sir.

Trooper Cross: After undergoing all tests requested by me, at
a place and in a manner proscribed by and at the expense of
my agency, you may be taken to the nearest hospital or clinic
to secure any additional tests at your own expense, do you
understand that?

Mr. Icenhower: Yes, sir.

Trooper Cross: I am requesting you to take a breath test at
my agency’s expense, do you agree to take the test?

Mr. Icenhower: No.

Trooper Cross: So, did you, did you hear what I said?

Mr. Icenhower: Well, my understanding is that either take
your test or take another test, is that correct?

Trooper Cross: No. You are required by law to take my test.

Mr. Icenhower: Okay.

Trooper Cross: Okay? Umm, so if you don’t take this test,
we can apply for a search warrant. And then we’ll take you
to the hospital, and we’ll have to tie you down, and draw
blood.

Mr. Icenhower: Tie me down?

Trooper Cross: Yeah. That’s what we’ll do.

Mr. Icenhower: Really? I think that’s unnecessary.

Trooper Cross: Okay. Well.

Mr. Icenhower: I understand.


                               3
Trooper Cross: How about you just give the breath test?

Mr. Icenhower: Okay.

Trooper Cross: Do you agree to give the breath test?

Mr. Icenhower: I’d rather have my attorney make that choice
for me.

Trooper Cross: Okay. Well sir, this is a civil matter so you
are not allowed to do that. You can’t contact an attorney for
this. That’s why I am reading you this. This is . . . See this
card?

Mr. Icenhower: Yes.

Trooper Cross: This is an official card.

Mr. Icenhower: I can see it, but I can’t read all of it.

Trooper Cross: Alright.

Mr. Icenhower: But can I have an attorney read all of it?

Trooper Cross: No. Would you like me to read this to you
one more time?

Mr. Icenhower: No. I’d rather have an attorney do it.

Trooper Cross: Okay. But sir, you can’t contact an attorney
for this particular scenario.

Mr. Icenhower: Well, I’m confused. So I don’t have the
privilege of counsel?

Trooper Cross: No. I’ll read this to you one more time.

Mr. Icenhower: Let me ask you a question sir: I don’t have
the privilege of counsel?




                                 4
             Trooper Cross: Not for this. This is a civil matter between
             you and the state of Wyoming, this isn’t a criminal thing,
             okay?

             Mr. Icenhower: Does it become criminal at some point in
             time?

             Trooper Cross: Sir, either way, I’m going to charge you with
             DUI.

             Mr. Icenhower: I understand that.

             Trooper Cross: So, no, this is the . . . because . . . listen to . . .
             I’ll read this to you one more time. Proceedings under the
             implied consent law are civil in nature, not criminal. As a
             matter of law you have no right to consult with an attorney
             before deciding, before taking a chemical test.

             Mr. Icenhower: But then, I may as well do what you’re, what
             you’re suggesting.

             Trooper Cross: What’s that?

             Mr. Icenhower: I may as well do what you suggest.

             Trooper Cross: I am asking you take the breath test.

             Mr. Icenhower: Okay.

[¶7] Mr. Icenhower was then transported to the Laramie County detention center where
he was administered a chemical breath test using an Intoximeter EC/IR II machine. The
test revealed that his blood alcohol concentration (BAC) was .159%. As a result,
WYDOT gave him notice that his license was suspended for ninety days.

                               STANDARD OF REVIEW

[¶8] Our standard of review regarding agency action has been set forth in many cases,
and requires no embellishment here:

                    We accord no deference to a district court decision
             reviewing an administrative agency order. Instead, we review
             the case as if it came directly from the administrative agency.



                                                5
            Our review is governed by Wyo. Stat. Ann. § 16-3-114(c)
            ....

            (c) To the extent necessary to make a decision and when
            presented, the reviewing court shall decide all relevant
            questions of law, interpret constitutional and statutory
            provisions, and determine the meaning or applicability of the
            terms of an agency action. In making the following
            determinations, the court shall review the whole record or
            those parts of it cited by a party and due account shall be
            taken of the rule of prejudicial error. The reviewing court
            shall:

                    (i) Compel agency action unlawfully withheld or
            unreasonably delayed; and
                    (ii) Hold unlawful and set aside agency action,
            findings and conclusions found to be:
                    (A) Arbitrary, capricious, an abuse of discretion or
            otherwise not in accordance with law;
                    (B) Contrary to constitutional right, power, privilege or
            immunity;
                    (C) In excess of statutory jurisdiction, authority or
            limitations or lacking statutory right;
                    (D) Without observance of procedure required by law;
            or
                    (E) Unsupported by substantial evidence in a case
            reviewed on the record of an agency hearing provided by
            statute.

                   Where both parties present evidence at an
            administrative hearing, we review the entire record to
            determine if the agency findings are supported by substantial
            evidence. Substantial evidence is relevant evidence that a
            reasonable mind might accept as adequate to support a
            conclusion. Phrased another way, findings of fact are
            supported by substantial evidence if, from the evidence
            preserved in the record, we can conclude a reasonable mind
            might accept the evidence as adequate to support the agency
            findings. We review the agency’s conclusions of law de novo

Batten v. Wyoming Dep’t of Transp. Drivers’ License Div., 2007 WY 173, ¶¶ 6-7, 170
P.3d 1236, 1239-40 (Wyo. 2007) (internal citations and quotation marks omitted).



                                            6
                                     DISCUSSION

[¶9] This appeal arises from an administrative suspension of Mr. Icenhower’s driver’s
license for driving while under the influence of alcohol, which is a civil matter and not a
criminal charge. The scope of an OAH hearing on a driver’s license suspension for
DWUI is limited by statute to the following:

             (b) The scope of a hearing for the purposes of this act shall
             cover the issues of whether a peace officer had probable
             cause to believe the arrested person had been driving or was
             in actual physical control of a motor vehicle upon a public
             street or highway in this state in violation of W.S. 31-5-
             233(b) or any other law prohibiting driving under the
             influence as defined by W.S. 31-5-233(a)(v), whether the
             person was placed under arrest, or if a test was administered,
             whether the test results indicated that the person had an
             alcohol concentration of eight one-hundredths of one percent
             (0.08%) or more, and whether, except for the persons
             described in this act who are incapable of cooperating
             with the administration of the test, he had been given the
             advisements required by W.S. 31-6-102(a)(ii).

Wyo. Stat. Ann. § 31-6-103(b) (LexisNexis 2013) (emphasis added).

[¶10] Wyoming law provides that every driver on Wyoming roads is deemed to have
consented to chemical testing upon an arrest for DWUI. Wyo. Stat. Ann. § 31-6-
102(a)(i) (LexisNexis 2013). At the time of Mr. Icenhower’s arrest, Wyoming’s most
recent changes to the implied consent laws were in effect. See 2011 Wyo. Sess. Laws ch.
178. After a lawful arrest has been made, this implied consent statute requires law
enforcement to read the following specific advisements before administering a BAC
chemical test:

             (ii) For tests required under this act, the arrested person shall
             be advised that:

                      (A) Repealed by Laws 2011, ch. 178, § 2 [eff. July 1,
             2011].

                    (B) If the results of the test indicate the person is under
             the influence of alcohol or a controlled substance, he may be
             subject to criminal penalties, his Wyoming driver’s license or
             his privilege to operate a motor vehicle shall be suspended for



                                              7
              ninety (90) days and he may be required to drive only
              vehicles equipped with an ignition interlock device;

                     (C) After undergoing all chemical tests required by the
              peace officer at a place and in a manner prescribed by and at
              the expense of the agency employing the peace officer, the
              arrested person may go to the nearest hospital or clinic and
              secure any additional tests at his own expense;

                                             .    .   .

Wyo. Stat. Ann. § 31-6-102(a)(ii).

[¶11] If a person refuses to take the requisite test after being read these advisements, law
enforcement is permitted to apply for a search warrant, which will be granted if probable
cause exists. The officer can then administer a chemical test of the agency’s choice,
including a blood draw. See Wyo. Stat. Ann. §§ 31-6-102(a)-(d). The statute states in
pertinent part:

              (d) If a person under arrest refuses upon the request of a
              peace officer to submit to a chemical test designated by the
              agency employing the peace officer as provided in subsection
              (a) of this section, none shall be given except in cases where
              serious bodily injury or death has resulted or upon issuance of
              a search warrant. A test of the agency’s choice may be
              administered upon issuance of a warrant, including a remotely
              communicated search warrant, when reasonable under the
              circumstances and as provided in this subsection. . . .

Wyo. Stat. Ann. § 31-6-102(d).

[¶12] Guided by these statutes, we turn to WYDOT’s argument that Mr. Icenhower was
indeed given the proper implied consent advisement. The results of a BAC chemical test
may be suppressed in driver’s license suspension proceedings if an individual is “tricked
or misled” with respect to his or her implied consent advisements. Walters v. State ex rel.
Wyoming Dep’t of Transp., 2013 WY 59, ¶ 12, 300 P.3d 879, 883 (Wyo. 2013). But
when a law enforcement officer tells a suspect that he intends to do something that he is
legally authorized to do under the circumstances, his conduct is not misleading and does
not amount to trickery. The officer instead just correctly informs the individual of his
legal situation. Id.; cf. 4 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth
Amendment, § 8.2(c), at 92-100 (5th ed. 2012).




                                              8
[¶13] As the excerpt of the recording quoted above established, Trooper Cross read Mr.
Icenhower the implied consent advisements required by § 31-6-102(a)(ii) in their entirety.
He also advised him that if he refused to take the breath test, he could apply for a warrant
to obtain a blood draw. Mr. Icenhower said that he understood all of this. When he
refused to take the breath test, Trooper Cross further explained that

              if you don’t take this test, we can apply for a search warrant.
              And then we’ll take you to the hospital, and we’ll have to tie
              you down, and draw blood.

[¶14] After reviewing the audio/video recording of the entire dialogue between Trooper
Cross and Mr. Icenhower, the OAH hearing examiner determined that “there was no
unreasonable threat and Icenhower was read the proper advisement.” We too have
examined the recording and we agree with the OAH. The implied consent advisements
provided by Trooper Cross, see supra ¶ 6, neither tricked nor misled Icenhower. Rather,
they informed him in easily understandable terms of the action that might be taken to
complete the requisite chemical BAC test. The OAH and the district court both
determined that probable cause existed, which means that the trooper could in fact have
lawfully obtained a search warrant to forcibly extract blood for testing without consent.

[¶15] While Mr. Icenhower might have cooperated and sat stock-still at the hospital
while his blood was being drawn, thus negating the need to restrain him for his and the
hospital personnel’s safety, the implied consent statutes contemplate restrictive measures
when one is uncooperative and interferes with administration of the test. Trooper Cross’s
advisement regarding the possible scenario for obtaining a search warrant and a forcible
blood draw based upon it was not misleading, and it did not trick Mr. Icenhower into
consenting to the breath test.

[¶16] The OAH’s determination that he was properly advised under Wyo. Stat. Ann. §
31-6-102(a)(i), (ii) was supported by substantial evidence and was not contrary to the
law. Applying the proper standard of review, we can only conclude that the hearing
examiner correctly found that Mr. Icenhower was adequately advised as required by
statute and not tricked or misled.

[¶17] Reversed and remanded for reinstatement of the OAH’s order upholding the
suspension of Mr. Icenhower’s driver’s license.




                                              9
