                IN THE SUPREME COURT, STATE OF WYOMING

                                       2013 WY 123

                                                       OCTOBER TERM, A.D. 2013

                                                                  October 9, 2013

KEITH VOGT,

Appellant
(Petitioner),

v.
                                                     S-12-0283
STATE OF WYOMING, ex rel.,
DEPARTMENT OF
TRANSPORTATION,

Appellee
(Respondent).


                    Appeal from the District Court of Laramie County
                         The Honorable Peter G. Arnold, Judge

Representing Appellant:
      Bernard Q. Phelan, Cheyenne, Wyoming.

Representing Appellee:
      Gregory A. Phillips, Wyoming Attorney General; Robin Sessions Cooley, Deputy
      Attorney General; Douglas J. Moench, Senior Assistant Attorney General.

Before KITE, C.J., and HILL, VOIGT, BURKE, and DAVIS, 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 typographical or other formal errors so correction may be made
before final publication in the permanent volume.
KITE, Chief Justice.

[¶1] Keith Vogt was stopped for failing to use his turn signal and subsequently arrested
for driving while under the influence of a controlled substance (DUI) in violation of
Wyo. Stat. Ann. § 31-5-233(b) (LexisNexis 2009). He refused to submit to chemical
testing. The Wyoming Department of Transportation (the State) notified him that his
driver’s license would be suspended for six months. Mr. Vogt requested a hearing. After
the hearing, the Office of Administrative Hearings (OAH) found there was probable
cause for the arrest and upheld the suspension. Mr. Vogt appealed the ruling to the
district court, which affirmed the OAH decision. He then appealed to this Court,
claiming reasonable suspicion did not exist for detaining him beyond the scope of the
initial traffic stop and the OAH ruling that probable cause existed to arrest him for DUI is
contrary to the overwhelming weight of the evidence. We conclude probable cause did
not exist to arrest Mr. Vogt for DUI and reverse the OAH order upholding the driver’s
license suspension.

                                              ISSUES

[¶2] The issues for this Court’s determination are:

        1.     Whether reasonable suspicion existed to detain Mr. Vogt for field sobriety
tests after he was stopped for a traffic violation;

      2.    Whether the OAH’s determination that probable cause existed to arrest Mr.
Vogt for DUI was clearly contrary to the overwhelming weight of the evidence.

                                              FACTS

[¶3] On July 8, 2010, at 10:17 p.m., Officer T.J. Whitaker of the Cheyenne Police
Department observed a vehicle enter an intersection and make a wide right-hand turn
without signaling, continue on to a stop sign and make a second turn without signaling.1
The officer followed the vehicle and turned on his flashing lights. After the vehicle
pulled over, the officer approached the driver’s side window and asked the occupant, Mr.
Vogt, for his driver’s license and proof of insurance. The video of the stop shows that
Mr. Vogt did not immediately find the correct insurance information for the car he was
driving. He produced an expired insurance card and one for another vehicle he owned
before producing the correct card.


1
  The officer’s signed statement indicates Mr. Vogt made two successive turns without signaling. The
OAH viewed a video recording of the stop taken by a dashboard camera in the patrol car and found that
Mr. Vogt made one turn without signaling and used his signal late on the second turn after moving into
the turning lane. From our review of the video, we conclude Mr. Vogt made two turns without signaling
and signaled a third turn after moving into the turning lane and stopping at a red light.


                                                  1
[¶4] Officer Whitaker asked him where he was coming from and Mr. Vogt responded
that he was looking at some apartments in the area. Upon further questioning Mr. Vogt
stated he was looking at apartments on Campbell Avenue and provided his home address.
According to Officer Whitaker, Mr. Vogt’s hands shook, his voice trembled and he
mumbled.

[¶5] Officer Whitaker instructed Mr. Vogt to wait and returned to his patrol car where he
called for assistance. Officer Lisa Koeppel2 arrived and Officer Whitaker returned to Mr.
Vogt’s vehicle and asked him to get out of the car. Officer Whitaker performed a pat
down search of Mr. Vogt. He asked Mr. Vogt if he had been drinking and Mr. Vogt said
no. Officer Whitaker asked if he was taking any prescription medications and Mr. Vogt
responded, “Uh, not really, no.” Officer Whitaker asked Mr. Vogt if he was taking over
the counter medication. Mr. Vogt responded that he had taken Prozac. The officer asked
if he had any physical disabilities and Mr. Vogt said no. He asked Mr. Vogt what his
highest level of education was and Mr. Vogt responded that he had about a year of
college.3 Officer Whitaker then asked Mr. Vogt about the apartments he was looking at
on Campbell Avenue. He asked Mr. Vogt why he was moving and Mr. Vogt stated that
he was not moving; rather, he was looking at apartments for someone else.4

[¶6] Officer Whitaker then asked Mr. Vogt to perform the horizontal gaze nystagmus
(HGN) test.5 According to the officer’s signed statement, Mr. Vogt showed some signs
of nystagmus but not others. Officer Whitaker also had Mr. Vogt perform a walk and
turn, one leg stand and Romberg test.6 The officer concluded Mr. Vogt failed the tests.
The video recording then shows Officer Koeppel taking Mr. Vogt’s pulse. The results

2
 Officer Koeppel is a drug recognition expert, meaning she has been trained to conduct examinations of
suspected drug-impaired drivers.
3
  The police department’s booking information sheet lists Mr. Vogt’s occupation as “lawyer.” This is
clearly incorrect given Mr. Vogt’s statement that he had completed about a year of college.
4
  In his report, Officer Whitaker stated Mr. Vogt changed his story when he said he was looking for an
apartment for a friend. Having reviewed the video recording, we conclude Officer Whitaker’s statement
is not supported by the evidence.
5
   The HGN and vertical nystagmus tests are used to assess the eyes’ tracking ability. Drug Evaluation
and Classification Training, “The Drug Recognition Expert School” Student Manual, U.S. Department of
Transportation (1999 Ed.), Session IV, p. 9. Nystagmus, an involuntary jerking that occurs as the eyes
gaze to the side or as they look up, is induced by alcohol and certain drugs. Session IV-3. The officer
holds a penlight or similar object twelve to fifteen inches in front of the suspect’s face and moves it
smoothly to the suspect’s extreme left and back to the extreme right or vertically while instructing the
suspect to follow the motion with his eyes. If the eyes jerk rather than following the object smoothly, it
may be an indication of the use of alcohol or certain drugs.
6
   Although not listed in his report, Officer Whitaker also had Mr. Vogt recite the alphabet. The video
recording shows that Mr. Vogt completed this test satisfactorily.


                                                    2
are unknown but Officer Koeppel can be seen talking with Mr. Vogt and he can be heard
saying he is nervous. Officer Koeppel had Mr. Vogt stare straight ahead while she
looked at his eyes with her flashlight. Using her flashlight, she also looked in his mouth
and had him swallow. She asked if he was a smoker and he appears to respond,
“Sometimes.” Again, there is no indication in the report what, if anything, Officer
Koeppel may have seen or determined from these actions.

[¶7] At that point, twenty minutes into the stop, Officer Whitaker asked Mr. Vogt if there
was anything in his car and if he could take a look. Mr. Vogt said there was nothing in
the car and refused permission to search his vehicle. Officer Whitaker called for a drug
dog and a portable breath test (PBT). Twenty-two minutes into the stop, while waiting
for the drug dog and PBT, Officer Whitaker advised Officer Koeppel within Mr. Vogt’s
hearing that he had stopped Mr. Vogt for failing to signal, making a wide turn into the
center of the street and then failing to signal again at the next turn. He also advised
Officer Koeppel there was no indication Mr. Vogt was under the influence of alcohol.
He then questioned Mr. Vogt again, asking the name of the friend he was looking at
apartments for (Mr. Vogt responded “Rene”); why he was looking this late at night (Mr.
Vogt said he wanted to see what the neighborhood was like late at night); whether the
apartment was on this or that side of Lincolnway (Mr. Vogt provided the address of the
apartment and said it was on that side); and why he was making a right turn on 14th Street
(Mr. Vogt described turning right onto Campbell and right onto 14th Street heading west).
Officer Whitaker asked Officer Koeppel what she thought and she motioned toward her
mouth. Officer Whitaker asked Mr. Vogt to stick out his tongue and used a flashlight to
look in his mouth again.

[¶8] Officer Whitaker returned to his patrol car and began writing a ticket for the traffic
violation. Officer Pat Johnston arrived and Officer Whitaker administered the PBT,
which showed negative results for alcohol. Officer Johnston had the dog perform an
exterior sniff of the vehicle and the dog alerted on the driver’s side. The officer let the
dog inside the vehicle; it did not alert again. Officers Johnston and Koeppel searched the
vehicle and found nothing illegal.

[¶9] Meanwhile, Officer Whitaker had Mr. Vogt stand up against his patrol car while he
conducted a more thorough search. He found a receipt in Mr. Vogt’s pant pocket. As he
unfolded it, he thought he saw something flicker in the headlights and fall to the street.
He advised the other officers who came and looked and questioned Mr. Vogt about what
he had taken. Again Mr. Vogt said he had taken Prozac. Officer Johnston took the
receipt and something Officer Koeppel picked up from the street and apparently field
tested them for controlled substances. Officer Koeppel told Officer Whitaker within Mr.
Vogt’s hearing that the test was positive for crack. A few minutes later, she advised
Officer Whitaker that she had lied about the results of the field test. At 11:10 p.m., fifty
minutes after the stop, Officer Whitaker placed Mr. Vogt under arrest for DUI and



                                             3
advised him of the implied consent law. Mr. Vogt refused to submit to chemical testing
and was taken to the police station.

[¶10] The State notified Mr. Vogt that as a result of his arrest and refusal to submit to
chemical testing his driver’s license would be suspended for six months. Mr. Vogt
requested a hearing. A hearing was convened. The State did not appear but submitted
the certified record which included among other items Officer Whitaker’s signed
statement and booking sheet. Mr. Vogt appeared with counsel and testified. Mr. Vogt’s
case before the agency focused on whether probable cause existed to arrest him for DUI.
He did not argue that Officer Whitaker lacked reasonable suspicion to detain him after
the traffic stop for the purpose of conducting field sobriety tests. Mr. Vogt testified in
some detail about what happened during the stop. He testified that he had consumed no
alcohol or controlled substances on the night he was arrested. He testified he had taken
Prozac which was prescribed for an anxiety disorder. He further testified that he was
nervous and anxious during the traffic stop because he had never before been in a
situation like it. After the hearing, the OAH issued an order finding that probable cause
existed for the arrest and upholding the suspension of Mr. Vogt’s driver’s license.

[¶11] Mr. Vogt petitioned for review in the district court. Again, he argued the officer
did not have probable cause to arrest him for DUI. The district court affirmed the OAH.
Mr. Vogt timely appealed to this Court, claiming for the first time that reasonable
suspicion did not exist to detain him for field sobriety tests.

                              STANDARD OF REVIEW

[¶12] We review administrative rulings in accordance with the following standards:

                    We review an appeal from a district court’s review of
             an administrative agency’s decision as if it had come directly
             from the administrative agency. Dale v. S & S Builders,
             LLC, 2008 WY 84, ¶ 8, 188 P.3d 554, 557 (Wyo.2008). Our
             review of an administrative agency’s action is governed by
             Wyo. Stat. Ann. § 16-3-114(c)(ii) (LexisNexis 2011), which
             provides that the reviewing court shall:
                    (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;



                                            4
                       (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.

             In reviewing an agency’s factual findings:

                 [W]e examine the entire record to determine whether
                 there is substantial evidence to support an agency’s
                 findings. If the agency’s decision is supported by
                 substantial evidence, we cannot properly substitute our
                 judgment for that of the agency and must uphold the
                 findings on appeal. Substantial evidence is relevant
                 evidence which a reasonable mind might accept in
                 support of the agency’s conclusions. It is more than a
                 scintilla of evidence.

             Hwang v. State, Dep’t of Transp., 2011 WY 20, ¶ 9, 247 P.3d
             861, 864 (Wyo. 2011).

             A traffic stop is a limited investigatory detention and
             implicates constitutional protections. Batten v. Wyo. Dep’t of
             Transp. Drivers’ License Div., 2007 WY 173, ¶ 10, 170 P.3d
             1236, 1240 (Wyo. 2007).             Whether a violation of
             constitutional rights occurred is a question of law, which we
             review de novo. Id., ¶ 12, 170 P.3d at 1241.

Tiernan v. State, Dep’t of Transp., 2011 WY 143, ¶ 9, 262 P.3d 561, 564 (Wyo. 2011).

             On the question of probable cause, we apply the substantial
             evidence standard of review to the hearing examiner’s factual
             findings concerning whether the [officer] had probable cause
             to arrest, but review the constitutionality of the particular
             seizure de novo. Batten v. Wyo. Dep’t of Transp. Drivers’
             License Div., 170 P.3d 1236, 1240 (Wyo.2007).

Vasco v. State, Dep’t of Transp., 2011 WY 100, ¶ 9, 253 P.3d 515, 517 (Wyo. 2011).

                                    DISCUSSION

[¶13] Mr. Vogt challenges the OAH decision on two bases. First, he argues Officer
Whitaker did not have reasonable suspicion to detain him beyond the scope of the traffic


                                           5
stop in order to administer field sobriety tests. Second, he claims the officer did not have
probable cause to arrest him for DUI. If either of these arguments is correct, then his
arrest was unlawful and the provisions of the implied consent law do not apply to support
suspension of his driver’s license. Batten v. Wyo. Dep’t of Transp. Drivers’ License
Div’n, 2007 WY 173, ¶ 8, 170 P.3d 1236, 1240 (Wyo. 2007). This is so because in
addition to proving that probable cause existed to arrest Mr. Vogt for DUI as provided in
Wyo. Stat. Ann. § 31-6-103 (LexisNexis 2013), the State was required to show the arrest
was lawful under § 31-6-102(a)(i)(A) (LexisNexis 2013). Batten, citing Marshall v.
State, 941 P.2d 42, 44 (Wyo. 1997). See also Coyler v. State, 2009 WY 43, ¶ 10 n.2, 203
P.3d 1104, 1111 n.2 (Wyo. 2009). Section 31-6-102 provides in relevant part:

              § 31-6-102. Test to determine alcoholic or controlled
              substance content of blood; suspension of license.

                     (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;

(Emphasis added.) Section 31-6-103 provides:

              § 31-6-103. Application for hearing; stay of suspension of
              license; scope of hearing.

              ....

                     (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


                                             6
                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).

(Emphasis added.)

        1. Reasonable Suspicion to Detain for Field Sobriety Tests Following Traffic
           Stop.

[¶14] Mr. Vogt presents his claim that reasonable suspicion did not exist to detain him
after the initial stop for the first time on appeal to this Court.7 He asserts the evidence the
officer claimed to have at the time he detained him was insufficient to give rise to a
reasonable suspicion that he was under the influence of alcohol or a controlled substance.
He further contends many of Officer Whitaker’s observations, which he relied upon in
detaining Mr. Vogt, are belied by the video recording.

[¶15] We customarily will not consider issues presented for the first time on appeal. The
only exceptions to the rule are when an issue is one of jurisdiction or involves a
fundamental right. Schlesinger v. Woodcock, 2001 WY 120, ¶ 18, 35 P.3d 1232, 1239
(Wyo. 2001). This Court has recognized that the right to be free from unreasonable
searches and seizures is one of the most cherished rights provided by both the federal and
state constitutions. Collins v. State, 854 P.2d 688, 691 (Wyo. 1993). We, therefore,
proceed to address the issue raised.

[¶16] We have said:

                        The Fourth Amendment protects individuals from
                unreasonable searches and seizures. U.S. Const. amend. IV.
                A routine traffic stop constitutes a seizure within the meaning
                of the Fourth Amendment “even though the purpose of the
                stop is limited and the resulting detention quite brief.”
                Damato v. State, 2003 WY 13, ¶ 9, 64 P.3d 700, 704
                (Wyo.2003) (quoting Delaware v. Prouse, 440 U.S. 648, 653,
                99 S.Ct. 1391, 1396, 59 L.Ed.2d 660 (1979)). Because a
                traffic stop is more analogous to an investigative detention
                than a custodial arrest, the reasonableness of such stops [is]
                analyzed under the two-part test articulated in Terry v. Ohio,
                392 U.S. 1, 19-20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889

7
 Interestingly, the State in its brief does not argue that this Court should decline to address the argument.
The State simply does not address Mr. Vogt’s reasonable suspicion argument.


                                                     7
                  (1968): (1) whether the initial stop was justified; and (2)
                  whether the officer’s actions during the detention were
                  “reasonably related in scope to the circumstances that
                  justified the interference in the first instance.” Damato, ¶ 9,
                  64 P.3d at 705.

Lovato v. State, 2010 WY 38, ¶ 12, 228 P.3d 55, 58 (Wyo. 2010), citing Garvin v. State,
2007 WY 190, ¶ 13, 172 P.3d 725, 728-29 (Wyo. 2007).

[¶17] Mr. Vogt does not challenge the initial traffic stop. Indeed, Wyoming law is clear
that “a law enforcement official’s personal observation of a traffic law violation provides
probable cause to initiate a traffic stop.” Tiernan, ¶ 12, 262 P.3d at 565. Here, Officer
Whitaker stopped Mr. Vogt after observing his vehicle turn without signaling in violation
of Wyoming law. 8 Officer Whitaker’s observation is corroborated by the video
recording. There is no question probable cause existed for the traffic stop.

[¶18] We turn to the question whether after stopping Mr. Vogt for failing to signal
Officer Whitaker had reasonable suspicion to detain him further for the purpose of
conducting field sobriety tests. This is a separate issue from probable cause and its
resolution depends upon the totality of the circumstances and how those circumstances
developed during the encounter. Id.; Dimino v. State, 2012 WY 131, ¶ 16, 286 P.3d 739,
744 (Wyo. 2012). A law enforcement official must be able to point to specific,
articulable facts that, taken together with rational inferences, give rise to an objectively
reasonable suspicion that the suspect had committed or was committing a crime.
Tiernan, ¶ 12, 262 P.3d at 565. In reviewing the totality of the circumstances, we
consider common sense and ordinary human experience and defer to a law enforcement
officer’s ability to distinguish between innocent and suspicious actions. Dimino, ¶ 16,
286 P.3d at 744, citing Damato v. State, 2003 WY 13, ¶ 16, 64 P.3d 700, 707 (Wyo.
2003).

[¶19] In the instant case, at the time Officer Whitaker detained Mr. Vogt for reasons
beyond the scope of the traffic violation, he had seen Mr. Vogt fail to use his turn signal,
make a wide turn into the center of the street and then fail to use his turn signal again
after stopping at a stop sign. When asked to produce his driver’s license and proof of
insurance, Mr. Vogt fumbled with and handed Officer Whitaker insurance cards that had
expired or were for another vehicle before finding the current one for the vehicle he was
driving. Upon questioning Mr. Vogt, Officer Whitaker observed that he mumbled; he
was shaky; he could not give clear or concise answers to questions; he had a difficult time
focusing; and his voice trembled. On the basis of these observations and conclusions,
Officer Whitaker suspected Mr. Vogt was under the influence of alcohol or a controlled
substance and detained him for the purpose of conducting field sobriety tests.

8
    Section 31-5-217 (LexisNexis 2013) prohibits turning a vehicle without signaling.


                                                      8
[¶20] In Batten, ¶ 13, 170 P.3d at 1241, we held that a state trooper had reasonable
suspicion justifying extending a traffic stop where the driver smelled moderately of
alcohol, admitted he had just left a bar where he had consumed one drink, could not
locate the proof of insurance for the vehicle when the trooper requested it, and was
driving a vehicle late at night with knowledge that it had a broken headlight. The present
case differs from Batten in that no evidence exists that Mr. Vogt smelled of alcohol and
Officer Whitaker did not ask him whether he had been drinking before deciding to
conduct field sobriety tests. Nevertheless, from the totality of the circumstances, we
conclude sufficient specific, articulable facts, taken together with rational inferences,
gave rise to an objectively reasonable suspicion that Mr. Vogt was under the influence of
alcohol or a controlled substance.

[¶21] The video confirms that Mr. Vogt failed to signal two turns at night on dark city
streets. On the first turn he swung into the center of the street. When asked to produce
proof of insurance for the vehicle he was driving, he fumbled with insurance cards and
produced an expired insurance card and a card for a different vehicle apparently without
knowing it until the officer pointed it out. According to the officer, his speech was
mumbled, his voice trembled, he was shaky, he could not give clear or concise answers to
questions, and he had a difficult time focusing on what he was being asked and requested
to do. Considering common sense and ordinary human experience and deferring to
Officer Whitaker’s ability to distinguish between innocent and suspicious actions, we
conclude reasonable suspicion existed to detain Mr. Vogt beyond the scope of the traffic
stop for the purpose of conducting field sobriety tests.

       2. Probable Cause to Arrest for DUI.

[¶22] The OAH’s conclusion that probable cause existed to arrest Mr. Vogt for DUI was
based on the following factual findings: Officer Whitaker had observed Mr. Vogt’s
vehicle make two turns without properly signaling; Mr. Vogt appeared to have trouble
focusing on simple questions; Mr. Vogt’s hands shook, his voice trembled and his speech
was mumbled; Mr. Vogt changed his story about where he had been and could not
provide the name of the street where the apartments he was looking at were located; Mr.
Vogt’s eyes jerked on the HGN test; Mr. Vogt could not adequately perform the walk and
turn, one leg stand or Romberg test; Mr. Vogt exhibited tremors; a portable breath test
showed negative results for alcohol; and the drug dog alerted to Mr. Vogt’s vehicle
although no drugs were found. While noting that one or two of these findings could be
explained by other reasons, the OAH concluded together they provided probable cause to
believe Mr. Vogt was driving while under the influence of an illegal substance.

[¶23] Mr. Vogt asserts the OAH conclusion is contrary to the overwhelming weight of
the evidence. He argues his failure to use a turn signal gave the officer probable cause to
stop him for a traffic violation but was not evidence of DUI. He claims the video tape


                                            9
recording does not substantiate the finding that he had difficulty focusing on questions or
that his speech was mumbled, his voice trembled and his hands shook. He asserts the
video demonstrates that he did not change his story and did provide the name of the street
where the apartments were located. He contends the results of the HGN test did not
indicate intoxication because, as reflected in the officer’s signed statement, “his eyes
pursu[ed] smoothly at times” and “he did not have distinct and sustained nystagmus at
max[imum] deviation and no onset prior to 45 degrees.” He disputes that he failed to
adequately perform the other tests, and asserts that to the extent he was off balance when
performing them it was because the sidewalk was slanted, he was anxious and Officer
Whitaker’s instructions were less than clear. He contends the video does not show that
he had tremors and, to the extent he may have been shakey, it was due to his anxiety. He
argues the drug dog’s alert is evidence of nothing given that no drugs were found. He
also points out that Officer Whitaker searched him twice and found nothing illegal.

[¶24] “Probable cause for a warrantless arrest exists when, under the totality of the
circumstances, a prudent, reasonable, and cautious peace officer would be led to believe
that a crime has been or is being committed and that the individual arrested is the
perpetrator.” Batten, ¶ 16, 170 P.3d at 1242, quoting Keene v. Town of Torrington, 834
P.2d 112, 116 (Wyo. 1992). The totality of the circumstances in this case showed that
Mr. Vogt:

          -   did not use his turn signal when making two turns on two lane streets with
              virtually no traffic, turned wide into the center of the street after the first
              turn, signaled a third turn after stopping at a red light on a busy four lane
              street and signaled again when turning off the busy street to pull over in
              response to the patrol car’s flashing lights.

          -   produced his driver’s license but had at least three insurance cards in his
              vehicle and had difficulty in the dark with only the aid of the officer’s
              flashlight finding the current one for the vehicle he was driving;

          -   was nervous;

          -   spoke quietly and hesitantly in some instances but answered other questions
              clearly and definitively;

          -   did not have distinct and sustained nystagmus;

          -   clearly and correctly recited the alphabet;

          -   wobbled some when asked to stand on one leg while holding the opposite
              foot off the ground;



                                             10
          -   ended the Romberg test before the thirty seconds when Officer Koeppel
              shined her flashlight directly in his face;

          -   denied having consumed alcohol;

          -   did not smell of alcohol or controlled substances, did not have slurred
              speech, and did not stumble, stagger or have difficulty walking;

          -   did not tell inconsistent stories about why he was looking at apartments;

          -   submitted to a PBT that was negative for alcohol; and

          -   did not have controlled substances in his vehicle or on his person.

Absent from the totality of the circumstances is any evidence that Mr. Vogt’s pupils were
dilated, his face was flushed or pale, he was perspiring, his breathing or pulse was
abnormally fast or slow or other indicators of alcohol or controlled substances use.

[¶25] The totality of the circumstances simply does not support the OAH’s conclusion
that probable cause existed to arrest Mr. Vogt for driving while under the influence of
alcohol or controlled substances. Particularly in light of the fact that the PBT was
negative for alcohol and searches of Mr. Vogt’s vehicle and his person prior to his arrest
produced no evidence of controlled substances, we conclude a prudent, reasonable and
cautious police officer would not have arrested him for DUI. The OAH’s conclusion that
probable cause existed to arrest Mr. Vogt for DUI was clearly contrary to the
overwhelming weight of the evidence.

[¶26] We reverse and remand to the district court with directions to remand to the OAH
for entry of an order reversing the driver’s license suspension.




                                            11
