                IN THE SUPREME COURT, STATE OF WYOMING

                                    2014 WY 63

                                                    APRIL TERM, A.D. 2014

                                                           May 15, 2014

JAMIE T. DUBBELDE,

Appellant
(Petitioner),

v.
                                          S-13-0179,
STATE OF WYOMING, ex rel.,
DEPARTMENT OF
TRANSPORTATION,

Appellee
(Respondent).

JAMIE T. DUBBELDE,

Appellant
(Petitioner),

v.
                                          S-13-0180
STATE OF WYOMING, ex rel.,
DEPARTMENT OF
TRANSPORTATION,

Appellee
(Respondent).


                   Appeal from the District Court of Campbell County
                          The Honorable John R. Perry, Judge

Representing Appellant:
      Donna D. Domonkos, Cheyenne, Wyoming.
Representing Appellee:
      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.


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

[¶1] Jamie T. Dubbelde challenges the administrative ninety day suspension of his
driver’s license and his one year disqualification from driving a commercial vehicle. The
focus of his appeal is the delay that occurred between his arrest for driving under the
influence of alcohol in April 2011 and the Wyoming Department of Transportation’s
(WYDOT) August 2012 notification of the suspension and disqualification. We affirm.

                                               ISSUES

[¶2] Mr. Dubbelde presents the issues for our consideration as follows:

                ISSUE I

                Whether the Division should be prohibited from submitting a
                brief in this Court after it failed to timely file a brief in the
                District Court.

                ISSUE II

                Whether the OAH’s Order Upholding Order of Suspension is
                arbitrary, capricious or otherwise not in accordance with the
                law.

[¶3] The State contends this Court may consider its brief whether or not it timely filed its
brief in district court; Mr. Dubbelde is precluded from arguing the delay issue because he
did not argue it during the administrative hearing; and, Mr. Dubbelde failed to make the
required showing that good cause existed to modify the suspension and disqualification.

                                               FACTS

[¶4] Mr. Dubbelde was arrested for DUI on April 2, 2011. He provided a breath sample,
which revealed a blood alcohol content (BAC) over .08%. Mr. Dubbelde pleaded guilty
to DUI on April 4, 2011. For unexplained reasons, WYDOT did not notify Mr. Dubbelde
until August 2012—sixteen months after his conviction—that he would be disqualified
from using his commercial driver’s license (CDL) for one year and the written
notification did not mention the license suspension.1

1
  With regard to the license suspension, the implied consent law, Wyo. Stat. Ann. § 31-6-102(e), provides
that if chemical test results indicate that a person stopped for suspected DUI has a BAC of 0.08% or
more, the peace officer shall submit a signed statement to WYDOT and WYDOT shall suspend the
person’s driver’s license for ninety days. Wyo. Stat. Ann. § 31-7-128 provides for a mandatory ninety
day license suspension upon receipt by WYDOT of a driver's conviction for DUI. Similarly, Wyoming’s
CDL provisions require the arresting officer to submit a signed statement to WYDOT and, upon receipt of
                                                   1
[¶5] Upon receiving the notification from WYDOT in August 2012, Mr. Dubbelde
requested a contested case hearing and enclosed payment for hearings on both the
suspension and disqualification. WYDOT received the request on August 9, 2012, and
forwarded it to the Office of Administrative Hearings (OAH) later in August. The OAH
held a hearing on September 27, 2012.

[¶6] Mr. Dubbelde appeared without counsel. He asserted that if his license was going to
be suspended and he was going to be disqualified from using his CDL, he should have
been notified at the time of his conviction, not over a year later. He claimed it was unfair
because he depended on driving for his livelihood.

[¶7] The OAH issued orders upholding the suspension and disqualification on the ground
that Mr. Dubbelde was not contesting the DUI conviction and had not shown good cause
under Wyo. Stat. Ann. § 31-7-105(e) (LexisNexis 2013) for modifying the administrative
suspension and disqualification. Mr. Dubbelde obtained counsel and filed a petition for
review of the orders in district court. He asserted his due process rights were violated
when WYDOT failed to promptly institute suspension and disqualification proceedings.
He further asserted Wyo. Stat. Ann. § 16-3-113 (LexisNexis 2013) requires license
suspension proceedings to be “promptly instituted” and proceedings instituted nearly a
year and a half after his DUI conviction violated the statute.

[¶8] WYDOT filed its brief in response after the deadline imposed by the district court.
Mr. Dubbelde moved to strike the brief and requested that the district court not hear
argument from WYDOT. 2 The district court did not rule on the motion. The district court
issued an order affirming the OAH decisions. Mr. Dubbelde timely appealed to this
Court.


the statement, WYDOT is required to disqualify the driver from driving a commercial vehicle subject to
the driver’s request for a hearing. Wyo. Stat. Ann. § 31-7-305. The record does not indicate whether
WYDOT did not receive the officer’s statements and/or the record of conviction until July of 2012, or
whether it received them in 2011 and failed to notify Mr. Dubbelde until 2012.
2
    In his motion, Mr. Dubbelde cited W.R.A.P. 7.11(b) which provides:

          When the party holding the negative has failed to file and serve a brief as is required by these
          rules, and the brief of the party holding the affirmative has been duly filed and served within the
          time required, the party holding the affirmative may submit the case, with or without oral
          argument, and the other party shall not be heard.

It is not clear this provision applies to district court review of administrative decisions. Although
W.R.A.P 1.02 states that district court review of administrative action “shall be governed by the appellate
rules,” which include Rule 7.11, Rule 12.01 provides that “all appeals from administrative action shall be
governed by these rules” and Rule 12.09(c) provides the district court has the discretion to receive written
briefs and hear oral argument.


                                                      2
                              STANDARD OF REVIEW

[¶9] 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;
                         (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.

Tiernan v. State, Dep’t of Transp., 2011 WY 143, ¶ 9, 262 P.3d 561, 564 (Wyo. 2011),
citing Hwang v. State, Dep’t of Transp., 2011 WY 20, ¶ 9, 247 P.3d 861, 864 (Wyo.
2011).

                                     DISCUSSION

      1. WYDOT’s brief.


                                             3
[¶10] Mr. Dubbelde asks this Court not to consider the State’s brief filed in this Court.
He argues that consideration of the brief gives the State “a second bite at the apple” after
failing to timely file its brief in district court. Among other assertions, the State responds
that its untimely brief did not affect the outcome in district court; even if it had not filed a
brief at all, the district court would have upheld the OAH orders.

[¶11] As reflected in paragraph 9 above, the standards governing our review require this
Court to review the matter as if it came directly from the OAH. What happened in
district court is not before us and not something we consider. The State timely filed its
brief in this Court and we will consider it. In essence, Mr. Dubbelde asks this Court to
sanction WYDOT for something that occurred in district court. The district court was the
proper place for any such sanction to be imposed. Although the district court did not rule
on the motion to strike the State’s brief, the order upholding the OAH ruling makes no
reference to the State’s brief or arguments and we do not know whether the district court
considered them or not. We decline to impose any sanction against WYDOT for what
occurred in district court.

       2. The OAH orders upholding the suspension and disqualification.

[¶12] Mr. Dubbelde asserts the orders are arbitrary, capricious and not in accord with
law because the OAH misinterpreted § 31-7-105(e) and failed to consider his due process
rights. Section 31-7-105(e) provides in relevant part that “[u]pon hearing, the hearing
examiner shall either rescind or uphold the action or upon a showing of good cause, may
continue or modify a suspension of the license.” Mr. Dubbelde contends a showing of
good cause is required only to continue or modify a suspension, not to have the
suspension rescinded. He asserts that he sought rescission of both the suspension and
disqualification on the ground that WYDOT delayed notifying him for over a year.
Although he did not rely on it at the hearing when he appeared without counsel, he now
cites § 16-3-113(c) which requires administrative license proceedings to be “promptly
instituted.” Mr. Dubbelde asserts proceedings instituted sixteen months after his DUI
conviction were not promptly instituted as required by the statute.

[¶13] The State responds that Mr. Dubbelde should be precluded from arguing that the
proceedings were not promptly initiated because he did not make that argument to the
OAH. The State is incorrect to the extent it suggests Mr. Dubbelde did not assert the
delay between his 2011 conviction and the 2012 notice as grounds for rescinding the
license suspension and CDL disqualification. Contrary to the State’s assertion, the delay
was the only basis for Mr. Dubbelde’s request for rescission. It is true that he did not cite
§ 16-3-113(c); however, we conclude he adequately raised the issue that the proceedings
were not instituted in a timely manner. Once he raised the issue, the OAH was obligated
to apply the applicable law. See Carabajal v. State ex rel. Wyo. Workers’ Safety &
Comp. Div., 2005 WY 119, ¶ 14, 119 P.3d 947, 954 (Wyo. 2005), quoting Pino v. State


                                               4
ex rel. Wyo. Workers’ Safety & Comp. Div., 996 P.2d 679, 687 (Wyo. 2000) (a hearing
examiner “has an obligation to invoke and apply the rules of law that support a claimant’s
theory of the case.”) The question is whether under the applicable law the delay entitled
Mr. Dubbelde to rescission of the suspension or disqualification.

[¶14] Mr. Dubbelde’s driver’s license was suspended pursuant to the following statute:

             § 31-7-128. Mandatory suspension of license . . . for
             certain violations; …
                    …
                    (b) Upon receiving a record of a driver’s conviction
             under W.S. 31-5-233 or other law prohibiting driving while
             under the influence, the division shall suspend the license . . .
             for:
                      (i) Ninety (90) days for the first conviction;

Mr. Dubbelde was disqualified from driving a commercial vehicle pursuant to the
following provision:

             § 31-7-305. Disqualification and cancellation; right to a
             hearing.

                    (a) Any person is disqualified from driving a
             commercial motor vehicle for a period of not less than one (1)
             year if convicted of a first violation arising from separate
             incidents of:
                    …
                      (viii) Driving or being in actual physical control of a
             motor vehicle while the alcohol concentration of the person’s
             blood, breath or other bodily substance is eight one-
             hundredths of one percent (0.08%) or more;
                    …
                      (k) Before a person is disqualified from driving a
             commercial motor vehicle under this act, the department shall
             notify the person and provide an opportunity for a hearing
             and appeal in accordance with the provisions of W.S. 31-7-
             105.

[¶15] Section 31-7-105 provides for administrative hearings in driver’s license cases.
Paragraph (a)(i), states that a hearing examiner designated by the OAH shall sit as the
administrative hearing agency for WYDOT to hear all “contested cases involving per se
suspensions involving a question of law . . . [and] commercial driver’s license
disqualifications.” Section § 31-7-105(d) provides that “before suspending, revoking,


                                            5
canceling or denying the license or driving privilege of any person under this act . . . the
department shall immediately advise the licensee in writing: (i) Of his right to request a
hearing[.]”

[¶16] WYDOT advised Mr. Dubbelde of his right to a hearing and he requested one for
both the suspension and disqualification. With respect to driver’s license suspension
hearings, Wyoming law provides as follows:

              § 31-6-103. Application for hearing; stay of suspension of
              license; scope of hearing.
                     (a) A timely request for a hearing shall stay the
              suspension until the order following the hearing is entered
              and all appellate review of the matter is completed, provided
              the stay of suspension is effective only so long as there is no
              suspension for a similar violation during the hearing and
              appeal period.
                     (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). At the
              conclusion of the hearing, the hearing examiner shall order
              that the suspension either be rescinded or sustained. If a
              chemical test was administered, the hearing examiner has the
              same authority to modify a license suspension under this act
              as he does under W.S. 31-7-105.

Section 31-7-105(e) provides in relevant part that, “[u]pon hearing, the hearing examiner
shall either rescind or uphold the action or upon a showing of good cause, may continue
or modify a suspension of the license.”

[¶17] CDL disqualification hearings are governed by the following paragraph of Wyo.
Stat. Ann. § 31-7-307 (LexisNexis 2013):



                                             6
              (j) At the conclusion of a hearing, the hearing examiner shall
              order the disqualification be rescinded or sustained. The
              scope of the hearing shall be limited to the issues of:
                (i) Whether the peace officer had probable cause to believe
              the person was driving or in actual physical control of a
              commercial vehicle with alcohol . . . in his system;
                (ii) Whether the results of a test indicated there was at least
              four one-hundredths of one percent (0.04%) of alcohol in the
              person’s blood; and
                (iii) Whether the person had been given the advisement
              required in subsection (c) of this section.

[¶18] Pursuant to these provisions, the OAH was to make three determinations at the
hearing: whether probable cause existed to arrest Mr. Dubbelde for DUI; whether the test
administered showed a BAC at or above the statutory limit; and whether the arresting
officer gave the implied consent advisements. Depending upon its findings on these
issues, the OAH had the authority to rescind, sustain, or, for good cause, modify the
suspension. With respect to the CDL, the OAH had the authority to rescind or sustain the
disqualification, but no authority to modify it. Here, Mr. Dubbelde did not challenge the
existence of probable cause, the BAC test results or having received the advisements.
Therefore, the only question for the OAH was whether the delay between Mr. Dubbelde’s
April 2011 conviction and receipt of notice from WYDOT warranted rescinding the
suspension.

[¶19] The record does not show when or even whether WYDOT notified Mr. Dubbelde
that his license was being suspended. Mr. Dubbelde requested a hearing and paid the fee
for both the suspension and disqualification but the record is silent as to any notification
from WYDOT that his license would be suspended. Mr. Dubbelde has not argued that he
did not receive notification from WYDOT concerning the suspension and so we do not
address the issue.

[¶20] As the foregoing discussion demonstrates, nothing in the motor vehicle statutes
requires WYDOT to notify a licensee within so many days of a DUI conviction that the
conviction disqualifies him from operating a commercial vehicle or results in suspension
of his license. The only timeliness requirement of that nature in the motor vehicle
statutes is the provision in § 31-7-105(d)(i) requiring WYDOT to “immediately” advise
the licensee of his right to a hearing “before” disqualifying him or suspending his license.
WYDOT met this requirement when by letter dated August 1, 2012, it advised Mr.
Dubbelde “before” taking action with respect to his licenses of his right to a hearing.

[¶21] Mr. Dubbelde contends WYDOT did not satisfy the timing requirements of the
Wyoming Administrative Procedure Act, which provides in relevant part as follows:



                                             7
              § 16-3-113. License hearings.

                      (a)When the grant, denial, suspension or renewal of a
              license is required by law to be preceded by notice and an
              opportunity for hearing the provisions of this act concerning
              contested cases apply.
                      ....
                      (c) No revocation, suspension, annulment or
              withdrawal of any license is lawful unless, prior to the
              institution of agency proceedings, the agency gave notice by
              mail to the licensee of facts or conduct which warrant the
              intended action, and the licensee was given an opportunity to
              show compliance with all lawful requirements for the
              retention of the license. . . . These proceedings shall be
              promptly instituted and determined.

(Emphasis added.) Mr. Dubbelde contends a driver’s license proceeding instituted
sixteen months after a DUI conviction giving rise to the agency proceeding is not
“promptly instituted.” However, in Gerstell v. State ex rel. Dep’t of Revenue & Taxation,
769 P.2d 389, 395 (Wyo. 1989), this Court held that proceedings are “instituted” within
the meaning of § 16-3-113(c) when the agency forwards a request for a hearing to the
OAH.

[¶22] In Gerstell, 769 P.2d at 391, the petitioner was arrested for DUI. Prior to her
arrest, the police officer advised her that failure to submit to chemical tests would result
in suspension of her driver’s license and gave her a copy of a notice of suspension.
Subsequently, she received notice from the agency advising her that her license would be
suspended beginning three weeks hence. She requested a hearing and the OAH upheld
the suspension.

[¶23] On review in this Court, the petitioner asserted the OAH decision was void
because the agency had not complied with § 16-3-113(c) in that her license had been
suspended before the agency gave her notice of the suspension and her right to a hearing.
The Court concluded the petitioner’s contention required interpreting § 16-3-113(c) to
mean that the agency proceeding was instituted when the peace officer gave her the
notice of suspension. The Court rejected that contention, holding that the agency
proceedings were instituted when the agency forwarded a request for a hearing to the
OAH.

[¶24] Applying our precedent to the present case, we conclude the administrative
proceedings were instituted for purposes of § 16-3-113 when WYDOT forwarded Mr.
Dubbelde’s request for a hearing to the OAH. Given that WYDOT forwarded the request



                                             8
within a week or two after receiving it, we hold the administrative proceedings were
promptly instituted as required by § 16-3-113.

[¶25] Mr. Dubbelde also asserts that WYDOT’s failure to notify him of the
administrative suspension and disqualification until sixteen months after his conviction
denied him his right to due process. The party claiming a due process violation has the
burden of demonstrating a protected interest and that “such interest has been affected in
an impermissible way.” JA v. State (In re DSB), 2008 WY 15, ¶ 26, 176 P.3d 633, 639
(Wyo. 2008). Reasonable notice and the opportunity for a fair hearing are the
touchstones of procedural due process. Id., citing Chevron U.S.A., Inc. v. Dep’t of
Revenue, 2007 WY 43, ¶ 31, 154 P.3d 331, 341 (Wyo. 2007).

[¶26] In this case, Mr. Dubbelde has not established that the delay deprived him of
procedural due process. Although there is no question the hearing and subsequent orders
suspending his license and disqualifying him from CDL privileges were delayed, Mr.
Dubbelde received reasonable notice and a fair hearing in 2012. A hearing convened
closer to the time of conviction would have led to the same result—suspension of his
license and disqualification of his CDL privileges. He has presented no evidence
showing how the sixteen month delay and the fact that his license and privileges were
suspended in 2012 rather than 2011 prejudiced him. Thus, he has failed to establish that
his procedural due process right was affected in an impermissible way.

[¶27] Affirmed.




                                           9
