                IN THE SUPREME COURT, STATE OF WYOMING

                                        2013 WY 59

                                                                APRIL TERM, A.D. 2013

                                                                         May 13, 2013

KARA WALTERS,

Appellant
(Petitioner),

v.
                                                     S-12-0213
STATE OF WYOMING ex rel.
WYOMING DEPARTMENT OF
TRANSPORTATION,

Appellee
(Respondent).


                     Appeal from the District Court of Albany County
                        The Honorable Jeffrey A. Donnell, Judge

Representing Appellant:
      R. Michael Vang of Fleener & Vang LLC, Laramie, Wyoming

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

Before KITE, C.J., and HILL, BURKE, and DAVIS, JJ., and GOLDEN, J., Retired


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] Appellant Kara Walters was charged with driving while under the influence
(DWUI) in Laramie, Wyoming. The Wyoming Department of Transportation (WYDOT)
suspended her driver’s license, and she requested an evidentiary hearing before the Office
of Administrative Hearings (OAH). An OAH hearing examiner upheld the suspension
against a challenge that she had not been properly advised as to implied consent. She
then sought review of the administrative suspension in the district court, where she also
raised a number of constitutional challenges to a municipal criminal ordinance in addition
to the claim that she had not been properly advised under the implied consent statute.
The district court concluded that the constitutional issues before it had not and could not
have been raised in the administrative hearing and that it therefore lacked jurisdiction to
consider them, and that Walters had been properly advised as to implied consent. We
agree and therefore affirm.

                                             ISSUES

[¶2] 1. Did the arresting officer properly advise Ms. Walters as to implied consent as
required by Wyoming Statute § 31-6-102(a)(ii) when she was also told that refusal to
submit to chemical testing could result in incarceration under a municipal criminal
ordinance?

      2. Does this Court have jurisdiction to consider challenges to a municipal
ordinance that were not and could not have been raised in a license suspension hearing?

                                             FACTS

[¶3] A City of Laramie police officer observed Walters drive her vehicle through a
flashing red light a little before one o’clock in the morning on February 6, 2012, and
made a traffic stop. When he approached the vehicle and spoke with her, he detected the
odor of a flavored alcoholic beverage. He then administered field sobriety and
nystagmus tests, and arrested Walters for DWUI based upon the results.

[¶4] Walters was then taken to the Albany County detention center where the arresting
officer read her the standard implied consent advisement required by Wyoming Statute
31-6-102(a)(ii). Walters initially refused to submit to a breath test. The officer then
informed her that she could be prosecuted under a Laramie municipal ordinance for
refusing to take a breath test. The officer also explained that he could obtain a search
warrant, take her to Ivinson Memorial Hospital, and have a blood sample forcibly taken
from her under the authority provided by Wyoming Statute § 31-6-102(d).1 After this

1
 The Wyoming Legislature significantly amended the implied consent statutes in 2011. It repealed the
enhanced administrative penalties for refusing chemical testing, and it authorized law enforcement


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explanation, Walters submitted to a breath test, which yielded a blood alcohol
concentration (BAC) of 0.18%. Ms. Walters was employed at Ivinson Memorial, which
may have played a part in her decision. She was charged with DWUI under the Laramie
ordinance in municipal court. That court stayed the proceedings there pending the
outcome of Sandoval v. State ex rel. Wyo. Dep’t of Transp., 2012 WY 160, 291 P.3d 290
(Wyo. 2012).

[¶5] Wyoming Statute § 31-6-102(e) requires WYDOT to suspend a driver’s license if
a DWUI test result indicates a BAC of 0.08% or more. WYDOT accordingly gave notice
of its intent to suspend Walters’ license for ninety days based on the breath test result.
Walters timely requested a contested case hearing before an OAH hearing examiner to
challenge the administrative suspension.

[¶6] At the OAH hearing, Ms. Walters argued that she had not been properly advised as
to implied consent. She conceded that the officer read the advisement required by § 31-
6-102(a)(ii) correctly, but contended that it was confusing and misleading because the
arresting officer then advised her that she could be incarcerated for a minimum of seven
days for refusing to take a chemical test under Laramie Enrolled Ordinance 1952, but did
not also tell her that she could also receive a minimum sentence of seven days in jail
under the ordinance if she had a BAC of 0.15% or more.

[¶7]    The OAH hearing examiner rejected her argument, stating that:

                       The suspension of driving privileges is civil in nature
                and is controlled by Wyoming law. The evidence in this
                matter clearly established Officer Terry arrested Walters for
                DWUI, read Walters the implied consent advisement required
                under Wyoming law and Walters agreed to submit to a
                chemical test without the need to obtain a search warrant.
                Thus, the proposed suspension action should be upheld. The
                issues and argument raised by Walters’ counsel have no merit
                in this civil proceeding. The arguments may have some
                bearing in the underlying criminal action in the Laramie
                Municipal Court but that issue is not one this Office has
                authority to determine.

The hearing examiner upheld the suspension.



officers to obtain remotely communicated search warrants and to forcibly obtain chemical testing of
DWUI arrestees who refuse the tests, among other provisions. 2011 Wyo. Sess. Laws Ch. 178. These
laws were in effect at the time of Walters’ arrest on February 6, 2012. See id. (providing for an effective
date of July 1, 2011).


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[¶8] In the district court, Ms. Walters argued that the suspension should be stayed
pending a decision in three declaratory judgment actions. In those cases, counsel for
Walters challenged other administrative suspensions relating to the Laramie ordinance.
In the alternative, she challenged the Laramie ordinance on a number of other grounds,
contending as follows:

        1.    The arresting officer should have advised her of the aggravated offender
provisions of the Laramie ordinance before asking her to submit to a chemical test
(referring to the mandatory sentence of seven days for a BAC over 0.15% under the
ordinance).

      2.      The arresting officer’s advisement concerning the effect of a refusal to
submit a BAC test under the Laramie ordinance was improper and implicated her due
process rights.

       3.    The definition of “chemical test refusal” in the Laramie ordinance is overly
broad and vague.

       4.     The existence of a mandatory minimum jail sentence as a result of refusing
a breath test creates a critical stage for purposes of the right to an attorney, and should
have required that she be allowed an opportunity to retain counsel before deciding
whether to undergo chemical testing or not.

      5.     A mandatory minimum jail sentence for refusing a chemical test results in
double jeopardy.

       6.     Walters was not properly advised on implied consent because she was told
she could go to jail for refusing a chemical test but not that she could go to jail if she
tested over 0.15% BAC.

      7.     State law preempts the Laramie ordinance, which is in conflict with it.

[¶9] The district court did not stay the administrative suspension pending a decision in
the declaratory judgment actions. It found that it only had jurisdiction to consider
whether Walters was properly advised as to implied consent and declined to address the
other issues, because that they must be pursued in a criminal appeal or declaratory
judgment action. The court affirmed the hearing examiner’s conclusion that Ms. Walters
was properly advised in accordance with Wyoming law. This appeal was timely
perfected.

                              STANDARD OF REVIEW




                                             3
[¶10] We review an administrative agency’s decision “as if it had come directly to us
from the administrative agency,” giving no deference to the district court’s decision.
Dale v. S & S Builders, LLC, 2008 WY 84, ¶ 8, 188 P.3d 554, 557 (Wyo. 2008) (quoting
Newman v. State ex rel. Wyo. Workers’ Safety & Comp. Div., 2002 WY 91, ¶ 7, 49 P.3d
163, 166 (Wyo. 2002)). We review questions of statutory interpretation de novo, and
affirm an agency’s conclusions if they are in accordance with the law. Id. at ¶ 26, 188
P.3d at 561-62; Escarcega v. State ex rel. Wyo. Dep’t of Transp., 2007 WY 38, ¶ 7, 153
P.3d 264, 267 (Wyo. 2007). We review an agency’s findings of fact following a
contested case hearing for substantial evidence. Wyo. Stat. Ann. § 16-3-114(c)(ii)(E)
(LexisNexis 2011); Exxon Mobil Corp. v. Wyo. Oil & Gas Conservation Comm’n, 2013
WY 32, ¶ 23, 297 P.3d 782, 788 (Wyo. 2013).

                                    DISCUSSION

Adequacy of Implied Consent Advisements.

[¶11] 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 2011) (emphasis added).

[¶12] Ms. Walters contends that she was not given proper implied consent advisements.
She asserts that she was “threatened” by the advisements regarding possible jail time
under the city ordinance, and that her BAC results were therefore inadmissible for
purposes of her driver’s license suspension. We have recognized that breath test results
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. In re Hittner, 2008
WY 91, ¶ 12, 189 P.3d 872, 876 (Wyo. 2008) (quoting Nesius v. State Dep’t of Revenue


                                            4
& Taxation, 791 P.2d 939, 943–44 (Wyo. 1990)). However, “[w]here an officer informs
a suspect that the officer intends to do something that the officer is legally authorized to
do under the circumstances, such conduct does not amount to coercion.” State v.
LeClercq, 243 P.3d 1093, 1099 (Idaho Ct. App. 2010).

[¶13] The arresting officer read Ms. Walters the implied consent advisements required
by § 31-6-102(a)(ii) in their entirety. She was also accurately advised of the criminal
consequences of refusing to submit to a chemical test under the municipal ordinance.
This additional advisement neither tricked nor misled Walters; it simply informed her of
the potential criminal penalties associated with her decision under the Laramie ordinance.
Explaining the consequences of her choice as to whether to take the test may or may not
have pressured Walters in some sense, but providing accurate information did not rise to
a level of coercion which would render her consent involuntary. “Bowing to events, even
if one is not happy about them, is not the same thing as being coerced.” Robbins v.
MacKenzie, 364 F.2d 45, 50 (1st Cir. 1966).

[¶14] Walters also argues that the advisement given by the arresting officer was
misleading because she was not told that she faced the same minimum mandatory jail
sentence if she had a BAC over 0.15% as she did if she refused the chemical test. A
conviction for DWUI may have many consequences. At the time of Walters’ arrest, the
maximum penalty for driving while under the influence under state law ranged from six
months in jail up to two years in prison depending on how many prior convictions an
individual has. Wyo. Stat. Ann. § 31-5-233(e) (LexisNexis 2011).2 Fines can range from
less than $750.00 to a maximum of $10,000.00. Individuals may be required to complete
treatment programs at their own expense as conditions of probation. Id.

[¶15] On the administrative side, use of expensive interlock devices may be required for
periods ranging from one year to life in the case of repeat offenders. § 31-5-233(f)(iii)–
(v). The interlock requirement can also vary depending on BAC. Id. Driving privileges
can be suspended for periods ranging from six months to life. Id. at (i).

[¶16] As to practical consequences, individuals convicted of DWUI may lose their jobs
because their employers’ insurance carriers will no longer insure company vehicles if
they operate them. Private insurance costs will almost certainly rise. Criminal
convictions for DWUI may affect a person’s ability to obtain employment or gain entry
to the military. All of these consequences can flow from a blood alcohol test.

[¶17] However, the Wyoming Legislature chose to require only the following
advisements prior to chemical DWUI testing:


2
 The penalty for fourth-offense DWUI was increased to up to seven years in prison effective July 1,
2012. Wyo. Stat. Ann. § 31-5-233(e) (LexisNexis Supp. 2012).


                                                 5
              (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 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;

                     (D) Repealed by Laws 2009, ch. 160, § 2.

Wyo. Stat. Ann. § 31-6-102(ii) (LexisNexis 2011).

[¶18] “[A] basic tenet of statutory construction is that omission of words from a statute
is considered to be an intentional act by the legislature, and this court will not read words
into a statute when the legislature has chosen not to include them.” Adelizzi v. Stratton,
2010 WY 148, ¶ 11, 243 P.3d 563, 566 (Wyo. 2010) (citation omitted). The doctrine of
expressio unius est exclusio alterius requires us to construe a statute “that enumerates the
subjects or things on which it is to operate, or the persons affected, or forbids certain
things . . . as excluding from its effect all those not expressly mentioned.” Cathcart v.
Meyer, 2004 WY 49, ¶ 40, 88 P.3d 1050, 1066 (Wyo. 2004) (citing In re West Highway
Sanitary & Imp. Dist., 77 Wyo. 384, 317 P.2d 495, 504 (1957)). See also The Adeline, 13
U.S. (1 Cranch) 244, 253, 3 L. Ed. 719 (1815) (“Now the construction must depend on
the evident meaning and intent of the legislature, as clearly to be gathered from a view of
the whole provision; and it may be adopted as a fundamental rule, that where there is an
express provision, there shall not be a provision by implication; expressio unius est
exclusio alterius.”).

[¶19] The legislature rationally chose to require the advisements listed in § 31-6-
102(a)(ii), and the arresting officer complied with the statute by giving them. He was not
required to explain all of the possible consequences of submitting to testing, including the


                                              6
enhanced penalty for driving under the influence at more than 0.15% BAC under the
Laramie ordinance. See Sandoval v. State ex rel. Wyo. Dep’t of Transp., 2012 WY 160, ¶
15, 291 P.3d 290, 294 (Wyo. 2012) (“[T]he Wyoming legislature was specific in what
information was required in an implied consent advisement, and information regarding
municipal sanctions was not included in the required advisements.”) (citing Wyo. Stat.
Ann. § 31-6-102(a)(ii) (LexisNexis 2009)); Escarcega, ¶ 21, 153 P.3d at 270 (“Appellant
here was given the precise warning required by the applicable statutes for a driver
stopped [for DWUI] in a non-commercial vehicle. He was entitled to no more and no
less.”).

[¶20] Whether the combination of advising Walters of the consequence of refusing a
blood alcohol test while not explaining the higher penalty for testing at or above .15%
might make the breath test inadmissible in a criminal case is a separate issue that is not
before us. In this administrative proceeding, the OAH hearing examiner and the district
court both correctly held that Walters was adequately advised as required by statute.

Issues Relating to Laramie Ordinance

[¶21] In Sandoval, we held that “Wyoming law . . . does not authorize the OAH to
consider municipal ordinances when determining whether to rescind or sustain a driver’s
license suspension.” 2012 WY 160, ¶ 15, 291 P.3d at 295. We reached the same
conclusion in Regan v. State ex rel. Wyoming Department of Transportation, 2012 WY
161, 292 P.3d 849 (Wyo. 2012), recognizing that:

              To the extent that [appellants] wish to extend their challenge
              to the constitutionality or validity of the Laramie municipal
              ordinances, we agree with the OAH and the district court that
              such a challenge was beyond the scope of the OAH
              proceeding and must be brought in a separate declaratory
              judgment action or in the criminal proceeding on the DWUI
              citation.

                      Having concluded that the OAH was without
              jurisdiction to rule on the challenges to the Laramie implied
              consent ordinances, we must likewise conclude that this Court
              is without jurisdiction to consider and rule on those issues.

Id. at ¶¶ 22–23, 292 P.3d at 854–55 (citation omitted).3



3
 Sandoval and Regan were decided on December 19 and 20, 2012. Those decisions were not therefore
available to Appellant when her brief was filed on November 9, 2012.


                                               7
[¶22] Ms. Walters claims that she “had the right . . . to an attorney as soon as she was
told that her choice of submitting to a chemical test would result in a possible minimum
mandatory jail sentence.” In her criminal prosecution for DWUI, she may certainly argue
that those proceedings reached a critical stage when she was advised of the Laramie
municipal ordinances, thus triggering the right to counsel. But see Mogard v. City of
Laramie, 2001 WY 88, ¶¶ 20–26, 32 P.3d 313, 320–24 (Wyo. 2001) (holding that
implied consent advisement procedures were not a critical stage implicating the right to
counsel in criminal DWUI proceedings). However, this claim was not and could not
have been brought before the OAH examiner under § 31-6-103(b). See Regan, ¶¶ 18–19,
292 P.3d at 853–54 (rejecting claims that chemical test results could not be used for an
administrative suspension because the appellants were not allowed to speak with an
attorney).

[¶23] Finally, Walters asserts that the City of Laramie is preempted from enforcing
DWUI laws that conflict with Wyoming state statutes on the same topic. Challenges to
the constitutionality and validity of municipal ordinances are “beyond the scope of the
OAH proceeding and must be brought in a separate declaratory judgment action or in the
criminal proceeding on the DWUI citation.” Regan, ¶ 22, 292 P.3d at 854. That
contention therefore was not and could not have been considered by the OAH hearing
examiner. See id. at ¶ 23 (concluding that the OAH hearing examiner and this Court
were without jurisdiction to rule on challenges to the Laramie ordinances).4

                                          CONCLUSION

[¶24] The hearing examiner correctly determined that Ms. Walters was properly advised
as required by statute. Her other claims were not and could not have been presented in a
license suspension proceeding. Affirmed.




4
  In Sandoval v. City of Laramie, Civil Action No. 2012-7936, the Second Judicial District Court held that
state law preempted the Laramie city ordinance. That decision is not before us for review.


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