Chapter 6 - Implied Consent To Chemical Testing
CHAPTER 6 - IMPLIED CONSENT TO CHEMICAL TESTING
31-6-101. Definitions.
(a) As used in this act:
(i) "Alcohol concentration" means as defined in W.S.31-5-233(a)(i);
(ii) "Controlled substance" includes:
(A) Any drug or substance defined by W.S. 35-7-1002(a)(iv);
(B) Any glue, aerosol or other toxic vapor which whenintentionally inhaled or sniffed results in impairment of an individual'sability to drive safely;
(C) Any drug or psychoactive substance, or combination of thesesubstances, capable of impairing a person's physical or mental faculties.
(iii) "Department" means the department oftransportation;
(iv) "Peace officer" means as defined in W.S. 7-2-101;
(v) "This act" means W.S. 31-6-101 through 31-6-108.
(b) The definitions provided by W.S. 31-5-102(a) apply in thisact.
31-6-102. Test to determine alcoholic or controlled substance contentof 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 amotor vehicle upon a public street or highway in this state is deemed to havegiven consent, subject to the provisions of this act, to a chemical test ortests of his blood, breath or urine for the purpose of determining the alcoholconcentration or controlled substance content of his blood. The test or testsshall be:
(A) Incidental to a lawful arrest;
(B) Given as promptly as possible after the arrest;
(C) Administered at the direction of a peace officer who hasprobable cause to believe the person was driving or in actual physical controlof a motor vehicle upon a public street or highway in this state in violationof W.S. 31-5-233(b) or any other law prohibiting driving under the influence asdefined by W.S. 31-5-233(a)(v). The peace officer who requires a test foralcohol concentration pursuant to this section may direct that the test shallbe of blood, breath or urine. However, if the officer directs that the test beof the person's blood or urine, the person may choose whether the test shall beof blood or urine. The person shall not have the option if the peace officerhas probable cause to believe there is impairment by a controlled substancewhich is not subject to testing by a breath test in which case a blood or urinetest may be required, as directed by the peace officer.
(ii) For tests required under this act, the arrested personshall be advised that:
(A) His failure to submit to all required chemical testsrequested by the peace officer shall result in the suspension of his Wyomingdriver's license or his privilege to operate a motor vehicle for a period ofsix (6) months for a first offense or eighteen (18) months for a second orsubsequent offense and he may be required to drive only vehicles equipped withan ignition interlock device as provided by W.S. 31-6-107;
(B) If a test is taken and the results indicate the person isunder the influence of alcohol or a controlled substance, he may be subject tocriminal penalties, his Wyoming driver's license or his privilege to operate amotor vehicle shall be suspended for ninety (90) days and he may be required todrive only vehicles equipped with an ignition interlock device;
(C) After submitting to all required chemical tests requestedby the peace officer at a place and in a manner prescribed by and at theexpense of the agency employing the peace officer, the arrested person may goto the nearest hospital or clinic and secure any additional tests at his ownexpense;
(D) Repealed By Laws 2009, Ch. 160, 2.
(b) Results of tests obtained at the arrested person's expenseshall be made available to the arresting officer and the arrested person.Disclosure of the test results by the person administering the test is not aviolation of the doctor-patient relationship.
(c) Any person dead, unconscious or otherwise in a conditionrendering him incapable of refusal to submit to the tests is deemed to havegiven his consent provided by subsection (a) of this section and the tests maybe administered subject to the provisions of this act.
(d) If a person under arrest refuses upon the request of apeace officer to submit to a chemical test designated by the agency employingthe peace officer as provided in subsection (a) of this section, none shall begiven except in cases where serious bodily injury or death has resulted. The peaceofficer shall submit his signed statement to the department. The statementsubmitted by the officer shall contain:
(i) His probable cause to believe the arrested person wasdriving or in actual physical control of a motor vehicle:
(A) On a public street or highway in this state;
(B) In violation of W.S. 31-5-233(b) or any other lawprohibiting driving under the influence as defined by W.S. 31-5-233(a)(v); and
(ii) That the person refused to submit to a test upon therequest of the peace officer.
(e) If a person submits to chemical testing and the test resultindicates the person has an alcohol concentration of eight one-hundredths ofone percent (0.08%) or more, the peace officer shall submit his signedstatement to the department. Based upon the statement the department shallsuspend the person's Wyoming driver's license or his privilege to operate amotor vehicle in this state for ninety (90) days. If a criminal convictionresults from the same incident on which a suspension under this subsection isbased, the suspension under W.S. 31-7-128(b) or revocation under W.S.31-7-127(a)(ii) shall be reduced by ninety (90) days. The statement submittedby the officer shall contain:
(i) His probable cause to believe the arrested person was drivingor in actual physical control of a motor vehicle:
(A) On a public street or highway in this state;
(B) In violation of W.S. 31-5-233(b) or any other lawprohibiting driving under the influence as defined by W.S. 31-5-233(a)(v).
(ii) That the person submitted to a test; and
(iii) The person had an alcohol concentration of eightone-hundredths of one percent (0.08%) or more.
(f) In addition to the signed statement submitted undersubsection (d) or (e) of this section, the peace officer shall issue the persona temporary license similar to but in lieu of the license authorized under W.S.31-7-138. This temporary license shall be valid for thirty (30) days, shallnot be renewed, shall contain a notice that the person has twenty (20) days fromthe date of issuance within which to request a hearing from the department andthat failure to timely request a hearing will result in the suspensionautomatically commencing upon expiration of the temporary license or uponexpiration of any existing suspension or revocation if the person's license orprivilege is suspended or revoked at the time the temporary license is issued. W.S. 31-7-138(d) and (e) apply to a license under this section. For purposes ofthis section, the peace officer acts as an agent for the department whenproviding notice of the suspension and notice of the opportunity for a hearing.W.S. 31-7-137 applies to a notice under this act. Failure to demand a hearingwithin the twenty (20) day period is a waiver of the right of hearing, and thesuspension shall commence upon expiration of the temporary license or uponexpiration of any existing suspension or revocation if the person's license orprivilege is suspended or revoked at the time the temporary license is issued.If a timely demand for hearing is made, the department shall forward the demandto the independent hearing examiner who shall schedule a hearing withinforty-five (45) days after receipt of the request and provide the arrestedperson at least ten (10) days notice of the hearing. The hearing shall beconducted by the hearing examiner. If the hearing examiner fails to schedulethe hearing within forty-five (45) days of the request, other than at therequest of the licensee, the licensee, as his sole remedy, shall be given creditagainst any action upheld at the hearing for the time between the expiration ofthe forty-five (45) day period and the date the hearing was first scheduled.
(g) For the purposes of this section, the signed statementsubmitted by the peace officer shall be deemed a sworn statement and shall besubject to penalties for perjury.
31-6-103. Application for hearing; stay of suspension of license;scope of hearing.
(a) A timely request for a hearing shall stay the suspensionuntil the order following the hearing is entered and all appellate review ofthe matter is completed, provided the stay of suspension is effective only solong as there is no suspension for a similar violation during the hearing andappeal period.
(b) The scope of a hearing for the purposes of this act shallcover the issues of whether a peace officer had probable cause to believe thearrested person had been driving or was in actual physical control of a motorvehicle 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 definedby W.S. 31-5-233(a)(v), whether the person was placed under arrest, whether herefused to submit to a test upon request of the peace officer or if hesubmitted to a test whether the test results indicated that the person had analcohol 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 ofrefusing, 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 thesuspension either be rescinded or sustained. If the person submitted to achemical test, the hearing examiner has the same authority to modify a licensesuspension under this act as he does under W.S. 31-7-105.
(c) Prehearing discovery, available to any interested party islimited to access to the notice of suspension, signed statement and anyaccompanying documentation submitted by the arresting officer. Other types ofdiscovery available under other law are not available in a hearing under thissection.
31-6-104. Right to petition for subsequent hearing; suspension appliesto all licenses held; persons not required to take test.
(a) If the suspension is sustained after a hearing, the personwhose Wyoming driver's license or privilege to operate a motor vehicle has beensuspended under this act may file a petition within thirty (30) days thereafterfor a review of the record in the matter in the district court in the county inwhich the person resides, or in the case of suspension of a nonresident'soperating privilege, then in Laramie county or the county where the offense isalleged to have occurred. The district court shall immediately set the matterfor determination upon thirty (30) days written notice to the department.
(b) A suspension under this act applies to all driver'slicenses held by the person and all driver's licenses shall be surrendered tothe department. The department shall physically retain the license or licensesduring the period of suspension except as provided in W.S. 31-7-138(f).
(c) Any person who furnishes proof that he is afflicted withhemophilia is exempt from the blood test required by this act. Any person whois afflicted with a heart condition and is using an anticoagulant under thedirection of a physician is exempt from the blood test required by this act.
31-6-105. Method of performing chemical analysis; persons permitted todraw blood; request by arrested person for test; information made available;evidence of refusal to take test.
(a) Chemical analysis of the person's blood, breath or urine tobe considered valid under this section, shall be performed according to methodsapproved by the department of health and by an individual possessing a validpermit to conduct the analysis. Permits shall be issued by the department ofhealth for this purpose. The department of health may promulgate and approvesatisfactory methods in order to ascertain the qualifications of individualspermitted to conduct the analysis and shall issue to qualified individualspermits which are subject to termination or revocation by the department ofhealth.
(b) When a person submits to a blood test at the request of apeace officer under this act, only a physician, registered nurse, qualifiedclinical or laboratory technician or other person who routinely doesvenipunctures at the direction of a physician may withdraw blood for thepurpose of determining the alcohol concentration or controlled substancecontent therein. This limitation does not apply to the taking of otherspecimens.
(c) A person arrested for any offense allegedly committed whilethe person was driving or in actual physical control of a motor vehicle whileunder the influence of alcohol or a controlled substance to a degree whichrenders him incapable of safely driving the vehicle, may request the peaceofficer to have a chemical test or tests made of the arrested person's blood,breath or urine for the purpose of determining the alcohol or controlledsubstance content of the arrested person's blood. If the tests are availablethey shall be performed in or near the locality where the arrest was made aspromptly as possible after the arrest.
(d) The person tested may, at his own expense, have anyqualified person of his own choosing administer a chemical test or tests inaddition to any administered at the direction of a peace officer. The failureor inability to obtain an additional test by a person does not preclude theadmissibility in evidence of the test or tests taken at the direction of a peace officer.
(e) Upon the request of a person who submits to a chemical testor tests at the request of a peace officer, full information concerning the testor tests shall be made available to the person or his attorney.
(f) If a person under arrest refuses to submit to a chemicaltest under this act, evidence of the refusal is admissible in anyadministrative, civil or criminal action or proceeding arising out of actsalleged to have been committed while the arrested person was driving or inactual physical control of a motor vehicle in violation of W.S. 31-5-233(b) orany other law prohibiting driving under the influence as defined by W.S.31-5-233(a)(v).
31-6-106. No liability incurred by persons requested to administertest.
Nophysician, registered nurse, qualified clinical or laboratory technician orother person who routinely does venipunctures at the direction of a physicianor facility in which the blood is drawn shall incur any civil or criminalliability as a result of the proper administration of a blood test whenrequested in writing by a peace officer or any other person to administer thetest.
31-6-107. Penalty for refusal to submit to chemical testing.
(a) Upon receipt of the statement provided for under W.S.31-6-102(d), the department, subject to review as provided in this act, shallsuspend the person's Wyoming driver's license or his privilege to operate amotor vehicle in this state as follows:
(i) Except as otherwise provided in paragraph (ii) of thissubsection, the period of suspension shall be six (6) months;
(ii) The period of suspension shall be one (1) year and six (6)months, if:
(A) The person has previously been convicted under W.S.31-5-233 or other law prohibiting driving while under the influence as definedby W.S. 31-5-233(a)(v); or
(B) The person's license or privilege to operate a motorvehicle has previously been suspended or revoked for refusal to submit to achemical test of his blood, breath or urine for the purpose of determining thealcohol concentration or controlled substance content of his blood.
(iii) Suspension pursuant to this section shall not take effectif within ten (10) days of arraignment on the charge corresponding to thesuspension, the person enters a plea of guilty to driving while under theinfluence.
(b) A second or subsequent suspension pursuant to subsection(a) of this section shall be considered a second or subsequent conviction underW.S. 31-5-233 for the purposes of W.S. 31-5-233(f)(iii) through (v) and theignition interlock device requirements of W.S. 31-5-233(f)(iii) through (v)shall apply to such suspension.
31-6-108. Implied consent requirements for youthful drivers.
(a) If arrested for an offense as defined by W.S. 31-5-234:
(i) A person under twenty-one (21) years of age who drives oris in actual physical control of a motor vehicle within this state is deemed tohave given consent, subject to the provisions of this section, to a chemicaltest or tests of his blood, breath or urine for the purpose of determiningalcohol concentration in his blood;
(ii) The test or tests shall be administered at the direction ofa peace officer, who has probable cause to believe that the driver was drivingor in actual physical control of a motor vehicle in this state in violation ofW.S. 31-5-234(b). The peace officer who requires a test pursuant to thissection may direct that the test shall be of blood, breath or urine. However,if the officer directs that the test be of the person's blood or urine, theperson may choose whether the test shall be of blood or urine.
(b) For tests required under this section, the person shall beadvised that:
(i) His failure to submit to all required chemical tests shallresult in the suspension or denial of his Wyoming driver's license or hisprivilege to operate a motor vehicle for a period of ninety (90) days withoutthe right to apply for limited driving privileges and he may be required todrive only vehicles equipped with an ignition interlock device;
(ii) If a test is taken and the results indicate an alcoholconcentration of two one-hundredths of one percent (0.02%) or more, he may besubject to denial or suspension of his driver's license for the periodspecified by W.S. 31-7-128(h) and he may be required to drive only vehiclesequipped with an ignition interlock device;
(iii) After submitting to all required chemical tests requestedby the peace officer at a place and in the manner prescribed by and at theexpense of the agency employing the peace officer, the arrested person may goto the nearest hospital or clinic and secure any additional tests at his ownexpense.
(c) Results of tests obtained at the person's expense shall bemade available to the peace officer and the person. Disclosure of the testresults by the person administering the test is not a violation of thedoctor-patient relationship.
(d) Any person dead, unconscious or otherwise in a conditionrendering him incapable of refusal to submit to the tests is deemed to havegiven his consent provided for in this section, and the tests may beadministered subject to this section.
(e) If the person refuses testing or submits to a test whichdiscloses an alcohol concentration of two one-hundredths of one percent (0.02%)or more, the peace officer shall submit a signed statement to the department.The statement submitted by the officer shall contain:
(i) His probable cause to believe the person was driving or inactual physical control of a vehicle:
(A) In this state;
(B) In violation of W.S. 31-5-234(b).
(ii) That a test was requested pursuant to this section; and
(iii) That the person refused to submit to a test or submitted toa test which disclosed an alcohol concentration of two one-hundredths of onepercent (0.02%) or more.
(f) If the person refuses testing or submits to a test whichdiscloses an alcohol concentration of two one-hundredths of one percent (0.02%)or more, the peace officer shall issue the person a temporary license similarto but in lieu of the license authorized under W.S. 31-7-138. This temporarylicense shall be valid for thirty (30) days, shall not be renewed, shallcontain a notice that the person has twenty (20) days from the date of issuancewithin which to request a hearing from the department pursuant to W.S. 31-7-105and that failure to timely request a hearing will result in the period ofsuspension or license denial automatically commencing upon expiration of thetemporary license or upon expiration of any existing suspension or revocationif the person's license or privilege is suspended or revoked at the time thetemporary license is issued. For purposes of this section, the peace officeracts as an agent for the department when providing notice of the suspension andnotice of the opportunity for a hearing. W.S. 31-7-137 applies to a noticeunder this act. Failure to demand a hearing within the twenty (20) day periodis a waiver of the right of hearing, and the period of suspension or denialshall commence upon expiration of the temporary license or upon expiration ofany existing suspension or revocation if the person's license or privilege issuspended or revoked at the time the temporary license is issued. A temporarylicense issued under this subsection shall afford no driving privilege to aperson who is not otherwise licensed to drive a motor vehicle.
(g) A timely request for a hearing shall stay the period ofsuspension or denial until the order following the hearing is entered and allappellate review of the matter is completed, provided the stay is effectiveonly so long as there is no license suspension or denial for a similarviolation during the hearing and appeal period.
(h) At the conclusion of the hearing, the hearing examinershall order whether or not the person's driver's license shall be suspended ordenied. The scope of the hearing shall be limited to the issues of:
(i) Whether the peace officer had probable cause to believe theperson was driving or in actual physical control of a vehicle with an alcoholconcentration of two one-hundredths of one percent (0.02%) or more;
(ii) Whether the person refused to submit to a test or if hesubmitted to a test, the results indicated there was an alcohol concentrationof two one-hundredths of one percent (0.02%) or more;
(iii) Whether the person had been given the advisement requiredin subsection (b) of this section; and
(iv) Whether the person has shown good cause as to why hislicense should not be suspended or denied, regardless of the findings inparagraphs (i) through (iii) of this subsection.
(j) Prehearing discovery available to any party is limited toaccess to the signed statement and any accompanying documentation submitted bythe peace officer. Other types of discovery available under other laws are notavailable under this section.
(k) If a person under arrest refuses to submit to a chemicaltest under this section, evidence of the refusal is admissible in anyadministrative, civil or criminal action or proceeding arising from actsalleged to have been committed while driving or in actual physical control of avehicle.
(m) W.S. 31-6-102(g), 31-6-104(c), 31-6-105(a), (b) and (e) and31-6-106 apply to this section.
(n) Upon receipt of the statement provided for under subsection(e) of this section indicating that the person refused to submit to a test todetermine the driver's alcohol concentration, the department, subject to reviewas provided in W.S. 31-7-105, shall suspend the person's Wyoming driver'slicense or his privilege to operate a motor vehicle in this state or shall denyissuance of a driver's license to the person as follows:
(i) If the person has been issued a driver's license, theperiod of suspension shall be ninety (90) days without any right to limiteddriving privileges pursuant to W.S. 31-7-105;
(ii) If the person has not been issued a driver's license, heshall not operate a vehicle and the department shall not issue the person adriver's license or learner's permit for the time specified in paragraph (n)(i)of this section.
(o) Records of convictions or license suspensions under thissection shall not be made a part of the abstracts or records kept by thedepartment of transportation pursuant to W.S. 31-5-1214 or 31-7-120. Anyrecords maintained by the department for administration of this section shallbe maintained separately and shall not be available for public inspectionexcept for inspection by any law enforcement officer or agency to enforce theprovisions of this section. Any driver's license suspension or related recordsunder this section shall not be the basis for any increase in insurancepremiums or the cancellation of any insurance policy for a minor or his parentsaffected by this section.
(p) A second or subsequent suspension pursuant to subsection(n) of this section shall be considered a conviction under W.S. 31-5-233 forthe purposes of W.S. 31-5-233(f)(iii) through (v) and the ignition interlockdevice requirements of W.S. 31-5-233(f)(iii) through (v) shall apply to suchsuspension.