SUMMARY OF WYOMING IMPAIRED DRIVING STATUTES
Prepared by R. Michael Vang
Brown & Hiser LLC
515 Ivinson Avenue
Laramie WY 82070
(307) 745-7358
PROHIBITED VEHICULAR ACTIVITY: The totality of Wyoming’s Driving While Under the Influence (DWUI) charge is contained within Wyoming Statute § 31-5-233(b) which provides that:
“No person shall drive or have actual physical control of any vehicle within this state if:
Has an alcohol concentration of eight one-hundredths of one percent (0.08%) or more; or
To a degree which renders him incapable of safely driving is under the influence of alcohol, drugs or a combination thereof.”
Therefore the accused can be charged with a DWUI if they provide a chemical test with an alcohol concentration above .08% (per se offense); or, alternatively they can be charged for a DWUI based on consuming enough alcohol, drugs or a combination of the two to be incapable of safely driving.
COVERED VEHICLES OR DEVICES: Wyoming’s DWUI law applies to “any vehicle.” W.S.§ 31-5-233(b) However, the implied consent law only applies to “motor vehicles.” W.S. § 31-6-102(a)(i) As of January 1, 2008, the law in Wyoming will define “motor vehicles” as any device that is self propelled. Currently motorized skateboards and golf carts are excluded from the definition. W.S. § 31-5-102(xxiv).
COVERED LOCATIONS: The DWUI law applies anywhere “within this state.” W.S. § 31-5-233(b). However, Wyoming’s implied consent law only applies “upon a public street or highway.” See, W.S. §§ 31-6-102(a)(i), 31-6-102(a)(i)(C), 31-6-102(d)(i)(A), 31-6-102(e)(i)(A), 31-6-103(b). In Driver’s License Matter of Russell Rayda, MVID No. 0002-09106 (Wyo. Office Admin. Hrngs, Nov. 23 2005). Under Wyoming’s DWUI law, a chemical test is only admissible if done in accordance with the implied consent law. W.S. § 31-5-233(b). Allen v. State, 2002 WY 48, ¶¶ 21-25, 43 P.3d 551, 560-62 (Wyo. 2002)(recognizing that Wyoming implied consent statutes are the sole means of requiring chemical tests under Wyoming Statute § 31-5-233).
Although the Wyoming Supreme Court has not been asked to interpret our new youthful offender DWUI offense, W.S. § 31-5-234, it would be fair to assume that they would apply the Allen decision, since chemical tests under the youthful offender statute must also be done in accordance with the implied consent statute. W.S. § 31-5-234(h).
WYOMING DRINKING-DRIVING OFFENSES:
(1) Driving, etc., with an alcohol concentration of .08 percent or more. (per se offense). W.S. § 31-5-233(b)(i).
(2) Driving, etc., while under the influence of alcohol to a degree which renders him incapable of safely driving; W.S. § 31-5-233(b)(ii).
(3) Driving, etc., while under the influence of a controlled substance to a degree which renders him incapable of safely driving; W.S. § 31-5-233(b)(ii).
(4) Driving, etc., while under the influence of a combination of alcohol and a controlled substance to a degree which renders him incapable of safely driving. W.S. § 31-5-233(b)(ii).
(5) Any person who commits any of the above offenses and causes “serious bodily injury” to another person during the course of the offense is subject to enhanced penalties for a DWUI. W.S. § 31-5-233(h).
(6) Driving, etc. while having the per se limit of .08 or greater or being unable to safely drive the vehicle as a result of consuming alcohol and/or drugs and if the driver is eighteen years of age or older and a person in the vehicle is 16 or younger is now a ‘Child Endangerment DWUI.” W.S. § 31-5-233(m).
(7) Driving, etc., while under the age of twenty-one (21) with an alcohol concentration of .02 percent or more. W.S. § 31-5-234.
WYOMING DEGREE OF IMPAIRMENT REQUIRED FOR CONVICTION: Impairment to a degree which renders the person incapable of safely driving. See WS § 31-5-233(b)(ii).
There are no Wyoming Supreme Court cases defining the terms “under the influence of alcohol.” One Wyoming Appellate Court has defined this term in relation to proving the incapable of safely driving element of a DWUI charge as follows.
“Through the Court’s research on this matter, the Court found a definition of the term ‘under the influence of alcohol,’ which clearly reflects Wyoming’s statutory standard and common law in this area. Although the definition is supplied by the Kansas Supreme Court, our DWUI statutory and common laws are almost exactly the same and the Court finds it very persuasive. State v. Arehart, 878 P.2d 227, 229 (Kan App. 1994). The Arehart Court said, ‘The Kansas Supreme Court has consistently interpreted the term to mean the defendant’s physical or mental function was so impaired by the consumption of alcohol that he was incapable of safely driving a vehicle.’” Lauren v. City of Laramie, Docket No. CR-6276, (Second Judicial District, Albany County, Wyoming, May 7, 1998) at p. 8.
Wyoming does not have per se levels for intoxication for drugs. As such, these cases will generally require some type of expert testimony to establish the Defendant’s intoxication.
WYOMING PENALTIES FOR DRINKING-DRIVING OFFENSES: As of July 1, 2006, a substance abuse evaluation must be completed prior to sentencing in all DWUI cases in Wyoming. 31-5-233(e).
(1) For first conviction: Jail term of up to 6 months; fine of up to $750, or both; 90-day license suspension which merges with implied consent suspension if person took a chemical test and result was .08 or above. 31-6-102(e). If the person refuses a chemical test and loses their implied consent hearing, then they will be suspended for six (6) months on the implied consent suspension and are not eligible for probationary driving privileges. 31-6-102(a)(ii)(D). A probationary driver’s license is available for a first offense where the person takes a chemical test but is not available if the person refuses to take a chemical test and loses their implied consent hearing. 31-7-105(e).
(2) For a second offense within 5 years: Minimum jail term of 7 days up to 6 months; minimum fine of $200 to $750 fine; 1 year license suspension with no right to a probationary driver’s license. W.S. §§ 31-5-233(e); 31-7-128(b)(ii); 31-7-105(f)
(3) For a third offense within five (5) years: Minimum jail time of thirty (30) days up to six (6) months; minimum fine of $750.00 up to $3,000.00; loss of license for 3 years. Id.; W.S. § 31-7-127
(4) For a fourth offense or more within five (5) years: Felony DWUI with a Jail term of up to two (2) years and a fine of $2,000.00. Driving privileges are revoked. Id.
(5) If it is a first offense DWUI and there is an accident with “serious bodily injury” possibility of $2,000. to $5,000.00 fine and imprisonment for not less than six (6) months nor more than one (1) year. W.S. § 31-5-233(h)(i)
(6) If previously convicted of a “serious bodily injury” DWUI at any time in the past and the person is changed with a subsequent “serious bodily injury” DWUI possibility of $2,000. to $5,000.00 fine and imprisonment for not less than six (6) months nor more than twenty (20) years. W.S. § 31-5-233(h)(i)(ii)
(7) If first offense and the elements of “DWUI child endangerment” apply possibility of same fines as a regular DWUI and imprisonment not more than one (1) year for a first offense. W.S. § 31-5-233(m)(i). If a person has a prior “DWUI child endangerment” charge, then any subsequent violations are felonies with a possibility of five (5) years in prison. W.S. § 31-5-233(m)(ii).
WYOMING STATUTORY DRINKING-DRIVING PRESUMPTIONS:
(1) Alcohol concentration of .05 percent or less - Person presumed not under the influence of alcohol. W.S. § 31-5-233(c)(i).
(2) Alcohol concentration of more than .05 percent but less than .08 percent - No presumption but admissible evidence. W.S. § 31-5-233(c)(ii).
WYOMING IMPLIED CONSENT LAWS: [WS §§ 31-6-102 et seq.]
(1) Tests permitted: Blood, breath or urine as designated by law enforcement agency, except where officer has probable cause to believe person is under the influence of drugs in which case the officer can designate either blood or urine as the only test available. W.S. § 31-6-102(a)(i)(C). Prior to legislative changes that went into effect on July 1, 2007, an officer had to give a person a CHOICE of blood or urine, and could only require urine if he believed person was under the influence of drugs. City of Rawlins v. Debbie Eastlund et al., Docket No. 5186, (Second Judicial District, Carbon County, Wyoming, May 11, 1998), petition for writ of review denied, Docket No. 98-194, (Wyoming Supreme Court, July 14, 1998). This choice of test still exists if there is no probable cause to believe the person is under the influence of drugs and the officer wants the defendant to take a blood or urine test. There is no choice if the officer requests breath, however the person does have the right to their own independent test. W.S. § 31-6-102(a)(ii)(C).
(2) Type of advisement required: Of penalties for refusing testing; of administrative per se law penalties; of right to independent test, and, of fact that they can’t speak with attorney prior to taking or refusing a chemical test. W.S. §§ 31-6-102(a)(i)(C), 31-6-102(a)(ii)(A-D); Olson v. State, 698 P.2d 107, 113 (Wyo. 1985); Nesius v. State Dept. of Revenue and Tax., 791 P.2d 939, 943-44 (Wyo. 1990)
(3) Penalties for refusal: The possible penalties for refusing a chemical test are either 6 months for a first offense W.S. § 31-6-107(a)(i); or, 18 months if the person has either previously been convicted of a DWUI or if they previous had their license suspended for refusing to submit to a chemical test in an implied consent proceeding. W.S. § 31-6-107(a)(ii). There are no criminal sanctions to refusing to take a chemical test but the refusal is admissible in the criminal proceeding. W.S. § 31-6-105(f). If the Defendant changes his plea to the underlying DWUI charge to guilty within 10 days of his arraignment on that charge, the 6 and 18 month suspension shall not take effect. W.S. § 31-6-107(a)(iii).
(4) Admissibility of refusal: Admissible in any proceeding arising out of same acts. W.S. § 31-6-105(f).
(5) Administrative Per Se Law: 90-day license suspension if BAC is .08% or more. W.S. 31-6-102(e). This suspension will run concurrent with any other suspension that may result if the persons pleads guilty or is found guilty of the underlying DWUI charge that formed the basis of the implied consent violation. W.S. 31-6-102(e)
(6) For a first offense DWUI within five (5) years, a person is eligible for a probationary driver’s license that will allow them to drive to and from work and school during the ninety (90) day suspension time. W.S. § 31-7-105(f).
(7) For persons who are not otherwise eligible for a probationary driver’s license as described in paragraph six (6) above, as of July 1, 2006, persons that have served forty-five (45) days of ANY suspension, are eligible to obtain a restricted driver’s license, so long as they drive a vehicle equipped with an ignition interlock device approved by the Wyoming Department of Transportation. W.S. §§ 31-7-401 through 31-7-405
WYOMING CHEMICAL TEST LAWS:
(1) General provisions: To be valid, a blood, breath or urine test must be performed according to methods approved by the Department of Health and by a person with a valid permit to conduct the analysis issued by the division for that purpose. See WS § 31-6-105(a). The implied consent law is the only mechanism for admitting a chemical test in a DWUI case and the prosecution must comply with implied consent law for chemical test to be admissible in DWUI case. WS § 31-5-233(k); Allen v. State, 2002 WY 48, ¶¶ 21-25, 43 P.3d 551, 560-62 (Wyo. 2002). The same is true for the youthful offender DWUI charge. WS § 31-5-234(h).
(2) Administrative rules & regulations: Issued by Department of Health and can be accessed through the webpage of the Wyoming Secretary of State’s Office free of charge at following address http://soswy.state.wy.us/Rule_Search_Main.asp.
(3) Disclosure of test information: Full information must be made available to person tested or attorney upon request. WS § 31-6-105(e); Jones v. State ex rel. Wyoming Department of Transportation, 991 P.2d 1251, 1255 (Wyo. 1999).
WYOMING BLOOD-DRAWING STATUTE: Only a physician, registered nurse, qualified clinical or laboratory technician or other person who routinely does venipunctures at the direction of a physician may withdraw blood for purposes of chemical testing. WS § 31-6-105(b)
INDEPENDENT TEST STATUTE: The person tested may, at the person's own expense, have a qualified person of his or her own choosing administer a chemical test or tests in addition to any police-administered tests. The failure or inability to obtain an additional test does not preclude the admissibility of the police test. The results of any tests obtained at the person's expense must be made available to the arresting officer. WS §§ 31-6-105(d); 31-6-102(b)
WYOMING PLEA BARGAINING STATUTE: A person charged with a DUI or per se offense must be prosecuted for the offense and the charge may not be dismissed or reduced unless the prosecuting attorney in open court moves or files a statement to reduce or dismiss the charge, with supporting facts and states that there is insufficient evidence to sustain the charge. WS § 31-5-233(j). A person may be eligible for a deferred for a DWUI charge, so long as they have not previously been convicted of a felony or a prior DWUI charge. WS § 7-13-301(a).
FAILURE TO PAY REINSTATEMENT FEE ISSUE: Unlike some States, (i.e. Arizona), Wyoming does not have an explicit statute created by the legislature that gives WYDOT the authority to continue a license suspension for failure to pay the re-instatement fee. All regulations created by the legislature that deal with these types of licensing issues are found in Title 31 of Wyoming Statutes. The Legislature has given WYDOT power to create rules and regulations consistent with WAPA to enforce Title 31, W.S. §§ 31-1-201(a); 31-7-103. There exists no rule passed pursuant to WAPA that allows WYDOT to suspend a driver’s license for failing to pay a re-instatement fee.
SUMMARY OF WYOMING IMPAIRED DRIVING STATUTES
Prepared by R. Michael Vang
Brown & Hiser LLC
515 Ivinson Avenue
Laramie WY 82070
(307) 745-7358
PROHIBITED VEHICULAR ACTIVITY: The totality of Wyoming’s Driving While Under the Influence (DWUI) charge is contained within Wyoming Statute § 31-5-233(b) which provides that:
“No person shall drive or have actual physical control of any vehicle within this state if:
Has an alcohol concentration of eight one-hundredths of one percent (0.08%) or more; or
To a degree which renders him incapable of safely driving is under the influence of alcohol, drugs or a combination thereof.”
Therefore the accused can be charged with a DWUI if they provide a chemical test with an alcohol concentration above .08% (per se offense); or, alternatively they can be charged for a DWUI based on consuming enough alcohol, drugs or a combination of the two to be incapable of safely driving.
COVERED VEHICLES OR DEVICES: Wyoming’s DWUI law applies to “any vehicle.” W.S.§ 31-5-233(b) However, the implied consent law only applies to “motor vehicles.” W.S. § 31-6-102(a)(i) As of January 1, 2008, the law in Wyoming will define “motor vehicles” as any device that is self propelled. Currently motorized skateboards and golf carts are excluded from the definition. W.S. § 31-5-102(xxiv).
COVERED LOCATIONS: The DWUI law applies anywhere “within this state.” W.S. § 31-5-233(b). However, Wyoming’s implied consent law only applies “upon a public street or highway.” See, W.S. §§ 31-6-102(a)(i), 31-6-102(a)(i)(C), 31-6-102(d)(i)(A), 31-6-102(e)(i)(A), 31-6-103(b). In Driver’s License Matter of Russell Rayda, MVID No. 0002-09106 (Wyo. Office Admin. Hrngs, Nov. 23 2005). Under Wyoming’s DWUI law, a chemical test is only admissible if done in accordance with the implied consent law. W.S. § 31-5-233(b). Allen v. State, 2002 WY 48, ¶¶ 21-25, 43 P.3d 551, 560-62 (Wyo. 2002)(recognizing that Wyoming implied consent statutes are the sole means of requiring chemical tests under Wyoming Statute § 31-5-233).
Although the Wyoming Supreme Court has not been asked to interpret our new youthful offender DWUI offense, W.S. § 31-5-234, it would be fair to assume that they would apply the Allen decision, since chemical tests under the youthful offender statute must also be done in accordance with the implied consent statute. W.S. § 31-5-234(h).
WYOMING DRINKING-DRIVING OFFENSES:
(1) Driving, etc., with an alcohol concentration of .08 percent or more. (per se offense). W.S. § 31-5-233(b)(i).
(2) Driving, etc., while under the influence of alcohol to a degree which renders him incapable of safely driving; W.S. § 31-5-233(b)(ii).
(3) Driving, etc., while under the influence of a controlled substance to a degree which renders him i