2010 Wyoming Statutes
Title 31 - Motor Vehicles
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 when intentionally inhaled or sniffed results in impairment of an individual's ability to drive safely;

 

(C) Any drug or psychoactive substance, or combination of these substances, capable of impairing a person's physical or mental faculties.

 

(iii) "Department" means the department of transportation;

 

(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 this act.

 

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;

 

(B) Given as promptly as possible after the arrest;

 

(C) Administered at the direction of a peace officer who has probable cause to believe the person was driving or 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). The peace officer who requires a test for alcohol concentration pursuant to this section 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, the person may choose whether the test shall be of blood or urine. The person shall not have the option if the peace officer has probable cause to believe there is impairment by a controlled substance which is not subject to testing by a breath test in which case a blood or urine test may be required, as directed by the peace officer.

 

(ii) For tests required under this act, the arrested person shall be advised that:

 

(A) His failure to submit to all required chemical tests requested by the peace officer shall result in the suspension of his Wyoming driver's license or his privilege to operate a motor vehicle for a period of six (6) months for a first offense or eighteen (18) months for a second or subsequent offense and he may be required to drive only vehicles equipped with an ignition interlock device as provided by W.S. 31-6-107;

 

(B) If a test is taken and the results 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 submitting to all required chemical tests requested 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.

 

(b) Results of tests obtained at the arrested person's expense shall be made available to the arresting officer and the arrested person. Disclosure of the test results by the person administering the test is not a violation of the doctor-patient relationship.

 

(c) Any person dead, unconscious or otherwise in a condition rendering him incapable of refusal to submit to the tests is deemed to have given his consent provided by subsection (a) of this section and the tests may be administered subject to the provisions of this act.

 

(d) If a person under arrest refuses upon the request of a peace officer to submit to a chemical test designated by the agency employing the peace officer as provided in subsection (a) of this section, none shall be given except in cases where serious bodily injury or death has resulted. The peace officer shall submit his signed statement to the department. The statement submitted by the officer shall contain:

 

(i) His probable cause to believe the arrested person was driving 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 law prohibiting 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 the request of the peace officer.

 

(e) If a person submits to chemical testing and the test result indicates the person has an alcohol concentration of eight one-hundredths of one percent (0.08%) or more, the peace officer shall submit his signed statement to the department. Based upon the statement the department shall suspend the person's Wyoming driver's license or his privilege to operate a motor vehicle in this state for ninety (90) days. If a criminal conviction results from the same incident on which a suspension under this subsection is based, 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 submitted by the officer shall contain:

 

(i) His probable cause to believe the arrested person was driving 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 law prohibiting 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 eight one-hundredths of one percent (0.08%) or more.

 

(f) In addition to the signed statement submitted under subsection (d) or (e) of this section, the peace officer shall issue the person a 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, shall not be renewed, shall contain a notice that the person has twenty (20) days from the date of issuance within which to request a hearing from the department and that failure to timely request a hearing will result in the suspension automatically commencing upon expiration of the temporary license or upon expiration of any existing suspension or revocation if the person's license or privilege 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 of this section, the peace officer acts as an agent for the department when providing 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 hearing within the twenty (20) day period is a waiver of the right of hearing, and the suspension shall commence upon expiration of the temporary license or upon expiration of any existing suspension or revocation if the person's license or privilege 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 demand to the independent hearing examiner who shall schedule a hearing within forty-five (45) days after receipt of the request and provide the arrested person at least ten (10) days notice of the hearing. The hearing shall be conducted by the hearing examiner. If the hearing examiner fails to schedule the hearing within forty-five (45) days of the request, other than at the request of the licensee, the licensee, as his sole remedy, shall be given credit against any action upheld at the hearing for the time between the expiration of the forty-five (45) day period and the date the hearing was first scheduled.

 

(g) For the purposes of this section, the signed statement submitted by the peace officer shall be deemed a sworn statement and shall be subject 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 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, whether he refused to submit to a test upon request of the peace officer or if he submitted to a test 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 refusing, 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 the person submitted to a chemical test, the hearing examiner has the same authority to modify a license suspension under this act as he does under W.S. 31-7-105.

 

(c) Prehearing discovery, available to any interested party is limited to access to the notice of suspension, signed statement and any accompanying documentation submitted by the arresting officer. Other types of discovery available under other law are not available in a hearing under this section.

 

31-6-104. Right to petition for subsequent hearing; suspension applies to all licenses held; persons not required to take test.

 

 

(a) If the suspension is sustained after a hearing, the person whose Wyoming driver's license or privilege to operate a motor vehicle has been suspended under this act may file a petition within thirty (30) days thereafter for a review of the record in the matter in the district court in the county in which the person resides, or in the case of suspension of a nonresident's operating privilege, then in Laramie county or the county where the offense is alleged to have occurred. The district court shall immediately set the matter for determination upon thirty (30) days written notice to the department.

 

(b) A suspension under this act applies to all driver's licenses held by the person and all driver's licenses shall be surrendered to the department. The department shall physically retain the license or licenses during the period of suspension except as provided in W.S. 31-7-138(f).

 

(c) Any person who furnishes proof that he is afflicted with hemophilia is exempt from the blood test required by this act. Any person who is afflicted with a heart condition and is using an anticoagulant under the direction of a physician is exempt from the blood test required by this act.

 

31-6-105. Method of performing chemical analysis; persons permitted to draw 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 to be considered valid under this section, shall be performed according to methods approved by the department of health and by an individual possessing a valid permit to conduct the analysis. Permits shall be issued by the department of health for this purpose. The department of health may promulgate and approve satisfactory methods in order to ascertain the qualifications of individuals permitted to conduct the analysis and shall issue to qualified individuals permits which are subject to termination or revocation by the department of health.

 

(b) When a person submits to a blood test at the request of a peace officer under this act, 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 the purpose of determining the alcohol concentration or controlled substance content therein. This limitation does not apply to the taking of other specimens.

 

(c) A person arrested for any offense allegedly committed while the person was driving or in actual physical control of a motor vehicle while under the influence of alcohol or a controlled substance to a degree which renders him incapable of safely driving the vehicle, may request the peace officer 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 controlled substance content of the arrested person's blood. If the tests are available they shall be performed in or near the locality where the arrest was made as promptly as possible after the arrest.

 

(d) The person tested may, at his own expense, have any qualified person of his own choosing administer a chemical test or tests in addition to any administered at the direction of a peace officer. The failure or inability to obtain an additional test by a person does not preclude the admissibility 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 test or tests at the request of a peace officer, full information concerning the test or tests shall be made available to the person or his attorney.

 

(f) If a person under arrest refuses to submit to a chemical test under this act, evidence of the refusal is admissible in any administrative, civil or criminal action or proceeding arising out of acts alleged to have been committed while the arrested person was driving or in actual physical control of a motor vehicle 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).

 

31-6-106. No liability incurred by persons requested to administer test.

 

No physician, registered nurse, qualified clinical or laboratory technician or other person who routinely does venipunctures at the direction of a physician or facility in which the blood is drawn shall incur any civil or criminal liability as a result of the proper administration of a blood test when requested in writing by a peace officer or any other person to administer the test.

 

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, shall suspend the person's Wyoming driver's license or his privilege to operate a motor vehicle in this state as follows:

 

(i) Except as otherwise provided in paragraph (ii) of this subsection, 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 defined by W.S. 31-5-233(a)(v); or

 

(B) The person's license or privilege to operate a motor vehicle has previously been suspended or revoked for refusal to submit to a chemical test of his blood, breath or urine for the purpose of determining the alcohol concentration or controlled substance content of his blood.

 

(iii) Suspension pursuant to this section shall not take effect if within ten (10) days of arraignment on the charge corresponding to the suspension, the person enters a plea of guilty to driving while under the influence.

 

(b) A second or subsequent suspension pursuant to subsection (a) of this section shall be considered a second or subsequent conviction under W.S. 31-5-233 for the purposes of W.S. 31-5-233(f)(iii) through (v) and the ignition 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 or is in actual physical control of a motor vehicle within this state is deemed to have given consent, subject to the provisions of this section, to a chemical test or tests of his blood, breath or urine for the purpose of determining alcohol concentration in his blood;

 

(ii) The test or tests shall be administered at the direction of a peace officer, who has probable cause to believe that the driver was driving or in actual physical control of a motor vehicle in this state in violation of W.S. 31-5-234(b). The peace officer who requires a test pursuant to this section 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, the person may choose whether the test shall be of blood or urine.

 

(b) For tests required under this section, the person shall be advised that:

 

(i) His failure to submit to all required chemical tests shall result in the suspension or denial of his Wyoming driver's license or his privilege to operate a motor vehicle for a period of ninety (90) days without the right to apply for limited driving privileges and he may be required to drive only vehicles equipped with an ignition interlock device;

 

(ii) If a test is taken and the results indicate an alcohol concentration of two one-hundredths of one percent (0.02%) or more, he may be subject to denial or suspension of his driver's license for the period specified by W.S. 31-7-128(h) and he may be required to drive only vehicles equipped with an ignition interlock device;

 

(iii) After submitting to all required chemical tests requested by the peace officer at a place and in the 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.

 

(c) Results of tests obtained at the person's expense shall be made available to the peace officer and the person. Disclosure of the test results by the person administering the test is not a violation of the doctor-patient relationship.

 

(d) Any person dead, unconscious or otherwise in a condition rendering him incapable of refusal to submit to the tests is deemed to have given his consent provided for in this section, and the tests may be administered subject to this section.

 

(e) If the person refuses testing or submits to a test which discloses 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 in actual 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 to a test which disclosed an alcohol concentration of two one-hundredths of one percent (0.02%) or more.

 

(f) If the person refuses testing or submits to a test which discloses an alcohol concentration of two one-hundredths of one percent (0.02%) or more, the peace officer shall issue the person a 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, shall not be renewed, shall contain a notice that the person has twenty (20) days from the date of issuance within which to request a hearing from the department pursuant to W.S. 31-7-105 and that failure to timely request a hearing will result in the period of suspension or license denial automatically commencing upon expiration of the temporary license or upon expiration of any existing suspension or revocation if the person's license or privilege is suspended or revoked at the time the temporary license is issued. For purposes of this section, the peace officer acts as an agent for the department when providing 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 hearing within the twenty (20) day period is a waiver of the right of hearing, and the period of suspension or denial shall commence upon expiration of the temporary license or upon expiration of any existing suspension or revocation if the person's license or privilege is suspended or revoked at the time the temporary license is issued. A temporary license issued under this subsection shall afford no driving privilege to a person who is not otherwise licensed to drive a motor vehicle.

 

(g) A timely request for a hearing shall stay the period of suspension or denial until the order following the hearing is entered and all appellate review of the matter is completed, provided the stay is effective only so long as there is no license suspension or denial for a similar violation during the hearing and appeal period.

 

(h) At the conclusion of the hearing, the hearing examiner shall order whether or not the person's driver's license shall be suspended or denied. 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 vehicle with an alcohol concentration of two one-hundredths of one percent (0.02%) or more;

 

(ii) Whether the person refused to submit to a test or if he submitted to a test, the results indicated there was an alcohol concentration of two one-hundredths of one percent (0.02%) or more;

 

(iii) Whether the person had been given the advisement required in subsection (b) of this section; and

 

(iv) Whether the person has shown good cause as to why his license should not be suspended or denied, regardless of the findings in paragraphs (i) through (iii) of this subsection.

 

(j) Prehearing discovery available to any party is limited to access to the signed statement and any accompanying documentation submitted by the peace officer. Other types of discovery available under other laws are not available under this section.

 

(k) If a person under arrest refuses to submit to a chemical test under this section, evidence of the refusal is admissible in any administrative, civil or criminal action or proceeding arising from acts alleged to have been committed while driving or in actual physical control of a vehicle.

 

(m) W.S. 31-6-102(g), 31-6-104(c), 31-6-105(a), (b) and (e) and 31-6-106 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 to determine the driver's alcohol concentration, the department, subject to review as provided in W.S. 31-7-105, shall suspend the person's Wyoming driver's license or his privilege to operate a motor vehicle in this state or shall deny issuance of a driver's license to the person as follows:

 

(i) If the person has been issued a driver's license, the period of suspension shall be ninety (90) days without any right to limited driving privileges pursuant to W.S. 31-7-105;

 

(ii) If the person has not been issued a driver's license, he shall not operate a vehicle and the department shall not issue the person a driver'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 this section shall not be made a part of the abstracts or records kept by the department of transportation pursuant to W.S. 31-5-1214 or 31-7-120. Any records maintained by the department for administration of this section shall be maintained separately and shall not be available for public inspection except for inspection by any law enforcement officer or agency to enforce the provisions of this section. Any driver's license suspension or related records under this section shall not be the basis for any increase in insurance premiums or the cancellation of any insurance policy for a minor or his parents affected 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 for the purposes of W.S. 31-5-233(f)(iii) through (v) and the ignition interlock device requirements of W.S. 31-5-233(f)(iii) through (v) shall apply to such suspension.