BAC and Implied Consent

In Wyoming, the charge of driving under the influence (DUI) is really a game decided by a driver’s blood alcohol content (BAC). Without proof of a person’s BAC, the State can only secure a conviction if it can prove beyond a reasonable doubt that the person was incapable of safely driving due their alcohol consumption–a tall task indeed. Consequently, law enforcement strive to collect BACs whenever a person arrested on suspicion of committing DUI. And, given the centrality of BAC in DUI prosecutions, a great deal of the law developed in support of Wyoming DUI statute focuses on facilitating law enforcement’s ability to obtain a blood, breath, or urine sample that can be tested for BAC.

See extracting a sample of a person’s biological materials to test for the presence of drugs or alcohol is a “search and seizure” under the Fourth Amendment to the United States Constitution (and Article 1, Section 4 of the Wyoming Constitution). So, the police need either a warrant or the presence of a valid exception to the warrant requirement to secure a person’s bio sample. In the DUI context, the police possess a special legislative tool: “implied consent.”

Given that the alpha and omega of any Fourth Amendment question is “reasonableness,” the law favors and encourages the police to act with the consent of the person they are questioning or investigating. Accordingly, a person (with proper authority – but we will save that for another post) can give consent to a given warrantless search or seizure by the police rendering that police action lawful and valid. Given its informality and far-reaching effects, consent is a large exception to the warrant requirement. But with DUI, the law expands consent even further providing that virtually all drivers are effectively consenting to a chemical test of their blood, breath, or urine by virtue of their driving on public roads. This is commonly referred to as “implied consent.”

The implied consent statute, Wyo. Stat. Ann. § 31-6-102, states as follows:

If arrested for [DUI in Wyoming]:
(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.

Wyo. Stat. Ann. § 31-6-102(a)(i)

In this way, the Wyoming Legislature — like many other state legislatures — have said, in effect, “if you drive on our roads, you are consenting to a chemical test of your blood, breath, or urine when a police officer suspects you of DUI.” So, the constitutional question is preloaded in favor of given law enforcement the ability to secure your bio materials for testing. Accordingly, the issue concerns law enforcement’s strict adherence to the implied consent statute. Let’s breakdown the “implied consent” statute.

I. “Drives” or “Actual Physical Control”

Now, identifying when a person is “driving” is easy enough. You know, person in the driver’s seat, engine on, car moving, etc. The trickier question is when the person is in “actual physical control of a motor vehicle.”

The Wyoming Supreme Court has not identified a bright-line test for “actual physical control of a motor vehicle” such as the driver in the car with the keys in the ignition. See Schouboe v. Wyo. DOT, 238 P.3d 1246, 1249 (Wyo. 2010). Rather, the Wyoming Supreme Court has provided an editorial gloss explaining the purpose for including “actual physical control” within the ambit of DUI rather than just people who are actually driving:

An intoxicated person seated behind the steering wheel of an automobile is a threat to the safety and welfare of the public. The danger is less than that involved when the vehicle is actually moving; however, the danger does exist and the degree of danger is only slightly less than when the vehicle is moving. As long as a person is physically or bodily able to assert dominion in the sense of movement by starting the car and driving away, then he has substantially as much control over the vehicle as he would if he were actually driving it.

Adams v. State, 697 P.2d 622, 625 (Wyo. 1985)

Accordingly, the Wyoming Supreme Court has rationalized the Legislature inclusion of “actual physical control” in the DUI and implied consent statutes as an effort to apprehend intoxicated drivers before they can do any harm by driving and to discourage drunk people from attempting to enter a vehicle except as passengers. So, the lesson to be extracted is “actual physical control” of a motor vehicle should be examined through the lens of whether the relevant person was in a position to start driving or was attempting to get into that position.

II. “Public Street or Highway”

This one may seem simple and obvious, but, once again, it is trickier than it seems. While you would be well within your rational faculties to observe that the distinction made here is between roadways owned, operated, and maintained by the State or other public entities and those owned, operated, and maintained by private businesses or persons, you would be wrong.

Wyoming law does not define “public street or highway” — even though the phrase is integral to DUI and implied consent. Rather, Wyoming law defines “street or highway” as “the entire width
between the boundary lines of every way publicly maintained or if not publicly maintained, dedicated to public use when any part thereof is open to the use of the public for purposes of
vehicular travel
.” Wyo. Stat. Ann. § 31-5-102(a)(xlix). The emphasized section can be and is read by some tribunals to expand “public street or highway” beyond the ordinary ownership and maintenance understanding I described above. Never mind that “private road or driveway” is separately defined as “every way or place in private ownership and used for vehicular travel by the owner and those having express or implied permission from the owner, but not by other persons,” Wyo. Stat. Ann. § 31-5-102(a)(xxxiv), or that is is unlawful to travel onto private (or public) property for the purpose of gaining access to another roadway to avoid a traffic-control device–to expedite one’s travel.

The primary fight in DUI cases concerns drunk drivers found in “actual physical control” or “driving” in parking lots owned and maintained by businesses. While these lots are certainly private property, some tribunals will interpret the “street or highway” statute to include private parking lots because they are “dedicated to public use through the opening of any part of it for use by the public for purposes of vehicular travel.” See McClean v. State, 62 P.3d 595, 599 (Wyo. 2003).

So beware. If you’re in a vehicle in the driver’s seat on a public roadway or any property held open to the general public for commerce, you’ve consented to a test of your blood, breath, or urine for alcohol and drugs.

III. Other “Implied Consent” Requirements

Beyond the general statute provided above, Wyoming’s “implied consent” law also requires that other conditions be met before a police officer can obtain a sample of your blood, breath, or urine. Primarily, the sample can only be obtained “incidental to a lawful arrest.” In short, if the officer improperly or unlawfully seized you, he cannot use that faulty seizure to seize a biological sample from your body.

Beyond that basic requirement, the law also dictates that the test be given “as promptly as possible after the arrest” and that it be administered at the direction of the arresting officer. To this second point, if the officer suspects that you are under the influence of alcohol and demands a blood or urine sample, you have a choice of either; no such luck if the officer suspects you are under the influence of a controlled substance–you’ll be stuck with the officer’s choice.

As to the “as promptly as possible after the arrest” requirement, Wyoming’s DUI law dictates that if the police secure a sample of a suspect’s blood, breath, or urine within two (2) hours of that person’s driving a vehicle or having had actual physical control of a vehicle and the sample tests at 0.08% or higher, the person is guilty of DUI. End of story. However, if it takes the police more than two (2) hours, the State has to prove the person’s BAC through “retrograde extrapolation,” a complex theory wherein a scientist can effectively backtrack the person’s BAC from the time the sample was secured to the time the person was driving or in control of the vehicle. The science supporting retrograde analysis is shaky, but it can be simple to sand down the nuances and convince a jury that a person was much more intoxicated than their test suggests. Basically, people understand that a drunk person becomes less drunk as time goes on; ipso facto, if you take too long to test that person, their BAC will be lower than it once was and, perhaps, the person was over the legal limit hours before the test took place.

IV. The “Per Se” DUI Suspension

The major “consequence” of the implied consent statute that exists independent of any criminal proceeding is the so-called “per se DUI suspension” of your Wyoming driver’s license or nonresident driving privilege in Wyoming. The Wyoming Legislature has baked into the implied consent statute an automatic 90-day suspension of your Wyoming driver’s license or nonresident driving privilege in Wyoming if the results of an otherwise valid chemical test administered pursuant to the implied consent statute reveals you had a BAC greater than 0.08%. This suspension is separate and apart from the driver’s license consequences that result from a conviction for DUI.

V. Moral of the Story

So, what’s the lesson from Wyoming’s (and other states’) implied consent statute? If you have an illegal BAC and you are behind the wheel of a moving or parked vehicle out in a public or public-adjacent space, you run the risk of getting convicted for DUI or having your driver’s license suspended regardless of how you are driving (or not driving). So, be advised: you are only not in trouble insofar as the police have not contacted you. Once the police contact you, you’ve got problems.

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