R. Michael Vang, P.C. makes no guarantee as to the outcome of any case. Each case is different including facts, circumstances, and situations.
‘PER SE’ DUI CHARGE FOR HAVING A BAC LEVEL OF 0.08% OR MORE AMENDED TO OTHER CHARGE
Case: Wyoming Highway Patrol Trooper claims there is an anonymous REDDI report for Client and that he has observed that the Client has obscured his vehicle’s license plate with snow. Client is driving back from hunting and allegedly does poorly on field sobriety maneuvers and is arrested for DUI. On the day of motion hearing for DUI charge, the State of Wyoming (State) provides Mr. Vang with discovery for the breath machine that was used to create the blood alcohol concentration (BAC) levels of 0.138% and 0.147%. Based upon the scientific evidence disclosed to Mr. Vang right before the motion hearing, Mr. Vang was able to get the State’s witnesses to admit that there was an error message with the breath machine that required a waiting period prior to any further breath testing, which did not occur with the Client’s breath samples. Based upon Mr. Vang’s cross-examination of the State’s witnesses at the motion hearing, the State admitted that the BAC level was not admissible to prove the “per se” DUI charge.
Result: The DUI charge was amended and the Client has accepted a plea offer to the amended charge. The admissibility of the BAC level of 0.08% or more to uphold the proposed implied consent suspension is pending in the underlying administrative proceeding.
‘PER SE’ DUI CHARGE FOR HAVING A BAC LEVEL OF 0.08% OR MORE IS DISMISSED BY PROSECUTOR
Case: Cheyenne Police Officer arrested the Client for a DUI charge and obtained a search warrant for a blood draw, after the Client refused consent for breath testing. The Wyoming Department of Health Chemical Testing Program (WCTP) provided a LITIGATION SUPPORT PACKAGE (LSP) to prove the blood samples of interest were analyzed in compliance with the WCTP’s approved methods as required to admit the blood alcohol concentration (BAC) levels of 0.138% and 0.147%. Based upon the LSP, Mr. Vang is able to show the Cheyenne City Attorney and the Court that had entered the search warrant that there is an eighteen (18) – day gap in the “chain of custody” for the blood samples of interest from the time of the blood draw to the time the samples were allegedly “hand delivered” to the WCTP.
Result: The City of Cheyenne admits the lack of chain of custody renders the BAC level inadmissible and that it can no longer prove the DUI charge and the City voluntarily dismisses the DUI charge. The admission of BAC level of 0.08% or more to uphold the proposed implied consent suspension is currently pending in the implied consent proceeding.
CLIENT CHARGED WITH UNLAWFUL TURN, DESTRUCTION OF EVIDENCE, INTERFERENCE WITH PEACE OFFICER, OPEN CONTAINER AND ‘PER SE’ DUI CHARGE FOR BAC LEVEL OF 0.08% OR MORE
Case: Client was arrested for allegedly making an improper U-Turn in front of another law enforcement officer, who did not stop the client. The video recording in the case does not show the alleged traffic violation, but records the initial encounter with the arresting officer. The arresting officer claimed that the client smelled of alcohol, had slurred speech and blood shot eyes and requested the client driver’s license and registration. The arresting officer claimed the client then attempted to destroy evidence, when the client began to pour coke into a cup of ice. Client placed under arrest for destroying evidence and arresting officer and a third officer claim client is now resisting arrest. Search of the back of the client’s vehicle uncovers three (3) open vodka bottles and client is also charged with open container in a vehicle. Officer obtains a search warrant and the client is required to provide blood samples that result in an alleged blood alcohol concentration (BAC) level of 0.157% and 0.152%. Client loses motion hearing and client’s expert is not allowed to testify at jury trial concerning the validity of the underlying BAC level to prove the DUI charge.
Jury Verdict: Not guilty on all charges except the DUI for having a BAC level of 0.08% or more.
Appeal: The admission of the BAC level to prove the “per se” element of a DUI charge and denial of the Client’s ability to confront and rebut the scientific validity of the BAC level is currently pending on appeal.
CLIENT ‘PER SE’ DUI CHARGE FOR BAC LEVEL OF 0.08% OR MORE
Case: Client was stopped for failing to maintain a single lane of travel, while driving down a curved road. The video recording in the case is not conclusive of the traffic issue and the client is not cited for the traffic violation. During the traffic stop, the arresting officer claimed that the client smelled of alcohol, had blood shot eyes and slurred speech and requested that the client perform field sobriety maneuvers. Although Wyoming law does not require a person to cooperate with a DUI investigation and to perform maneuvers for law enforcement, the client acquiesced to the officer’s request to cooperate, which ultimately resulted in the client’s arrest. The client provided warrantless breath tests under Wyoming’s implied consent law, which were analyzed with a breath machine that resulted in an alleged blood alcohol concentration (BAC) level of 0.175% and 0.175%.
Jury Verdict: After almost four (4) – four hours of deliberation, jury finds Client guilty of having a BAC level of 0.08% or more.
Appeal: The matter is currently pending on appeal to resolve the issue whether the BAC level from the chemical analysis of the warrantless breath samples is admissible under the “search incident to lawful arrest” and the “is deemed to have given consent” to warrantless chemical testing provisions of Wyoming Statute § 31-6-102(a)(i). The Court in Birchfield v. North Dakota, 579 U.S. ---, ---, 136 S. Ct. 2160, 2185, 195 L. Ed. 2d 560, 588 (2016) recently determined that: “Because breath tests are significantly less intrusive than blood tests and in most cases amply serve law enforcement interests, we conclude that a breath test, but not a blood test, may be administered as a search incident to a lawful arrest for drunk driving.” The appeal involves whether Article 1, § 4 of the Wyoming Constitution creates greater rights than the Fourth Amendment, which prevents the warrantless production of “all biological samples” in DUI and implied consent cases, including “breath” samples for chemical testing.
FELONY “SERIOUS BODILY INJURY” DUI CHARGE IS DISMISSED AFTER FILING PRETRIAL MOTIONS ON CLIENT’S BEHALF
Case: Client and another individual are injured on an all-terrain-vehicle (ATV) and after both individuals recover from injuries sustained in accident and the Client is eventually charged with a felony serious bodily injury DUI charge. The Client hires another attorney, who allows the matter to be set for jury trial. The matter is set for final pretrial conference and Mr. R. Michael Vang enters his appearance and reviews discovery. Mr. Vang files a number of pretrial motions and requests a motion hearing. After an initial hearing concerning the motions and resetting the matter for further hearings and a jury trial, the State of Wyoming admits it cannot prove the charge and the matter is dismissed and the jury trial is vacated.
Result: The Felony “Serious Bodily Injury” DUI charge was dismissed after Mr. Vang was substituted as counsel and the State reviewed Mr. Vang’s suppression motions.
On New Years Day in 2011, the City of Laramie began enforcing its new “aggravated offender” DUI ordinance, which created minimum mandatory jail sentences for anyone accused of having a blood alcohol concentration (BAC) result of 0.15% or more. The minimum mandatory jail sentences were significantly harsher than the sentences created for the exact same behavior under Wyoming’s DUI law.
Because the City of Laramie’s “Aggravated Offender” DUI ordinance requires a minimum mandatory jail sentence upon a conviction, Mr. Vang has argued that the BAC level of 0.15% or more is an element of the City of Laramie’s “Aggravated Offender” DUI ordinance, which must be proven beyond a reasonable doubt. Mr. Vang has also argued that an accused is entitled to a lesser included offense jury instruction for allegedly having a BAC level of 0.08% or more in any case where the City of Laramie proceeds to trial with an “Aggravated Offender” DUI charge.
Finally, Mr. Vang has argued that the minimum mandatory jail sentences created by the City of Laramie’s “aggravated offender” DUI ordinance cannot be enforced, where City of Laramie’s “Aggravated Offender” DUI ordinance treats citizens in the State of Wyoming differently for the exact same behavior in an area of law that is highly regulated by the Wyoming Legislature and requires uniformity.
On October 20, 2015, the Wyoming Supreme Court accepted review of two (2) of Mr. Vang’s “Aggravated Offender” DUI cases to answer the legal questions concerning whether the 0.15% or more BAC level, which triggered the minimum mandatory jail sentences created by the City of Laramie’s “Aggravated Offender” DUI ordinance, was an element of the City of Laramie’s “Aggravated Offender” DUI ordinance that required a proper lesser included offense instruction. The Wyoming Supreme Court also agreed to determine whether the City of Laramie’s “aggravated offender” DUI ordinance was otherwise conflicted with Wyoming law.
Although the City of Laramie admitted that the BAC level of 0.15% or more within the City of Laramie’s “aggravated offender” DUI ordinance was an element that must be proven beyond a reasonable doubt in order to enforce minimum mandatory jail sentences and would require a proper lesser included offense instruction, if requested; the City of Laramie continued to maintain that it could continue to enforce the harsher penalties of the City of Laramie’s “Aggravated Offender” DUI ordinance.
On June 10, 2016, the Wyoming Supreme Court agreed that the City of Laramie’s “Aggravated Offender” DUI ordinance “[f]louts the uniformly applicable statutes governing traffic regulation”, Wofford and Walters v. City of Laramie, 2016 WY 59, ¶ 1 (Wyo. 2016), and determined that “Laramie Municipal Ordinance 10.24.030(H) is therefore void.” Wofford and Walters v. City of Laramie, 2016 WY 59, ¶ 1 (Wyo. 2016). As a result of the Wyoming Supreme Court’s decision, the City of Laramie can no longer treat people differently in the City of Laramie than they are treated elsewhere in the State of Wyoming for the exact same behavior.
Taylor Wofford v. City of Laramie
Date: June 10, 2016
Citation: 2016 WY 59
Docket Numbers: S-15-0226, S-15-0227
Blood Samples Ruled Inadmissible in DUI case.
The Campbell County Circuit Court ruled that the chemical test results for the DUI case were not admissible, where the State of Wyoming could not establish proper chain of custody for the blood samples of interest. Indicating that the suppression of evidence would require the State of Wyoming to dismiss the underlying DUI charge, the State of Wyoming is currently appealing the suppression ruling.
DUI/Reckless Driving Charges Dismissed
After Mr. Vang entered appearance and questioned law enforcement’s claim that the accused was impaired by drugs, based upon law enforcement’s alleged specialized knowledge and training to detect drug and alcohol impairment and questions the validity of any chemical test measurements/results from mandatory urine testing, the Lincoln County Attorney’s Office agrees to dismiss pending criminal charges based upon lack of sufficient proof to proceed with the case.
Case: Client was arrested and charged with DWUI
Jury Verdict: Guilty
Appeal: After denying Mr. Vang’s client’s request to have the following question certified to the Wyoming Supreme Court: “If, under Missouri v. McNeely, the natural dissipation of alcohol in the bloodstream does not establish a per se exigency, does W.S. § 31-6-102(a)(i) facially violate Article 1 § 4 of the Wyoming Constitution and the Fourth Amendment of the United States Constitution?”; the District Court overturned the DUI conviction holding that Wyoming’s implied consent law did not apply to the facts of the case, given the lack of evidence to place the accused upon a “public street or highway”, which is a necessary condition for admitting a chemical test result in a DUI case pursuant to Wyoming’s implied consent law.
Case: Client was arrested and charged with "aggravated offender" DWUI for allegedly having a BAC result of 0.15% or more in violation of LMO 10.24.030(H).
Jury Verdict: Not Guilty
Case: Client was arrested for having actual physical control of a motor vehicle with an alleged BAC result of 0.15% after a REDDI report had been made claiming the client had run a stop sign and almost hit a vehicle prior to contact with law enforcement.
Outcome: Not Guilty
Case: Client was arrested for driving while under the influence of alcohol (DWUI), after the client was discovered trying to remove a vehicle from a ditch. Client admits to talking on cell phone resulting in loss of control on a dirt road. Client cited with failure to maintain a single lane of travel and client allegedly provided a BAC result of 0.13% on the Intoximeter EC/IR.
Outcome: Not Guilty on all charges
Case: Client was arrested in commercial vehicle after a REDDI report alleged that client had been weaving in and out of traffic on Interstate-80. Trooper claims client impaired by drugs and arrests client for Driving under the influence of Drugs (DUID) and also cites for failure to maintain a single lane of travel as the basis for the stop. A search of the vehicle discloses a homemade pipe and synthetic cannabinoid, which result in an additional charge of possession of controlled substance.
Outcome: Not Guilty of DUID and Failure to Maintain Single Lane by jury. Prosecution agreed to dismiss possession charge as there was no evidence the substance was illegal to possess in Wyoming at that time.