DUI Appeal - Wyoming Drunk Forklift Operator

In Harvey v. State of Wyoming, --- P.3d ----, 2011 WL 1533156 (Wyo.), 2011 WY 72, NCDD member Michael Vang appeared before the Supreme Court of Wyoming (for at least the 2d time in 1 year). Here, the defendant was driving a forklift at the speed of about 5 miles per hour on the shoulder of a highway. The issue on appeal was whether the highway patrolman had reasonable suspicion to contact Appellant for failure to equip his forklift with a slow moving vehicle emblem.

The driver did not dispute that he failed to display a slow moving vehicle emblem on the forklift while operating it on the highway. Rather, he argued that the failure to display such an emblem was not a violation of Wyo. Stat. Ann. § 31–5–921(d) and, accordingly, it did not provide the trooper with probable cause to initiate the traffic stop.

The court noted that the statute required “special mobile equipment designed for operation at speeds not in excess of twenty-five (25) miles per hour” to display a slow moving vehicle emblem, and then concluded that the statutory language therefore unambiguously included forklifts.

Thus, the court found that the officer had a valid basis to stop the vehicle for failing to display the emblem, and upheld the implied consent suspension.


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DUI Appeal - Escaping an Illegal DUI Sentence in Wyoming

In Crosby v. State of Wyoming, 247 P.3d 876, 2011 WY 44, the defendant was illegally sentenced to 1 year of jail for his 3rd DUI, when the maximum offense was 180 days jail. He then escaped jail after serving only 2 days. He then filed a motion to dismiss his escape charges, arguing that the sentence from which he had escaped was void ab initio. Two issues where then put before the Supreme Court of Wyoming?
1. Whether the original sentence was void ab initio in its entirety, or is it an illegal sentence subject to correction?

2. Given that the escape charge in the above-captioned matter was filed at a time when the sentence was illegal, is it proper to continue the prosecution of the Defendant for escape, should this Court find that the original sentence was illegal and subject to correction?

The Court answered that the original sentence was subject to correction, and not void ab initio. Additionally, they also held that the filing of the escape charge was also allowable. The defendant also asserted that a previous case allowed him to attack the original sentence as void:

"Mr. Crosby asserts that we held otherwise in Endris v. State, 2010 WY 73, 233 P.3d 578 (Wyo.2010). There, Mr. Endris pleaded guilty to driving while under the influence of alcohol and the district court imposed a sentence allowing him to be released from jail to participate in a treatment program. The district court advised Mr. Endris that during his release for treatment he was on probation and in official detention. Mr. Endris was released but he did not attend the treatment program. His probation was revoked and he was convicted of escape. He appealed both the revocation and the escape conviction claiming the original sentence was illegal because it subjected him to probation and detention at the same time; therefore, he could not be convicted of escape."

Ultimately, the Supreme Court of Wyoming held that the defendant was subject to prosecution for escape despite the illegal sentence, since the escape occurred within expiration of lawful period of confinement. "We leave for another day the question of whether a prosecution can continue on an escape occurring after the legal portion of a sentence has been served." Paul Newman would have been proud of Mr. Crosby.


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