Wyoming Supreme Court overturns woman's DUI conviction


GILLETTE — The Wyoming Supreme Court has reversed a decision against a Gillette woman who had pleaded guilty to driving under the influence, saying law enforcement violated her Fourth Amendment rights.

Ron Wirthwein represented Nancy M. Hawken, who had pleaded guilty to felony driving under the influence.

Then-District Judge John R. Perry sentenced Hawken to five to seven years in prison, but she appealed, claiming the court had erred by denying her motion to suppress evidence that was obtained after law enforcement entered her home without a warrant or consent.

The Wyoming Supreme Court ruled this month that law enforcement unlawfully entered Hawken’s home and that the events that took place after the unlawful entry ultimately led to Hawken’s arrest.

In December 2020, a Wyoming Highway Patrol trooper received a report of a vehicle that had crashed in a ditch near Sundance and that the driver appeared drunk. When he arrived, there was no one in the vehicle, but it smelled of alcohol. After running the plates, he learned it belonged to Hawken, according to court documents.

The trooper went to her home and met with her husband, Tyler Hawken. Tyler said Nancy wasn’t home.

“Mr. Hawken did not invite the trooper to follow him into the mudroom, and the record contains no indication Trooper Undeberg requested permission to follow him. Nonetheless, Trooper Undeberg followed,” court documents read.

Tyler then told Undeberg to wait in the mudroom, and he did so. The trooper could hear Tyler and Nancy talking, and when they started arguing, Undeberg asked Tyler to come back to the mudroom to avoid the argument going further.

The trooper then asked Nancy to come outside with him to talk about what happened. She had trouble with her balance, and after talking to her, she was arrested for DUI. At the jail her blood alcohol concentration was 0.26 percent.

The record didn’t “support a finding that Mr. Hawken consented” to the trooper entering the home, according to court documents.

“Implied consent may be found where a reasonable officer would believe a person consented to entry based on the totality of the circumstances,” the Supreme Court wrote.

The trooper acknowledged Tyler did not specifically invite him to come to the mudroom, and because Undeberg didn’t have a warrant, “his entry was therefore presumptively unreasonable” and a violation of the Fourth Amendment, the court wrote.

As far as whether the evidence that was found after the unlawful entry should be suppressed, meaning that it can’t be used in court, the Supreme Court said the record is not developed enough for its review, and it has sent the case back to District Court.

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