The opinion of the court was delivered by: Lansing, Chief Judge
Appeal from the District Court of the Fifth Judicial District, State of Idaho, Blaine County. Hon. Robert J. Elgee, District Judge; Hon. R. Ted Israel, Magistrate.
District court‟s order affirming magistrate‟s order denying driver‟s license suspension, affirmed.
The State appeals from the district court‟s appellate decision affirming the magistrate‟s order declining to suspend the nonresident driver‟s license of Matilda K. Kling for Kling‟s refusal to submit to an alcohol concentration test.
Kling, who held a Washington state driver‟s license, was arrested for driving under the influence of alcohol in Blaine County. When asked by the officer to perform a breath test for alcohol concentration, Kling refused. The officer did not seize Kling‟s driver‟s license at that time as he was directed to do by Idaho Code § 18-8002(4)(a), although, as a result of her refusal of the test, Kling‟s driving privileges were subject to suspension by a court pursuant to Idaho Code § 18-8002.
Kling sought to prevent suspension of her driving privileges by filing a motion with the magistrate court. She contended that suspension was not warranted because the arresting officer had not accurately and completely advised her of the consequences of test refusal for motorists with nonresident licenses, as mandated by I.C. § 18-8002(3), and because the officer had deprived her of due process by not filing an affidavit with the court attesting to her refusal within seven days of the event. At the ensuing hearing the parties stipulated that before asking Kling to submit to evidentiary testing, the arresting officer had used an advisory form issued by the Idaho Transportation Department (ITD) to inform Kling of the information required by I.C. § 18-8002(3), including the consequences of refusing an alcohol concentration test. A copy of the form was placed in evidence.
Consistent with his prior rulings on the same issues dating back a number of years, the magistrate held that the ITD advisory form utilized by the officer did not conform to the statute with respect to the seizure and suspension of a nonresident driver‟s license and was ambiguous. The magistrate further held, as he had in prior cases, that although I.C. § 18-8002 does not express a time limit for an officer to file an affidavit attesting to the driver‟s refusal of an evidentiary test, due process principles require that the affidavit be filed within seven days of the refusal. The magistrate therefore refused to order suspension of Kling‟s license because the advisory she received did not conform to statutory requirements and because the officer‟s failure to file the affidavit of refusal within seven days deprived Kling of due process.
The State appealed to the district court, which affirmed. The State now further appeals.
A. Officer's Noncompliance with I.C. § 18-8002(3)
We first address the determination by the magistrate and the district court that Kling‟s driver‟s license should not be suspended because she was not properly advised of the consequences of refusal of evidentiary testing as required by I.C. § 18-8002(3). The pertinent provisions of I.C. § 18-8002, as in effect at the time in question, stated:
(1) Any person who drives or is in actual physical control of a motor vehicle in this state shall be deemed to have given his consent to evidentiary testing for concentration of alcohol as defined in section 18-8004, Idaho Code, and to have given his consent to evidentiary testing for the presence of drugs or other intoxicating substances, provided that such testing is administered at the request of a peace officer having reasonable grounds to believe that person has been driving or in actual physical control of a motor vehicle in violation of the provisions of section 18-8004, Idaho Code, or section 18-8006, Idaho Code.
. . . . (3) At the time evidentiary testing for concentration of alcohol, or for the presence of drugs or other intoxicating substances is requested, the person shall be informed that if he refuses to ...