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State of Idaho v. Dan S. Jacobson

December 21, 2010

STATE OF IDAHO, PLAINTIFF-RESPONDENT,
v.
DAN S. JACOBSON, DEFENDANT-APPELLANT.



Appeal from the District Court of the First Judicial District, State of Idaho, Bonner County. Hon. Steven C. Verby, District Judge.

The opinion of the court was delivered by: Gratton, Judge

2010 Opinion No. 89

Stephen W. Kenyon, Clerk

Hon.Debra A. Heise, Magistrate

Order of the district court affirming the magistrate‟s denial of motion to suppress and motion to dismiss, affirmed.

This is an appeal from the district court‟s order affirming the magistrate‟s denial of a motion to suppress and a motion to dismiss. We affirm.

I.

FACTUAL AND PROCEDURAL BACKGROUND

Jacobson was arrested for misdemeanor driving under the influence of alcohol (DUI), Idaho Code § 18-8004. He was transported to the jail, read the statutory advisory form, and asked to take a breath test which he failed. Jacobson ostensibly made two telephone calls, and on the second call succeeded in contacting a bail bond company.*fn1 However, at the end of the call, Jacobson became aggravated at the bail bond company for requiring a cosigner before it would provide bail. The jailers escorted Jacobson to a holding cell because of his agitation, even though Jacobson requested to make another call. About half an hour after Jacobson was booked and over three and one-half hours after he failed the breath test, he was allowed to use the phone again. He called his wife and was released when his bail was posted.

Jacobson filed a motion to suppress the breath test on due process grounds, claiming he was denied access to a telephone and, thus, his ability to secure alternative evidentiary testing or other exculpatory evidence. The magistrate denied the motion, and Jacobson entered a conditional guilty plea pursuant to Idaho Criminal Rule 11(a)(2). The magistrate stayed the sentence and judgment pending appeal to the district court. On appeal, the transcript of the hearing on the motion to suppress was delayed for over sixteen months before being lodged with the district court. Because of the delay in lodging the transcript, Jacobson filed a motion to dismiss with the district court pursuant to I.C.R. 48(a). After a hearing, the district court remanded the case to the magistrate for additional findings on both the motion to suppress and the motion to dismiss. The magistrate denied both motions and entered its findings. Thus, even though the motion to dismiss was initially filed with the district court, the magistrate first entertained the motion. After Jacobson again appealed, the district court affirmed the magistrate‟s decisions. Jacobson appeals.

II.

DISCUSSION

Jacobson appeals both the denial of his motion to suppress and the denial of his motion to dismiss. On review of a decision of the district court, rendered in its appellate capacity, we review the decision of the district court directly. Losser v. Bradstreet, 145 Idaho 670, 672, 183 P.3d 758, 760 (2008); State v. DeWitt, 145 Idaho 709, 711, 184 P.3d 215, 217 (Ct. App. 2008). We examine the magistrate record to determine whether there is substantial and competent evidence to support the magistrate‟s findings of fact and whether the magistrate‟s conclusions of law follow from those findings. Id. If those findings are so supported and the ...


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