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In the Matter of the License v. State of Idaho

January 3, 2011

IN THE MATTER OF THE LICENSE SUSPENSION OF STEVEN M. WANNER. STEVEN M. WANNER, PETITIONER-RESPONDENT,
v.
STATE OF IDAHO, DEPARTMENT OF TRANSPORTATION, RESPONDENT-APPELLANT,



Appeal from the District Court of the Sixth Judicial District of the State of Idaho, Franklin County. Hon. David C. Nye, District Judge.

The opinion of the court was delivered by: Horton, Justice

Pocatello, September 2010 Term

2011 Opinion No.1

Stephen Kenyon, Clerk

The decision of the district court is reversed and the case is remanded with directions to dismiss the petition for judicial review and vacate the stay of the driver's license suspension.

Steve Wanner (Wanner) was arrested on suspicion of driving under the influence and the results of his breath tests were over the legal limit. Based upon Wanner's failure of this evidentiary test, the officer provided him a form captioned as "Notice of Suspension" (the Notice or Notice of Suspension) provided by the Idaho Department of Transportation (IDOT). Wanner then requested an administrative hearing, although this request was not made within seven days as required by I.C. § 18-8002A(7). IDOT, acting in its administrative capacity, denied the request as untimely. Wanner appealed to the district court, arguing that the Notice did not provide sufficient notice regarding the effect of any suspension on his commercial driving privileges and thereby denied him due process. The district court agreed with Wanner, reversed IDOT's decision and held that Wanner was entitled to an administrative hearing. IDOT appeals from that decision.

Because we find that Wanner failed to timely request a hearing regarding the suspension of his driving privileges pursuant to I.C. § 18-8002A and because he has failed to exhaust his administrative remedies relating to his disqualification from operating a commercial vehicle, we reverse.

I. FACTUAL AND PROCEDURAL BACKGROUND

On the afternoon of August 7, 2008, an Idaho State Police officer investigated a call reporting that a pickup truck had been driven off the road. Wanner admitted to driving the pickup, which was not a commercial vehicle. Although Wanner was the holder of a Class A commercial driver's license (CDL), he did not have the license in his possession. As the officer spoke with Wanner, he smelled alcohol and Wanner admitted that he had a couple of drinks with lunch. The officer subsequently had Wanner perform field sobriety tests. Based upon the results of the horizontal gaze nystagmus test and Wanner's difficulty in performing other tests, the officer arrested Wanner for driving under the influence. The officer transported Wanner to the Franklin County Sheriff's office, read and explained the Notice, and Wanner submitted to a breath test. The results of the breath test were 0.094 and 0.090, both of which exceed the legal limit of 0.08. I.C. § 18-8004(1)(a).

The Notice provided to Wanner contains a variety of language relevant to this appeal. The section most relevant to Wanner's status reads: 5. If you take and fail the evidentiary test(s) pursuant to Section 18-8002A,

Idaho Code:

A. Your Idaho driver's license will be seized if you have it in your possession, and if it is current and valid you will be issued a temporary permit. Non-resident licenses will not be seized and shall be valid in Idaho for thirty (30) days from the service of this notice of suspension, provided the license is valid in the issuing state. If you were operating a commercial motor vehicle, any temporary permit issued will not provide commercial driving privileges of any kind.

B. I will serve you with this Notice of Suspension that becomes effective thirty days from the date of service on this Notice, suspending your driver's license or privileges. If this is your first failure of an evidentiary test your driver's license or driving privileges will be suspended for ninety (90) days, with absolutely no driving privileges during the first thirty (30) days. You may request restricted driving privileges for the remaining sixty (60) days of the suspension. Restricted driving privileges will not allow you to operate a commercial motor vehicle. If this is not your first failure of an evidentiary test within the last five (5) years, your driver's license or driving privileges will be suspended for one (1) year with absolutely no driving privileges of any kind during that period.

C. You have the right to an administrative hearing on the suspension before the Idaho Transportation Department to show cause why you failed the evidentiary test and why your driver's license should not be suspended. The request must be made in writing and be received by the department within seven (7) calendar days from the date of service of this Notice ...


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