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In the Matter of the Driving v. Idaho Transportation

October 21, 2011

IN THE MATTER OF THE DRIVING
OF: HAMISH ALLAN BELL. HAMISH ALLAN BELL,
PETITIONER-APPELLANT,
v.
IDAHO TRANSPORTATION DEPARTMENT, RESPONDENT.



Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Kathryn A. Sticklen, District Judge.

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

2011 Opinion No. 62

Stephen W. Kenyon, Clerk

Order of the district court upholding the suspension of driver's license, affirmed.

Hamish Allan Bell appeals from the district court's decision upon judicial review affirming the Idaho Transportation Department's order suspending Bell's driver's license for failing a blood alcohol concentration test. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

On June 4, 2009, Officer Tucker of the Boise Police Department stopped a vehicle driven by Bell after observing him driving the wrong way on a one-way street. Bell admitted to consuming alcohol, and Officer Tucker called Officer White for assistance. When Officer White arrived, Bell admitted again that he had been drinking. Officer White also detected the odor of an alcoholic beverage and noticed that Bell's eyes were glassy and bloodshot. Officer White administered field sobriety tests, which Bell failed. Officer White placed Bell under arrest for driving under the influence of alcohol and transported him to the Ada County Jail. At the jail, Officer White played the administrative license suspension audio tape to advise Bell of the consequences of refusing a breath test, observed Bell for fifteen minutes, and asked him to submit to a breath test to determine his blood alcohol concentration (BAC) level. Bell initially told Officer White that he would not submit to a breath test, but Officer White informed him that if he refused to take the breath test, a blood sample would be taken. Bell ultimately submitted to the breath test and provided two breath samples, which indicated that Bell's BAC was .154/.157. Officer White seized Bell's driver's license and issued him a notice of license suspension, as well as a temporary (thirty-day) driving permit.

On June 10, 2009, Bell requested an administrative hearing regarding his license suspension. In his request for a hearing, Bell requested that subpoenas be issued to obtain the following information: (1) any audio/video tapes; (2) any and all police reports; (3) a copy of the log sheets for the testing device used to test Bell's breath including the thirty-day periods prior to and after Bell's breath test; (4) a copy of the evidentiary test results; (5) a copy of the calibration certificate for the testing device; and (6) the testing officer's certification.

On June 16, 2009, the hearing officer issued a notice for a telephonic hearing to be held on June 30, 2009. On that same date, the hearing officer also issued subpoenas to the Boise Police Department, with a compliance date of June 29, 2009, for the following information:

(1) a copy of any audio and video of the stop/arrest/evidentiary testing of Bell; (2) a copy of any report regarding the stop/arrest/evidentiary testing of Bell; and (3) a copy of the instrument operations log sheets for the period of June 3, 2009, through June 6, 2009. The subpoena directed that these documents be delivered not to Bell, but to the Idaho Transportation Department (ITD) by June 29. Also on June 16, ITD provided an initial discovery response producing documents in its possession, which included a copy of the completed notice of suspension, a copy of the completed temporary permit form, the confiscated driver's license, the arresting officer's sworn statement, and the test results. In addition, the certificate of calibration was included in response to Bell's discovery request. With regard to Bell's request for the testing officer's certification, the hearing officer issued an order denying that request upon finding the evidence was not clearly relevant in light of Officer White's representation in the probable cause affidavit that his certification was valid until December 2010. On that same day, June 16, 2009, Bell requested a continuance of the administrative hearing because the compliance date of the subpoenas would not give him enough time to review the requested information before the hearing. Bell also asked the hearing officer to reconsider his request for a subpoena for the instrument operations log sheets, as the time frame for the subpoena issued would be insufficient to determine whether the calibration was checked in compliance with Idaho law. In response to Bell's request for a continuance, ITD issued a notice that a ten-day extension had been granted and that the telephonic hearing had been rescheduled to July 9, 2009. The hearing officer did not respond to Bell's request for a new subpoena enlarging the time frame for the log sheets.

On June 25, 2009, the records custodian for the Boise Police Department sent the subpoenaed information to ITD, with the exception of the log sheets because the custodian did not yet have the log sheets for the period of June 3 through June 6, 2009. At the rescheduled hearing on July 9, 2009, Bell's counsel represented that he had received faxed log sheets from ITD covering the period from April 28, 2009, through June 6, 2009, approximately one hour before the hearing. Bell's counsel stated that it was unclear "when those documents were received [by ITD], where they came from, [and] whether the Boise Police Department produced those in response to our Subpoena." He also argued that it appeared clear that the Boise Police Department did not comply with the subpoena and that Bell's suspension should therefore be vacated. The hearing officer stated that he would not "dismiss the suspension just based on a Subpoena issued [sic]," because that was not one of the statutory grounds for vacating a suspension. The hearing officer did, however, note that he would grant a continuance "due to the delay in providing the logs to [Bell]." Bell's counsel stated that he felt "forced," but requested a continuance in order to review the log sheets, which the hearing officer granted, and the hearing was rescheduled to July 23, 2009.

On July 13, 2009, Bell requested additional subpoenas "based upon the disputed instrument operation logsheets that were disclosed," which included the following: (1) the testimony of Callie Downum, ITD, regarding the circumstances surrounding ITD's receipt and disclosure of the instrument operations log sheets; (2) all documents reflecting any and all calibration checks performed from May 1, 2009, to July 13, 2009; (3) the source of the simulator solution used from May 1, 2009, to July 13, 2009; and (4) a copy of all documents identifying the source that provided the simulator solution used from May 1, 2009, to July 13, 2009. Bell also requested further discovery including: (1) a copy of all documents and correspondence showing when, where, and how the log sheets were received; and (2) a copy of all administrative license suspension hearing decisions issued in the last twelve months vacating a driver's license suspension based upon a failure to comply with a subpoena. The hearing officer issued an order on July 14, 2009, denying Bell's requests, but noted that the "Certificate of Analysis for Simulator Solution Lot #8804 and #8101 have been provided."

On July 23, 2009, the telephonic hearing was held. During the hearing, the hearing officer asked Bell to submit copies of the decisions he was citing in his argument. At the close of the hearing, the hearing officer indicated that he would keep the record open in order to allow Bell sufficient time to submit the case law in support of his argument. The hearing officer, on the same date, issued a "Request for Additional Time for Evidence" leaving the record open for fifteen days, or until the evidence was received. Bell submitted those decisions later that day by e-mail. On August 7, 2009, in response to a request from the hearing officer, Bell resubmitted the decisions with relevant sections highlighted. On August 18, 2009, Bell submitted supplemental documentation, including a copy of the State's newly-filed motion to dismiss the criminal charges against Bell.

On September 14, 2009, the hearing officer issued his findings of fact, conclusions of law, and order. The hearing officer concluded that the statutory requirements for suspension of Bell's driver's license were complied with and, therefore, sustained the suspension. Bell filed a petition for judicial review, and the district court affirmed the hearing officer's decision. Bell again appeals.

II. ANALYSIS

The Idaho Administrative Procedures Act 2009 (IDAPA) governs the review of ITD decisions to deny, cancel, suspend, disqualify, revoke, or restrict a person's driver's license. See I.C. §§ 49-201, 49-330, 67-5201(2), 67-5270. In an appeal from the decision of the district court acting in its appellate capacity under IDAPA, this Court reviews the agency record independently of the district court's decision. Marshall v. Dep't of Transp., 137 Idaho 337, 340, 48 P.3d 666, 669 (Ct. App. 2002). This Court does not substitute its judgment for that of the agency as to the weight of the evidence presented. I.C. § 67-5279(1); Marshall, 137 Idaho at 340, 48 P.3d at 669. This Court instead defers to the agency's findings of fact unless they are clearly erroneous. Castaneda v. Brighton Corp., 130 Idaho 923, 926, 950 P.2d 1262, 1265 (1998); Marshall, 137 Idaho at 340, 48 P.3d at 669. In other words, the agency's factual determinations are binding on the reviewing court, even where there is conflicting evidence before the agency, so long as the determinations are supported by substantial and competent evidence in the record. Urrutia v. Blaine County, ex rel. Bd. of Comm'rs, 134 Idaho 353, 357, 2 P.3d 738, 742 (2000); Marshall, 137 Idaho at 340, 48 P.3d at 669.

The Court may overturn an agency's decision where its findings, inferences, conclusions, or decisions: (a) violate statutory or constitutional provisions; (b) exceed the agency's statutory authority; (c) are made upon unlawful procedure; (d) are not supported by substantial evidence in the record; or (e) are arbitrary, capricious, or an abuse of discretion. I.C. § 67-5279(3). The party challenging the agency decision must demonstrate that the agency erred in a manner specified in I.C. § 67-5279(3) and that a substantial right of that party has been prejudiced. Price v. Payette County Bd. of County Comm'rs, 131 Idaho 426, 429, 958 P.2d 583, 586 (1998); Marshall, 137 Idaho at 340, 48 P.3d at 669. If the agency's decision is not affirmed on appeal, "it shall be set aside . . . and remanded for further proceedings as necessary." I.C. § 67-5279(3).

The administrative license suspension statute, I.C. § 18-8002A, requires that ITD suspend the driver's license of a driver who has failed a BAC test administered by a law enforcement officer. The period of suspension is ninety days for a driver's first failure of an evidentiary test, and one year for any subsequent test failure within five years. I.C. § 18-8002A(4)(a). A person who has been notified of such an administrative license suspension may request a hearing before a hearing officer designated by ITD to contest the suspension. I.C. § 18-8002A(7). At the administrative hearing, the burden of proof rests upon the driver to prove any of the grounds to vacate the suspension. I.C. § 18-8002A(7); Kane v. State, Dep't of Transp., 139 Idaho 586, 590, 83 P.3d 130, 134 (Ct. App. 2003). The hearing officer must uphold the suspension unless he or she finds, by a preponderance of the evidence, that the driver has shown one of several grounds enumerated in I.C. § 18-8002A(7) for vacating the suspension. Those grounds include:

(a) The peace officer did not have legal cause to stop the person; or

(b) The officer did not have legal cause to believe the person had been driving or was in actual physical control of a vehicle while under the influence of alcohol, drugs or other intoxicating substances in violation of the provisions of section 18-8004, 18-8004C or 18-8006, Idaho Code; or

(c) The test results did not show an alcohol concentration or the presence of drugs or other intoxicating substances in violation of section 18-8004, 18-8004C or 18-8006, Idaho Code; or

(d) The tests for alcohol concentration, drugs or other intoxicating substances administered at the direction of the peace officer were not conducted in accordance with the requirements of section 18-8004(4), Idaho Code, or the testing equipment was not functioning properly when the test was administered; or

(e) The person was not informed of the consequences of submitting to evidentiary testing as required in ...


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