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In re Driver's License Suspension of Kimbley

Court of Appeals of Idaho

June 4, 2013

IN THE MATTER OF THE DRIVER'S LICENSE SUSPENSION OF KAREN ANN KIMBLEY
v.
STATE OF IDAHO, TRANSPORTATION DEPARTMENT, Respondent-Appellant. KAREN ANN KIMBLEY, Petitioner-Respondent,

2013 Opinion No. 31

Appeal from the District Court of the Second Judicial District, State of Idaho, Latah County. Hon. John R. Stegner, District Judge.

Order of the district court vacating hearing officer's decision to suspend driver's license, reversed.

Hon. Lawrence G. Wasden, Attorney General; Edwin L. Litteneker, Special Deputy Attorney General, Lewiston, for appellant. Edwin L. Litteneker argued.

McCormick & Rokyta, PLLC, Moscow for respondent. Deborah Lynn McCormick argued.

GRATTON, Judge.

The Idaho Transportation Department (ITD) appeals from the district court's order vacating the hearing officer's decision to sustain the suspension of Karen Ann Kimbley's driver's license. ITD claims the district court erred by determining the hearing officer's decision was not supported by substantial and competent evidence in the record. ITD specifically argues the hearing officer correctly found that Kimbley, prior to submitting a breath test, was properly monitored in accordance with the Idaho State Police Standard Operating Procedure (SOP).

I.

FACTUAL AND PROCEDURAL BACKGROUND

On August 6, 2011, at approximately 9:13 p.m., Latah County Sheriff's Deputy Duke conducted a traffic stop of Kimbley for driving erratically. The deputy subsequently made contact with Kimbley and suspected she was under the influence of alcohol because of her driving, state of confusion, and trouble finding the appropriate documentation. After the deputy checked her eyes for nystagmus and Kimbley admitted she had a drink, the deputy informed Kimbley she was under arrest for DUI. Kimbley was then transported to the Latah County Jail.

At the jail, Deputy Duke checked Kimbley's mouth at 10:08:17 for anything that would affect a breath test. After approximately twenty-one minutes, Kimbley made three failed attempts to provide a sufficient breath sample.[1] After a second fifteen-minute monitoring period, Kimbley then provided sufficient breath samples. The breath samples showed a result of .126 and .127. ITD later served Kimbley with a notice of administrative license suspension (ALS), pursuant to Idaho Code § 18-8002A, due to her failure of the breath test.

Kimbley requested an ALS hearing. A hearing was held telephonically on September 6, 2011. The hearing officer's findings of fact and conclusions of law and order was issued September 19, 2011, sustaining the suspension of Kimbley's driver's license.

Kimbley filed a petition for judicial review. On February 28, 2012, the district court vacated the suspension on the ground that the hearing officer's findings that the deputy complied with the fifteen-minute monitoring period were not supported by substantial and competent evidence. ITD timely appealed.

II.

ANALYSIS

A. Standards

The Idaho Administrative Procedures Act (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. Idaho 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 an ALS may request a hearing before a hearing officer, designated by ITD, to contest the suspension. I.C. § 18-8002A(7); Kane v. State, Dep't of Transp., 139 Idaho 586, 588, 83 P.3d 130, 132 (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 are:

(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 subsection (2) of this section.

I.C. § 18-8002A(7). The hearing officer's decision is subject to challenge through a petition for judicial review. I.C. § 18-8002A(8); Kane, 139 Idaho at 589, 83 P.3d at 133. The burden of proof at an ALS hearing is on the individual requesting the hearing, and that burden is not satisfied merely by showing that ...


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