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In re Driver's License Suspension of Besaw

Court of Appeals of Idaho

June 21, 2013



2013 Unpublished Opinion No. 545

Appeal from the District Court of the Second Judicial District, State of Idaho, Nez Perce County. Hon. Carl B. Kerrick, District Judge.

District court order affirming decision of hearing officer, affirmed.

Clark and Feeney, Lewiston, for appellant. Charles M. Stroschein argued.

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


George Joseph Besaw, Jr. appeals from the district court's decision on judicial review affirming a hearing officer's order that sustained the suspension of Besaw's driver's license for failing a breath alcohol concentration test.


In the early morning hours of January 16, 2011, an Idaho State Police trooper observed a vehicle fail to signal and fail to maintain its lane of travel. The trooper stopped the vehicle and subsequently identified the driver as Besaw. As the trooper talked to Besaw, he smelled the odor of an alcoholic beverage coming from the vehicle and observed that Besaw's eyes were bloodshot. He checked Besaw's eyes for horizontal gaze nystagmus and had Besaw perform a one-leg stand test and a walk-and-turn test. Based upon his observations, the trooper arrested Besaw for driving under the influence and then administered a breath test, which Besaw failed. The trooper then seized Besaw's driver's license, served him with notice of suspension of the license for ninety days, and issued a temporary thirty-day driving permit, all pursuant to Idaho Code § 18-8002A.

On January 21, 2011, Besaw requested an Idaho Transportation Department (ITD) hearing to challenge the administrative license suspension (ALS). The hearing was conducted on February 8, 2011. Because the suspension order was soon to become effective, on February 11, 2011, Besaw requested that the hearing officer stay that order pending issuance of the hearing officer's decision, but the hearing officer denied the motion. On February 14, 2011, Besaw filed another motion for a stay, which was also denied by the hearing officer. The following day, February 15, 2011, Besaw filed a premature petition for judicial review with the district court, along with an ex parte motion for a stay of the order of suspension pending judicial review. The district court granted the requested stay.

On March 4, 2011, the hearing officer issued a final order sustaining the license suspension, and Besaw then filed an amended petition for judicial review to challenge the final order. On Besaw's motion, the district court stayed the hearing officer's decision pending judicial review. The district court ultimately affirmed the hearing officer's decision. Besaw appeals, contending that he was not given a proper advisory on being requested to submit to a breath test, that the testing procedure did not comply with standards adopted by the Idaho State Police, that the testing standards fail to ensure the accuracy of test results, and that the administrative license suspension proceedings violated his right to due process.



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 burden of proof at an ALS hearing is on the individual challenging the license suspension. Kane, 139 Idaho at 590, 83 P.3d at 134. 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:

(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 ...

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