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State v. Nicolescu

Court of Appeals of Idaho

April 18, 2014

STATE OF IDAHO, Plaintiff-Respondent,
v.
KEVIN MICHAEL NICOLESCU, Defendant-Appellant

2014 Opinion No. 30

Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Michael R. McLaughlin, District Judge. Hon. John Hawley, Magistrate.

Davison, Copple, Copple & Copple, LLP; Edward J. Guerricabeitia, Boise, for appellant. Edward J. Guerricabeitia argued.

Hon. Lawrence G. Wasden, Attorney General; Russell J. Spencer, Deputy Attorney General, Boise, for respondent. Russell J. Spencer argued.

GRATTON, Judge. Chief Judge GUTIERREZ and Judge MELANSON CONCUR.

OPINION

Page 1249

[156 Idaho 288] GRATTON, Judge

Kevin Michael Nicolescu appeals from the district court's intermediate appellate decision, reversing the magistrate's order granting Nicolescu's motion to suppress. We affirm.

I.

FACTUAL AND PROCEDURAL BACKGROUND

Nicolescu's vehicle was struck by a driver who ran a red light. Police officers responded to the accident and, upon making contact with Nicolescu, detected the strong odor of an alcoholic beverage. The officers also observed that Nicolescu's eyes were red, bloodshot, and watery. Nicolescu informed the officers that he had consumed alcohol that evening. An officer administered the Horizontal Gaze Nystagmus (HGN) test, but Nicolescu was unable to finish the test due to a scratched cornea that he suffered in the collision. Before the test was aborted, the officer detected four of the possible six decision points indicating failure of the test.

The officer elected not to perform any additional field sobriety tests, concluding that it would have been difficult to determine if the potential failure of those tests resulted from inebriation or from adrenaline setting in after the collision. Instead, the officer decided to administer a preliminary breath test using an instrument known as an Alco-Sensor. The result of the preliminary breath test was .108, which is over the legal limit.

Thereafter, the officer placed Nicolescu inside a patrol vehicle to perform an evidentiary breath test. After observing Nicolescu for a fifteen-minute waiting period and after providing Nicolescu with the administrative license suspension (ALS) advisories, the officer administered the evidentiary breath test using the Lifeloc instrument. The breath samples registered results of .103 and .096. Nicolescu was then cited for driving under the influence (DUI), Idaho Code § 18-8004 .

Nicolescu filed a motion to suppress the results of the evidentiary breath test, arguing that the officers were not permitted to require him to submit to the preliminary breath test and, absent the preliminary breath test, the officer lacked probable cause or reasonable suspicion to require him to perform an evidentiary breath test. The magistrate granted Nicolescu's motion and the State appealed to the district court. The district court ...


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