2015 Opinion No. 16
Appeal from the District Court of the Second Judicial District, State of Idaho, Latah County. Hon. John R. Stegner, District Judge.
Decision of the district court, acting in its appellate capacity, affirming the administrative suspension of driver's license, affirmed.
Danny J. Radakovich, Lewiston, for appellant.
Edwin L. Litteneker, Special Deputy Attorney General, Lewiston, for respondent.
GRATTON, Judge. Chief Judge MELANSON and Judge LANSING CONCUR.
Kevin Richard Wernecke appeals from the district court's decision upon judicial review affirming the Idaho Transportation Department's order suspending his driver's license. He asserts there was insufficient legal cause to stop him and to require a breath test. He also asserts that his single breath sample was insufficient to suspend his driver's license pursuant to the Idaho State Police Standard Operating Procedures. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Wernecke was stopped for driving left of the centerline for approximately half of a block. The officer who stopped Wernecke noticed the smell of alcohol coming from the vehicle and that Wernecke's eyes were glassy and bloodshot. Wernecke admitted to consuming alcohol and the officer directed Wernecke to undergo a set of field sobriety tests. Wernecke failed the horizontal gaze nystagmus test. The officer then requested that Wernecke perform an alphabet and counting test, which Wernecke successfully completed. The officer informed Wernecke that because of the odor of alcohol and failure of the gaze nystagmus test, a breath test would be administered. Initially, Wernecke produced an insufficient sample and the officer provided further instruction on how to use the breath testing device. Wernecke responded, " I'm fifty-five years old. I'm a smoker. I only have so much air in my lungs." Yet, on his second attempt, Wernecke produced a sufficient result of 0.167 blood alcohol concentration (BAC). A third sample was then attempted, but registered as insufficient. At that point, the officer arrested Wernecke for driving under the influence of alcohol. Idaho Code § 18-8004. As a result of the single blow registering a 0.167 reading, Wernecke's license was suspended by the Idaho Transportation Department (ITD) for ninety days.
Wernecke requested an administrative hearing to contest his administrative license suspension (ALS). Wernecke raised an exhaustive list of challenges to his license suspension at the administrative hearing, which was conducted over the telephone. The hearing officer rejected each of these contentions and sustained the ninety-day license suspension. Wernecke petitioned for judicial review by the district court. The district court affirmed the hearing officer's decision, finding that the hearing officer appropriately made credibility determinations as to Wernecke's conduct ...