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State v. Tomlinson

Court of Appeals of Idaho

April 7, 2015

STATE OF IDAHO, Plaintiff-Respondent,
WADE ALLEN TOMLINSON, Defendant-Appellant

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[Copyrighted Material Omitted]

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Editorial Note:

This decision is not final until exception of the 21 day petition for rehearing period. Pursuant to rule 118 of the Idaho Appellate Rules.

2015 Opinion No. 19

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

Order of the district court, on intermediate appeal from the magistrate, affirming judgment of conviction for driving under the influence, affirmed.

David J. Smethers, Boise, for appellant.

Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy Attorney General, Boise, for respondent.



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MELANSON, Chief Judge.

Wade Allen Tomlinson appeals from the district court's order, entered in its intermediate appellate capacity, affirming Tomlinson's judgment of conviction for driving under the influence (DUI). Tomlinson argues that the district court erred in affirming the magistrate's decision denying his motion for a continuance and its evidentiary rulings regarding the results of his breath alcohol concentration test results. For the reasons set forth below, we affirm.



Tomlinson was pulled over for committing two traffic infractions. Tomlinson admitted to having drank earlier in the evening and was arrested after failing field sobriety tests. He provided two breath samples, which returned breath alcohol concentrations of .083 and .082. Tomlinson was charged with driving under the influence (DUI) and pled not guilty.

The magistrate issued a trial status memorandum requesting that the state " prepare a formal complaint for trial" by at least one week prior to trial. Seven days before the original trial date, the state provided Tomlinson with a copy of the complaint that it originally intended to file on the day of trial. The language of the complaint tracked the language of I.C. § 18-8004(1)(a).[1] Tomlinson moved for a continuance on the day of trial, which the magistrate granted. Approximately one month later, Tomlinson requested and was granted a second continuance. A week later, and more than two months before the new trial date, the state provided Tomlinson with a copy of the alternative proposed complaint, which narrowed the state's chosen theory of liability down to alleging that Tomlinson had an alcohol concentration of .08 or above. Approximately three weeks before the new trial date, the state filed a motion in limine seeking to exclude any evidence or testimony regarding uncertainty or error in the measurement of Tomlinson's breath alcohol concentration, including whether Tomlinson's blood alcohol concentration had ascended or descended from the time he was stopped to the time he provided the breath sample. Tomlinson did not respond to the motion and the state did not request that the motion be set for a hearing. One day before trial, Tomlinson requested a third continuance, claiming that he was not prepared to proceed. The magistrate again granted the continuance over the state's objection, setting a new trial for approximately one month later. At that time, the magistrate informed the parties that it would hear argument on the state's motion in limine on the morning of

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On the day of trial, the state filed the complaint it had provided Tomlinson approximately three months earlier, alleging that Tomlinson had violated I.C. § 18-8004(1)(a) by being " in actual physical control of a motor vehicle . . . with an alcohol concentration of .08 or more, as shown by analysis of blood, urine, or breath." Tomlinson requested a fourth continuance of the trial, which the magistrate denied. The magistrate then heard argument on the state's motion in limine, at which time the state moved to also exclude evidence of observable signs of intoxication. Tomlinson objected, stating that he had not received notice of when the state's motion would be heard. After argument, the magistrate declined to preclude Tomlinson from challenging the accuracy and reliability of the breathalyzer and deferred ruling on what evidence Tomlinson could use in such an attack until the issues arose in the case.

The jury found Tomlinson guilty of DUI, I.C. § 18-8004(1)(a). The magistrate withheld judgment and placed Tomlinson on probation. Tomlinson appealed to the district court, asserting that the magistrate had abused its discretion by denying his motion for continuance made on the morning of trial because he did not have sufficient notice of the state's complaint filed that same day or that the motion in limine would be heard at that time. He also argued that the magistrate had erred in precluding and allowing certain evidence regarding Tomlinson's alcohol concentration. The district court affirmed and Tomlinson again appeals.



For an appeal from the district court, sitting in its appellate capacity over a case from the magistrate division, this Court's standard of review is the same as expressed by the Idaho Supreme Court. The Supreme Court reviews the magistrate record to determine whether there is substantial and competent evidence to support the magistrate's findings of fact and whether the magistrate's conclusions of law follow from those findings. State v. Korn, 148 Idaho 413, 415, 224 P.3d 480, 482 (2009). If those findings are so supported and the conclusions following therefrom, and if the district court affirmed the magistrate's decision, we affirm the district court's decision as a matter of procedure. Id. Thus, the appellate courts do not review the decision of the magistrate. State v. Trusdall, 155 Idaho 965, 968, 318 P.3d 955, 958 (Ct.App. 2014). Rather, we are procedurally bound to affirm or reverse the decisions of the district court. Id.



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