from the District Court of the First Judicial District of the
State of Idaho, Kootenai County. Hon. John T. Mitchell,
judgment of the district court is affirmed. Costs are awarded
to the State as a matter of right.
Elbert McDay, Coeur d'Alene, Appellant pro se.
Lawrence G. Wasden, Idaho Attorney General, Boise, attorney
McDay, pro se, appeals a district court judgment
that affirmed the Idaho State Police Bureau of Criminal
Identification ("BCI")'s denial of McDay's
request to have two criminal cases expunged from his record.
Factual and Procedural Background
April 14, 2005, McDay was arrested for driving under the
influence in violation of Idaho Code section 18-8004. On the
same day, the prosecuting attorney filed a case against
McDay, CR-2005-7362 ("DUI case"), supported by an
affidavit of probable cause, and the magistrate court issued
an order finding probable cause. On August 3, 2005, the case
years later, on March 25, 2009, McDay was arrested for: (1)
driving without privileges in violation of Idaho Code section
18-8001; (2) failure to provide proof of insurance in
violation of Idaho Code section 49-1232; and (3) possession
of drug paraphernalia in violation of Idaho Code section
37-2734A(1). The next day, the prosecuting attorney filed a
case against McDay, CR-2009-6228 ("Paraphernalia
case"), supported by an affidavit of probable cause, and
the magistrate court issued an order finding probable cause
on all three charges. The charges were subsequently reduced
or dismissed on May 6, 2009.
approximately October 2, 2016, McDay filed an expungement
application with the BCI to have both criminal cases expunged
from his record. On October 14, 2016, BCI denied McDay's
request after finding that he was ineligible for expungement.
On October 24, 2016, McDay filed a Notice of Appeal to
Expunge in magistrate court under his previous DUI case
number. McDay also filed an Affidavit Statement under both
the DUI case number and the Paraphernalia case number. The
State objected, alleging that the time to file an appeal had
December 7, 2016, McDay filed a Motion for Judgment of
Acquittal under his DUI case number in magistrate court.
After a hearing the magistrate judge entered an order-under
both of McDay's previous criminal case numbers-that
denied McDay's Motion for Judgment of Acquittal; however,
the magistrate court construed McDay's October 24, 2016,
Notice of Appeal to Expunge as a request for judicial review
of a state agency action and forwarded BCI's expungement
decision to the district court under I.R.C.P. 84.
district court judge was assigned to the appeal under both of
McDay's previous criminal case numbers. The district
court affirmed the BCI decision after finding that
McDay's failure to follow procedural rules was fatal to
his appeal; namely, that McDay had failed to provide the
district court with an agency record for review. McDay timely
appealed to this Court.