Head v. State

Decision Date30 January 2002
Docket NumberNo. 27233.,27233.
Citation43 P.3d 760,137 Idaho 1
PartiesIn The Matter of The Driver's License Suspension of Brian E. Head. Brian E. HEAD, Petitioner-Appellant, v. STATE of Idaho, Respondent.
CourtIdaho Supreme Court

Siebe Law Office, James E. Siebe, Moscow, for appellant.

Hon. Alan G. Lance, Attorney General; Rebekah A. Cude, Special Deputy Attorney General, Boise, for respondent. Rebekah A. Cude argued.

ON REVIEW

EISMANN, Justice.

Brian Head appeals from the decision of the district court affirming the magistrate judge's order that Head's driving privileges shall be suspended for 180 days for his refusal to submit to an evidentiary test for the presence of alcohol in his blood. We affirm.

I. FACTS AND PROCEDURAL HISTORY

On November 1, 1997, at approximately 2:00 a.m., Deputy King was dispatched to a single-vehicle accident in rural Latah County. When he arrived, several other police cars were already present, as were emergency medical personnel. They were attending to Brian E. Head, the lone occupant of the vehicle. After Head was transported to a local hospital, Deputy King began assisting in the investigation of the accident. He later went to the hospital to interview Head.

Deputy King had information from other officers investigating the accident indicating that Head had been the driver of the vehicle. While at the hospital, Deputy King telephoned the registered owner of the vehicle, who was Head's brother. He learned that Head resided in the state of Washington, but had been visiting his brother in Deary and had borrowed the car that evening. Deputy King then interviewed Head in the emergency room.

Head told Deputy King that after attending a high school football game in Genesee, he drove his brother's car to a bar in Troy where he drank beer until he was too intoxicated to drive. He stated that upon walking outside to sleep in the car, he met a stranger who needed a ride to Kendrick. He allowed the stranger, whose name he did not know, to drive the car from the bar towards Kendrick, where Head intended to sleep until morning and then drive back to his brother's house in Deary. Head claimed that the stranger was driving when the accident occurred.

Deputy King could smell the odor of an alcoholic beverage on Head's breath. Deputy King asked Head to submit to an evidentiary test for alcohol in his blood and advised him of the information required by Idaho Code § 18-8002(3). Head initially stated that he would submit to a blood test, but when the laboratory technician arrived to draw his blood he changed his mind and said that he wanted to have his attorney present. After Deputy King told him that he was not entitled to have his attorney present, Head stated that he would not submit to the blood test if he could not have his attorney present. Deputy King then arrested Head for driving while under the influence of alcohol.

Deputy King submitted an affidavit to the court stating that he had probable cause to believe that Head was driving while under the influence of alcohol, that he asked Head to submit to a test for alcohol concentration in his blood after advising Head of the consequences of refusing such test, and that Head refused to submit to the blood test. The affidavit of refusal initiated proceedings to suspend Head's driving privileges for 180 days due to his refusal to submit to the blood test.

Head timely requested a court hearing regarding his refusal to submit to the blood test. At the conclusion of the hearing, the magistrate judge found that Head had failed to prove a sufficient reason for refusing to submit to the blood test. The magistrate ordered that Head's driving privileges be suspended for 180 days. Head appealed to the district court, which affirmed the order of the magistrate judge. His further appeal was initially heard by the Court of Appeals. It held that because the advisory form that Deputy King read to Head included additional erroneous information regarding the consequences of failing the blood test, the advisory form did not meet the requirements of the statute. The Court of Appeals then reversed the district court's decision, which upheld the suspension ordered by the magistrate judge. We granted the State's petition for review.

II. STANDARD OF REVIEW

In cases that come before this Court on a petition for review of a Court of Appeals decision, this Court gives serious consideration to the views of the Court of Appeals, but directly reviews the decision of the lower court. Humberger v. Humberger, 134 Idaho 39, 995 P.2d 809 (2000). Likewise, upon review of a case appealed from a district court's appellate review of a magistrate's decision, this Court makes an independent appellate review of the magistrate's decision, after giving due regard to the district court's ruling. State v. Clark, 135 Idaho 255, 16 P.3d 931 (2000). This Court will defer to the magistrate's findings of fact if supported by substantial and competent evidence, but will exercise free review of the magistrate's conclusions of law. Id.

III. ANALYSIS

The advisory form that Deputy King read to Head stated as follows:

1. I have reasonable grounds to believe that you were driving or were in physical control of a motor vehicle while under the influence of alcohol, drugs, or other intoxicating substances.
2. You are required by law to take one or more evidentiary tests to determine the concentration of alcohol or the presence of drugs or other intoxicating substances in your body.
3. You do not have the right to talk to a lawyer before taking any evidentiary tests to determine the alcohol concentration or presence of drugs or other intoxicating substances in your body.
4. If you refuse to take or complete any of my offered tests:
A. I will seize your driver's license or permit and will give you a temporary permit unless your license or permit has already been suspended. In no instance shall a temporary permit be issued to a driver of a commercial vehicle.
B. You have a right to submit a written request within (7) days to the Magistrate Court of LATAH County for a hearing to explain why you refused to take the test(s).
C. If you do not request a hearing or if you do not win at the hearing, your license will be suspended with absolutely no driving privileges for 180 days if this is your first refusal: if this is not your first refusal in the last five years, your license will be suspended for one (1) year. This suspension shall be separate from any other suspension ordered by the court.
5. If you take the evidentiary test(s) and the results indicate an alcohol concentration in violation of the provisions of Section 18-8004, Idaho Code, or the presence of drugs or other intoxicating substances:
A. I will seize your driver's license.
B. I will issue you a temporary driving permit valid for thirty days from the date of issuance unless your driver's license is already suspended, revoked, canceled, disqualified, expired, or otherwise invalid or issued in another state, in which case no temporary permit will be issued.
C. You will be served with a Notice of Suspension effective in thirty days, suspending your driver's license or privileges. If this is your first failure of an evidentiary test your driver's license or driving privileges will be suspended for ninety (90) days, with absolutely no driving privileges during the first thirty (30) days. You may request restricted driving privileges for the remaining sixty (60) days of the suspension. If this is not your first failure of an evidentiary test within the last five years, your driver's license or driving privileges will be suspended for one (1) year with absolutely no driving privileges of any kind during that period.
D. You have the right to an administrative hearing on the suspension before a Hearing Officer designated by the Idaho Transportation Department. The request must be made in writing and be received by the Idaho Transportation Department within seven (7) days from the date of service of the Notice of Suspension. You also have the right of judicial review of the Hearing Officer's decision. Please refer to the back of your notice for more information.
After submitting to the evidentiary test(s) you may, when practical, at your own expense, have additional tests made by a person of your own choosing.

Head concedes that paragraphs numbered 1 through 4 accurately advised him of the consequences of refusing the blood test as required by Idaho Code § 18-8002. He argues, however, that his driving privileges should be not suspended for refusing to submit to the blood test because the information contained in paragraph 5 inaccurately informed him of the consequences of failing the blood test, had he submitted to it.

In 1984 the Idaho legislature enacted Idaho Code § 18-8002 to provide for the suspension of the driving privileges of a motor vehicle operator who refused to submit, at the request of a peace officer, to an evidentiary test for the concentration of alcohol in his blood, urine, or breath. In 1993 the legislature enacted Idaho Code § 18-8002A to provide for the administrative suspension of the driving privileges of a motor vehicle operator who submitted to an evidentiary test if it showed an alcohol concentration in excess of that permitted by law.1 The information contained in paragraph 5 was intended to comply with Idaho Code § 18-8002A. At the time Head was asked to submit to the evidentiary test, however, Idaho Code § 18-8002A was not being enforced.

In 1995 the legislature suspended the enforcement of the statute because of concerns that the double jeopardy clauses of the federal and state constitutions would preclude a later prosecution for driving while under the influence of alcohol and/or drugs if the defendant's driving privileges had previously been administratively suspended under Idaho Code § 18-8002A. Act approved March 17, 1995, ch. 190, 1995 Idaho Sess. Laws...

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