State v. Green, Docket No. 36723 (Idaho App. 6/14/2010), Docket No. 36723.
| Decision Date | 14 June 2010 |
| Docket Number | Docket No. 36723. |
| Parties | STATE OF IDAHO, Plaintiff-Respondent, v. BRADLEY D. GREEN, Defendant-Appellant. |
| Court | Idaho Court of Appeals |
Appeal from the District Court of the Fifth Judicial District, State of Idaho, Blaine County. Hon. Robert J. Elgee, District Judge; Hon. R. Ted Israel, Magistrate.
District court's appellate decision affirming magistrate court order denying motion to suppress evidence, affirmed.
Brian E. Elkins, Ketchum, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Mark. W. Olson, Deputy Attorney General, Boise, for respondent. Mark W. Olson argued.
Bradley D. Green appeals from the district court's appellate decision affirming the magistrate's order denying Green's motion to suppress evidence of his intoxication that led to his conviction for driving under the influence of alcohol (DUI). Green argues that the evidence should have been suppressed because his state and federal rights to due process1 were violated when he was prevented from contacting an attorney, despite his repeated requests to do so, after he refused a breath test.
II.
On February 17, 2008, at 1:06 a.m., Officer Garth Davis of the Hailey Police Department stopped Green for speeding. Officer Davis observed that Green smelled of alcohol and had glassy and bloodshot eyes and slurred speech. Green admitted to having one drink that night, and Officer Davis asked Green to perform standard field sobriety tests (FSTs). Green said he would not consent to performing FSTs without first speaking with a lawyer, maintaining that stance even after being repeatedly advised that he had no right to consult a lawyer at that point.
Officer Davis arrested Green at 1:28 a.m. and transported him to Blaine County Jail. Once there, Officer Davis asked Green to submit to a breath test to determine breath alcohol concentration and informed Green, in compliance with Idaho Code § 18-8002(3), that a refusal of the test would subject him to a $250 civil penalty and suspension of his driver's license. Green was also informed that he had no right to consult with an attorney before submitting to a breath test, as provided in I.C. § 18-8002(2). Throughout this process Green continued to interrupt Officer Davis to ask for clarification, to ask for advice, to express his fear of the situation, to explain his position, to ask to go to the bathroom, and to contest Officer Davis's repeated assertions that Green did not have a right to consult an attorney. Ultimately, Green declined to submit to a breath test without first speaking to his attorney or having a non-officer witness present. At 2:03 a.m., Officer Davis deemed Green's actions a refusal of the breath test and began preparing an application for a warrant to obtain a blood draw. After a warrant was issued, Green was transported to a hospital at 2:55 a.m., where his blood was drawn at 3:30 a.m. Green continued to request a lawyer during this time but was not allowed to use a telephone. Green was thereafter returned to the Blaine County Jail for the booking process. He bailed out of jail at 4:40 a.m., approximately three and one-half hours after the traffic stop.
Green was charged with misdemeanor DUI, I.C. § 18-8004, and with resisting an officer, I.C. § 18-705. He filed a motion to suppress all the State's evidence of his intoxication, arguing that his constitutional rights were violated by the denial of his repeated requests to speak to an attorney on the night of his arrest. The magistrate court denied the motion. Subsequently, in exchange for the State dismissing the resisting charge, Green entered a conditional guilty plea to DUI, reserving his right to appeal the denial of his suppression motion. Green then challenged the denial of his suppression motion on intermediate appeal to the district court, which affirmed.
Green now appeals to this Court, arguing that his due process rights were violated by the continued denial of his requests to contact an attorney after he had refused the breath test.2
III.
On review of a decision of the district court, rendered in its appellate capacity, we review the decision of the district court directly. Losser v. Bradstreet, 145 Idaho 670, 672, 183 P.3d 758, 760 (2008). We examine 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. Id. Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." State v. Byington, 132 Idaho 589, 593, 977 P.2d 203, 207 (1999) (quoting Bullard v. Sun Valley Aviation, Inc., 128 Idaho 430, 432, 914 P.2d 564, 566 (1996)). If the magistrate's findings are so supported and the conclusions follow therefrom and if the district court affirmed the magistrate's decision, we affirm the district court's decision as a matter of procedure. Losser, 145 Idaho at 672, 183 P.3d at 760. Although we defer to the trial court's findings of fact if they are supported by substantial evidence, we exercise free review over questions of law. Id.; State v. Madden, 127 Idaho 894, 896, 908 P.2d 587, 589 (Ct. App. 1995).
Green's claim of a due process violation stems from the police officer's and the magistrate court's application of I.C. § 18-8002, a statute governing the testing of drivers suspected of DUI. The pertinent subsections of I.C. § 18-8002 provide:
(1) Any person who drives or is in actual physical control of a motor vehicle in this state shall be deemed to have given his consent to evidentiary testing for concentration of alcohol as defined in section 18-8004, Idaho Code, and to have given his consent to evidentiary testing for the presence of drugs or other intoxicating substances, provided that such testing is administered at the request of a peace officer having reasonable grounds to believe that person has been driving or in actual physical control of a motor vehicle in violation of the provisions of section 18-8004, Idaho Code, or section 18-8006, Idaho Code.
(2) Such person shall not have the right to consult with an attorney before submitting to such evidentiary testing.
. . . .
(4) If the motorist refuses to submit to or complete evidentiary testing after the information has been given in accordance with subsection (3) above:
(e) After submitting to evidentiary testing at the request of the peace officer, he may, when practicable, at his own expense, have additional tests made by a person of his own choosing. The failure or inability to obtain an additional test or tests by a person shall not preclude the admission of results of evidentiary testing for alcohol concentration or for the presence of drugs or other intoxicating substances taken at the direction of the peace officer unless the additional test was denied by the peace officer.
. . . .
(10) A person who submits to a breath test for alcohol concentration, as defined in subsection (4) of section 18-8004, Idaho Code, may also be requested to submit to a second evidentiary test of blood or urine for the purpose of determining the presence of drugs or other intoxicating substances if the peace officer has reasonable cause to believe that a person was driving under the influence of any drug or intoxicating substance or the combined influence of alcohol and any drug or intoxicating substance. The peace officer shall state in his or her report the facts upon which that belief is based.
Green acknowledges that under these provisions of I.C. § 18-8002 and Idaho case law, he had no right to telephone his attorney before submitting to or refusing a breath test. He maintains, however, that his constitutional right to due process was violated when officers continued to deny his request to telephone his attorney after Green had refused to submit to a breath test.
In evaluating this claim of error, we begin with the proposition that the Due Process Clause of the Fourteenth Amendment to the United States Constitution guarantees to an accused "the right to a fair opportunity to defend against the State's accusations." Chambers v. Mississippi, 410 U.S. 284, 294 (1973). See also California v. Trombetta, 467 U.S. 479, 485 (1984). Due process "is flexible and calls for such procedural protections as the particular situation demands." Morrissey v. Brewer, 408 U.S. 471, 481 (1972). It imposes a standard of fundamental fairness in criminal proceedings. Ake v. Oklahoma, 470 U.S. 68, 76 (1985); State v. Lewis, 144 Idaho 64, 66, 156 P.3d 565, 567 (2007); Schwartzmiller v. Winters, 99 Idaho 18, 19, 576 P.2d 1052, 1053 (1978). Also foundational to our analysis is the principle that the State is entitled to conduct blood or breath-alcohol concentration tests of drivers suspected of DUI, and neither a suspect's Fifth Amendment right against self-incrimination nor his Fourth Amendment right against unreasonable searches is violated by such testing if it is conducted in a reasonable manner. Schmerber v. California, 384 U.S. 757, 767-68 (1966); State v. Woolery, 116 Idaho 368, 370-71, 775 P.2d 1210, 1212-13 (1989); State v. DeWitt, 145 Idaho 709, 711-12, 184 P.3d 215, 217-18 (Ct. App. 2008).
In State v. Carr, 128 Idaho 181, 911 P.2d 774 (Ct. App. 1995), we addressed whether Carr's right to due process was violated when the State denied her request to telephone her attorney after she had submitted to a breath test and held her incommunicado for approximately five hours after her arrest. Recognizing the exigency created by the dissipation of evidence as alcohol in the blood metabolizes, we found a constitutional violation. We explained:
At the outset, we note that the law is clear in Idaho that a driver does not have the right to consult with an attorney prior to submitting to, or refusing to submit to, an evidentiary BAC test. . . . The issue presented in this case, however, is whether Carr's constitutional rights were...
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