State v. LeClercq, 37191.

• Citation: 243 P.3d 1093,149 Idaho 905
• Decision Date: 05 November 2010
• Docket Number: No. 37191.,37191.
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Toni M. LeCLERCQ, Defendant-Appellant.
• Court: Court of Appeals of Idaho

243 P.3d 1093

149 Idaho 905

STATE of Idaho, Plaintiff-Respondent,

v.Toni M. LeCLERCQ, Defendant-Appellant.

No. 37191.

Court of Appeals of Idaho.

Nov. 5, 2010.

Brian E. Elkins, Ketchum, for appellant. Brian E. Elkins argued.

Hon. Lawrence G. Wasden, Attorney General; Rosemary Emory, Deputy Attorney General, Boise, for respondent. Kenneth K. Jorgensen argued.

GRATTON, Judge.

Toni M. LeClercq appeals from the judgment entered upon her conditional plea of guilty to misdemeanor driving under the influence, Idaho Code §§ 18-8004 and 18-8005(1). LeClercq challenges the order denying her motion to suppress evidence.

I.FACTS AND PROCEDURAL BACKGROUND

On September 13, 2008, Idaho State Patrol Trooper Travis DeBie stopped LeClercq for speeding on Highway 75, north of Hailey in Blaine County, Idaho, at approximately 11:18 p.m. Trooper DeBie stated that LeClercq did not pull over immediately, that she crossed a double yellow line, and that she only stopped after he activated his siren. When he approached the vehicle, LeClercq did not immediately notice him, and he had to tap on the passenger window to get her attention. Trooper DeBie testified that LeClercq initially seemed disoriented and could not roll down the window, so he asked if she would open the door. When she opened the door, Trooper DeBie could smell a strong odor of alcohol coming from inside the vehicle. Trooper DeBie also testified that LeClercq's speech was extremely slurred and that she had glassy and bloodshot eyes. Trooper DeBie asked LeClercq how much she had to drink, and she responded "not that much." She later admitted to drinking two glasses of

[149 Idaho 907, 243 P.3d 1095]

wine. LeClercq submitted to field sobriety tests, failing both the horizontal gaze nystagmus test and the one-leg stand. LeClercq did not perform the walk and turn test due to a leg injury.¹ LeClercq was then arrested for driving under the influence.

Trooper DeBie explained to LeClercq that he intended to use a portable breath machine, an Alco Sensor III, to test her alcohol concentration level. He read the standard advisory form and waited for fifteen minutes before administering the test. During this time, LeClercq asked, a number of times, about her ability to refuse the test. Trooper DeBie advised her that if she did not submit to a breath test, he would take her to the hospital for a "forced" blood draw. LeClercq submitted to the breath test, which indicated an alcohol concentration level of .141/.143 percent. LeClercq was ultimately charged with misdemeanor DUI. She filed a motion in limine and an amended motion in limine and/or motion to suppress the breath alcohol testing evidence, which was denied. She entered a conditional guilty plea, reserving the right to appeal the magistrate's decision denying her motion to suppress. The district court, sitting in its appellate capacity, affirmed the magistrate's decision. This appeal followed.

II.ANALYSIS

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); State v. DeWitt, 145 Idaho 709, 711, 184 P.3d 215, 217 (Ct.App.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. If those 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. Id.

LeClercq argues, obliquely, that the breath test should be suppressed as the product of an unreasonable search and seizure. LeClercq also argues that the officer's actions were a violation of I.C. § 18-8002. The standard of review of a suppression motion is bifurcated. When a decision on a motion to suppress is challenged, we accept the trial court's findings of fact that are supported by substantial evidence, but we freely review the application of constitutional principles to the facts as found. State v. Atkinson, 128 Idaho 559, 561, 916 P.2d 1284, 1286 (Ct.App.1996). At a suppression hearing, the power to assess the credibility of witnesses, resolve factual conflicts, weigh evidence, and draw factual inferences is vested in the trial court. State v. Valdez-Molina, 127 Idaho 102, 106, 897 P.2d 993, 997 (1995); State v. Schevers, 132 Idaho 786, 789, 979 P.2d 659, 662 (Ct.App.1999).

The administration of a blood alcohol test constitutes a seizure of the person and a search within the purview of the Fourth Amendment to the United States Constitution. Schmerber v. California, 384 U.S. 757, 767, 86 S.Ct. 1826, 1833-34, 16 L.Ed.2d 908, 917-18 (1966); State v. Diaz, 144 Idaho 300, 302, 160 P.3d 739, 741 (2007); DeWitt, 145 Idaho at 711-712, 184 P.3d at 217-18. Searches and seizures performed without a warrant are presumptively unreasonable. Diaz, 144 Idaho at 302, 160 P.3d at 741; DeWitt, 145 Idaho at 712, 184 P.3d at 218. To overcome the presumption, the State bears the burden of establishing two prerequisites. Id. First, the State must prove that a warrantless search fell within a well-recognized exception to the warrant requirement. Id. Second, the State must show that even if the search is permissible under an exception to the warrant requirement, it must still be reasonable in light of all of the other surrounding circumstances. Id.

Valid consent is an exception to the warrant requirement.

[243 P.3d 1096, 149 Idaho 908]

Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Diaz, 144 Idaho at 302, 160 P.3d at 741. Under Idaho's implied consent statute, I.C. § 18-8002(1), "[a]ny person who drives or is in actual physical control" of a vehicle is deemed to have impliedly consented to evidentiary testing for alcohol at the request of a peace officer who has reasonable grounds to believe the person was driving under the influence.²Diaz, 144 Idaho at 302, 160 P.3d at 741; DeWitt, 145 Idaho at 712, 184 P.3d at 218. In other words, "[b]y virtue of this statute, anyone who accepts the privilege of operating a motor vehicle upon Idaho's highways has consented in advance to submit to a BAC test." DeWitt, 145 Idaho at 712, 184 P.3d at 218 (quoting State v. Rodriguez, 128 Idaho 521, 523, 915 P.2d 1379, 1381 (Ct.App.1996) (internal quotations omitted)).

LeClercq does not argue that she was not in control of the vehicle or that Trooper DeBie lacked reasonable grounds to suspect that she was driving under the influence. Nevertheless, LeClercq maintains that there is a beginning and an end to the implied consent "evidentiary procedure," and that this procedure, or "implied consent phase," begins with the pretest procedures, including the fifteen-minute observation period and notification of the information contained in I.C. § 18-8002(3). She contends that during this "phase," the evidentiary procedures are strictly limited to the information that can be conveyed from I.C. §§ 18-8002 and 18-8002A, and that the language in the statute cannot be modified, or amplified, by a police officer's statements.

Idaho Code § 18-8002(3) ³ provides:

At the time evidentiary testing for concentration of alcohol ... is requested, the person shall be informed that if he refuses to submit to or if he fails to complete, evidentiary testing:

(a) He is subject to a civil penalty of two hundred fifty dollars ($250) for refusing to take the test;

(b) His driver's license will be seized by the peace officer and a temporary permit will be issued; provided, however, that no peace officer shall issue a temporary permit pursuant to this section to a driver whose driver's license or permit has already been and is suspended or revoked because of previous violations, and in no instance shall a temporary permit be issued to a driver of a commercial vehicle who refuses to submit to or fails to complete an evidentiary test;

(c) He has the right to request a hearing within seven (7) days to show cause why he refused to submit to, or complete evidentiary testing;

(d) If he does not request a hearing or does not prevail at the hearing, the court shall sustain the civil penalty and his driver's license will be suspended absolutely for one year if this is his first refusal and two (2) years if this is his second refusal within ten (10) years; and

(e) After submitting to evidentiary testing he may, when practicable, at his own expense, have additional tests made by a person of his own choosing.

The magistrate made the following findings:

[T]he Defendant asked three times if she could refuse the test. The first time, Trooper DeBie told her to first listen to the advisory form. The second time he told her "You can refuse, but I would take

[149 Idaho 909, 243 P.3d 1097]

you to the hospital and we would do a forced blood draw" and went on to explain that Idaho state law said he could forcibly take her blood if she did not submit to the breath sample because of the implied consent law. The third time, he again stated that he would take her to the hospital for blood; that she would receive a refusal; and that her license would be lost for one year.

LeClercq does not contend that Trooper DeBie failed to inform her of the consequences of refusing or failing to complete an evidentiary test. Nor does she argue that he failed to wait the requisite fifteen minutes before administering the test. Rather, LeClercq's argument is based upon the premise that because Idaho's implied consent law does not contain language authorizing police officers to advise that blood will be forcibly drawn if a driver refuses to submit to a breath test, Trooper DeBie's statement that blood would be forcibly drawn was coercive in light of his deviation from the statutory language, as well as having made the statement before LeClercq had decided whether or not she would refuse or comply with the evidentiary test, although...