State v. Nickerson

• Decision Date: 15 January 1999
• Docket Number: No. 23670,23670
• Citation: 132 Idaho 406,973 P.2d 758
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Warren A. NICKERSON, Defendant-Appellant.
• Court: Idaho Court of Appeals

Page 758

973 P.2d 758

132 Idaho 406

STATE of Idaho, Plaintiff-Respondent, v. Warren A. NICKERSON, Defendant-Appellant.

No. 23670.

Court of Appeals of Idaho.

Jan. 15, 1999.

Frederick G. Loats, Coeur d'Alene, for appellant.

Hon. Alan G. Lance, Attorney General; Kevin J. Wladyka, Deputy Attorney General, Boise, for respondent.

LANSING, Judge

This is an appeal from a judgment of conviction for driving under the influence of alcohol. The appellant contends that evidence against him should have been suppressed or excluded because the traffic stop that led to his arrest was unlawful and because a breath test was inadmissible for constitutional and foundational reasons. He also asserts that the statute under which his offense was elevated from a misdemeanor to a felony constitutes an ex post facto law as applied in this case.

On May 24, 1996, Idaho State Police Officer Daniel Damitio was in his patrol car with the window down about six inches when an automobile operated by Warren Nickerson passed him going the opposite direction. Officer Damitio heard a sound he identified as studded snow tires coming from Nickerson's car. Based upon a bulletin which the Idaho Transportation Department provided to the State Police, Damitio was aware that the use of studded snow tires was prohibited between April 15 and October 1 annually. He therefore stopped Nickerson's car and visually confirmed that at least the front driver's side tire was a studded snow tire. Upon speaking to Nickerson, Damitio discovered that Nickerson was driving with a suspended license as a result of a previous conviction for driving under the influence of alcohol (DUI). Damitio also noticed that Nickerson's eyes were red and glazed and that the odor of alcohol was emanating from the car. Damitio administered a field sobriety test, which Nickerson did not complete satisfactorily. Damitio then arrested Nickerson for driving without privileges and for DUI. At the police station Nickerson submitted to a breath alcohol concentration test (BAC) which revealed Nickerson was charged with felony DUI, I.C. § 18-8005(7), to which he pleaded not guilty. He made several pre-trial motions which were denied. After a jury trial, Nickerson was convicted of DUI, which was enhanced to a felony under I.C. § 18-8005(7) because he had been previously convicted of a felony DUI in January 1991. The district court imposed a unified sentence of five years with an eighteen-month minimum term.

an alcohol concentration in excess of the statutory limit, I.C. § 18-8004(1).

Nickerson raises four claims of error on appeal: (1) that evidence derived as a result of the traffic stop should be suppressed because the stop was unlawful; (2) that the district court erred in denying his motion to suppress the breath test results on the basis that the test was conducted without Nickerson's voluntary consent; (3) that the district court erred in admitting the results of the breath test because the State did not establish an evidentiary foundation for the test; and (4) that application of the I.C. § 18-8005(7) provision enhancing the DUI offense to a felony based on Nickerson's prior conviction violates constitutional prohibitions against ex post facto laws.

ANALYSIS

A. Validity of the Traffic Stop

We consider first Nickerson's assertion that the traffic stop was unlawful. Traffic stops that are not supported by a reasonable, articulable suspicion that the vehicle is being driven contrary to traffic laws or that an occupant is otherwise subject to detention are not consistent with the Fourth Amendment prohibition against unreasonable searches and seizures. Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Atkinson, 128 Idaho 559, 561, 916 P.2d 1284, 1286 (Ct.App.1996). The reasonableness of the suspicion must be examined based upon the totality of the circumstances at the time of the stop. State v. Naccarato, 126 Idaho 10, 12, 878 P.2d 184, 186 (Ct.App.1994). A reasonable suspicion requires more than speculation or instinct on the part of the officer, but less than the probable cause required for an arrest. Id. The test for reasonableness is an objective one, based only upon facts known to the officer at the time of the stop. State v. Emory, 119 Idaho 661, 664, 809 P.2d 522, 525 (Ct.App.1991).

Nickerson asserts that the evidence did not establish a reasonable basis for Officer Damitio to stop him. He argues that Officer Damitio could not have possessed the requisite reasonable suspicion that Nickerson was violating the law because Damitio lacked personal experience identifying the sound of studded snow tires, because Nickerson's car was only one of three vehicles passing Damitio's police cruiser at about the time that Damitio said he heard studded tires, and because the rough road could have produced a clicking sound similar to studded tires.

In reviewing this challenge to the denial of a suppression motion, we accept the district court's findings of facts if they are supported by substantial evidence, but we freely review the application of constitutional principles to the facts found. State v. Shepherd, 118 Idaho 121, 122, 795 P.2d 15, 16 (Ct.App.1990). We must, therefore, determine whether there was substantial evidence to support the district court's finding that Officer Damitio reasonably suspected that Nickerson was driving a car with studded snow tires.

The officer testified that, based upon his experience, the sound of studded snow tires is a distinctive sound, similar to the clicking of bicycle spokes. He testified that when Nickerson's car passed his patrol car, he heard that sound through his partially opened window. This testimony provided substantial evidence to support the district court's conclusion that Damitio had a reasonable and articulable basis for stopping Nickerson's car. Nickerson's arguments go to the weight of the evidence adduced at the suppression hearing. The fact that there was countervailing evidence does not warrant a conclusion on appeal that the district court erred, for the credibility and weight to be given to evidence are matters for the finder of fact and will not be second-guessed on Nickerson also asserts that the State's evidence was insufficient to establish that driving a car with studded snow tires on May 24, 1996, was illegal. He points out that I.C. § 49-948(3) leaves it to the Transportation Board to define when studded snow tires may and may not be used. ¹ Nickerson contends that because the prosecutor did not offer any evidence that the Transportation Board had exercised its delegated authority to prohibit the use of studded snow tires on May 24, 1996, he did not prove that Officer Damitio reasonably suspected a violation of the law by Nickerson.

review. State v. Valdez-Molina, 127 Idaho 102, 106, 897 P.2d 993, 997 (1995).

Nickerson's argument is without merit, for the state of the law is not a question of fact to be proved by evidence but a question of law to be determined by consulting the published law. Prior to Nickerson's arrest, the Transportation Board had promulgated a rule governing the use of studded snow tires. That rule, which is published in the Idaho Administrative Code as IDAPA 39.03.46.100 (1994), states:

Motor vehicles equipped with tires having built-in lugs of tungsten carbide or of other metallic materials are prohibited on Idaho's public highways between the dates of April 16 and September 30, annually.

Rules and regulations that are properly promulgated by Idaho administrative agencies, although subordinate to Idaho statutes, have the force and effect of law. Mead v. Arnell, 117 Idaho 660, 664-65, 791 P.2d 410, 414-15 (1990). ² The State was not required to "prove" this administrative rule at Nickerson's suppression hearing anymore than it would have been required to place in evidence a copy of the burglary statute if Nickerson had been stopped on suspicion of burglary. Nickerson did not at the suppression hearing and does not on appeal challenge the validity or applicability of IDAPA 39.03.46.100. Therefore, he has not shown error in the district court's determination that Officer Damitio reasonably suspected a violation of law when he signaled Nickerson to stop.

B. Admission of BAC Results

1. Validity of consent to BAC test

Nickerson next asserts that the BAC test should have been suppressed because his consent to the procedure was involuntary.

After the traffic stop, Nickerson was taken to the Kootenai County Public Safety Building where Officer Damitio read Nickerson an advisory form, based on I.C. § 18-8002, describing the consequences of a refusal to take an alcohol concentration test. Damitio then asked Nickerson to submit to a breath test, but Nickerson refused. Another Officer, Corporal Yeend, checked Nickerson's criminal record and discovered that he was on parole. Corporal Yeend then called Nickerson's parole officer, who advised Yeend to tell Nickerson that the parole officer was ordering him to take a breath test. Corporal Yeend and Officer Damitio informed Nickerson of this conversation and told him that because he was on parole he could not refuse the test, and that if he refused he would go back to prison. Nickerson then submitted to the breath test, which showed an alcohol concentration level in excess of the legal limit. Nickerson asserts that the officers' comments were coercive and rendered his consent to the test involuntary.

The administration of an alcohol concentration test is a seizure of the person and a search for evidence within the purview of the Fourth Amendment to the United Nickerson's argument that his consent to the BAC at the police station was involuntary is of no consequence because he had impliedly consented as a matter of law. One who drives a motor vehicle on Idaho's highways is statutorily deemed to have consented to an evidentiary test for blood alcohol...