In Re Schroeder

210 P.3d 584
CourtIdaho Court of Appeals
DecidedApril 30, 2009
Docket35496
StatusPublished
Cited by2 cases

This text of 210 P.3d 584 (In Re Schroeder) is published on Counsel Stack Legal Research, covering Idaho Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Schroeder, 210 P.3d 584 (Idaho Ct. App. 2009).

Opinion

210 P.3d 584 (2009)

In the Matter of the Driving Privileges of Gordon C. SCHROEDER
Gordon C. Schroeder, Petitioner,
v.
State of Idaho, Department of Transportation, Respondent.

No. 35496.

Court of Appeals of Idaho.

April 30, 2009.

*585 Matthew J. Roker of Lovan Roker, P.A., Caldwell, for appellant.

Hon. Lawrence G. Wasden, Attorney General; Michael J. Kane, Special Deputy Attorney General, Boise, for respondent.

LANSING, Chief Judge.

Gordon C. Schroeder appeals from the district court's appellate order affirming the administrative suspension of his driver's license. We reverse the district court and remand.

I.

BACKGROUND

Schroeder was stopped for speeding on October 24, 2007 and was subsequently arrested for driving under the influence of alcohol, Idaho Code § 18-8004. He was taken to the Canyon County Sheriff's Office and consented to a breath test, taken on the Intoxilyzer 5000. The test showed breath alcohol concentrations of .149 and .139, and Schroeder's driver's license was suspended. He appealed this suspension to the Idaho Transportation Department (ITD), claiming that the test was invalid because he had belched during the 15-minute pre-test monitoring period and the breath test operator did not thereupon recommence the monitoring period as required by the test administration instructions for the Intoxilyzer 5000. An ITD hearing officer sustained the license suspension on the ground that belching alone does not necessitate restarting the monitoring period. Schroeder filed a petition for review of the hearing officer's decision by the district court. The district court affirmed the suspension order, and Schroeder now appeals. He asserts that the proper procedures for administering a breath test on the Intoxilyzer 5000 were not followed and that his license suspension consequently should be set aside.

II.

ANALYSIS

A. Requirements for Administration of Intoxilyzer 5000 Tests

Idaho Code § 18-8002A(4) directs the ITD to suspend the driver's license of any driver *586 who fails an alcohol concentration test. A driver whose license has been suspended may request a hearing to contest the suspension before a hearing officer designated by the ITD. I.C. § 18-8002A(7). In the administrative hearing, the burden of proof rests upon the driver to prove grounds sufficient to vacate the suspension. I.C. § 18-8002A(7); In re Suspension of Driver's License of Gibbar, 143 Idaho 937, 942, 155 P.3d 1176, 1181 (Ct.App.2006); In re Mahurin, 140 Idaho 656, 658, 99 P.3d 125, 127 (Ct.App.2004); Kane v. State, Dep't of Transp., 139 Idaho 586, 590, 83 P.3d 130, 134 (Ct.App.2003). The hearing officer must uphold the suspension unless the officer finds, by a preponderance of the evidence, that the driver has shown one of several grounds enumerated in § 18-8002A(7) for vacating the suspension. These grounds include a finding that the alcohol concentration test was not conducted by a method that has been approved by the Idaho State Police (ISP) pursuant to I.C. § 18-8004(4). See I.C. § 18-8002A(7)(d).

The hearing officer's decision is subject to challenge through a petition for judicial review. I.C. § 18-8002A(8); Gibbar, 143 Idaho at 942, 155 P.3d at 1181; Mahurin, 140 Idaho at 658, 99 P.3d at 127; Kane, 139 Idaho at 589, 83 P.3d at 133. Upon judicial review, a hearing officer's decision must be affirmed unless the court determines that the hearing officer's findings, inferences, conclusions or decisions are: (a) in violation of constitutional or statutory provisions; (b) in excess of statutory authority of the agency; (c) made upon unlawful procedure; (d) not supported by substantial evidence on the record as a whole; or (e) arbitrary, capricious, or an abuse of discretion. I.C. § 67-5279(3). The reviewing court may not substitute its judgment for that of the hearing officer as to the weight of the evidence on questions of fact. I.C. § 67-5279(1). In an appeal from a district court's decision where the district court was acting in its appellate capacity over an agency, this Court will review the agency record independently of the district court's decision. Castaneda v. Brighton Corp., 130 Idaho 923, 926, 950 P.2d 1262, 1265 (1998).

The ISP has been given the responsibility to promulgate regulations for administration of breath alcohol tests, I.C. §§ 18-8002A(3), 18-8004(4); IDAHO ADMIN. CODE (IDAPA) 11.03.01.013.03, and has done so through creation of standard operating procedures and training manuals for the use of breath test instruments, including the Intoxilyzer 5000. See IDAHO STATE POLICE, STANDARD OPERATING PROCEDURE: BREATH ALCOHOL TESTING (Rev. November 2006) (SOP)[1]; IDAHO STATE POLICE, INTOXILYZER 5000: OPERATOR'S TRAINING MANUAL (INTOXILYZER 5000 MANUAL) (March 2007). Failure to abide by the regulations set forth in the standard operating procedures and training manuals renders the test inadmissible as evidence absent expert testimony that the improperly administered test nevertheless produced reliable results. State v. Charan, 132 Idaho 341, 343, 971 P.2d 1165, 1167 (Ct.App. 1998); State v. Phillips, 117 Idaho 609, 613, 790 P.2d 390, 394 (Ct.App.1990); State v. Bell, 115 Idaho 36, 39-40, 764 P.2d 113, 116-17 (Ct.App.1988). The standards for administration of breath tests on the Intoxilyzer 5000, set out in both the SOP and in the Intoxilyzer 5000 Manual, require that the test subject be monitored for fifteen minutes immediately before the breath test and that the monitoring period be restarted if certain specified occurrences take place during the monitoring period. SOP 3.1.4; INTOXILYZER 5000 MANUAL, p. 8.

Schroeder asserts that because the breath test operator did not restart the monitoring period after Schroeder belched, his breath test was invalid and his license suspension should have been vacated by the hearing officer. His assertion necessitates that we determine whether the breath test regulations mandate that the monitoring period recommence if the subject belches. This is a matter of dispute between the parties because the SOP and the Intoxilyzer 5000 Manual are not entirely consistent with respect to *587 what events necessitate restarting the monitoring period. The SOP, which apparently applies to all breath test devices that ISP Forensic Services has approved and certified for use, sets out requirements for administering breath tests. The SOP version at issue here stated in section 3.1:

Prior to evidential breath alcohol testing, the subject must be monitored for fifteen (15) minutes. During this time the subject may not smoke, drink, or chew gum, candy, food, or any tobacco product....
. . . .
3.1.4 During the waiting period, the monitor must be alert for any event that might influence the accuracy of the breath test.

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Bluebook (online)
210 P.3d 584, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-schroeder-idahoctapp-2009.