Nunnally v. Idaho Transportation Department ( 2021 )

IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket Nos. 48728/48729
CORY RAY NUNNALLY, )
) Filed: December 30, 2021
Petitioner-Appellant, )
) Melanie Gagnepain, Clerk
v. )
) THIS IS AN UNPUBLISHED
IDAHO TRANSPORTATION ) OPINION AND SHALL NOT
DEPARTMENT, ) BE CITED AS AUTHORITY
)
Respondent. )
)
Appeal from the District Court of the Second Judicial District, State of Idaho, Idaho
County. Hon. Gregory FitzMaurice, District Judge.
Order of the district court affirming the hearing officer’s orders upholding the
suspension of driver’s license and disqualification of commercial driver’s license,
affirmed.
Clark and Feeney, LLP; Paul Thomas Clark, Lewiston, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Susan K. Servick, Deputy Attorney
General, Coeur d’Alene, for respondent.
________________________________________________
HUSKEY, Chief Judge
Cory Ray Nunnally appeals from the district court’s decision on judicial review affirming
the hearing officer’s orders sustaining the suspension of Nunnally’s driver’s license for ninety days
and the disqualification of his commercial driver’s license for life. Nunnally argues that Trooper
Kesler incorrectly informed Nunnally of his rights prior to taking the breathalyzer test, and
therefore, the administrative hearing officer erred by sustaining the suspensions. Because the
advisory given was in substantial compliance with the statutory language of Idaho Code § 18-
8002A, we affirm.
1
I.
FACTUAL AND PROCEDURAL BACKGROUND
While finishing the investigation of a car accident, Trooper Kesler observed a car with only
one functioning headlight approach the scene, make a U-turn, and park in front of Trooper Kesler’s
patrol vehicle. Nunnally, the car’s driver, got out of his car and walked to the crash site. Trooper
Kesler approached Nunnally to find out why he was at the scene. Nunnally exhibited multiple
signs of impairment, and Trooper Kesler suspected that Nunnally was driving under the influence
(DUI). Trooper Kesler requested that Nunnally perform field sobriety tests, which Nunnally
declined. However, Nunnally agreed to take a breathalyzer test.
Prior to taking the breathalyzer test, Trooper Kesler read the advisory required by I.C. § 18-
8002A aloud and provided Nunnally a written copy. Both the oral and written advisories correctly
stated that Nunnally would be subject to having his driver’s license suspended if he refused to take
or failed the evidentiary testing. After correctly reading the advisory, Trooper Kesler partially
summarized its terms, first telling Nunnally that the advisory only applied if he refused evidentiary
testing but subsequently telling Nunnally that it applied if he either failed or refused the test.
Nunnally submitted to and failed the breathalyzer test. Trooper Kesler cited Nunnally for driving
under the influence.
Nunnally was issued a notice of administrative suspension of his driver’s license for ninety
days and, in a separate case,1 a notice of disqualification of his commercial driver’s license for life.
Nunnally requested Idaho Transportation Department (Department) hearings to challenge the
suspensions arguing, in part, that Trooper Kesler did not properly advise him of his rights pursuant
to I.C. § 18-8002A. The hearing officer disagreed and entered final orders affirming Nunnally’s
suspension of his driver’s license for ninety days and disqualification of his commercial driver’s
license for life. Nunnally petitioned for judicial review to challenge the final orders. The district
court affirmed the hearing officer’s decisions. Nunnally timely appeals.
II.
STANDARD OF REVIEW
The administrative license suspension statute, I.C. § 18-8002A, requires the Department to
suspend the driver’s license of a driver who has failed a breath alcohol concentration test
1
These cases have been consolidated on appeal.
2
administered by a law enforcement officer. The period of suspension is ninety days for a driver’s
first failure of an evidentiary test and one year for any subsequent test failure within five years.
I.C. § 18-8002A(4)(a). A person who has been notified of an administrative license suspension
(ALS) may request a hearing before a hearing officer, designated by the Department, to contest
the suspension. I.C. § 18-8002A(7); Kane v. State, Dep’t of Transp., 139 Idaho 586, 588, 83 P.3d
130, 132 (Ct. App. 2003). The burden of proof at an ALS hearing is on the individual challenging
the license suspension. Kane, 139 Idaho at 590, 83 P.3d at 134. The hearing officer must uphold
the suspension unless he or she finds, by a preponderance of the evidence, that the driver has shown
one of several grounds enumerated in I.C. § 18-8002A(7) for vacating the suspension.
An administrative hearing officer’s decision is subject to challenge through a petition for
judicial review. I.C. § 18-8002A(8). The Idaho Administrative Procedures Act (IDAPA) governs
judicial review of the Department’s decisions to deny, cancel, suspend, disqualify, revoke, or
restrict a person’s driver’s license. Archer v. State, Dep’t of Transp., 145 Idaho 617, 619, 181 P.3d
543, 545 (Ct. App. 2008). In an appeal from the decision of the district court acting in its appellate
capacity under IDAPA, this Court reviews the agency record independently of the district court’s
decision. Marshall v. Idaho Dep’t of Transp., 137 Idaho 337, 340, 48 P.3d 666, 669 (Ct. App.
2002). This Court does not substitute its judgment for that of the agency as to the weight of the
evidence presented. I.C. § 67-5279(1); Marshall, 137 Idaho at 340, 48 P.3d at 669. Instead, this
Court defers to the agency’s findings of fact unless they are clearly erroneous. Castaneda v.
Brighton Corp., 130 Idaho 923, 926, 950 P.2d 1262, 1265 (1998); Marshall, 137 Idaho at 340, 48
P.3d at 669. In other words, the agency’s factual determinations are binding on the reviewing
court, even where there is conflicting evidence before the agency, so long as the determinations
are supported by substantial and competent evidence in the record. Urrutia v. Blaine County, ex
rel. Bd. of Comm’rs, 134 Idaho 353, 357, 2 P.3d 738, 742 (2000); Marshall, 137 Idaho at 340, 48
P.3d at 669.
This Court may overturn an agency’s decision where its findings, inferences, conclusions,
or decisions: (a) violate statutory or constitutional provisions; (b) exceed the agency’s statutory
authority; (c) are made upon unlawful procedure; (d) are not supported by substantial evidence in
the record; or (e) are arbitrary, capricious, or an abuse of discretion. I.C. § 67-5279(3). The party
challenging the agency decision must demonstrate that the agency erred in a manner specified in
I.C. § 67-5279(3) and that a substantial right of that party has been prejudiced. Price v. Payette
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County Bd. of County Comm’rs, 131 Idaho 426, 429, 958 P.2d 583, 586 (1998); Marshall, 137
Idaho at 340, 48 P.3d at 669.
III.
ANALYSIS
Nunnally contends that applicable case law requires strict compliance with the statutory
language of I.C. § 18-8002A. Pursuant to this standard, Nunnally argues that Trooper Kesler’s
instructions did not completely inform him of the appropriate information. Nunnally also claims
that the decision rendered by the administrative hearing officer was made upon unlawful
procedures. In response, the Department argues that the district court did not err by affirming the
hearing officer’s orders because Nunnally was substantially informed of the language found in I.C.
§ 18-8002(A)(2) and the administrative hearing was not based on improper procedures.
A. The Advisory Given to Nunnally Was in Substantial Compliance With the Statutory
Language of I.C. § 18-8002A
Pursuant to I.C. § 18-8002A(7)(e), a license suspension must be vacated if the person was
not informed of the consequences of submitting to evidentiary testing, as required by the statute,
prior to the evidentiary testing. Idaho Code § 18-8002A(2) sets forth the information to be given
to a driver who submits to evidentiary testing as follows:
At the time of evidentiary testing for concentration of alcohol or for the presence
of drugs or other intoxicating substances is requested, the person shall be informed
that if the person refuses to submit to or fails to complete evidentiary testing, or if
the person submits to and completes evidentiary testing and the test results indicate
an alcohol concentration or the presence of drugs or other intoxicating substances
in violation of section 18-8004, 18-8004C or 18-8006, Idaho Code, the person shall
be informed substantially as follows (but need not be informed verbatim):
If you refuse to submit to or if you fail to complete and pass evidentiary
testing for alcohol or other intoxicating substances:2
(Emphasis added.)
Nunnally argues that pursuant to I.C. § 18-8002A, Trooper Kesler’s instructions did not
completely inform him of the appropriate information because after reading Nunnally the statutory
language, Trooper Kesler told him that the advisory statement “only applies to you if you refuse
this test that I am about to offer you.” In support of this argument, Nunnally relies on In re Beem,
119 Idaho 289, 805 P.2d 495 (1991), Cunningham v. State, 150 Idaho 687, 249 P.3d 880 (Ct. App.
2
The statute continues to outline the information to be given to the driver, the terms of which
are not relevant to this appeal.
4
2011), and In re Virgil, 126 Idaho 946, 895 P.2d 182 (Ct. App. 1995). We find these cases neither
controlling nor persuasive when applied to the facts here.
First, in contrast to Nunnally’s arguments, although Beem, Cunningham, and Virgil require
“strict compliance” with advisory requirements for drivers who refuse evidentiary testing, these
cases do not hold that such compliance with advisory requirements is required for drivers who
consent to evidentiary testing. Under the statutory scheme, the drivers in Beem, Cunningham, and
Virgil refused evidentiary testing; thus, their advisory requirements were governed by I.C. § 18-
8002. In contrast, because Nunnally consented to evidentiary testing, his advisory requirement
was controlled by § 18-8002(A)(2). These statutes have similar, but not identical requirements.3
While I.C. § 18-8002 requires strict compliance with advisory requirements for drivers who refuse
evidentiary testing, see Beem 119 Idaho at 291, 805 P.2d at 497, Cunningham, 150 Idaho at 690,
249 P.3d at 883, Virgil, 126 Idaho at 947, 895 P.2d at 183, by its terms, I.C. § 18-8002(A)(2) only
requires that drivers who participate in evidentiary testing be substantially informed of the advisory
information. See also Halen v. State, 136 Idaho 829, 834, 41 P.3d 257, 262 (2002) (holding driver
“need not be informed verbatim”; rather, he need only be “substantially” informed of the
information contained in that section). Accordingly, because the courts in Beem, Cunningham,
and Virgil applied I.C. § 18-8002, they analyzed whether the officer’s advisories strictly complied
with the requirements--not whether, under I.C. § 18-8002A(2), there was substantial compliance.
Because I.C. § 18-8002(A)(2) requires substantial compliance, not strict compliance, neither the
standard Nunnally applies nor the cases on which he relies control the analysis in this case.
Second, we do not find Cunningham, Virgil, and Beem persuasive as to whether Trooper
Kesler substantially complied with the advisory requirements because the facts in those cases differ
meaningfully from the facts in this case. In Cunningham, the officer repeatedly recited incorrect
3
Idaho Code § 18-8002 is titled “Tests of driver for alcohol concentration, presence of drugs
or other intoxicating substances--Penalty and suspension upon refusal of tests” and sets forth, in
part, the following requirements:
(3) At the time evidentiary testing for concentration of alcohol or for the presence
of drugs or other intoxicating substances is requested, the person shall be informed
that if he refuses to submit to or if he fails to complete evidentiary testing:
....
(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;
Obviously, this statute does not include the language in I.C. § 18-8002(A)(2) regarding substantial
but not verbatim conveyance of the information.
5
information regarding the consequences of the driver refusing the evidentiary testing, even when
the driver asked questions attempting to clarify his understanding. Cunningham, 150 Idaho at 693,
249 P.3d at 886. On appeal, this Court stated:
Based on the specific facts of this case, we conclude that the information provided
to Cunningham did not comport with that required by I.C. § 18-8002(3) and,
therefore, rendered the written and recorded advisory given to Cunningham
incomplete. As mentioned above, the officer incorrectly asserted that Cunningham
would immediately lose his license should he refuse to submit to testing, that he
could only obtain additional evidentiary testing after bonding out of jail, and that
he must prove his innocence to the judge at the show cause hearing. The officer
conveyed such incorrect information after notifying Cunningham that he
“specialized” in DUI testing and that he instructed officers on how to properly
administer field sobriety tests. In addition, before answering any of Cunningham’s
questions, the officer stated that he would explain what the Idaho Code required
and what Idaho courts have said about the consequences of a refusal. The officer
was adamant that the information he conveyed to Cunningham was the law, even
if such information contradicted what was previously contained in the written and
recorded advisory. The officer’s continuous, repetitive recitation of incorrect
information regarding the consequences for refusal rendered the initial advisory
incomplete.
Id.
In both Virgil and Beem, the driver was never correctly advised prior to the evidentiary
testing. In Virgil, the officer conveyed through both an incorrect advisory form and the officer’s
recitation of the form that the driver would be subject to a lesser burden of proof than the statute
provided if he sought to challenge the suspension of his license at a subsequent administrative
hearing. Both the advisory form and the officer’s recitation of the form, advised Virgil: “You
have a right to submit a written request within seven (7) days to the Magistrate Court of Twin Falls
County for a hearing to explain why you refused to take the tests.” Virgil, 126 Idaho at 948, 895
P.2d at 184. This Court compared “explain why” to “show cause” in order to determine whether
they were essentially synonymous for purposes of analyzing strict compliance. We determined
that “explain why” conveyed a lesser burden and so the advisory was not in strict compliance with
the statute. Id. at 948, 895 P.2d at 184. Based on that reasoning, this Court concluded:
Because the requirements of I.C. § 18-8002(3) are recited “in no uncertain terms,”
and drivers must be “completely” advised of their rights and duties under that
provision, we hold that Virgil was not properly advised pursuant to I.C. § 18-
8002(3).
....
6
[T]he advisory form used by the Twin Falls Police Department did not properly
advise Virgil of his rights and duties under Idaho’s implied consent statute, I.C.
§ 18-8002.
Id. (citations omitted).
Similarly, in Beem, the officer used an outdated form to advise Beem about the
consequences of refusing to submit to evidentiary testing for alcohol concentration. Beem, 119
Idaho at 290, 805 P.2d at 496. Using the outdated form, the officer incorrectly advised Beem that
upon refusal to take an alcohol concentration test, his driver’s license would be suspended for 120
days, instead of the 180 days required under I.C. § 18-8002. Beem, 119 Idaho at 290, 805 P.2d at
496. On appeal, we held that because I.C. § 18-8002(3) set forth “in no uncertain terms” that a
driver must be advised that refusal to submit to evidentiary chemical testing would result in a 180-
day suspension of his driver’s license, Beem had the right to be correctly advised of the true
consequences of refusing to take the blood-alcohol test, i.e., that his license would be suspended
for 180 days. Beem, 119 Idaho at 291-92, 805 P.2d at 497-98. Because that advice was not given,
the State failed to comply with the statute governing suspension of licenses for failure to submit
to a chemical test and Beem’s license could not be suspended. Id. at 292, 805 P.2d at 498.
Here, in contrast to these cases, Trooper Kesler repeatedly provided Nunnally the correct
information about the consequences of failing or refusing evidentiary testing. Trooper Kesler
correctly read the advisory required by I.C. § 18-8002A aloud to Nunnally, while providing
Nunnally a correct written version of the advisory. The hearing officer found that Nunnally
followed along with the written copy as Trooper Kesler read it aloud, a factual finding that
Nunnally does not challenge. After reading Nunnally the advisory, Trooper Kesler summarized
what he just read:
Trooper Kesler: So this document is what is called the--the license suspension
advisory. Okay, it’s put out by the Idaho Transportation
Department. It only applies to you if you refuse this test that I
am about to offer you as it said in paragraph 1 it is a requirement
by law okay.
Nunnally: Okay.
Trooper Kesler: Um, or if you refuse the test. So if you fail or if you refuse. And
if you are under the illegal limit, which you might feel like you
are over, but I’ve seen people that have felt like they are over
and they blow under. I’ve seen people who think they are under
and they blow over.
Nunnally: Yeah.
Trooper Kesler: So, that’s the only way that this is going to apply to you alright?
7
Thus, prior to conducting the evidentiary testing, Trooper Kesler read the correct advisory
aloud to Nunnally, provided Nunnally a form to read with the correct information, and summarized
the contents of the advisory at the end by telling Nunnally it applied “if you fail or if you refuse”
the test. Therefore, Trooper Kesler correctly advised Nunnally three times that his driver’s license
could be suspended upon his refusal or failure of the evidentiary tests. Although at one point
Trooper Kesler misstated that the advisory “only applies to you if you refuse this test that I am
about to offer you,” he immediately corrected himself and told Nunnally that it applied if he failed
or refused the evidentiary testing. The totality of the circumstances makes clear that this brief
misstatement does not render Nunnally’s advisory incomplete.4 Therefore, we conclude that the
advisory given was in substantial compliance with the statutory language of I.C. § 18-8002A.
Accordingly, the district court correctly affirmed the administrative hearing officer’s order
sustaining the suspension of Nunnally’s driver’s license for ninety days.
Although the cases are consolidated on appeal, Nunnally does not mention or make
arguments specific to the disqualification of his commercial driver’s license. Because a party
waives an issue on appeal if either argument or authority is lacking, Powell v. Sellers, 130 Idaho
122, 128, 937 P.2d 434, 440 (Ct. App. 1997), Nunnally waived a challenge to the disqualification
of his commercial driver’s license. To the extent that Nunnally’s challenge to his driver’s license
suspension is also a challenge to the disqualification of his commercial driver’s license, we
similarly find the district court did not err in affirming the administrative hearing officer’s order.
A challenge to a commercial driver’s license disqualification is governed by I.C. § 49-335 and is
independent of the law governing the administrative license suspension. Peck v. State Dep’t of
Transp., 156 Idaho 112, 115, 320 P.3d 1271, 1274 (Ct. App. 2014). Pursuant to I.C. § 49-335, the
hearing officer in a commercial driver’s license disqualification need only determine: (1) whether
the driver possessed a commercial driver’s license; and (2) whether the driver failed a test to
determine alcohol concentration. Id. Thus, as a matter of practice, the disqualification of an
4
This Court acknowledges that, practically speaking, the need for an advisory arises before
the driver has chosen to either submit to or refuse evidentiary testing. Yet the statute that governs
the requirements of the advisory is determined by the driver’s subsequent choice regarding testing.
While it could reasonably be argued that the requirements for the advisory should be identical
regardless of the driver’s later choice, it is within the province of the legislative branch to
determine a statute’s structure and language. Courts are not at liberty to rewrite statutes or
disregard the applicable statutory language, and this Court must apply the language of I.C. § 18-
8002A as written.
8
individual’s commercial driver’s license rises and falls with the determination made in the
administrative license suspension proceeding. Peck, 156 Idaho at 116, 320 P.3d at 1275.
Accordingly, because we uphold Nunnally’s administrative license suspension, we also uphold the
disqualification of his commercial driver’s license.
B. The Administrate Hearing Decision Was Not Made Upon Unlawful Procedures
Nunnally claims the decision rendered by the administrative hearing officer was made upon
unlawful procedures. However, this claim is the same as Nunnally’s claim that he was not
substantially informed of his rights pursuant to I.C. § 18-8002A, rendering the advisory form
invalid. Because we concluded that Trooper Kesler substantially advised Nunnally of his rights
as required under the statute, Nunnally’s unlawful procedure claim similarly fails.
IV.
CONCLUSION
Trooper Kesler substantially advised Nunnally of his rights as required under I.C. § 18-
8002A. Accordingly, the district court’s order sustaining the administrative hearing officer’s
suspension of Nunnally’s driver’s license for ninety days and commercial driver’s license for life
is affirmed.
Judge LORELLO and Judge BRAILSFORD CONCUR.
9