State v. Brant Lee Eversole

IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 43277
STATE OF IDAHO, )
)
Boise, January 2016 Term
Plaintiff-Respondent, )
)
2016 Opinion No. 40
v. )
)
Filed: April 4, 2016
BRANT LEE EVERSOLE, )
)
Stephen W. Kenyon, Clerk
Defendant-Appellant. )
)
Appeal from the District Court of the Seventh Judicial District, State of Idaho,
Bingham County. Hon. Darren B. Simpson, District Judge.

District court decision denying motion to suppress, reversed. Decision denying
motion to dismiss, affirmed. Case remanded.

Sara B. Thomas, State Appellate Public Defender, Boise, for appellant. Justin
Curtis, Deputy State Appellate Public Defender argued.

Hon. Lawrence G. Wasden, Idaho Attorney General, Boise, for respondent.
Russell J. Spencer, Deputy Attorney General argued.

_________________________________
BURDICK, Justice
This case comes to the Idaho Supreme Court on a petition for review of a Court of
Appeals decision. Brant Lee Eversole was arrested for driving while under the influence and,
after refusing to submit to a breath alcohol test, was taken to a hospital where his blood was
drawn. Based on the results of the blood test, police charged Eversole with felony DUI and
Eversole entered a conditional guilty plea, preserving his right to appeal two orders, one of
which was an order denying a suppression motion. In a 2-1 decision, the Court of Appeals
vacated the order denying the motion to suppress on the basis that Eversole revoked implied
consent to the blood draw when he refused to submit to the earlier breath test. The State
petitioned this Court for review of the suppression issue only. Eversole additionally requests this
Court to review the Court of Appeals’ decision affirming the district court’s denial of Eversole’s
motion to dismiss.

1
 I. FACTUAL AND PROCEDURAL BACKGROUND
On April 16, 2011, an officer observed Brant Lee Eversole in the driver’s seat of a truck
located in front of a bar. The truck was high-centered on a two-foot tall “brick berm,” such that
the rear wheels of the vehicle did not touch the ground. The officer testified that the engine was
on and the rear tires were spinning, and that two other men were trying to get the vehicle off the
berm by lifting it with a jack. The officer described the jack strategy as a “feeble” effort and that
it was unlikely to work. The officer did acknowledge that the strategy might have worked if the
men positioned the jack “a little bit differently,” but noted that even then, he did not observe any
other vehicles that the men could have used to tow the truck off the berm.1
The officer’s observations led him to believe that Eversole was intoxicated and he
therefore began administering field sobriety tests. Eversole attempted to complete some of the
field sobriety tests, but refused to complete them all. Because the attempted tests indicated
intoxication, the officer arrested Eversole. Thereafter, Eversole additionally refused to submit to
a breath alcohol test. The officer then took Eversole to a hospital and his blood was drawn. The
blood test showed that Eversole had an alcohol concentration of .279 grams of alcohol per one
hundred (100) cubic centimeters of blood. Eversole was subsequently charged with operating a
motor vehicle while under the influence of alcohol.
On January 18, 2013, Eversole filed a motion to dismiss on the basis that the State could
not prove that the vehicle was operable at the time he was in it. The district court disagreed and
held there was some evidence that Eversole and his companions could have moved the vehicle
within a short time, rendering it operable. See State v. Adams, 142 Idaho 305, 127 P.3d 208 (Ct.
App. 2005). Consequently, it denied Eversole’s motion to dismiss.
Eversole subsequently filed a motion to suppress the results of his blood draw. Rather
than conducting an evidentiary hearing on the suppression motion, the parties stipulated to the
following facts for the district court to consider:
At the time of his arrest, Mr. Eversole refused to provide a breath sample for the
purpose of determining his blood alcohol content.
Upon the Defendant’s refusal to provide a breath sample, Deputy Morgan
transported the Defendant to Bingham Memorial Hospital where Tiffany
Henderson, a technician in the lab, drew Mr. Eversole’s blood pursuant to Deputy
Morgan’s request.

1
A tow truck eventually towed Eversole’s vehicle off the berm.

2
On April 12, 2013, the district court entered an order denying Eversole’s suppression motion.
Following the denial of the suppression motion and the motion to dismiss, Eversole
entered a conditional Alford2 plea preserving his right to appeal the denial of those two motions.
Eversole appealed the denial of those two motions on May 31, 2013. While the appeal was
pending, this Court issued its opinion in State v. Wulff, 157 Idaho 416, 337 P.3d 575 (2014), and
subsequent cases, which, based upon the recent United States Supreme Court decision in
Missouri v. McNeely, 133 S. Ct. 1552 (2013), overruled prior Idaho precedent and held that
implied consent could be revoked.
In this case, the Court of Appeals looked to those recent decisions and affirmed the denial
of the motion to dismiss, but in a 2-1 decision, determined that the district court erred when it
denied Eversole’s motion to suppress the evidence obtained from the blood draw. State v.
Eversole, 2015 WL 1542545 (Idaho Ct. App. Apr. 8, 2015). The Court of Appeals concluded
that when Eversole refused to take the breath test, he withdrew any implied consent to a blood
draw. Id. at *4. The Court went on to hold that because the State presented no evidence of
consent to the blood draw, the blood draw was an impermissible warrantless search, and the
district court erred when it denied the motion to suppress the evidence obtained from it. Id.
Consequently, the Court of Appeals vacated the district court’s order denying Eversole’s motion
to suppress and remanded to the district court for further proceedings. Id. We then granted the
State’s petition for review.
II. ANALYSIS
On a petition for review, this Court seriously considers the Court of Appeals’ views, but
directly reviews the lower court’s decision. State v. Purdum, 147 Idaho 206, 207, 207 P.3d 182,
183 (2009). With that in mind, we turn to the two issues raised in this appeal. The first issue is
whether the district court erred when it denied Eversole’s motion to suppress evidence obtained
from a warrantless blood draw. More specifically, the issue is whether a driver’s refusal to
submit to a breath alcohol test constitutes refusal to all other forms of alcohol concentration
testing. The second issue is whether the district court erred when it denied Eversole’s motion to
dismiss. We address each in turn below.
A. The district court erred when it denied Eversole’s motion to suppress evidence from the
warrantless blood draw.

2
See North Carolina v. Alford, 400 U.S. 25 (1970).

3
 Eversole argues that the district court erred when it denied his motion to suppress
evidence from the warrantless blood draw because he withdrew his implied consent to alcohol
concentration testing when he refused to submit to a breath test. We agree.
The standard of review of a suppression motion is bifurcated. When this Court reviews an
order granting or denying a motion to suppress, it accepts the trial court’s factual findings unless
they are clearly erroneous. Wulff, 157 Idaho at 418, 337 P.3d at 577. However, this Court freely
reviews the trial court’s application of constitutional principles in light of those facts. Id.
Requiring a person to submit to a blood draw for evidentiary testing is a search and
seizure under the Fourth Amendment to the United States Constitution and Article I, Section 17
of the Idaho Constitution. Schmerber v. California, 384 U.S. 757, 767 (1966); Wulff, 157 Idaho
at 418, 337 P.3d at 577. Therefore, warrantless forced blood draws generally violate the state and
federal constitutions. See McNeely, 133 S. Ct. 1552; Wulff, 157 Idaho at 419, 337 P.3d at 578.
However, the warrant requirement does not apply if the person subjected to the search has
consented. Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973); Wulff, 157 Idaho at 423, 337
P.3d at 582.
Idaho’s implied consent statute, Idaho Code section 18-8002(1), states that “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.” At the time of the
proceedings below, Idaho Supreme Court precedent held that this statutorily implied consent
satisfied the consent exception to the constitutional warrant requirement. State v. Diaz, 144 Idaho
300, 303, 160 P.3d 739, 742 (2007), overruled by Wulff, 157 Idaho 416, 337 P.3d 575.
Additionally, and in contravention of the general rule that consent may be withdrawn or revoked,
this Court had held that actions or statements revoking implied consent were ineffective. State v.
Woolery, 116 Idaho 368, 373, 775 P.2d 1210, 1215 (1989), overruled by Wulff, 157 Idaho 416,
337 P.3d 575.
These points of law have recently changed, however. In a series of recent decisions, this
Court reexamined its application of Idaho’s implied consent statute in light of the United States
Supreme Court’s decision in McNeely. In McNeely, the United States Supreme Court held that
“the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every
case sufficient to justify conducting a blood test without a warrant.” McNeely, 133 S. Ct. at 1568.
Following McNeely, this Court determined that Idaho’s precedent regarding the revocability of

4
implied consent was inconsistent with the Supreme Court’s guidance in that opinion. Indeed, in
Wulff, this Court concluded that “[a] holding that the consent implied by statute is irrevocable
would be utterly inconsistent with the language in McNeely denouncing categorical rules that
allow warrantless forced blood draws.” Wulff, 157 Idaho at 422, 337 P.3d at 581. Accordingly,
under current Idaho law, a defendant’s refusal, protest, or objection to alcohol concentration
testing terminates the implied consent given under Idaho’s implied consent statute:
[A]n implied consent statute such as . . . Idaho’s does not justify a
warrantless blood draw from a driver who refuses to consent . . . or objects to the
blood draw. . . . Inherent in the requirement that consent be voluntary is the right
of the person to withdraw that consent.
State v. Halseth, 157 Idaho 643, 646, 339 P.3d 368, 371 (2014). See also State v. Arrotta, 157
Idaho 773, 774, 339 P.3d 1177, 1178 (2014) (“A suspect can withdraw his or her statutorily
implied consent to a test for the presence of alcohol.”).
Eversole argues that our precedent upholding the validity of statutorily created implied
consent is manifestly wrong in light of McNeely. Specifically, Eversole argues that “to the extent
that this Court’s recent cases stand for the proposition that implied consent is valid up to the
point that a defendant refuses testing, they are in conflict with the rule that it is the State’s burden
to prove consent, and that consent must be shown to be voluntary under the totality of the
circumstances.” Eversole contends that McNeely requires this Court to use a totality of the
circumstances test to analyze whether a warrantless blood test of a drunk-driving suspect is
reasonable and insists that Idaho’s implied consent statute cannot alter the exceptions to the
warrant requirement nor bypass the totality of the circumstances test. We do not read McNeely so
narrowly.
McNeely did not specifically address the validity of implied consent statutes much less
hold that implied consent statutes cannot serve as an exception to the warrant requirement.
Moreover, its emphasis on the totality of the circumstances test was in regards to the exigent
circumstances exception to the warrant requirement, not to implied consent statutes. Indeed, the
Supreme Court expressed disapproval of per se exceptions to the warrant requirement and held
that “the natural metabolization of alcohol in the bloodstream” did not present a “per se exigency
that justifies an exception to the Fourth Amendment’s warrant requirement for nonconsensual
blood testing in all drunk-driving cases.” McNeely, 133 S. Ct. at 1556. The Court held that
instead, “exigency in this context must be determined case by case based on the totality of the

5
circumstances.” Id. Nowhere does McNeely suggest that implied consent statutes do not
constitute constitutional consent or that a totality of the circumstances test is the exclusive means
for establishing consent.
Instead, McNeely recognized that implied consent statutes are one type of “a broad range
of legal tools to enforce [] drunk-driving laws and to secure BAC evidence without undertaking
warrantless nonconsensual blood draws.” 133 S. Ct. at 1566 (emphasis added). The Court stated,
“Such laws impose significant consequences when a motorist withdraws consent; typically the
motorist’s driver’s license is immediately suspended or revoked, and most States allow the
motorist’s refusal to take a BAC test to be used as evidence against him in a subsequent criminal
prosecution.” Id. Thus, McNeely suggests that implied consent statutes are still a valid means of
obtaining BAC evidence.
The resolution of the suppression issue in this case turns on the scope of the withdrawal
of implied consent to a particular form of alcohol concentration testing. Eversole argues that the
State urges this Court to adopt a rule that would require a defendant to withdraw consent as to
every specific form of alcohol testing to which the defendant is requested to submit.
As mentioned above, Idaho’s implied consent statute provides:
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 . . . .
I.C. § 18-8002(1). Idaho Code section 18-8004 in turn provides, in relevant part:
(1)(a) It is unlawful for any person who is under the influence of alcohol, drugs or
any other intoxicating substances, or any combination of alcohol, drugs and/or
any other intoxicating substances, or who has an alcohol concentration of 0.08, as
defined in subsection (4) of this section, or more, as shown by analysis of his
blood, urine, or breath, to drive or be in actual physical control of a motor vehicle
within this state, whether upon a highway, street or bridge, or upon public or
private property open to the public.
I.C. § 18-8004(1)(a).
Idaho’s implied consent statute makes clear that a defendant is deemed to give implied
consent to evidentiary testing for alcohol concentration as it is defined in Idaho Code section 18-
8004. Idaho Code section 18-8004 does not define evidentiary testing, but rather explains how
alcohol concentration is determined. However, Idaho Code section 18-8002A defines evidentiary
testing as “a procedure or test or series of procedures or tests utilized to determine the
concentration of alcohol . . . in a person.” I.C. § 18-8002A(e). Thus, evidentiary testing under

6
Idaho Code section 18-8002 refers to the aggregate of methods, including breath, blood, and
urine samples, that may be used to determine alcohol concentration. In other words, rather than
referring to individual tests, the foregoing provisions lump all of the tests together as
“evidentiary testing.” Consequently, when an individual refuses to submit to an offered test for
alcohol concentration, the individual is withdrawing implied consent created by Idaho Code
section 18-8002(1), which is implied consent to evidentiary testing in general, not merely
implied consent to that particular form of testing.
In this case, Eversole refused to participate in an evidentiary test for alcohol
concentration. Therefore, he withdrew any implied consent to evidentiary testing created by
Idaho Code section 18-8002(1), which includes breath, blood, or urine testing. After Eversole
refused the breath test, the police officer took him to a hospital where a blood sample was drawn
for alcohol testing. Because Eversole’s implied consent to evidentiary testing for alcohol
concentration already had been revoked, the consent exception to the warrant requirement was
inapplicable, unless the State proved by a preponderance of the evidence some subsequent action
or statement Eversole made within a reasonable time renewing his consent to evidentiary testing.
The State did not do so. Therefore, the blood draw was an impermissible warrantless search, and
the test results must be suppressed.
B. The district court did not abuse its discretion when it denied Eversole’s motion to
dismiss.
This Court applies an abuse of discretion standard when it reviews a trial court’s decision
on a motion to dismiss. State v. Card, 137 Idaho 182, 184, 45 P.3d 838, 840 (2002). We use a
three-part inquiry to determine whether a trial court has abused its discretion: (1) whether the
court correctly perceived the issue as one of discretion; (2) whether the court acted within the
outer boundaries of its discretion and consistently with the legal standards applicable to the
specific choices available to it; and (3) whether the trial court reached its decision by an exercise
of reason. State v. Joy, 155 Idaho 1, 6, 304 P.3d 276, 281 (2013).
Eversole argues that the district court erred when it denied his motion to dismiss the DUI
charge because his truck was stuck on a brick berm and was therefore inoperable. The State
argues that the district court correctly determined that a trier of fact could reasonably conclude
that Eversole’s vehicle was readily capable of being operable. Consequently, the State asserts
that the district court correctly determined that the issue of operability was a question of fact for
the jury, which precluded dismissal.
7
 The relevant statue defining the offense of felony driving while under the influence
provides:
It is unlawful for any person who is under the influence of alcohol . . . to
drive or be in actual physical control of a motor vehicle within this state, whether
upon a highway, street or bridge, or upon public or private property open to the
public.
Idaho Code section 18-8004(1)(a) (emphasis added). The statute further defines “actual physical
control” as “being in the driver’s position of the motor vehicle with the motor running or with
the motor vehicle moving.” I.C. § 18-8004(5).
Although the evidence presented in this case indicates that Eversole’s vehicle’s motor
was running, Eversole contends that the statute requires that the vehicle also be operable or
readily capable of being operable. Eversole asserts that because his vehicle was stuck on a brick
berm, it was not operable and therefore he was not in actual physical control of the vehicle for
purposes of the DUI statute.
This Court has not yet addressed whether a vehicle must be operable for an occupant to
be convicted of being in actual physical control of a vehicle while under the influence. However,
the plain language of the statute only requires that the defendant be in the driver’s position of the
motor vehicle with the motor running to show that the defendant was in “actual physical control”
of the vehicle. We decline to read additional requirements into the statute, particularly where the
language is clear and unambiguous. See State v. Schall, 157 Idaho 488, 492, 337 P.3d 647, 651
(2014)(“Where the language of a statute is plain and unambiguous, this Court must give effect to
the statute as written, without engaging in statutory construction.” (quoting State v. Rhode, 133
Idaho 459, 462, 988 P.2d 685, 688 (1999)). The facts of this case demonstrate that for purposes
of Idaho Code section 18-8004(1)(a), a reasonable jury could find Eversole guilty. Thus, the
district court did not abuse its discretion when it denied Eversole’s motion to dismiss.
III. CONCLUSION
We affirm the district court’s denial of Eversole’s motion to dismiss. However, we
reverse the district court’s denial of Eversole’s motion to suppress and remand to the district
court for further proceedings consistent with this opinion.
Chief Justice J. JONES and Justices EISMANN and HORTON, CONCUR.

8
 Justice W. JONES, concurring in part and dissenting in part.
I concur with the majority’s holding regarding the motion to dismiss; however, I
respectfully dissent from the majority’s conclusion that an individual’s refusal to submit to a
breath test serves to withdraw his or her implied consent to evidentiary testing generally. I
believe an individual’s refusal to submit to a specific evidentiary test pertains only to that
specific test and does not serve to withdraw implied consent to other methods of evidentiary
testing. I agree with Judge Gratton’s dissent in the Idaho Court of Appeals decision. In the
present case it is clear that Eversole refused to submit to a breath test; however, there is no
indication that Eversole refused to submit to a blood test. Therefore, I disagree with the
majority’s conclusion that Eversole withdrew his implied consent to submit to a blood test.
In Mills v. Swanson, this Court analyzed whether silence amounts to a refusal to submit
to the chemical testing of blood in order to determine blood alcohol content. 93 Idaho 279, 280,
460 P.2d 704, 705 (1969). The Mills Court cited State v. Bock, stating: “By operating a motor
vehicle in this state the defendant is deemed to have given his consent to a chemical test. The
only way he can withdraw that consent is to expressly refuse the test.” Mills at 281, 460 P.2d at
705 (quoting State v. Bock, 80 Idaho 296, 308, 328 P.2d 1065, 1072 (1958) (internal quotations
omitted)). The Mills Court continued, defining “expressly” as “in direct or unmistakable terms”
and “declared and not merely left to implication.” Mills at 281, 460 P.2d at 705 (citing Webster’s
Third New International Dictionary (Unabridged); Black’s Law Dictionary 692 (Revised 4 ed.
1968); Magone v. Heller, 150 U.S. 70, 14 S.Ct. 18, 37 L.Ed. 1001 (1883); City & County of San
Francisco v. Western Airlines Inc., 204 Cal.App.2d 105, 22 Cal. Rptr. 216 (1962)). Ultimately,
the Mills Court concluded “that where an individual has neither refused nor consented . . . it
cannot be said that there was an express refusal to take the test.” Mills, 93 Idaho at 280, 460 P.2d
at 705.
In this case, the majority extends the Mills holding too far. Eversole withdrew his implied
consent to submit to the breath test in direct and unmistakable terms. He did not withdraw his
implied consent as to any other evidentiary test, yet the majority concludes that his specific
refusal as to the breath test implies a refusal as to evidentiary testing in general. Such a holding
contradicts the Mills Court’s direction that a refusal cannot be left to implication.
Furthermore, the majority claims that because evidentiary testing under Idaho Code
section 18-8002 refers to an aggregate of methods, a refusal of one test constitutes a refusal to

9
evidentiary testing in general. I cannot support such a conclusion. The definition of evidentiary
testing, to which the majority cites, is “a procedure or test or series of procedures or tests utilized
to determine the concentration of alcohol . . . in a person.” I.C. § 18-8002A(e). The majority
claims this definition lumps all the tests together as evidentiary testing in the aggregate rather
than referring to individual tests; therefore, the majority claims, a refusal to submit to a specific
evidentiary test withdraws implied consent to submit to evidentiary testing in general. Such a
conclusion ignores the fact that Idaho Code section 18-8002A(e) clearly defines evidentiary
testing in both singular and plural terms. The statement that evidentiary testing does not refer to
individual tests is incorrect. After all, there is a clear difference between a request to submit to
evidentiary testing in the aggregate and a request to submit to a specific evidentiary test. Here,
the police officer requested Eversole to submit to a specific evidentiary test; thus, Eversole’s
refusal only pertained to that specific test. If the police officer had requested Eversole to submit
to evidentiary testing in the aggregate it would be correct to hold that Eversole’s refusal
withdrew his implied consent as to all evidentiary testing. However, that is not the case here.
Separately, we should not assume that refusing a specific test equates to a refusal as to all
tests. There are a variety of reasons why an individual would refuse to submit to a blood test but
consent to a breath test, or vice versa. An individual concerned with the accuracy of evidentiary
tests may consent to a blood test but not a breath test, as the blood test is more accurate than a
breath test. Alternatively, an individual who does not trust law enforcement may consent to a
blood test but not a breath test, as the breath test is conducted and recorded by a police officer
while the blood test is conducted and recorded by hospital staff. Additionally, an individual may
consent to a breath test but not a blood test on the basis that a blood test is too intrusive and
presents the risk injury caused by a contaminated needle. Accordingly, I believe an individual’s
refusal as to a specific evidentiary test should be interpreted as a refusal as to that evidentiary test
only.
In sum, a refusal to submit to evidentiary testing must be declared in direct terms rather
than left to implication. It cannot be assumed that an individual who would refuse one
evidentiary test would not submit to others. Further, there is no valid statutory basis for grouping
individual tests, as evidentiary testing is defined in both singular and plural terms. Therefore, I
dissent from the majority’s holding regarding the motion to suppress.

10