IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 37553
IN THE MATTER OF THE DRIVER’S )
LICENSE SUSPENSION OF SCOTT T. )
CUNNINGHAM. )
SCOTT THOMAS CUNNINGHAM, )
) 2011 Opinion No. 3
Petitioner-Appellant, )
) Filed: February 2, 2011
v. )
) Stephen W. Kenyon, Clerk
STATE OF IDAHO, )
)
Respondent. )
)
Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
County. Hon. Kathryn A. Sticklen, District Judge. Hon. Thomas Watkins,
Magistrate.
Decision of the district court, on intermediate appeal from the magistrate,
reversing the magistrate’s order reinstating driver’s license, reversed.
Dean B. Arnold, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
Attorney General, Boise, for respondent. Kenneth K. Jorgensen argued.
______________________________________________
MELANSON, Judge
Scott Thomas Cunningham appeals from the district court’s intermediate appellate
decision reversing the magistrate’s order reinstating Cunningham’s driver’s license. For the
reasons set forth below, we reverse the district court’s decision and vacate the order suspending
Cunningham’s driver’s license.
I.
FACTS AND PROCEDURE
Cunningham was arrested on suspicion of driving under the influence of alcohol (DUI).
I.C. § 18-8004. The arresting officer transported Cunningham to jail and requested that
Cunningham submit to a breath alcohol concentration (BAC) test. The officer provided
Cunningham with a notice of suspension form, which advised Cunningham of his rights and the
1
consequences for choosing to refuse to submit to the BAC test. I.C. § 18-8002. The officer also
played Cunningham a recording, which detailed the information contained on the form. After
listening to the recording and reviewing the form, Cunningham asked the officer if he had to pay
$250 for refusing to submit to the BAC test. The officer responded that he would discuss that
with Cunningham later and that he would explain to Cunningham what the law was and what the
Idaho courts have said about the consequences for refusing to submit to a BAC test.
Soon thereafter, the officer informed Cunningham that the test was Cunningham’s
opportunity to prove to the courts that he had not been drinking. The officer also stated that, if
Cunningham refused to take the BAC test, his driver’s license would be automatically suspended
for one year without exception. When Cunningham attempted to ask the officer about requesting
a hearing on the license suspension, the officer interrupted him to assert that the BAC test was
Cunningham’s only opportunity to prove his innocence. The officer also asserted that he
specialized in DUI testing and then repeated that, if Cunningham refused to cooperate, he would
lose his opportunity to prove his innocence. Cunningham again inquired about the consequences
for refusing to submit to BAC testing, to which the officer responded that Cunningham would be
charged with DUI, would lose his chance to prove that he was not driving under the influence of
alcohol, and would have his license suspended without exception for one year. Cunningham also
asked the officer if he could request someone else to perform an independent BAC test. The
officer replied that Cunningham could only obtain such a test after he bonded out of jail.
Cunningham refused to submit to the BAC test. The officer confiscated Cunningham’s
license and issued him a temporary permit. Cunningham requested a hearing within seven days
to demonstrate why he refused to submit to testing. At the hearing, the magistrate determined
that the officer’s statements regarding the license suspension, the independent evidentiary test,
and the requirement that Cunningham prove his innocence were incorrect. As a result, the
magistrate ordered that Cunningham’s driver’s license be reinstated. The state appealed to the
district court, which reversed the magistrate’s order and suspended Cunningham’s license.
Cunningham appeals.
II.
STANDARD OF REVIEW
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,
2
760 (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. An abuse of discretion will be found if the
magistrate’s findings of fact are not supported by substantial evidence or if the magistrate does
not correctly apply the law. Nicholls v. Blaser, 102 Idaho 559, 561, 633 P.2d 1137, 1139 (1981).
III.
ANALYSIS
At his hearing to show cause for refusing to submit to evidentiary testing, Cunningham
argued that the officer did not completely advise him of the consequences of a refusal because
the officer repeatedly provided incorrect and misleading information. The magistrate held that
the information provided in an advisory must be accurate and determined that the officer’s
incorrect statements rendered the advisory incomplete. On that basis, the magistrate reinstated
Cunningham’s license. The district court reversed the magistrate’s order, holding that the
officer’s statements, although incorrect, did not negate the proper warnings given to Cunningham
via the written and recorded advisory. As such, the district court reversed the magistrate’s order
and suspended Cunningham’s driver’s license, holding that Cunningham failed to show
sufficient cause for refusing to submit to testing. On appeal, Cunningham argues that the district
court’s decision was in error and that the magistrate properly determined that the officer’s
incorrect statements nullified the initial written and recorded advisory.
At the time of Cunningham’s show cause hearing, I.C. § 18-8002(3) 1 provided:
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:
(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
1
This section was amended in 2009 after Cunningham’s arrest. The amendments made
some redesignations and added a new subsection (3)(e), which involves participation in drug
court. See 2009 Idaho Sess. Laws, ch. 184, § 1.
3
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 (1) 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.
Construing I.C. § 18-8002 as a whole, the Idaho Supreme Court in In re Griffiths, 113
Idaho 364, 744 P.2d 92 (1987) held that a driver challenging a license suspension under this
section may prevail by showing any of the following:
(1) that the police officer stopping defendant did so without probable
cause;
(2) that defendant was not requested by a police officer to submit to an
evidentiary test;
(3) that the requesting police officer did not have “reasonable
grounds” or “probable cause” to believe that defendant had been driving or in
actual physical control of a motor vehicle while under the influence of alcohol,
drugs or of any other intoxicating substances;
(4) that the request violated defendant’s civil rights;
(5) that defendant was not advised of the information regarding refusal
mandated by I.C. § 18-8002(3);
(6) that defendant did not refuse to submit to the requested evidentiary
test; or
(7) that, although defendant refused the requested evidentiary test, he
did so with sufficient cause.
Id. at 368, 744 P.2d at 96 (footnote omitted). The Court held that, in order to meet the fifth
ground for reinstatement under Griffiths, a driver who has refused testing must demonstrate at
the show cause hearing that he or she was not completely informed of his or her rights and duties
under I.C. § 18-8002(3). Id. at 370, 744 P.2d at 98. In that case, the driver initially declined to
submit to testing, but the Court held that Griffiths’ failure to cooperate was not a refusal for
4
purposes of the statute because the officer had failed to inform Griffiths of his right to additional
evidentiary testing as mandated by I.C. 18-8002(3). Griffiths, at 370, 744 P.2d at 98. 2
Subsequent to Griffiths, this Court noted that the information required by I.C. § 18-
8002(3) is set forth in no uncertain terms. In re Beem, 119 Idaho 289, 291, 805 P.2d 495, 497
(Ct. App. 1991). In addition, the Idaho Supreme Court has emphatically discountenanced
interjection of judicial gloss upon the legislature’s license suspension scheme. In re Brinks, 117
Idaho 55, 56, 785 P.2d 620, 621 (1990); Beem, at 292, 805 P.2d at 498. In Beem, the Court
affirmed the reinstatement of a driver’s license when the officer incorrectly informed the driver
that his license could be suspended for 120 days for refusal to submit to testing, instead of the
statutory 180 days. Beem, at 292, 805 P.2d at 498. In a later case, this Court further held that
Idaho law requires strict adherence to the statutory language of I.C. § 18-8002(3). In re Virgil,
126 Idaho 946, 947, 895 P.2d 182, 183 (Ct. App. 1995). This Court again affirmed the
reinstatement of a driver’s license when the advisory incorrectly stated that the driver would be
required to “explain why” he had refused an evidentiary test, when the statute required that the
driver was required to “show cause” for his refusal. Virgil, 126 Idaho at 948, 895 P.2d at 184.
Thus, it appears that I.C. § 18-8002 and the judicial decisions applying it preclude suspension of
a driver’s license if the officer did not strictly comply with the statutory directive concerning the
advisory information to be given to motorists when a BAC test is requested.
Cunningham concedes on appeal that the information contained in the written advisory
form and the recording provided by the officer was correct. However, Cunningham contends
that the officer’s inaccurate statements satisfied the fifth ground for refusal under Griffiths
because the statements nullified the correct information provided by the written and recorded
advisory. In other words, Cunningham contends that, due to the inaccurate statements provided
by the officer, he was not completely informed of his rights and duties under I.C. § 18-8002(3).
In support of this argument, Cunningham relies on cases in other jurisdictions. In
Forman v. Motor Vehicle Admin., 630 A.2d 753 (Md. 1993), a driver arrested for DUI was
2
After Griffiths was later informed of his rights under the statute and still refused to
submit to evidentiary testing, the Court held that Griffiths was properly informed and affirmed
Griffiths’ license suspension. Griffiths, 113 Idaho at 370, 744 P.2d at 98. In essence, the Court
determined that, because the officer later completely informed Griffiths of his rights under the
statute, the initial incorrect advisory was cured.
5
initially given a proper advisory of her rights should she refuse to submit to evidentiary testing.
However, while transporting Forman to jail, the arresting officer provided incorrect information
regarding the consequences for refusal. The Maryland Court of Appeals determined that
Maryland’s implied consent statute requires a driver to be fully advised of the consequences for
failing to submit to evidentiary testing. Id. at 762. Specifically, the Court held that an officer
giving the advisory must take care not to subsequently confuse or mislead the driver as to his or
her rights under the statute. Id.
Similarly, in Gargano v. New York State Dep’t of Motor Vehicles, 500 N.Y.S.2d 346,
346-47 (N.Y. App. Div. 1986), the court held that an officer’s incorrect statements regarding the
length of a driver’s license suspension violated the requirement that a driver be warned “in clear
or unequivocal language” of the consequences for refusal. In Gargano, the driver was initially
provided proper warnings under New York law. However, the Court reversed Gargano’s license
suspension due to the officer’s subsequent incorrect statements. Id. See also Mairs v. Dep’t of
Licensing, 854 P.2d 665, 668-69 (Wash. Ct. App. 1993) (incorrect warnings deprived driver of
the opportunity to make a knowing and intelligent decision whether to take or refuse an
evidentiary test).
The state responds that Cunningham was completely informed of his rights under the
statute because he was given the advisory form and listened to a recorded version of the advisory
prior to his refusal. In addition, the state contends that, because the officer’s statements were
consistent with the statutory requirements of I.C. § 18-8002(3), Cunningham has failed to
demonstrate that he satisfied the fifth ground for reinstatement under Griffiths.
The officer in this case provided a written advisory form and played a recording for
Cunningham, which conveyed the information required under the statute. However, in response
to Cunningham’s questions regarding the consequences of refusing testing, the officer repeatedly
asserted that, if Cunningham refused to cooperate, he would lose his driver’s license for one
year, without exception. In addition, in response to Cunningham’s question regarding whether
he could obtain an additional evidentiary test, the officer stated that Cunningham had to wait
until he bonded out of jail to obtain such a test. Finally, the officer reiterated that, if
Cunningham refused to cooperate, he would lose his chance to prove his innocence. Based on
the recording of this exchange and the officer’s testimony at the hearing, the magistrate
6
determined that the officer conveyed incorrect information regarding Cunningham’s rights and
duties should he refuse to submit to evidentiary testing.
On appeal, the state disputes these findings of fact, arguing that the officer’s statements
were consistent with the warnings required by I.C. § 18-8002(3). First, the state contends that
the officer’s statements regarding the automatic suspension were consistent with the statute
because Cunningham had previously been warned in writing and via a recording that he had the
opportunity to request a hearing within seven days after refusing to submit to testing. The state
argues that the officer never specifically told Cunningham that he was not entitled to a hearing
after losing his license. Nevertheless, the officer repeatedly asserted that, if Cunningham refused
to submit to testing, he would automatically lose his driver’s license without exception. These
repeated statements contradict the advisory mandated by I.C. § 18-8002(3) because the statute
did not indicate that a driver would automatically lose his or her driving privileges should the
driver refuse to submit to testing. Rather, the statute provided that, upon refusal, a driver would
have his or her license seized by the officer, would be issued a temporary permit, and would have
the opportunity to have the license reinstated at a hearing if the driver requested such a hearing
within seven days of the refusal. The officer’s repeated statements implied that Cunningham
would not have the option to contest his suspension, which is not consistent with the warnings
required by I.C. § 18-8002(3).
The state also argues that the officer’s comment that Cunningham must bond out of jail in
order to obtain an additional BAC test was not incorrect because Cunningham’s inquiry was
about submitting to an independent evidentiary test instead of submitting to the BAC test at the
jail. The recording of Cunningham’s encounter with the officer reveals that, just prior to
Cunningham’s question about additional testing, the officer informed Cunningham that he could
obtain such testing only after submitting to the BAC test. It appears that Cunningham’s inquiry
referred to the information listed on the advisory form, which stated that, if a person submitted to
testing, he or she could request an independent evidentiary test.
Finally, the state contends that, when the officer repeatedly told Cunningham that the
BAC test was his only opportunity to prove his innocence, the officer was correctly stating that
passing the evidentiary test would demonstrate that Cunningham should not be arrested for DUI.
However, it appears from the record that the officer continuously reiterated that the BAC test
was Cunningham’s only opportunity to “prove his innocence.” More importantly, once
7
Cunningham indicated that he did not want to submit to testing, the officer asked Cunningham
what he would like the officer to write down for the judge on the refusal form. The officer also
requested that Cunningham explain why he did not want to prove that he was innocent and why
he failed the field sobriety tests, not explain his or her failure to submit to testing. Such
statements suggest that Cunningham was required to explain to the judge at his show cause
hearing why he was not guilty of DUI. 3 On the contrary, the statute provided that a driver who
requested a hearing was required to demonstrate why he or she refused to submit to evidentiary
testing. Based on the foregoing, we conclude that substantial and competent evidence supports
the magistrate’s findings that the officer’s statements were incorrect.
As noted, the state contends that, since the complete advisory was presented to
Cunningham, the fifth ground for refusal under Griffiths was inapposite. Instead, the state
asserts that only the seventh ground for refusal under Griffiths may be applied under this
circumstance. The state argues that, in order to demonstrate sufficient cause for refusal under the
seventh ground in Griffiths, Cunningham must show that the refusal was actually caused by the
officer’s action. Thus, the state contends that only incorrect statements directly leading to a
refusal amount to sufficient cause for reinstatement under Griffiths. In support of this argument,
the state relies upon Head v. State, 137 Idaho 1, 43 P.3d 760 (2002). In Head, the officer
correctly informed the driver of the consequences for refusing to submit to evidentiary testing.
However, the officer provided incorrect information regarding the consequences for failing an
evidentiary test. The Idaho Supreme Court held that inaccurate information conveyed to a driver
concerning sanctions imposed for failure of an evidentiary test for alcohol concentration was not
a ground for relief from suspension under Griffiths where the driver had refused to perform the
requested test. The Court held:
Head concedes that his challenge to the suspension of his driving
privileges does not fit within any of the grounds listed in Griffiths. Rather, he
asks this Court to expand the grounds listed in Griffiths to include this situation.
Because the grounds for challenging the suspension are statutory, we cannot do
so.
3
We recognize that a single statement by the officer that submitting to testing would allow
a driver to prove his or her innocence does not necessarily contradict the language of the
advisory under the statute. However, an officer’s repeated assertions that a driver is required to
prove his innocence to the judge or explain why he failed field sobriety tests rises to the level of
contradicting the language of the statute.
8
Head, 137 Idaho at 5, 43 P.3d at 764 (footnote omitted). In a footnote, the Court also determined
that it would be difficult for the driver to argue that his refusal was caused by the incorrect
information contained in the advisory. Head, 137 Idaho at 5 n.6, 43 P.3d at 764 n.6. The state
interprets this statement to stand for the proposition that an incorrect advisory must cause the
driver to refuse testing in order to provide a sufficient ground--the seventh ground--under
Griffiths for reinstatement.
Our recent decision in Kling v. State, ___ Idaho ___, ___ P.3d ___ (Ct. App. 2010)
directly addressed this argument. In Kling, the state conceded that the information contained in
the advisory form provided to the driver was incorrect. However, the state, relying on Head,
asserted that, because the driver did not rely upon the incorrect information when deciding to
refuse to submit to testing, the driver could not establish a ground for refusal under Griffiths.
Kling, ___ Idaho at ___, ___ P.3d at ___. This Court held that Head was inapposite, concluding:
Thus, not only does Head not depart from Griffiths, it reaffirms it by stating that
the Court was without authority to add to the grounds for relief authorized by I.C.
§ 18-8002 as recognized in Griffiths. We conclude that coordinate reasoning
precludes a court from disregarding a ground for relief from suspension that is
mandated by the statute, including an officer’s failure to give the driver the
statutorily required information on consequences for refusal of evidentiary testing.
Accepting the State’s position would allow officers to unilaterally modify
the statutorily prescribed procedures so long as the modified procedures are
accurately described to the motorist when testing is requested. The statute does
not confer such authority upon law enforcement officers. Nor does the statute
require that a driver show detrimental reliance or other form of prejudice from an
officer’s omission of a portion of the required terms of the advisory.
This Court’s reasoning in Kling is dispositive of the state’s argument in this case. Kling,
like its predecessors Virgil, Beem, and Griffiths, held that contradictory information provided in
an advisory renders that advisory incomplete. A claim that the advisory was incomplete under
the fifth ground in Griffiths does not require that a driver establish detrimental reliance on an
officer’s repeated incorrect recitation of the required terms of the advisory. As a result, we will
not disregard a ground for relief from suspension that is mandated by the statute, including an
officer’s failure to completely advise a driver of the consequences for refusal of evidentiary
testing.
9
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.
We do not intend the holding of this case to require officers to stand mute when
answering a driver’s questions regarding the information contained in the implied consent
advisory. However, the officer’s conduct in this case so contradicted the information provided in
the initial advisory that it defeated the purpose of the statute’s requirement for such an advisory
in the first place. Here, the officer’s repeated assertions went beyond mild misstatements or
passing inaccuracies, which may occur during an advisory involving a presumably intoxicated
driver. The magistrate was therefore correct in declining to suspend Cunningham’s driver’s
license. Thus, we reverse the district court’s decision and vacate the suspension of
Cunningham’s license.
IV.
CONCLUSION
Substantial and competent evidence supports the magistrate’s finding that the officer
conveyed incorrect information to Cunningham prior to his refusal to submit to evidentiary
testing. In addition, the magistrate correctly applied the law when it determined that
Cunningham was not properly advised as mandated by I.C. § 18-8002(3). Accordingly, we
reverse the district court’s intermediate appellate decision and vacate the order suspending
10
Cunningham’s driver’s license. Costs, but not attorney fees, are awarded on appeal to
Cunningham.
Chief Judge GRATTON and Judge GUTIERREZ, CONCUR.
11