IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 37385
IN THE MATTER OF THE DRIVER’S )
LICENSE SUSPENSION OF: GALE LEE )
MASTERSON. )
GALE LEE MASTERSON, )
) 2010 Opinion No. 88
Petitioner-Appellant, )
) Filed: December 20, 2010
v. )
) Stephen W. Kenyon, Clerk
IDAHO DEPARTMENT OF )
TRANSPORTATION, )
)
Respondent. )
)
Appeal from the District Court of the First Judicial District, State of Idaho,
Benewah County. Hon. Fred M. Gibler, District Judge.
Decision of the district court, affirming administrative order suspending driver’s
license after failing a blood alcohol concentration test, reversed.
Richard S. Christensen, St. Maries, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Edwin L. Litteneker, Special
Deputy Attorney General, Lewiston, for respondent. Edwin L. Litteneker argued.
______________________________________________
MELANSON, Judge
Gale Lee Masterson appeals from the district court’s decision upon judicial review
affirming the Idaho Transportation Department’s order suspending Masterson’s driver’s license
for failing a blood alcohol concentration test. For the reasons set forth below, we reverse the
district court’s decision and vacate the order suspending Masterson’s driver’s license.
I.
FACTS AND PROCEDURE
Masterson failed field sobriety tests after being stopped by an officer who suspected
Masterson was driving under the influence of alcohol (DUI). The arresting officer administered
an alcohol concentration breath test using the Intoxilyzer 5000EN. The breath test revealed that
Masterson’s blood alcohol concentration was .197/.184 in violation of I.C. § 18-8004(1)(a).
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Masterson’s driver’s license was immediately suspended for ninety days pursuant to I.C. § 18-
8002A(4)(a)(i). Masterson requested an administrative license suspension (ALS) hearing before
the Idaho Transportation Department (ITD), pursuant to I.C. § 18-8002A(7), contesting the
suspension of his driver’s license. The ALS hearing officer upheld the suspension. Masterson
appealed the ALS hearing officer’s decision to the district court. The district court affirmed the
ALS hearing officer’s order suspending Masterson’s driver’s license. Masterson again appeals.
II.
ANALYSIS
An ITD administrative hearing officer’s decision to uphold the suspension of a person’s
driver’s license is subject to challenge through a petition for judicial review. I.C. § 18-8002A(8);
Kane v. State, Dep’t of Transp., 139 Idaho 586, 589, 83 P.3d 130, 133 (Ct. App. 2003). The
Idaho Administrative Procedures Act (IDAPA) governs the judicial review of Department of
Transportation decisions to deny, cancel, suspend, disqualify, revoke, or restrict a person’s
driver’s license. See I.C. §§ 49-201, 49-330, 67-5201(2), 67-5270. In an appeal from the
decision of the district court acting in its appellate capacity under the 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. This Court instead 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. Substantial evidence is such relevant evidence as a reasonable mind might accept to
support a conclusion. Kinney v. Tupperware Co., 117 Idaho 765, 769, 792 P.2d 330, 334 (1990).
Substantial evidence is more than a scintilla, but less than a preponderance. Id. 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
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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
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. If the agency’s decision is not affirmed on appeal, “it shall be set
aside . . . and remanded for further proceedings as necessary.” I.C. § 67-5279(3).
The ALS statute, I.C. § 18-8002A, requires that the ITD suspend the driver’s license of a
driver who has failed a blood alcohol concentration test administered by a law enforcement
officer. A person who has been notified of such an administrative license suspension may
request a hearing before a hearing officer designated by the ITD to contest the suspension. I.C.
§ 18-8002A(7). 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)(a)-(e), for vacating the suspension. The burden of proof rests upon the driver
to prove any of the grounds to vacate the suspension. I.C. § 18-8002A(7); Kane, 139 Idaho at
590, 83 P.3d at 134. Once the driver has made an initial prima facie showing of evidence
proving some basis for vacating the suspension, the burden shifts to the state to rebut the
evidence presented by the driver. See Kane, 139 Idaho at 590, 83 P.3d at 134.
A license suspension may be vacated if the tests for alcohol concentration “administered
at the direction of the peace officer were not conducted in accordance with the requirements” of
I.C. § 18-8004(4). I.C. § 18-8002A(7)(d). Pursuant to I.C. § 18-8004(4), the Idaho State Police
(ISP) is charged with promulgating standards for administering breath alcohol tests. The ISP has
issued IDAPA regulations covering the requirements for the performance of a breath test and
providing, in pertinent part, that “each individual operator shall demonstrate that he has
sufficient training to operate the [breath test] instrument correctly. This shall be accomplished
by successfully completing a training course approved by the department.” IDAPA
11.03.01.14.04. The ISP has also issued Standard Operating Procedures (SOP) establishing
procedures for the maintenance and operation of breath test equipment, including the Intoxilyzer
5000.1 In re Mahurin, 140 Idaho 656, 659, 99 P.3d 125, 127 (Ct. App. 2004). The SOP provide
that breath alcohol tests “must be administered by an operator currently certified in the use of the
1
The ISP has not issued SOP for the Intoxilyzer 5000EN.
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specific model of instrument used.” SOP 3.1.1.1. Noncompliance with the ISP procedures is a
ground for vacating an administrative license suspension under I.C. § 18-8002A(7)(d). In re
Mahurin, 140 Idaho at 659-60, 99 P.3d at 127-28. Initially, the burden of proof is on the driver
to show by a preponderance of the evidence that the officer was not properly certified to operate
the breath testing instrument. I.C. § 18-8002A(7)(d). The burden then shifts to the state to rebut
the driver’s evidence showing lack of certification on the particular instrument used.
Masterson argues, under I.C. § 18-8002A(7)(d), that his license suspension should be
vacated because the ITD hearing officer erred in finding that the arresting officer who conducted
the breath test was properly certified to operate the Intoxilyzer 5000EN.2 Specifically,
Masterson argues that the hearing officer erred in relying on information that was not placed into
evidence and not properly officially noticed pursuant to I.C. § 67-5251(4). Idaho Code Section
67-5251(4) provides that an administrative hearing officer may take official notice of any facts
that could be judicially noticed by a court or of any generally recognized technical or scientific
facts within the agency’s specialized knowledge. If the hearing officer takes official notice of
any facts or material, he or she must notify the parties of the information used and afford the
parties a meaningful opportunity to contest and rebut the material prior to issuance of any order
that is based in whole or in part on the information officially noticed. I.C. § 67-5251(4).
In upholding the suspension of Masterson’s driver’s license, the hearing officer took
official notice of several documents including the ISP breath test SOP, the Intoxilyzer 5000
Breath Testing Specialist Manual, and the Intoxilyzer 5000EN Breath Testing Specialist Manual
Supplement. The parties do not dispute that these documents were properly officially noticed
pursuant to I.C. § 67-5251(4). However, in making his specific findings regarding the arresting
officer’s certification on the Intoxilyzer 5000EN, the hearing officer also relied on information
from the Intoxilyzer’s manufacturer, CMI, Inc. The hearing officer noted that the breath test
SOP require an operator to become recertified when the ISP adopts a new breath testing
instrument. SOP 1.5.2. The hearing officer found that, because the CMI materials did not
differentiate between the Intoxilyzer 5000 and 5000EN, the 5000EN is not a new, but merely
upgraded, version of the Intoxilyzer 5000. The hearing officer further found that, because the
2
Masterson makes several other arguments on appeal. Because we find this issue to be
dispositive, we do not address Masterson’s other arguments.
4
5000EN was not a new breath testing instrument, the arresting officer was not required under the
breath testing SOP to train specifically to operate the 5000EN model.3
The record demonstrates that the hearing officer did not take proper official notice of the
CMI materials under I.C. § 67-5251(4). The record is devoid of any indication that the hearing
officer provided notice to the parties of his intent to utilize the CMI materials, disclosed the CMI
materials to the parties prior to the issuance of his order, or afforded the parties an opportunity to
rebut the CMI materials. An administrative hearing officer’s findings of fact “must be based
exclusively on the evidence in the record of the contested case and on matters officially noticed
in that proceeding.” I.C. § 67-5248(2). Therefore, we hold that, because the CMI materials
were not properly officially noticed, the hearing officer erred in relying on those materials when
making his findings of fact.
Without the CMI materials, the hearing officer’s finding that the arresting officer was
properly certified to operate the Intoxilyzer 5000EN is not supported by competent and
substantial evidence in the record. The breath test regulations and SOP adopted by ISP require
that a breath test operator have sufficient training to operate the instrument correctly and be
currently certified on the specific model of instrument used. See IDAPA 11.03.01.14.04;
SOP 3.1.1.1. The testimony given by the arresting officer at the ALS hearing contradicts a
finding that he was certified to operate the 5000EN:
3
The ALS hearing officer’s finding of fact No. 7 states:
1. [The arresting officer’s] testimony provides that he was certified to
use the Intoxilyzer 5000 and not the Intoxilyzer 5000 EN that was used to test
Masterson’s breath sample.
2. It is noted that CMI Inc., the manufacturer of the Intoxilyzer 5000
and Intoxilyzer 5000 EN, does not differentiate between these two breath-testing
instruments.
3. Further, CMI Inc. provides that the Intoxilyzer 5000 EN is an
upgraded Intoxilyzer 5000.
a. Since the Intoxilyzer 5000 EN is not considered a
new breath-testing instrument and is only an updated version for an
already approved breath testing instrument, ISP Forensic Services do not
require a police officer to have additional training and certification for the
Intoxilyzer 5000 EN if the police officer is currently certified for the
Intoxilyzer 5000.
4. Based upon ISP Forensic Services procedures, [the arresting
officer] was certified to use the Intoxilyzer 5000 EN that tested Masterson’s
breath sample.
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[ATTORNEY]: Are you -- are you certified in the Intoxilyzer 5000?
[OFFICER]: Yes, I am.
....
[ATTORNEY]: Okay. Okay. And did you take classes to become
certified?
[OFFICER]: Yes, I did.
[ATTORNEY]: Okay. And you took a test to become certified?
[OFFICER]: Yes, I did.
[ATTORNEY]: Okay. Did you get certified on the Intoxilyzer
5000EN?
[OFFICER]: No, I did not. I never heard of the EN.
Absent the CMI materials, there is insufficient competent and substantial evidence to
support the hearing officer’s finding that the 5000EN was an upgraded model that did not require
operator recertification. While the SOP 1.5.2 requires that operators become recertified
whenever ISP adopts a new instrument, it contains no procedures for operator certification on
upgraded instruments. The Intoxilyzer 5000 and 5000EN manuals reveal differences between
the design and operation of the two machines. The internal parts and technology utilized by the
two instruments are different. In addition, while the Intoxilyzer 5000 is operated by the
manipulation of a series of switches, the 5000EN utilizes a computer menu and keystrokes.
While this Court notes the differences between the two instruments, there is not enough
competent and substantial evidence in the record to indicate whether the ISP considers the
5000EN to be a new instrument for the purpose of operator certification. Therefore, the hearing
officer erred in finding the arresting officer was properly certified to operate the Intoxilyzer
5000EN because he did not take proper official notice of the CMI materials under I.C. § 67-
5251(4) and there is not competent and substantial evidence in the remainder of the record to
support the hearing officer’s finding. Accordingly, the district court erred in affirming the
administrative license suspension.
Masterson also argues that he is entitled to attorney fees pursuant to I.C. § 12-117(1),
which provides:
(1) Unless otherwise provided by statute, in any administrative
proceeding or civil judicial proceeding involving as adverse parties a state agency
. . . and a person, . . . the court . . . shall award the prevailing party reasonable
attorney’s fees, witness fees and other reasonable expenses, if it finds that the
nonprevailing party acted without a reasonable basis in fact or law.
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This Court cannot say that the ITD acted without reasonable basis in fact or law. Therefore, we
deny Masterson’s request for attorney fees under I.C. § 12-117(1).
III.
CONCLUSION
The hearing officer did not take proper official notice of the CMI materials under I.C.
§ 67-5251(4) and there is insufficient competent and substantial evidence in the remainder of the
record to support the hearing officer’s finding that the arresting officer was properly certified to
operate the Intoxilyzer 5000EN. Therefore, we reverse the decision of the district court and
vacate Masterson’s administrative license suspension. Costs, but not attorney fees, are awarded
on appeal to Masterson.
Judge LANSING and Judge GUTIERREZ, CONCUR.
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