IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 35496
IN THE MATTER OF THE DRIVING )
PRIVILEGES OF: GORDON C. )
SCHROEDER )
GORDON C. SCHROEDER, )
) 2009 Opinion No. 34
Petitioner, )
) Filed: April 30, 2009
v. )
) Stephen W. Kenyon, Clerk
STATE OF IDAHO, DEPARTMENT OF )
TRANSPORTATION, )
)
Respondent. )
)
Appeal from the District Court of the Third Judicial District, State of Idaho,
Canyon County. Hon. Stephen W. Drescher, District Judge.
District court’s decision affirming driver’s license suspension order of Idaho
Transportation Department hearing officer, reversed.
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
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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
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
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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
1
The SOP has been revised and reissued at least once since Schroeder’s test and is
currently different in some respects than the version that the parties relied upon in arguing this
case. It is not entirely clear when some changes took place, but we base our analysis on the SOP
that both parties appear to have been using throughout their litigation.
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are not entirely consistent with respect to 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.
3.1.4.1 If, during the 15-minute waiting period, the subject vomits or
is otherwise suspected of regurgitating material from the
stomach, the 15-minute waiting period must begin again.
3.1.4.2 The operator must be aware of the possible presence of
mouth alcohol as indicated by the testing instrument.
3.1.4.3 If mouth alcohol is suspected or indicated, the operator
must begin another 15-minute waiting period before
repeating the testing sequence.
The SOP thus made no reference to belching as a circumstance that would affect administration
of the test.2
The Intoxilyzer 5000 Manual, however, specifies that belching is a factor. It states:
“During [the 15-minute monitoring period], the subject may not smoke, consume alcohol, eat,
belch, vomit, use chewing tobacco, or have gum or candy in the mouth. If belching or vomiting
does occur or something is found in the mouth, have it removed and wait an additional 15
minutes.” (Emphasis added.) Schroeder, relying on these instructions in the Intoxilyzer 5000
Manual, contends that the monitoring period must recommence if the subject belches, while the
ITD argues that, per the SOP, only regurgitation of stomach material requires that the monitoring
period be restarted. The ITD contends that the SOP and the Intoxilyzer 5000 Manual should be
harmonized by interpreting the belching referenced in the Intoxilyzer 5000 Manual to include
only belching that results in the regurgitation of stomach material as specified in the SOP.
2
It should be noted that in contrast to the older SOP cited here, the current SOP
specifically lists belching and burping among the things that “should not be allowed” during the
monitoring period. SOP 3.1 (2009).
4
The interpretation and application of statutory law and administrative rules or
regulations3 presents purely legal issues over which we exercise free review. See State v.
Perkins, 135 Idaho 17, 20, 13 P.3d 344, 347 (Ct. App. 2000). Interpretation begins with an
examination of the statute’s or rule’s literal words. State v. Parkinson, 144 Idaho 825, 827, 172
P.3d 1100, 1102 (2007); State v. Burnight, 132 Idaho 654, 659, 978 P.2d 214, 219 (1999).
Where the language of a rule is plain and unambiguous, courts give effect to the rule as written,
without engaging in construction. State v. Rhode, 133 Idaho 459, 462, 988 P.2d 685, 688 (1999);
State v. Escobar, 134 Idaho 387, 389, 3 P.3d 65, 67 (Ct. App. 2000). If a court must engage in
construction, then its duty is to ascertain and give effect to the intent of the promulgating entity.
Volk v. Baldazo, 103 Idaho 570, 573, 651 P.2d 11, 14 (1982); State v. Beard, 135 Idaho 641, 646,
22 P.3d 116, 121 (Ct. App. 2001). In so doing, we look to the context of the regulatory language
in question and to the public policy behind it. State v. Shanks, 139 Idaho 152, 154, 75 P.3d 206,
208 (Ct. App. 2003); State v. Cudd, 137 Idaho 625, 627, 51 P.3d 439, 441 (Ct. App. 2002).
When an ambiguous rule is part of a larger scheme, we focus not only upon the language of the
ambiguous rule, but also look at other rules relating to the same subject matter and consider them
together to discern the promulgator’s intent. State v. McNair, 141 Idaho 263, 265-66, 108 P.3d
410, 412-13 (Ct. App. 2005); State v. Paciorek, 137 Idaho 629, 632, 51 P.3d 443, 446 (Ct. App.
2002).
The SOP and the Intoxilyzer 5000 Manual conflict with respect to the circumstances in
which the monitoring period must be restarted--the Intoxilyzer 5000 Manual plainly directs that
the monitoring period must be started anew if any belching occurs, not just belching
accompanied by regurgitation. We conclude that for matters on which they conflict, the
3
We recognize that ISP’s standards for breath tests are not presented in rules formally
promulgated pursuant to the Idaho Administrative Procedure Act, I.C. § 67-5201, et seq., but
rather in standard operating procedure manuals and training manuals. Nevertheless, we will treat
those documents as “rules” for purposes of judicial review because they constitute the only
materials by which the ISP has acted upon the I.C. § 18-8002A(3) authorization for the ISP to
“prescribe by rule” testing instruments and methods that are approved by the ISP. In addition,
I.C. § 18-8004(4) provides that “[n]otwithstanding any other provision of law or rule of court,
the results of any test for alcohol concentration . . . performed . . . by any . . . method approved
by the Idaho state police shall be admissible in any proceeding in this state without the necessity
of producing a witness to establish the reliability of the testing procedure for examination.” The
standards for administration of breath tests in the SOP and training manuals have thus been given
the force of law in this state and we treat their interpretation, accordingly, as a question of law.
5
Intoxilyzer 5000 Manual governs. In reaching this determination, we apply well-established
standards of statutory interpretation. The first of these principles requires that where two
inconsistent statutes appear to apply to the same subject matter, the more specific statute will
control over the more general one. Huyett v. Idaho State University, 140 Idaho 904, 908, 104
P.3d 946, 950 (2004); Westway Const., Inc. v. Idaho Transp. Dept., 139 Idaho 107, 115, 73 P.3d
721, 729 (2003); Gooding County v. Wybenga, 137 Idaho 201, 204, 46 P.3d 18, 21 (2002). Here,
the SOP is more general, for it applies to various breath testing devices approved by the ISP,
whereas the Intoxilyzer 5000 Manual is written exclusively for that instrument and is therefore
less likely to have been written in a way that might sacrifice specific detail for broad
applicability. Secondly, giving precedence to the Intoxilyzer 5000 Manual is consistent with the
general rule that when two legislative enactments contradict, the most recent enactment controls.
See Owen v. Burcham, 100 Idaho 441, 444, 599 P.2d 1012, 1015 (1979); State v. Betterton, 127
Idaho 562, 564, 903 P.2d 151, 153 (Ct. App. 1995); State v. Galaviz, 104 Idaho 328, 331, 658
P.2d 999, 1002 (Ct. App. 1983). The ISP requirements that had been most recently established
at the time of the hearing are those in the Intoxilyzer 5000 Manual, which was updated more
recently than the SOP. For these reasons, to the extent that the SOP and the Intoxilyzer 5000
Manual are incongruous, we hold that the Intoxilyzer 5000 Manual governs.
ITD argues that even if there was not compliance with the monitoring standards adopted
by the ISP, the test results in this case should be deemed valid because the Intoxilyzer 5000
detects mouth alcohol4 and will notify the operator that the breath test is invalid if mouth alcohol
is in fact present. The ITD does not cite, however, to anything in either the SOP or the manual
that says that, nor to any evidence in the record that supports this assertion. Instead, the ITD
directs our attention to Charan, 132 Idaho at 342-43, 971 P.2d at 1166-67, where at trial there
was uncontroverted expert testimony that the Intoxilyzer 5000 reports when mouth alcohol is
present. We held that this expert testimony provided a foundation on the particular breath test’s
reliability sufficient to allow admission of the test results into evidence despite the breath test
operator’s alleged failure to properly monitor the test subject. Charan does not support the
4
The introduction of mouth alcohol, which can create inaccurate breath test results,
appears to be the primary concern behind not allowing test subjects to engage in certain activities
during the monitoring period.
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ITD’s position here, however, because in Charan we emphasized that our decision was “not a
holding that, as a matter of law, Intoxilyzer 5000 tests are admissible without the 15-minute
observation mandated by compliance with the Operator’s Training Manual.” Id. at 343, 971 P.2d
at 1167. We further explained:
We hold only that the uncontroverted testimony of Officer Bones in this case
provided sufficient foundation for admission of the evidence. Where compliance
with approved procedures for test administration is not shown, it will be necessary
for trial courts to determine whether foundational standards have been met by
alternative means based on the evidence presented in each case.
Id. at 343-44, 971 P.2d at 1167-68. There is no such expert testimony in the record here that
could allow a finding that Schroeder’s breath tests were valid notwithstanding the officer’s
noncompliance with prescribed procedures. The ITD’s argument is inconsistent with both the
SOP and the Intoxilyzer 5000 Training Manual which, by requiring a 15-minute monitoring
period, implicitly indicate that the Intoxilyzer 5000’s capability to detect mouth alcohol cannot
be relied upon, in every instance, to detect mouth alcohol that may result from belching,
regurgitation, or other sources. It is also inconsistent with the SOP’s directive that the operator
must restart the monitoring period “[i]f mouth alcohol is suspected or indicated.” This provision
indicates that mouth alcohol may be legitimately suspected even if it is not indicated by the
testing instrument. Therefore, in the absence of expert testimony that addresses the validity of a
particular test and is subject to cross-examination, the ITD’s argument would simply eviscerate
the 15-minute monitoring requirement.
For the above reasons, we conclude that the hearing officer erred in holding that the 15-
minute monitoring period need not be restarted when there is a belch that is not accompanied by
regurgitation, for that holding is inconsistent with the Intoxilyzer 5000 Manual.
At his hearing, Schroeder testified that he belched several times during the monitoring
period in between his two blows into the instrument. An audio recording of that period tends to
corroborate Schroeder’s testimony. In the recording Schroeder is heard to apologize at several
points prior to the tests, apparently for belching, followed by the administering officer’s
acknowledgement of his apology. At least once, the belch for which Schroeder is apologizing
can be plainly heard. The officer did not testify at the hearing, and Schroeder’s evidence is not
controverted. Therefore, we conclude that Schroeder met his burden of demonstrating that the
breath test was not performed in compliance with standards adopted by the ISP.
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Since Schroeder’s breath test was not administered in accordance with ISP requirements,
and since no expert testimony was admitted at trial sufficient to establish the reliability of the test
results despite the procedural deficiencies, Schroeder’s license suspension must be set aside.
B. Attorney Fees
Schroeder asks for costs and attorney fees, but cites no legal basis for his request. A
party requesting an award of attorney fees must cite authority allowing such an award. SE/Z
Const., L.L.C. v. Idaho State University, 140 Idaho 8, 15, 89 P.3d 848, 855 (2004); MDS
Investments, L.L.C. v. State, 138 Idaho 456, 465, 65 P.3d 197, 206 (2003); Warren v. Sharp, 139
Idaho 599, 606, 83 P.3d 773, 780 (2003). Because Schroeder has presented no legal authority
permitting such an award in this case, we will not consider it.
III.
CONCLUSION
The district court’s decision affirming the hearing officer’s order upholding the
administrative suspension of Schroeder’s driver’s license is reversed, and the matter is remanded
to the ITD for action consistent with this opinion. Costs on appeal to the appellant.
Judge PERRY and Judge GRATTON CONCUR.
8