dissenting.
Because acquiescence in the practice of providing wholly inaccurate legal information to a motorist suspected of driving under the influence of intoxicants is unjust and conveys an inappropriate message to law enforcement, I respectfully dissent.
As noted by the majority, this Court, in Griffiths, listed specific statutory grounds upon which a defendant may challenge the suspension of his or her driving privileges, one of them being “that defendant was not advised of the information regarding refusal mandated by I.C. § 18-8002(3).” State v. Griffiths (In re Griffiths), 113 Idaho 364, 368, 744 P.2d 92, 96 (1987). However, the Griffiths Court also summarized the underlying principle guiding the determination of whether a motorist has demonstrated that any of those grounds exists, saying that the motorist must “establish cause of a sufficient magnitude that it may be fairly said that a suspension of his license would be unjust or inequitable.” Id. at 372, 744 P.2d at 100. More specifically, this Court said that “[t]he license of a driver who refuses to submit to a requested test will be reinstated if he can establish at the show cause hearing that he was not completely advised of his rights and duties under the statute.” Id. at 370, 744 P.2d at 98 (emphasis added). The Court said that the motorist’s initial refusal in that case could not be the basis for a license suspension, because the law enforcement officer had failed to inform the motorist that he had the right to request additional blood alcohol tests at his own expense. Id. Only after the motorist was subsequently completely informed pursuant to I.C. § 18-8002 and refused a second time, could his refusal form the basis of a suspension. Id.
The Court of Appeals has picked up on that line of reasoning, interpreting the Griffiths case to stand for the proposition that “Idaho law requires strict adherence to the statutory language of I.C. § 18-8002(3).” Virgil v. State (In re Virgil), 126 Idaho 946, *6947, 895 P.2d 182, 183 (Ct.App.1995) (emphasis added); see also Beem v. State (In re Beem), 119 Idaho 289, 292, 805 P.2d 495, 498 (Ct.App.1991). In the present case, the Court of Appeals held that the advisory form was invalid and reversed the magistrate’s imposition of the license suspension. In re Head, 136 Idaho 409, 34 P.3d 1092, 1095 (Ct.App.2000). The court reasoned that Griffiths, Virgil, and Beem stand for the proposition that the State has the burden of informing the motorist in strict compliance with I.C. § 18-8002. Id. The court found that, based on the information provided by the advisory form, Head could have believed that he faced a choice between a civil license suspension for refusing the test on one hand, and a civil license suspension in addition to possible criminal penalties for taking and failing the test on the other hand. Id. The court found that the advisory form therefore created a disincentive for Head to take the blood alcohol test. Id.
Although not binding on this Court, the reasoning of the Court of Appeals in this case is persuasive. Not only did the advisory form fail to technically and strictly comply with the statutory scheme in place at the time it was read to Head, but it was also misleading and completely incorrect, such that the imposition of a license suspension would be “unjust or inequitable,” to use the Griffiths language. 113 Idaho at 372, 744 P.2d at 100.
The majority points out that the magistrate judge found that Head had refused the test based upon his desire to consult with an attorney. By emphasizing this point, the majority opinion seems to follow the State’s argument that, regardless of whether the advisory form complied with statutory requirements, Head cannot show actual reliance upon or prejudice resulting from the inaccurate form, because he refused based upon the desire to speak with an attorney. However, in Griffiths, this Court espoused the rule that a motorist may avoid a suspension by showing that he or she was not completely informed according to the statute, without ever mentioning a requirement that the motorist show actual reliance upon or prejudice resulting from the inaccurate information.
Consequently, Head’s administrative license suspension based upon his failure to submit to the blood alcohol concentration test should be vacated.