Brian Head appeals from the decision of the district court affirming the magistrate judge's order that Head's driving privileges shall be suspended for 180 days for his refusal to submit to an evidentiary test for the presence of alcohol in his blood. We affirm.
I. FACTS AND PROCEDURAL HISTORY
On November 1, 1997, at approximately 2:00 a.m., Deputy King was dispatched to a single-vehicle accident in rural Latah County. When he arrived, several other police cars were already present, as were emergency medical personnel. They were attending to Brian E. Head, the lone occupant of the vehicle. After Head was transported to a local hospital, Deputy King began assisting in the investigation of the accident. He later went to the hospital to interview Head.
Deputy King had information from other officers investigating the accident indicating that Head had been the driver of the vehicle. While at the hospital, Deputy King telephoned the registered owner of the vehicle, who was Head's brother. He learned that Head resided in the state of Washington, but had been visiting his brother in Deary and had borrowed the car that evening. Deputy King then interviewed Head in the emergency room.
Head told Deputy King that after attending a high school football game in Genesee, he drove his brother's car to a bar in Troy where he drank beer until he was too intoxicated to drive. He stated that upon walking outside to sleep in the car, he met a stranger who needed a ride to Kendrick. He allowed the stranger, whose name he did not know, to drive the car from the bar towards Kendrick, where Head intended to sleep until morning and then drive back to his brother's house in Deary. Head claimed that the stranger was driving when the accident occurred.
Deputy King could smell the odor of an alcoholic beverage on Head's breath. Deputy King asked Head to submit to an evidentiary test for alcohol in his blood and advised him of the information required by Idaho Code § 18-8002(3). Head initially stated that he would submit to a blood test, but when the laboratory technician arrived to draw his blood he changed his mind and said that he wanted to have his attorney present. After Deputy King told him that he was not entitled to have his attorney present, Head stated that he would not submit to the blood test if he could not have his attorney present. Deputy King then arrested Head for driving while under the influence of alcohol.
Deputy King submitted an affidavit to the court stating that he had probable cause to believe that Head was driving while under the influence of alcohol, that he asked Head to submit to a test for alcohol concentration in his blood after advising Head of the consequences of refusing such test, and that Head refused to submit to the blood test. The affidavit of refusal initiated proceedings to suspend Head's driving privileges for 180 days due to his refusal to submit to the blood test.
Head timely requested a court hearing regarding his refusal to submit to the blood test. At the conclusion of the hearing, the magistrate judge found that Head had failed to prove a sufficient reason for refusing to submit to the blood test. The magistrate ordered that Head's driving privileges be suspended for 180 days. Head appealed to the district court, which affirmed the order of the magistrate judge. His further appeal was initially heard by the Court of Appeals. It held that because the advisory form that Deputy King read to Head included additional erroneous information regarding the consequences of failing the blood test, the advisory form did not meet the requirements of the statute. The Court of Appeals then reversed the district court's decision, which upheld the suspension ordered by the magistrate judge. We granted the State's petition for review.
II. STANDARD OF REVIEW
In cases that come before this Court on a petition for review of a Court of Appeals decision, this Court gives serious consideration to the views of the Court of Appeals, but directly reviews the decision of the lower court. Humberger v. Humberger, 134 Idaho 39, 995 P.2d 809 (2000). Likewise, upon review of a case appealed from a district court's appellate review of a magistrate's decision, this Court makes an independent appellate review of the magistrate's decision, after giving due regard to the district court's ruling. State v. Clark, 135 Idaho 255, 16 P.3d 931 (2000). This Court will
The advisory form that Deputy King read to Head stated as follows:
Head concedes that paragraphs numbered 1 through 4 accurately advised him of the consequences of refusing the blood test as required by Idaho Code § 18-8002. He argues, however, that his driving privileges
In 1984 the Idaho legislature enacted Idaho Code § 18-8002 to provide for the suspension of the driving privileges of a motor vehicle operator who refused to submit, at the request of a peace officer, to an evidentiary test for the concentration of alcohol in his blood, urine, or breath. In 1993 the legislature enacted Idaho Code § 18-8002A to provide for the administrative suspension of the driving privileges of a motor vehicle operator who submitted to an evidentiary test if it showed an alcohol concentration in excess of that permitted by law.
In 1995 the legislature suspended the enforcement of the statute because of concerns that the double jeopardy clauses of the federal and state constitutions would preclude a later prosecution for driving while under the influence of alcohol and/or drugs if the defendant's driving privileges had previously been administratively suspended under Idaho Code § 18-8002A. Act approved March 17, 1995, ch. 190, 1995 Idaho Sess. Laws 681. Two years later the legislature extended the suspension of the enforcement of the statute until January 1, 1998. Act approved March 20, 1997, ch. 238, § 2, 1997 Idaho Sess. Laws 689, 696.
A motor vehicle operator, who is facing the suspension of his driving privileges under Idaho Code § 18-8002 for refusing to submit to an evidentiary test for the concentration of alcohol in his blood, urine, or breath, has the burden of showing why his license should not be suspended. State v. Griffiths, 113 Idaho 364, 744 P.2d 92 (1987); IDAHO CODE § 18-8002(4)(b) (1997). The grounds upon which an operator may challenge the suspension of his driving privileges are statutory. In Griffiths, we listed those grounds as follows:
State v. Griffiths, supra at 368, 744 P.2d at 96. Head concedes that his challenge to the suspension of his driving privileges does not fit within any of the grounds listed in Griffiths.
The magistrate judge found that Head refused to submit to the blood test because he would not do so without his attorney being present. That finding is supported by substantial and competent evidence. As Deputy King told Head, he had no right to consult with an attorney prior to submitting to the blood test. Mills v. Bridges, 93 Idaho 679, 471 P.2d 66 (1970); McNeely v. State, 119 Idaho 182, 804 P.2d 911 (Ct.App.1991); IDAHO CODE § 18-8002(2) (1997). Therefore, the magistrate judge did not err when it ordered that Head's driving privileges be suspended for 180 days.
After being correctly informed of the consequences of refusing to submit to an evidentiary test for the presence of alcohol in his blood, Head refused to submit to the test because he wanted his attorney to be present. He had no right to have counsel present, or to consult with counsel, prior to or at the time of the blood test. Therefore, the magistrate judge correctly found that Head had failed to show sufficient cause why his driving privileges should not be suspended. The order of the magistrate judge suspending Head's driving privileges for 180 days is affirmed. Costs on appeal are awarded to the State.
Chief Justice TROUT, and Justices SCHROEDER and WALTERS concur.
Justice KIDWELL, 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,
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.