               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 39886

IN THE MATTER OF THE DRIVER’S    )
LICENSE SUSPENSION OF GEORGE JAY )
BEYER, JR.                       )
GEORGE JAY BEYER, JR.,           )
                                 )                      2013 Opinion No. 32
     Petitioner-Appellant,       )
                                 )                      Filed: June 4, 2013
v.                               )
                                 )                      Stephen W. Kenyon, Clerk
STATE OF IDAHO, TRANSPORTATION )
DEPARTMENT,                      )
                                 )
     Respondent.                 )
                                 )

       Appeal from the District Court of the Second Judicial District, State of Idaho, Nez
       Perce County. Hon. Jeff M. Brudie, District Judge.

       Decision of the district court, affirming an administrative order suspending a
       driver’s license for failing breath alcohol concentration test, affirmed.

       Clark & Feeney, Lewiston, for appellant. Charles M. Stroschein argued.

       Hon. Lawrence G. Wasden, Attorney General; Edwin L. Litteneker, Special
       Deputy Attorney General, Lewiston, for respondent. Edwin L. Litteneker argued.
                 ________________________________________________
MELANSON, Judge
       George Jay Beyer, Jr. appeals from the district court’s decision upon judicial review
affirming the Idaho Transportation Department’s order suspending Beyer’s driver’s license after
he failed a breath alcohol concentration test. For the reasons set forth below, we affirm.
                                                 I.
                                  FACTS AND PROCEDURE
       Beyer was stopped in November 2010 for making an illegal right turn while driving a
vehicle. I.C. § 49-644(1). The officer who stopped Beyer noticed a smell of alcohol coming
from the vehicle and that Beyer’s eyes were glassy and bloodshot. Beyer admitted to consuming
alcohol prior to driving and the officer conducted standard field sobriety tests. After observing
Beyer’s performance, the officer arrested Beyer for driving under the influence. A breath test

                                                 1
showed that Beyer’s breath alcohol concentration was above the legal limit. Beyer was served
with a notice of administrative suspension of his driver’s license due to his failure of the breath
test. Following his arrest, Beyer requested a hearing before a hearing officer from the Idaho
Transportation Department (ITD) to contest the license suspension.         At the hearing, Beyer
argued that his driver’s license should not be suspended. The hearing officer sustained the
suspension of Beyer’s license. Beyer appealed to the district court. The district court affirmed
the hearing officer’s decision. Beyer again appeals. 1
                                                II.
                                   STANDARD OF REVIEW
       The Administrative License Suspension 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 (ALS) 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 v. State, Dep’t of Transp., 139 Idaho 586, 590, 83 P.3d
130, 134 (Ct. App. 2003). 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 peace officer did not have legal cause to stop
the person.” I.C. § 18-8002A(7)(a). A license suspension may also 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 tests for breath alcohol content. State v. DeFranco, 143 Idaho 335, 337, 144 P.3d
40, 42 (Ct. App. 2006). To carry out the authority conferred by that statute, the ISP issued


1
        A stay of Beyer’s license suspension was ordered pending the administrative hearing and
written findings of fact and conclusions of law and order issued by the hearing officer. A stay
was also ordered pending judicial review.

                                                 2
operating manuals as well as Standard Operating Procedure (SOP) establishing procedures for
the maintenance and operation of breath testing equipment. 2 In re Mahurin, 140 Idaho 656, 658,
99 P.3d 125, 127 (Ct. App. 2004). Noncompliance with these procedures is a ground for
vacating an ALS under I.C. § 18-8002A(7)(d). Mahurin, 140 Idaho at 658-59, 99 P.3d at 127-
28. The ISP SOP for breath alcohol testing provide that, “prior to evidentiary breath alcohol
testing, the subject/individual should be monitored for at least fifteen (15) minutes . . . . During
the monitoring period the subject/individual should not be allowed to smoke, drink, eat, or
belch/burp/vomit/regurgitate.” SOP 6.1 (Nov. 1, 2010). The SOP also provides that, “during the
monitoring period, the Operator must be alert for any event that might influence the accuracy of
the breath alcohol test.” Id. at 6.1.4. 3
        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, 139 Idaho at 589, 83 P.3d at 133. The Idaho Administrative Procedures Act (IDAPA)
governs judicial review of the ITD 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



2
       In this case, Beyer makes no argument regarding applicable manuals. These manuals
have changed over time. This Court has previously looked to these manuals for information
regarding the requirements of the monitoring period. See State v. Carson, 133 Idaho 451, 453,
988 P.2d 225, 227 (Ct. App. 1999). The focus here appears to be on the requirements in the
SOP.
3
        The current SOP, effective January 2013, has changed the “must” in 6.1.4 to “should.”

                                                 3
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 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.
                                                III.
                                           ANALYSIS
A.     Legal Cause for Stop
       Beyer argues that the arresting officer lacked legal cause to stop Beyer’s vehicle. A
traffic stop by an officer constitutes a seizure of the vehicle’s occupants and implicates the
Fourth Amendment’s prohibition against unreasonable searches and seizures.            Delaware v.
Prouse, 440 U.S. 648, 653 (1979); State v. Atkinson, 128 Idaho 559, 561, 916 P.2d 1284, 1286
(Ct. App. 1996). Under the Fourth Amendment, an officer may stop a vehicle to investigate
possible criminal behavior if there is a reasonable and articulable suspicion that the vehicle is
being driven contrary to traffic laws. United States v. Cortez, 449 U.S. 411, 417 (1981); State v.
Flowers, 131 Idaho 205, 208, 953 P.2d 645, 648 (Ct. App. 1998). The reasonableness of the
suspicion must be evaluated upon the totality of the circumstances at the time of the stop. State
v. Ferreira, 133 Idaho 474, 483, 988 P.2d 700, 709 (Ct. App. 1999). The reasonable suspicion
standard requires less than probable cause but more than mere speculation or instinct on the part
of the officer. Id. An officer may draw reasonable inferences from the facts in his or her
possession, and those inferences may be drawn from the officer’s experience and law
enforcement training. State v. Montague, 114 Idaho 319, 321, 756 P.2d 1083, 1085 (Ct. App.
1988). Suspicion will not be found to be justified if the conduct observed by the officer fell




                                                 4
within the broad range of what can be described as normal driving behavior. Atkinson, 128
Idaho at 561, 916 P.2d at 1286.
       Beyer asserts that his conduct fell within the broad range of what can be described as
normal driving behavior. We first note that failure to do what is required by the statute cannot be
said to fall within the normal range of driving behavior even if it is shown that the statute is
frequently violated. Beyer argues that I.C. § 49-644(1) does not require a driver to turn into the
right, or nearest lane, rather than drive directly into the left lane of a four-lane road consisting of
two lanes in each direction. The interpretation of a statute is an issue of law over which we
exercise free review. Aguilar v. Coonrod, 151 Idaho 642, 649-50, 262 P.3d 671, 678-79 (2011).
Such interpretation must begin with the literal words of the statute; those words must be given
their plain, usual, and ordinary meaning; and the statute must be construed as a whole. Verska v.
Saint Alphonsus Reg’l Med. Ctr., 151 Idaho 889, 893, 265 P.3d 502, 506 (2011). It is well
established that, where statutory language is unambiguous, legislative history and other extrinsic
evidence should not be consulted for the purpose of altering the clearly expressed intent of the
legislature. Id. Only where a statute is capable of more than one conflicting construction is it
said to be ambiguous and invoke the rules of statutory construction. L & W Supply Corp. v.
Chartrand Family Trust, 136 Idaho 738, 743, 40 P.3d 96, 101 (2002). Idaho Code Section 49-
644(1) requires that, when the driver of a vehicle intends to make a right turn, both the approach
for the turn and the turn must be made as close as practicable to the right-hand curb or edge of
the roadway. We conclude this language unambiguously requires that a driver turn into the right,
or nearest lane, rather than drive across the nearest lane and directly into the left lane of a four-
lane road consisting of two lanes in each direction.
       Beyer bore the burden of proving by a preponderance of the evidence that the officer
lacked legal cause to stop Beyer’s vehicle. A preponderance of the evidence means that the
evidence shows something to be more probably true than not.                Oxley v. Medicine Rock
Specialties, Inc., 139 Idaho 476, 481, 80 P.3d 1077, 1082 (2003). Therefore, Beyer had to show
that it was more probably true than not that he did not violate I.C. § 49-644(1). In the arresting
officer’s probable cause affidavit, the officer explained that he stopped Beyer for making an
illegal right turn into the wrong lane of a four-lane road. The officer testified at the ALS hearing
that he observed Beyer drive directly into the left lane rather than turning into the right lane of
the four-lane road. The audio recording of the stop of Beyer’s vehicle reveals that the arresting


                                                  5
officer informed Beyer he was stopped for pulling directly into the left lane rather than the right
lane. As determined above, this driving behavior constitutes a violation of I.C. § 49-644(1).
Beyer testified that he turned into the right lane and then merged into the left lane and did not
recall driving directly into the left lane. In its findings of fact and conclusions of law, the hearing
officer determined the arresting officer’s affidavit and testimony and Beyer’s testimony were
equally contradictive and given equal weight. Thus, the hearing officer concluded Beyer had not
met his burden of proof. Again, 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. We conclude there is substantial evidence in the record from which to conclude that
Beyer failed to show by a preponderance of the evidence that he did not violate I.C. § 49-
644(1). 4
B.      Fifteen-Minute Observation Period
        Beyer also argues that the arresting officer did not properly conduct the fifteen-minute
observation period prior to evidentiary breath alcohol testing.           This Court addressed the
requirement of the fifteen-minute monitoring period in Bennett v. State, Dep’t of Transp., 147
Idaho 141, 206 P.3d 505 (Ct. App. 2009). We noted that the purpose of the monitoring period is
to rule out the possibility that alcohol or other substances have been introduced into the subject’s
mouth from the outside or by belching or regurgitation. Id. at 144, 206 P.3d at 508; State v.
Carson, 133 Idaho 451, 453, 988 P.2d 225, 227 (Ct. App. 1999). To satisfy the monitoring
requirement, the level of surveillance “must be such as could reasonably be expected to
accomplish” that purpose.      Bennett, 147 Idaho at 144, 206 P.3d at 508.           Furthermore, in



4
        In its findings of fact and conclusions of law, after concluding that Beyer did not meet his
burden of proof, the hearing officer also concluded that the arresting officer had legal cause to
stop Beyer’s vehicle. However, having found that Beyer failed to meet his burden of proof, it
was unnecessary for the hearing officer to further conclude that the officer had legal cause to
stop Beyer’s vehicle. The distinction between finding that Beyer did not meet his burden of
proof and concluding that the arresting officer had legal cause to stop Beyer’s vehicle is subtle
but important in this case because no in-person hearing was held and Beyer’s version of events is
different from the officer’s. Presumably, in order for the hearing officer to affirmatively find
that the arresting officer had legal cause to stop Beyer’s vehicle (as opposed to ruling that Beyer
had not met his burden of proof to show that the stop was not supported by legal cause), the
hearing officer would have been required to find the arresting officer’s testimony more credible
than Beyer’s testimony. The hearing officer’s finding was superfluous, but it does seem to be
inconsistent with his assertion that he gave equal weight to the testimony.

                                                  6
DeFranco, this Court commented that the fifteen-minute monitoring period is not an onerous
burden and that “this foundational standard ordinarily will be met if the officer stays in close
physical proximity to the test subject so that the officer’s senses of sight, smell and hearing can
be employed.” DeFranco, 143 Idaho at 338, 144 P.3d at 43. Therefore, so long as the officer is
continually in a position to use his or her senses, not just sight, to determine that the defendant
did not belch, burp or vomit during the monitoring period, the observation complies with the
training manual instructions. Bennett, 147 Idaho at 144, 206 P.3d at 508. See also Carson, 133
Idaho at 453, 988 P.2d at 227 (holding that the arresting officer’s ability to supplement his visual
monitoring of Carson with his other senses was substantially impaired by numerous sources of
noise, the officer’s own hearing impairment, and his position facing away from Carson while
transporting him during the monitoring period).
       Beyer asserts that the arresting officer did not properly conduct the fifteen-minute
observation period because the officer was distracted by traffic and the tow truck driver who
arrived to take Beyer’s vehicle. The hearing officer noted that, pursuant to State v. Remsburg,
126 Idaho 338, 340, 882 P.2d 993, 995 (Ct. App. 1994), the operator of the breath testing
instrument is not required to stare continuously at the driver for the full fifteen-minute
monitoring period.    The hearing officer found that, even when the officer’s attention was
diverted during the monitoring period, including yelling to the tow truck driver, Beyer failed to
provide any proof that the arresting officer’s other senses than sight were unable to assist in
monitoring Beyer.
       The roadside stop of Beyer’s vehicle, which occurred very early in the morning, was
captured on the arresting officer’s dashboard video camera. While the officer is not always
visible in the video, he was picked up by the microphone during the entire observation period.
Beyer is visible during the entire observation period. 5 The officer had Beyer sit in the back of
the patrol vehicle with his legs extended outside the vehicle on the side of the vehicle furthest
from the roadway. The officer testified that he at all times remained within approximately two
feet of Beyer. Beyer did not dispute this testimony. The testimony of the officer is consistent

5
       The officer began one fifteen-minute observation period but, with only minutes to go,
Beyer informed the officer that he would not submit to breath testing. The officer informed
Beyer that he would have to have blood drawn. Beyer decided to submit to breath testing, at
which point the officer began another fifteen-minute observation period.


                                                  7
with the video because Beyer and the officer can be heard having regular conversation at a voice
level consistent with them being in close proximity to one another. At no time did the officer or
Beyer raise their voices to be heard over the very minimal traffic nor did the traffic noise appear
to be loud enough to interfere with any of the officer’s senses or his ability to observe Beyer.
When the tow truck arrived and the driver got out of the tow truck, the officer yelled for the
driver to not take Beyer’s vehicle yet. This took less than ten seconds. Beyer offered no
evidence that the officer’s senses, other than sight, were unable to assist in monitoring Beyer
while he yelled at the tow truck driver. We conclude the hearing officer’s finding that the
arresting officer properly conducted the fifteen-minute observation period was supported by
substantial evidence in the record. 6
C.     Due Process
       Beyer also argues that he was afforded no due process in the ALS hearing. Because the
suspension of issued driver’s licenses involves state action that adjudicates important interests of
the licensees, drivers’ licenses may not be taken away without due process. Dixon v. Love, 431
U.S. 105, 112 (1977); State v. Ankney, 109 Idaho 1, 3-4, 704 P.2d 333, 335-36 (1985); In re
Gibbar, 143 Idaho 937, 945, 155 P.3d 1176, 1184 (Ct. App. 2006). Beyer correctly asserts that
this Court should focus on Mathews v. Eldridge, 424 U.S. 319 (1976) in determining whether an
administrative proceeding satisfies procedural due process.        In that case, the United States
Supreme Court stated that resolution of the issue whether the administrative procedures provided
in a particular case are constitutionally sufficient requires consideration of three distinct factors:
(1) the private interest that will be affected by the official action; (2) the risk of an erroneous
deprivation of such interest through the procedures used, and the probable value, if any, of
additional or substitute procedural safeguards; and (3) the government’s interest, including the



6
        We note, however, that roadside monitoring inherently presents environmental
impediments and distractions which, without due care, may sufficiently compromise the
adequacy of the monitoring so as to void the test results. As we have previously cautioned, “It
should be noted that although constant visual contact is not required, the rule’s flexibility is not
an open invitation for law enforcement officers to be inattentive or to leave suspects out of their
sight for any appreciable period of time.” Wilkinson v. State, Dep’t of Transp., 151 Idaho 784,
788, 264 P.3d 680, 684 (Ct. App. 2011). We continue to counsel that “officers should attend to
suspects to the best of their ability, including visual observation, throughout the entire
monitoring period if at all possible.” Id. Here, as we have noted, traffic was light and there were
very few distractions.

                                                  8
function involved and the fiscal and administrative burdens that the additional or substitute
procedural requirement would entail. Mathews, 424 U.S. at 334-35.
        Beyer argues that he was afforded no due process in the ALS hearing because a subpoena
issued at his request did not require production of a copy of the video of the stop of his vehicle
until the very the day of the hearing. However, on the day of the hearing, the hearing officer
offered to enter a stay of Beyer’s license suspension and leave the record open for fifteen days to
allow counsel to submit additional evidence after reviewing the video. At the hearing, counsel
for Beyer stated:
               I think that’s fair, because my client wouldn’t be necessarily prejudiced if
        there was a stay and the record was held open.
               ....
               So if that’s the resolution that we can reach, then as I said, I don’t think
        my client’s prejudiced if there’s a stay put into place pending my review of the
        DVD.

Thereafter, the hearing officer entered a stay of Beyer’s license suspension and left the record
open for fifteen days. The doctrine of invited error applies to estop a party from asserting an
error when his or her own conduct induces the commission of the error. Thompson v. Olsen, 147
Idaho 99, 106, 205 P.3d 1235, 1242 (2009). One may not complain of errors one has consented
to or acquiesced in. Id. In short, invited errors are not reversible. Id. Thus, given that Beyer
affirmatively accepted the hearing officer’s remedy at the time of the hearing, even if the hearing
officer erred by not requiring the video to be produced until the day of the hearing, Beyer cannot
complain of that error. 7
        Beyer finally argues that the hearing officer deprived Beyer of due process because his
request for an in-person hearing was denied. Idaho Code Section 18-8002A(7) provides that “the
department may conduct all hearings by telephone if each participant in the hearing has an
opportunity to participate in the entire proceeding while it is taking place.” Beyer, his counsel,

7
        We have previously criticized a hearing officer’s practice of issuing subpoenas requiring
compliance on the day before the scheduled hearing. We stated that such a practice is “strongly
discouraged,” but that it does not amount to a per se violation of procedural due process. Bell v.
Idaho Transp. Dep’t, 151 Idaho 659, 666 n.2, 262 P.3d 1030, 1037 n.2 (Ct. App. 2011). The
ALS hearing in this case was held prior to our decision in Bell but, here, compliance was ordered
on the day of the hearing. We continue to strongly discourage this practice. We see no reason
for this practice except to cause a disadvantage to the driver who has the burden of proof at the
ALS hearing.

                                                9
and the arresting officer were allowed to participate in the entire proceeding. The hearing officer
heard testimony from the arresting officer and Beyer. However, Beyer argues that, because the
testimony of the officer and Beyer conflicted, the credibility of the officer was at issue and,
therefore, an in-person hearing was required pursuant to Gibbar, 143 Idaho at 949, 155 P.3d at
1188. In that case, Gibbar argued that his telephone hearing violated his due process rights. Id.
Gibbar implied that witness credibility was always at issue and that in-person hearings were
required to adequately cross-examine witnesses. However, the testimony in Gibbar’s case was
uncontested. Specifically, Gibbar admitted to drinking the day of his arrest and indicated that he
was baling hay, which may have caused him to have bloodshot eyes. Gibbar’s testimony did not
contradict the testimony of the officer, who testified that Gibbar smelled of alcohol and had
bloodshot eyes. Gibbar corroborated the testimony of the officer that he crossed the centerline of
the street while driving by explaining that there was a pedestrian on the side of the street. Rather
than stating that there was no pedestrian, the officer indicated there may have been a pedestrian.
Therefore, this Court determined that the telephone hearing posed no risk of erroneous
deprivation of Gibbar’s driver’s license. Id.
       While Beyer asserts Gibbar stands for the proposition that, in all cases where credibility
is in issue there must be an in-person hearing provided upon request, Gibbar should not be read
so broadly. Rather, because Gibbar’s argument was undermined by the lack of conflicting
testimony, we did not reach the question of whether an in-person hearing is always required upon
request when credibility is in issue. We also need not reach that issue in this case. Again, this
Court may overturn an agency’s decision where its findings, inferences, conclusions, or
decisions violate constitutional provisions. I.C. § 67-5279(3). However, the party challenging
the agency decision must demonstrate that the agency violated a constitutional provision and that
a substantial right of that party has been prejudiced. Price, 131 Idaho at 429, 958 P.2d at 586;
Marshall, 137 Idaho at 340, 48 P.3d at 669. With respect to prejudice suffered, Beyer appears
only to assert that he would have been more effectively able to cross-examine the arresting
officer at an in-person hearing after having reviewed the video of the stop of his vehicle. Thus,
his assertion that he suffered prejudice is related solely to the absence of the video recording at
the hearing. As addressed above, the doctrine of invited error precludes Beyer from asserting
any prejudice from the fact that the hearing officer did not require the video to be produced until
the day of the hearing. Even so, Beyer argues:


                                                 10
       Clearly, having a video of the entire contact with Mr. Beyer would have been
       immensely important for the preparation of issues and preparation for
       examination of the arresting officer. . . . The video shows all sorts of things that
       Counsel for Mr. Beyer would not have been aware [of], but for the video. Please
       remember that the arresting officer . . . got to review the video before the hearing,
       but Counsel for Mr. Beyer did not.
                The District Court says that [Beyer] has failed to show how he was
       prejudiced. A video shows substantial information not available from any other
       source. Why have a due process hearing when a driver is just shooting in the dark
       as to issues and facts.

By these statements, Beyer does not indicate what additional questions he would have asked the
officer or what evidence he may have produced had he been able to ask the arresting officer
questions regarding the video at an in-person hearing. Indeed, the arresting officer’s testimony
did not substantially differ from what is shown on the video. Accordingly, Beyer has failed to
demonstrate that he suffered any prejudice due to the hearing officer’s denial of his request for
an in-person hearing.
                                               IV.
                                        CONCLUSION
       There is substantial evidence in the record from which to conclude Beyer failed to show
by a preponderance of the evidence that he did not violate I.C. § 49-644(1). There is substantial
evidence in the record to support the hearing officer’s finding that the arresting officer properly
conducted the fifteen-minute observation period. The doctrine of invited error precludes Beyer
from complaining that the hearing officer erred by not requiring the video of the stop of Beyer’s
vehicle to be produced until the day of the ALS hearing. Beyer has failed to show that he was
prejudiced by the denial of his request for an in-person hearing. Therefore, we affirm the district
court’s decision upon judicial review affirming the ITD’s order suspending Beyer’s driver’s
license. Costs, but not attorney fees, are awarded on appeal to the respondent, State of Idaho.
       Judge LANSING and Judge GRATTON, CONCUR.




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