               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 46511

 STATE OF IDAHO,                                 )
                                                 )    Filed: March 26, 2020
        Plaintiff-Respondent,                    )
                                                 )    Karel A. Lehrman, Clerk
 v.                                              )
                                                 )    THIS IS AN UNPUBLISHED
 PATRICK LAWRENCE GROM,                          )    OPINION AND SHALL NOT
                                                 )    BE CITED AS AUTHORITY
        Defendant-Appellant.                     )
                                                 )

       Appeal from the District Court of the First Judicial District, State of Idaho,
       Kootenai County. Hon. Richard S. Christensen, District Judge. Hon. Timothy Van
       Valin, Magistrate.

       Order of the district court, on intermediate appeal, affirming the magistrate court’s
       order, affirmed.

       Phelps & Associates; Douglas D. Phelps, Spokane, for appellant. Douglas D.
       Phelps argued.

       Hon. Lawrence G. Wasden, Attorney General; Ted S. Tollefson, Deputy Attorney
       General, Boise, for respondent. Kale D. Gans argued.
                 ________________________________________________

HUSKEY, Chief Judge
       Patrick Lawrence Grom appeals from the district court’s intermediate appellate decision
affirming the magistrate court’s order. Grom argues the district court erred when it affirmed the
magistrate court’s order denying Grom’s motion to suppress. Because Idaho Code § 18-8002 is
constitutional and Grom’s rights were not violated, we affirm the decision of the district court.
                                                 I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       Grom was pulled over after he failed to use a traffic signal while driving. Officers
suspected Grom was intoxicated. During the traffic stop, Grom asked to contact his attorney, but
an officer denied this request. Also, Grom attempted to run away from the officers during the stop.
Grom was taken to the hospital to be medically cleared. While at the hospital, an officer attempted



                                                 1
to collect breath samples from Grom, but the blows were invalid. At Grom’s request, a blood draw
was taken. Two vials were drawn; one to be used by the State and the other to be used by Grom.
       Thereafter, Grom was transported to the Kootenai County jail to be booked. Before and
after Grom was booked, he was allowed to use the telephone. The magistrate court found that
Grom arrived at the jail at 12:41 a.m., was given access to a telephone no later than 1:00 a.m., and
was not booked until 1:35 a.m. In addition, Grom had access to the telephone after he was booked
and there is evidence that Grom made multiple phone calls.
       The State charged Grom with misdemeanor driving under the influence, I.C. § 18-8004,
and misdemeanor resisting or obstructing an officer, I.C. § 18-705. Grom filed a motion to
suppress, and the magistrate court held a hearing on the matter. The court denied Grom’s motion,
and Grom appealed to the district court. Following a hearing, the district court allowed the parties
to file supplemental briefing on the issue. The district court issued a memorandum decision and
order which affirmed the magistrate court’s decision denying Grom’s motion to suppress. Grom
timely appeals.
                                                 II.
                                   STANDARD OF REVIEW
       For an appeal from the district court, sitting in its appellate capacity over a case from the
magistrate division, this Court’s standard of review is the same as expressed by the Idaho Supreme
Court. The Supreme Court reviews the magistrate court record to determine whether there is
substantial and competent evidence to support the magistrate court’s findings of fact and whether
the magistrate court’s conclusions of law follow from those findings. State v. Korn, 148 Idaho
413, 415, 224 P.3d 480, 482 (2009). If those findings are so supported and the conclusions follow
therefrom, and if the district court affirmed the magistrate court’s decision, we affirm the district
court’s decision as a matter of procedure. Id. Thus, the appellate courts do not review the decision
of the magistrate court. State v. Trusdall, 155 Idaho 965, 968, 318 P.3d 955, 958 (Ct. App. 2014).
Rather, we are procedurally bound to affirm or reverse the decision of the district court. Id.
       When a trial court’s discretionary decision is reviewed on appeal, the appellate court
conducts a multi-tiered inquiry to determine whether the lower court: (1) correctly perceived the
issue as one of discretion; (2) acted within the boundaries of such discretion; (3) acted consistently
with any legal standards applicable to the specific choices before it; and (4) reached its decision
by an exercise of reason. State v. Herrera, 164 Idaho 261, 270, 429 P.3d 149, 158 (2018).

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                                               III.
                                           ANALYSIS
       Grom presents two reasons why his motion to suppress should have been granted. First,
Grom claims the applicable statute, I.C. § 18-8002, is unconstitutional. Second, Grom argues he
was prevented from contacting his attorney, which violated his Fifth Amendment right to counsel.
Related to those arguments, at oral argument, Grom asserted the magistrate court’s factual findings
regarding the timing of events was not supported by substantial and competent evidence. The
magistrate court found that Grom arrived at the jail at 12:41 a.m. and was given access to a
telephone no later than 1:00 a.m. Grom made phone calls and was not booked until 1:35 a.m. The
jail call logs support that conclusion, and Grom’s claim at oral argument does not negate the fact
that the magistrate court’s findings are supported by substantial and competent evidence.
A.     Idaho Code § 18-8002 Is Constitutional and Does Not Violate Grom’s Fourth
       Amendment Right
       Grom argues I.C. § 18-8002 is unconstitutional. Grom claims I.C. § 18-8002 is inconsistent
with the United States Supreme Court holding in Missouri v. McNeely, 569 U.S. 141 (2013).
       Idaho Code § 18-8002 states, in relevant part:
       (1) Any person who drives or is in actual physical control of a motor vehicle in this
       state shall be deemed to have given his consent to evidentiary testing for
       concentration of alcohol as defined in section 18-8004, Idaho Code, and to have
       given his consent to evidentiary testing for the presence of drugs or other
       intoxicating substances, provided that such testing is administered at the request of
       a peace officer having reasonable grounds to believe that person has been driving
       or was in actual physical control of a motor vehicle in violation of the provisions
       of section 18-8004 or 18-8006, Idaho Code.
       (2) Such person shall not have the right to consult with an attorney before
       submitting to such evidentiary testing.
       ....
               (f) After submitting to evidentiary testing he may, when practicable, at his
               own expense, have additional tests made by a person of his own choosing.
       Requiring a person to submit to a blood draw for evidentiary testing is a search and seizure
under the Fourth Amendment to the United States Constitution and Article I, Section 17 of the
Idaho Constitution. Schmerber v. California, 384 U.S. 757, 767 (1966); State v. Wulff, 157 Idaho
416, 418, 337 P.3d 575, 577 (2014). Therefore, warrantless forced blood draws generally violate
both constitutions. See McNeely, 569 U.S. at 147; State v. Eversole, 160 Idaho 239, 242, 371 P.3d
293, 296 (2016). However, the warrant requirement does not apply if the person subjected to the

                                                3
search consents to the search. Schneckloth v. Bustamonte, 412 U.S. 218, 221-22 (1973); Wulff,
157 Idaho at 419, 337 P.3d at 578. “The State bears the burden of proving by a preponderance of
the evidence that consent was voluntary.” State v. Charlson, 160 Idaho 610, 617, 377 P.3d 1073,
1080 (2016). “Whether consent was voluntary is determined by examining a totality of the
circumstances.” Id.
       Idaho’s implied consent statute, I.C. § 18-8002(1), states that “any person who drives or is
in actual physical control of a motor vehicle in this state shall be deemed to have given his consent
to evidentiary testing for concentration of alcohol.” Before McNeely, the Idaho Supreme Court
maintained that statutorily implied consent satisfied the consent exception to the warrant
requirement and actions or statements revoking implied consent were ineffective. State v. Diaz,
144 Idaho 300, 302, 160 P.3d 739, 741 (2007), overruled by Wulff, 157 Idaho 416, 337 P.3d 575
(2014); State v. Woolery, 116 Idaho 368, 373, 775 P.2d 1210, 1215 (1989), overruled by Wulff,
157 Idaho 416, 337 P.3d 575. In McNeely, the United States Supreme Court held that “the natural
dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient
to justify conducting a blood test without a warrant.” McNeely, 569 U.S. at 165.
       Following McNeely, the Idaho Supreme Court held that, “when it operates as a per se
exception to the warrant requirement,” Idaho’s implied consent statute does not analyze the
voluntariness of consent and is, therefore, inconsistent with the United States Supreme Court’s
repeated “disapproval for categorical rules.”         Wulff, 157 Idaho at 421, 337 P.3d at 580.
Accordingly, the Court held: “Idaho’s implied consent statute must jump two hurdles to qualify
as voluntary: (1) drivers give their initial consent voluntarily and (2) drivers must continue to give
voluntary consent.” Id. at 423, 337 P.3d at 582. The Court overruled its prior implied consent
cases “to the extent that they applied Idaho’s implied consent statute as an irrevocable per se rule.”
Id.
       In regard to the first hurdle, the Wulff Court stated: “Drivers in Idaho give their initial
consent to evidentiary testing by driving on Idaho roads voluntarily.” Id. In regard to the second
hurdle, the Idaho Supreme Court has since clarified its holding in Wulff. In Eversole, the Court
explained the consent implied under Idaho’s statute is voluntary only so long as that consent may
be withdrawn. Eversole, 160 Idaho at 242, 371 P.3d at 296. Thus, “under current Idaho law, a
defendant’s refusal, protest, or objection to alcohol concentration testing terminates the implied
consent given under Idaho’s implied consent statute.” Id. Further, in State v. Rios, 160 Idaho 262,

                                                  4
371 P.3d 316 (2016), the Court recognized that “implied consent may be withdrawn where a
suspect refuses to consent.” Id. at 266, 371 P.3d at 320. Finally, in Charlson, the Court held that
“the statutorily provided implied consent is valid and remains in place until affirmatively
withdrawn.” Charlson, 160 Idaho at 618, 377 P.3d at 1081. Thus, a driver on Idaho roads
impliedly consents to a warrantless blood draw unless he affirmatively withdraws his statutorily
implied consent by refusing, objecting to, or protesting the blood draw.
       Grom argues Idaho’s implied consent statute, set forth in I.C. § 18-8002(1), violates the
Fourth Amendment due to the holding in McNeely. We disagree. Since 2013, when the United
States Supreme Court issued McNeely, Idaho appellate courts have incorporated the McNeely
precedent into cases involving driving under the influence and have never found I.C. § 18-8002 to
be unconstitutional. When considering the constitutionality of the implied consent statute since
McNeely, Idaho Courts have not found a violation of the Fourth Amendment because inherent in
the requirement of consent is the right of the driver to withdraw the consent. State v. Halseth, 157
Idaho 643, 646, 339 P.3d 368, 371 (2014).
       In particular, in Sims v. State, 159 Idaho 249, 358 P.3d 810 (Ct. App. 2015), this Court
addressed the same argument made by Grom in this case. There, Sims argued a warrantless blood
draw under Idaho’s implied consent statute violated his Fourth Amendment right, pursuant to the
holding in McNeely. Sims, 159 Idaho at 255, 358 P.3d at 816. This Court explained that Idaho
case law was contrary to Sims’s argument, and held Idaho’s implied consent statute continues to
be valid, albeit in a form that is revocable. Id. at 255-56, 358 P.3d at 816-17.
       Most recently, the Idaho Supreme Court in State v. Pool, 166 Idaho 238, 457 P.3d 890
(2020) confirmed that the implied consent law in Idaho remains valid after McNeely. There, Pool
asked the Supreme Court to reconsider its prior decisions regarding the validity of statutorily
implied consent. Pool, 166 Idaho at 241-42, 358 P.3d at 893-94. The Supreme Court denied
Pool’s request. Id. at 242-45, 358 P.3d at 894-97. Thus, to the extent Grom is challenging the
constitutionality of Idaho’s rule on implied consent set forth in I.C. § 18-8002(1), his position finds
no support from Idaho precedent since McNeely.
B.     Grom’s Constitutional Rights Were Not Violated From Any Undue Delay
       Grom also argues his constitutional rights were violated because law enforcement officers
prevented Grom from contacting his attorney for an unreasonable amount of time. Grom claims
he was prejudiced by this delay because he was unable to obtain exculpatory evidence.

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       Grom did not have a right to counsel prior to evidentiary testing. Under I.C. § 18-8002(2),
any person driving does not have the right to consult with an attorney before submitting to
evidentiary testing. Here, Grom generally asserts that he was deprived of his constitutional right
to counsel until he was bonded out of jail and had access to his cell phone. To the extent this claim
incorporates the period of time prior to evidentiary testing, the statutory language is clear and
unambiguous that such a right does not exist. The magistrate court addressed this issue and
properly found that, pursuant to I.C. § 18-8002, Grom did not have the right to counsel before
submitting to the blood draw.
       As for the period of time after evidentiary testing, Grom argues his right to due process
was violated because he was denied access to his cell phone for nine hours, and thus, was unable
to contact his attorney. The Due Process Clause of the Fourteenth Amendment to the United States
Constitution guarantees to an accused “the right to a fair opportunity to defend against the State’s
accusations.” Chambers v. Mississippi, 410 U.S. 284, 294 (1973). Due process “is flexible and
calls for such procedural protections as the particular situation demands.” Morrissey v. Brewer,
408 U.S. 471, 481 (1972). Due process also imposes a standard of fundamental fairness in criminal
proceedings. Ake v. Oklahoma, 470 U.S. 68, 76 (1985). Nonetheless, the State is entitled to
conduct blood or breath-alcohol concentration tests of drivers suspected of driving under the
influence, and doing so does not violate a suspect’s Fifth Amendment right against self-
incrimination or Fourth Amendment right against unreasonable searches if the testing is conducted
in a reasonable manner. State v. Green, 149 Idaho 706, 709, 239 P.3d 811, 814 (Ct. App. 2010).
       In the proceedings below, as well as on appeal, Grom relies on State v. Carr, 128 Idaho
181, 911 P.2d 774 (Ct. App. 1995). In Carr, this Court addressed whether the right to due process
was violated when the defendant was denied her request to call an attorney following a breath test.
Id. at 183, 911 P.2d at 776. There, the defendant was arrested for driving under the influence and
agreed to take a breath test. Id. at 182, 911 P.2d at 775. After failing the test, the defendant asked
if she could speak with an attorney and the officers denied her request. The defendant was not
allowed access to a telephone until approximately five hours after her arrest. Id.
       This Court held that a constitutional violation occurred in Carr. Id. at 183, 911 P.2d at
776. By denying the defendant access to a telephone for approximately five hours after her arrest,
the State denied the defendant the means by which she could establish her defense. Id. at 184, 911
P.2d at 777. This Court concluded:

                                                  6
                As a result, when a person is arrested for DUI and given an evidentiary BAC
       test, that person must be allowed, at a minimum, to make a phone call upon request
       to do so. Such contact provides the means through which the arrestee is able to
       gather evidence tending to refute the State’s evidence of intoxication and thereby
       preserve the right to a fair opportunity to defend against the State’s accusations.
Id. (internal quotations omitted).
       More recently in Green, this Court distinguished Carr and held there was no violation of
the defendant’s right to due process when he was denied access to a telephone until after a blood
draw. Green, 149 Idaho at 710, 239 P.3d at 815. There, the defendant was arrested for driving
under the influence and he refused to submit to a breath test without first speaking to an attorney.
Id. at 707, 239 P.3d at 812. Officers denied the defendant’s request, completed a blood draw, and
transported the defendant to jail where he was booked. Id. This Court held that, so long as the
State does not cause an undue delay, there is nothing unfair in a procedure that requires a suspect
to submit to a State-administered test before being given access to a telephone. Id. at 710, 239
P.3d at 815. Although the record was unclear whether or when the defendant was given access to
a telephone in Green, this Court found no due process violation because there was no evidence
officers denied the defendant access to a telephone after the blood draw was completed. Id. at 711,
239 P.3d at 816.
       Here, the case is more like Green than Carr. There is no evidence that officers prevented
Grom from using a telephone after the blood draw. Unlike in Carr, where officers denied the
defendant access to a telephone for five hours, Grom had access to a telephone when he arrived at
the jail, before and after he was booked. Grom was allowed to make a phone call within a relatively
short period of time following the evidentiary test, thereby conforming to the rule set forth in Carr.
       Furthermore, like in Green, there was no constitutional violation even if Grom did not have
immediate access to the telephone and even if the call occurred after the blood draw. Although
several hours passed from the time Grom was arrested and the time he was booked, there is
uncontested evidence that Grom’s behavior was the reason for any delay prior to the booking.1
The magistrate court found any delay and any injuries sustained by Grom were caused by Grom’s
own non-compliance with the officers’ requests prior to Grom’s arrest, including Grom running
from the officers and manipulating the breath test. Grom does not dispute these findings by the

1
         The magistrate court did not make a finding as to the exact time Grom was arrested. The
district court acknowledges this in its memorandum decision, before citing to testimony that Grom
was arrested at 9:52 p.m.
                                                  7
magistrate court. Therefore, as in Green, there was no violation of Grom’s right to due process
when he was denied access to a telephone until after the blood draw.
       Grom also claims he was unable to obtain an evidentiary test due to the actions of the
officers. According to Grom, there was no way to arrange for a neutral third party test of his blood
alcohol level. Grom has not shown how the officers prevented him from obtaining an evidentiary
test. It is undisputed that two vials were drawn while Grom was at the hospital, one to be used by
the State and the other to be used by Grom. Although Grom argues the extra vial of blood does
not substitute for his right to obtain his own independent third-party testing, he provides no
argument or authority to support this claim. The extra vial of blood--drawn for Grom to use--
enabled his independent testing rather than obstructed it. Grom fails to show how the officers
impeded his right to independent testing or how his access to exculpatory evidence was dependent
on Grom’s ability to use his cell phone after the evidentiary test.
       Finally, Grom concedes in his brief that he had access to a phone. Nonetheless, Grom
claims the issue here is that the officers denied Grom access to his personal cell phone which
contained the phone number of his attorney. Grom cites to no authority for the claim that a due
process violation occurs when an officer prevents an individual from using his or her cell phone
during an arrest. Also, Grom fails to address the magistrate court’s finding that Grom was given
the opportunity to look at his cell phone during the pre-booking process in order to find his
attorney’s number and thereafter, had access to a telephone and made calls. To the extent Grom
asks this Court to expand the Carr holding to permit detainee’s access to cell phones during an
investigatory phase and prior to evidentiary testing, we decline to do so.
C.     Grom Was Not Denied His Fifth and Sixth Amendment Rights
       Grom argues I.C. § 18-8002 is unconstitutional because it violates his Fifth and Sixth
Amendment rights. According to Grom, Idaho citizens must submit to evidentiary testing--in
violation of the Fourth Amendment--in order to maintain their Fifth and Sixth Amendment rights.
Grom claims it is unconstitutional to require a defendant to submit to evidentiary testing before
speaking with an attorney.
       First, Idaho case law has not found the applicable statute, I.C. § 18-8002, to be
unconstitutional. Grom is therefore asking this Court to move beyond precedent and strike down
the statutory language that, according to Grom, forces citizens to sacrifice their Fourth Amendment
right in order to speak with an attorney, which is guaranteed under the Fifth and Sixth Amendment


                                                  8
rights. This we decline to do. Second, Grom did not waive his Fourth Amendment right in order
to exercise his Fifth and Sixth Amendment rights, as he argues on appeal because neither the Fifth
Amendment nor the Sixth Amendment is implicated in this case.
       The Fifth Amendment privilege against self-incrimination “protects an accused only from
being compelled to testify against himself, or otherwise provide the State with evidence of a
testimonial or communicative nature.” Schmerber, 384 U.S. at 761. The due process protections
of the Fifth Amendment arise in the context of a custodial interrogation. State v. Silver, 155 Idaho
29, 31, 304 P.3d 304, 306 (Ct. App. 2013). While Miranda2 warnings are designed to protect
against self-incrimination during a custodial interrogation, the gathering of evidence is not
considered testimonial or communicative evidence to which Miranda warnings apply. In State v.
Harmon, 131 Idaho 80, 952 P.2d 402 (Ct. App. 1998), this Court explained:
       In Schmerber, the United States Supreme Court held that a state-compelled blood
       test to determine alcohol concentration is physical evidence, not testimony or a
       communicative act, and therefore is unprotected by the Fifth Amendment privilege.
       Moreover, in South Dakota v. Neville, 459 U.S. 553 (1983), the Supreme Court
       stated, “In the context of an arrest for driving while intoxicated, a police inquiry of
       whether the suspect will take a blood-alcohol test is not an interrogation within the
       meaning of Miranda.”
Harmon, 131 Idaho at 84-85, 952 P.2d at 406-07 (internal citations omitted). There, Harmon’s
breath test results were admissible despite the lack of any Miranda warnings because the results
were “not testimonial or communicative evidence and because the officer’s request for the test was
not an interrogation.” Harmon, 131 Idaho at 85, 952 P.2d at 407.
       Here, as in Harmon, the blood test results were not testimonial or communicative evidence,
nor was the officer’s request for the test an interrogation. Consequently, there is no Fifth
Amendment right that attaches to the evidentiary testing involved in drawing blood. Green, 149
Idaho at 709, 239 P.3d at 814.3 Because the Fifth Amendment is not implicated, Grom was not
required to waive his Fourth Amendment right in order to exercise his Fifth Amendment right.




2
        See Miranda v. Arizona, 384 U.S. 436 (1966).
3
        In State v. Green, 149 Idaho 706, 239 P.3d 811 (Ct. App. 2010), this Court specifically
assessed whether a DUI arrestee’s Fifth Amendment right was violated by delaying the arrestee’s
opportunity to gather evidence until he or she has submitted to the test requested by law
enforcement. Green, 149 Idaho at 710, 239 P.3d at 815. This Court held there was no violation
of the defendant’s right to due process in those circumstances. Id.
                                                 9
        Grom also argues the preservation or gathering of evidence in a DUI investigation is a
critical stage of the prosecution and, thus, Grom’s Sixth Amendment right was violated. The Sixth
Amendment right to the assistance of counsel applies at any critical stage of the prosecution.
United States v. Wade, 388 U.S. 218, 224 (1967). However, the United States Supreme Court
clarified in Kirby v. Illinois, 406 U.S. 682 (1972), that this right to counsel attaches “only at or
after the time that adversary judicial proceedings have been initiated.” Id. at 688.
        This Court has previously addressed a similar claim. In In re McNeely, 119 Idaho 182, 804
P.2d 911 (Ct. App. 1990), this Court held:
        [T]esting for BAC under the implied consent statute is an evidentiary procedure
        and, as in this case, is conducted before formal criminal charges are initiated by the
        filing of a complaint. Therefore, the testing procedure does not constitute a ‘critical
        stage’ of the underlying criminal proceedings for DUI.
Id. at 187, 804 P.2d at 916.
        Because the gathering of evidence is not a critical stage of the prosecution and Grom had
no Sixth Amendment right to counsel prior to the initiation of formal charges, Grom was not
required to waive his Fourth Amendment rights in order to assert his Sixth Amendment right.
                                                 IV.
                                          CONCLUSION
        Because I.C. § 18-8002 is constitutional and Grom’s rights were not violated, we affirm
the decision of the district court.
        Judge GRATTON and Judge BRAILSFORD CONCUR.




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