               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                      Docket No. 31840

IN THE MATTER OF THE SUSPENSION                   )
OF THE DRIVER’S LICENSE OF                        )
MARVIN GIBBAR.                                    )
STATE OF IDAHO, DEPARTMENT OF                     )
TRANSPORTATION,                                   )   2006 Opinion No. 78
                                                  )
       Plaintiff-Respondent,                      )   Filed: November 14, 2006
                                                  )
v.                                                )   Stephen W. Kenyon, Clerk
                                                  )
MARVIN GIBBAR,                                    )
                                                  )
       Defendant-Appellant.                       )
                                                  )

       Appeal from the District Court of the Second Judicial District, State of Idaho,
       Clearwater County. Hon. John H. Bradbury, District Judge.

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

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

       Hon. Lawrence G. Wasden, Attorney General; Edwin L. Litteneker, Special
       Deputy Attorney General, Lewiston, for respondent. Edwin L. Litteneker argued.
                  ______________________________________________
PERRY, Chief Judge
       Marvin Gibbar appeals from the district court’s decision upon judicial review affirming
the Idaho Transportation Department’s order suspending Gibbar’s driver’s license after he failed
a blood alcohol concentration test. We affirm.
                                                 I.
                                FACTS AND PROCEDURE
       On July 14, 2004, Gibbar was sitting in his pickup in a grocery store parking lot. As a
Clearwater County Sheriff’s Deputy walked past the pickup, Gibbar waved to the officer in a
way that, along with Gibbar’s red face and red and glassy eyes, made the officer suspect that
Gibbar had been drinking alcohol. When Gibbar drove his vehicle out of the parking lot,
Gibbar’s driving made the officer even more suspicious because he crossed the center line and

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then twice weaved into the parking area on the extreme right side of the street. Ultimately, the
officer stopped Gibbar, conducted field sobriety tests, and arrested Gibbar for driving under the
influence (DUI). At the police station, Gibbar agreed to take a blood alcohol concentration
(BAC) test. The breathalyzer test indicated Gibbar’s blood alcohol content was .10, which is
above the legal limit of .08. The officer seized Gibbar’s driver’s license, and he was issued a
notice of suspension and a temporary license. Gibbar’s license had previously been suspended
for DUI, so his license was suspended for one year.
       Gibbar requested a hearing to contest the administrative license suspension. Prior to the
hearing, Gibbar made discovery requests, some of which were denied.             Gibbar raised an
exhaustive list of challenges to his license suspension at the administrative hearing, which was
conducted over the telephone.     The hearing officer rejected each of these contentions and
affirmed the one-year license suspension. Gibbar petitioned for judicial review by the district
court, which affirmed the hearing officer’s decision. Gibbar again appeals.
                                                II.
                                  STANDARD OF REVIEW
       The Idaho Administrative Procedures Act (IDAPA) governs the review of department
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 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 competent evidence
in the record. Urrutia v. Blaine County, ex rel. Bd. of Comm’s, 134 Idaho 353, 357, 2 P.3d 738,
742 (2000); Marshall, 137 Idaho at 340, 48 P.3d at 669.
       A 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


                                                2
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. If the agency’s decision is not affirmed on appeal,
“it shall be set aside . . . and remanded for further proceedings as necessary.” I.C. § 67-5279(3).
                                                III.
                                           ANALYSIS
       The administrative license suspension (ALS) statute, I.C. § 18-8002A, requires that the
Idaho Transportation Department (ITD) suspend the driver’s license of a driver who has failed a
BAC test administered by a law enforcement officer. The period of suspension is ninety days for
a driver’s first failure of an evidentiary test and one year for any subsequent test failure within
five years. I.C. § 18-8002A(4)(a). A person who has been notified of such an administrative
license suspension may request a hearing before a hearing officer designated by the ITD to
contest the suspension. I.C. § 18-8002A(7). At the administrative hearing, 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). 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) for
vacating the suspension. Those grounds include:
               (a) The peace officer did not have legal cause to stop the person; or
               (b) The officer did not have legal cause to believe the person had been
       driving or was in actual physical control of a vehicle while under the influence of
       alcohol, drugs or other intoxicating substances in violation of the provisions of
       section 18-8004, 18-8004C or 18-8006, Idaho Code; or
               (c) The test results did not show an alcohol concentration or the presence
       of drugs or other intoxicating substances in violation of section 18-8004, 18-
       8004C or 18-8006, Idaho Code; or
               (d) The tests for alcohol concentration, drugs or other intoxicating
       substances administered at the direction of the peace officer were not conducted
       in accordance with the requirements of section 18-8004(4), Idaho Code, or the
       testing equipment was not functioning properly when the test was
       administered . . . .




                                                 3
The hearing officer’s decision 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.
A.     Legal Cause
       Gibbar argues that the arresting officer lacked legal cause to stop Gibbar and lacked legal
cause to believe Gibbar was driving or was in actual physical control of a vehicle while under the
influence of alcohol. We note initially that, under I.C. § 18-8002A(7), it was Gibbar’s burden to
present evidence affirmatively showing that the officer lacked legal cause to stop Gibbar’s
vehicle or the officer lacked legal cause to believe Gibbar was driving under the influence.
       1.      Legal cause for stop
       Gibbar argues the evidence did not support a finding that the officer had legal cause to
stop him. 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 within the broad range of what can be described as normal driving behavior. Atkinson, 128
Idaho at 561, 916 P.2d at 1286.
       The hearing officer properly concluded that Gibbar failed to prove that the arresting
officer lacked legal cause to stop Gibbar. The officer observed Gibbar’s red face and red and
glassy eyes, and noticed Gibbar suspiciously wave at the officer while still parked in the grocery
store parking lot. The officer also knew that Gibbar was on probation and was prohibited from
drinking alcohol. Based on this conduct, the officer’s testimony at the hearing was that Gibbar’s


                                                4
“appearance did not look like a person who was not intoxicated.” When Gibbar drove out of the
parking lot, he soon crossed the center line and then twice weaved into the parking area on the
extreme right side of the street. Gibbar testified that he crossed the center line to go around a
pedestrian who started to step into the street. Even assuming that is true, the officer’s other
observations gave reasonable suspicion for the stop. We conclude that, at the time of the stop,
the officer possessed sufficient facts to reasonably infer that Gibbar was driving while
intoxicated. Accordingly, we uphold the hearing officer’s finding that there was legal cause for
the stop.
       2.      Legal cause to believe Gibbar was driving under the influence
       Gibbar next argues the evidence does not support a finding that the officer had legal
cause to believe he was driving while under the influence of alcohol and hence was not justified
in requesting that Gibbar submit to a BAC test. Idaho appellate courts have not yet decided
whether the “legal cause” to request evidentiary testing referenced in I.C. § 18-8002(4)(b) is
equated to probable cause for an arrest or reasonable suspicion. See State v. Thompson, 138
Idaho 512, 514-15, 65 P.3d 534, 536-37 (Ct. App. 2003). We also need not decide that question
in this case because the officer had probable cause.
       Probable cause for an arrest exists where the facts and circumstances within the officer’s
knowledge and of which he has reasonably trustworthy information, are sufficient to warrant a
prudent person in believing that the suspect has committed or is committing an offense. Hunter
v. Bryant, 502 U.S. 224, 228 (1991); Beck v. Ohio, 379 U.S. 89, 91 (1964); Brinegar v. United
States, 338 U.S. 160, 175-76 (1949); State v. Julian, 129 Idaho 133, 137, 922 P.2d 1059, 1063
(1996). When assessing a police officer’s determination of probable cause in the field, a court
must take into consideration the factual and practical considerations of everyday life on which
reasonable and prudent men, not legal technicians, act. Brinegar, 338 U.S. at 175; State v.
Kysar, 116 Idaho 992, 993, 783 P.2d 859, 860 (1989). In determining whether there is probable
cause for an arrest, an officer is entitled to draw reasonable inferences from the available
information in light of the knowledge gained from his or her previous experience and training.
Kysar, 116 Idaho at 993, 783 P.2d at 860; see also Ornelas v. United States, 517 U.S. 690, 700
(1996); United States v. Ortiz, 422 U.S. 891, 897 (1975); United States v. Brignoni-Ponce, 422
U.S. 873, 884-85 (1975).




                                                 5
       Gibbar concedes that the record establishes that Gibbar was weaving, that the officer
smelled alcohol inside Gibbar’s vehicle and on his person, that Gibbar admitted to drinking two
beers after initially denying any consumption of alcohol, and that Gibbar’s eyes were bloodshot.
Despite this evidence, Gibbar argues that the officer did not have legal cause to believe that
Gibbar was driving while under the influence of alcohol because the officer failed to follow the
proper procedures for conducting the field sobriety tests. Gibbar also argues that the officer had
facts available to him dispelling the evidence of intoxication. Gibbar relies on his statements to
the officer that he had been baling and loading hay in the 100-degree heat to explain his
appearance, that he may have had trouble with the front-end of his pickup to explain the
weaving, and that he crossed the center line to avoid a pedestrian. We conclude that the officer
had legal cause when Gibbar weaved in and out of his lane, admitted to drinking alcohol, smelled
of alcohol, and had bloodshot eyes. Gibbar’s allegations that the field sobriety tests were
conducted improperly and his alternative explanations for his appearance and driving do not
overcome the evidence possessed by the officer that Gibbar was under the influence of alcohol.
Therefore, the hearing officer properly concluded that Gibbar did not meet his burden of proving
that the officer lacked legal cause to believe Gibbar was driving while under the influence of
alcohol.
B.     Compliance with Waiting Period
       Gibbar next contends that the hearing officer erred in finding that the officer properly
observed Gibbar for fifteen minutes before administering the breath test, as required by the
manual for the Intoxilyzer 5000. The manual requires that the breath test subject be monitored
for a period of fifteen minutes immediately prior to administration of the breath test to assure that
the subject did not smoke, ingest any substance, vomit, or belch, which actions could render the
breath test inaccurate. In the absence of a validly conducted fifteen-minute wait required by the
manual, the hearing officer should vacate the license suspension because the breath test was not
conducted in accordance with the requirements of I.C. § 18-8004(4). I.C. § 18-8002A(7)(d).
       Gibbar concedes that the record shows the fifteen-minute waiting period started at 18:41,
and the first test was administered at 18:56. Nonetheless, Gibbar argues that the first test should
not have occurred until 18:57 to ensure fifteen minutes had elapsed. Alternatively, Gibbar
argues that the officer improperly used his wristwatch to time the fifteen-minute wait when he
was required to use the clock on the Intoxilyzer 5000. The printed portion of the Intoxilyzer


                                                 6
5000 printout does not show that a fifteen-minute wait occurred because the officer used his
wristwatch instead of the clock. However, below the heading for additional information and/or
remarks on the printout, the officer indicated that he had timed the fifteen-minute wait with his
wristwatch. The officer also wrote in 18:41 in a space provided on the printout for the time first
observed.
       The hearing officer properly relied upon the evidence in the record to conclude that the
fifteen minutes had elapsed. The evidence indicates that the officer noted on the Intoxilyzer
5000 printout that the fifteen-minute period had elapsed, from 18:41 to 18:56, before Gibbar’s
first breath test based on his observation of his wristwatch. The police report also noted that the
fifteen-minute wait had occurred.         Gibbar’s argument that the fifteen minutes could,
hypothetically, have not completely expired between 18:41 and 18:56 is insufficient to show that
the hearing officer’s factual determination was clearly erroneous. See Castaneda v. Brighton
Corp., 130 Idaho 923, 926, 950 P.2d 1262, 1265 (1998); Marshall, 137 Idaho at 340, 48 P.3d at
669.
       The hearing officer also properly found that the arresting officer did not violate the
procedures by using his wristwatch. Gibbar does not argue that the Intoxilyzer 5000 manual and
its standard operating procedures prohibit using a wristwatch.         Instead, Gibbar argues that
question 75 of the August 1, 1999, Intoxilyzer 5000 operator examination and the answer key to
that examination indicate that the official start time is the time that the Intoxilyzer 5000 prints
out as the time when the air blank sample was taken. From this exam question, Gibbar urges us
to infer that the only permissible way to time the fifteen minutes is by conducting the air blank
test at the start of the fifteen minutes so that the Intoxilyzer 5000 printout properly prints out the
elapsed fifteen-minute wait period. However, the manual and the standard operating procedures
do not indicate that use of a wristwatch is impermissible. Therefore, the hearing officer properly
found that the officer could time the fifteen-minute wait with his wristwatch.
C.     Due Process
       1.      Discovery
       Gibbar argues that his procedural due process rights were violated because the ALS
hearing officer did not issue a subpoena to compel the testimony of the director of the state
police’s breath testing program or order the discovery of all documents he requested. Gibbar




                                                  7
further argues that I.C. § 18-8002A violates his due process rights by not providing for adequate
time for discovery before the administrative hearing because discovery only lasts thirty days.
       The ALS statute does not provide rules of discovery for ALS hearings, but I.C. § 18-
8002A(10) authorizes the ITD to adopt rules deemed necessary to implement the provisions of
the ALS statute. Pursuant to ITD rule, the hearing officer assigned to the matter may, upon
written request, issue subpoenas requiring the attendance of witnesses or the production of
documentary or tangible evidence at a hearing. IDAPA 39.02.72.300.01; see also In re Mahurin,
140 Idaho 656, 659 n.2, 99 P.3d 125, 128 n.2 (Ct. App. 2004). Petitioners may also seek
documents through a request or motion for production of documents pursuant to
IDAPA 39.02.72.400.01, which states:
               To obtain a photocopy of a document which is public record, relates to the
       petitioner hearing, and is in the possession of the Department, petitioners shall
       make a written request to the Department. The Department shall attempt to
       provide the requested copies prior to the hearing date, but failure to do so shall not
       be grounds for staying or rescinding a suspension.

Pursuant to IDAPA 39.02.72.400.02, further document discovery may only be conducted in
accordance with IDAPA 04.11.01.521. In turn, IDAPA 04.11.01.521 provides that, absent an
agreement between the parties, no party before the agency is entitled to engage in discovery
unless discovery is authorized by the agency, the party moves to compel discovery, and the
agency issues an order directing that the discovery be answered.
       Under these administrative discovery rules, the hearing officer has broad discretion in the
extent of discovery that he or she orders. Courts review discretionary decisions of hearing
officers for an abuse of discretion. I.C. § 67-5279(3)(e). When a trial court’s discretionary
decision is reviewed on appeal, the appellate court conducts a multi-tiered inquiry to determine:
(1) whether the lower court correctly perceived the issue as one of discretion; (2) whether the
lower court acted within the boundaries of such discretion and consistently with any legal
standards applicable to the specific choices before it; and (3) whether the court reached its
decision by an exercise of reason. Sun Valley Shopping Ctr., Inc. v. Idaho Power Co., 119 Idaho
87, 94, 803 P.2d 993, 1000 (1991). Accordingly, the multi-tiered inquiry of Sun Valley Shopping
Ctr. also applies to a court’s review of the discretionary decisions of an ALS hearing officer.
       However, in addition to complying with the multi-tiered inquiry of Sun Valley Shopping
Ctr., the hearing officer’s discretionary decision must comply with the procedural due process


                                                 8
guarantees of the United States and Idaho Constitutions. Although Gibbar does not distinguish
whether he argues a violation of the Due Process Clauses of the United States or Idaho
Constitution, the due process guarantees derived from the two constitutions are substantially the
same. Rudd v. Rudd, 105 Idaho 112, 115, 666 P.2d 639, 642 (1983). 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 procedural due process. Dixon v. Love, 431
U.S. 105, 112 (1977); Bell v. Burson, 402 U.S. 535, 539 (1971); State v. Ankney, 109 Idaho 1, 3-
4, 704 P.2d 333, 335-36 (1985). Courts must consider three factors in procedural due process
challenges:
          [F]irst, the private interest that will be affected by the official action; second, 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
          finally, the Government’s interest, including the function involved and the fiscal
          and administrative burdens that the additional or substitute procedural
          requirement would entail.

Mathews v. Eldridge, 424 U.S. 319, 335 (1976).
          The Idaho Supreme Court has applied the Matthews test to hold that procedural due
process was adequately provided when the ITD suspended the license of a driver who refused to
take a breathalyzer test. See Ankeny, 109 Idaho at 4-5, 704 P.2d at 336-37. The Idaho Supreme
Court based its holding on the state’s strong interest in preventing intoxicated persons from
driving and the driver’s right to a prompt post-suspension hearing under the statute then in effect
to challenge the suspension. Id.; see also Mackey v. Motrym, 443 U.S. 1, 10-19 (1979); Matter
of McNeely, 119 Idaho 182, 190-91, 803 P.2d 911, 919-20 (Ct. App. 1990). In McNeely, a driver
argued procedural due process violations existed in the notice provided by an advisory form
given to the driver prior to refusing a breathalyzer test and in the applicable statute’s failure to
allow the driver to choose which type of test to which he would be subjected. This Court held
that the state’s strong interest in preventing intoxicated persons from driving and in avoiding
overly burdensome procedures outweighed the driver’s interest in maintaining his driver’s
license, even though the driver’s interest was substantial. McNeeley, 119 Idaho at 191, 803 P.2d
at 920.
          Prior to the ALS hearing, Gibbar requested an opportunity to copy, inspect, or
photograph an assortment of materials, including materials related to his BAC test, the



                                                    9
breathalyzer machine used, as well as general testing procedures and their underlying scientific
rationale. Gibbar was provided with a portion of the log for the breath testing instrument used in
his case and all materials forwarded to the ITD by the Clearwater County Sheriff’s Office
pursuant to I.C. § 18-8002A(5)(b). In his appellate brief, Gibbar vaguely argues that he was
wrongfully denied a subpoena requiring the testimony of the director of the state police’s breath
testing program, access to the log for the breath testing instrument used in his case, access to
“COBRA” information, and access to training information for operators of the Intoxilyzer 5000.
However, Gibbar’s brief provides little, if any, citation to portions of the record supporting his
argument that he requested all of these materials and provides almost no explanation of why
these materials in particular were relevant. At oral argument, Gibbar appeared to assert that he
wished to challenge the denial of all the voluminous items he originally requested which the
hearing officer did not order produced, even though he identified none of these additional items
specifically in his brief.
        We note that this Court will not search the record for error. See State v. Fee, 124 Idaho
170, 174, 857 P.2d 649, 653 (Ct. App. 1993). Error is never presumed on appeal and the burden
of showing it is on the party alleging it. Stewart v. Sun Valley Co., 140 Idaho 381, 384, 94 P.3d
686, 689 (2004). We therefore decline to address the full scope of items to which Gibbar may
have been denied access in discovery. Instead, we will only address those items for which
Gibbar provided both citation to the record and argument in his brief.
        Gibbar argues that his procedural due process rights were violated because the hearing
officer denied Gibbar’s request for a subpoena requiring the testimony of the director of the state
police’s breath testing program.     The state argues that the hearing officer properly denied
Gibbar’s request for such a subpoena because Gibbar did not demonstrate the director’s
testimony was necessary.      Gibbar briefly argued the asserted relevance of the director’s
testimony in a motion before the hearing officer, stating:
        [T]he State has set no standards with regard to the wet bath devise [sic] or the
        solution regarding maintenance or calibration. These issues have been litigated in
        other states, and said states such as Washington has [sic] been found wanting
        because of standards violations for the wet bath thermometers.

The hearing officer denied the request, reasoning that the state’s rationale for not setting such
standards is beyond the scope of the administrative appeal pursuant to I.C. § 18-8002A(7). In
contrast, the hearing officer issued subpoenas requiring the attendance of the arresting officer

                                                10
and one of the breath testing specialists who maintained the machine with which Gibbar was
tested.
          In denying the subpoena requiring the director’s testimony, the hearing officer
erroneously reasoned that the testimony regarding standards set by the state for maintenance and
calibration of the BAC testing machines is not relevant evidence in an ALS hearing. Section 18-
8002A(7) specifies that a driver’s license suspension will be vacated by the hearing officer if the
claimant proves, among other things that:
                 (c)    The test results did not show an alcohol concentration or the
          presence of drugs or other intoxicating substances in violation of sections 18-8004,
          18-8004C, or 18-8006, Idaho Code; or
                 (d)    The tests for alcohol concentration, drugs or other intoxicating
          substances administered at the direction of the peace officer were not conducted in
          accordance with the requirements of section 18-8004(4), Idaho Code, or the testing
          equipment was not functioning properly when the test was administered . . .
We construe these subsections as permitting ALS petitioners to challenge the results of their
BAC test by proving that the testing equipment was inaccurate or was not functioning properly
because the state has adopted procedures that do not ensure accuracy and proper functioning.
Expert testimony aimed at challenging the underlying scientific basis of protocols adopted by the
state is relevant to a challenge to a license suspension under subsections (c) and (d) of I.C. § 18-
8002A(7). The hearing officer’s reasoning in this case therefore has the potential to deprive ALS
petitioners of procedural due process by depriving them of the opportunity to present relevant
evidence at their hearing, thereby risking erroneous deprivation of their substantial interest in
their drivers’ licenses. See McNeeley, 119 Idaho at 191, 803 P.2d at 920.
          Even though the hearing officer erroneously reasoned that challenging the basis of the
BAC test is not a relevant inquiry in ALS hearings, Gibbar has not shown that his procedural due
process rights were violated. Gibbar asserted that the director’s testimony was relevant because
“the State has set no standards with regard to the wet bath devise [sic] or the solution regarding
maintenance or calibration.”       Additionally, the transcript from the administrative hearing
indicates that Gibbar’s counsel repeatedly mentioned and even quoted the protocols for
maintaining and calibrating the machines contained in the state’s BAC testing manual and
standard operating procedure. The record shows that Gibbar possessed evidence that the state
had not set standards, and he did not seek the testimony of the director to establish that standards




                                                 11
had not been set. Rather, the record reflects that Gibbar sought to use the director’s testimony to
establish that the state should set such standards in order to comply with I.C. § 18-8002A(7).
       Under the first prong of the Matthews test, the private interest in a driver’s license is
substantial. See McNeeley, 119 Idaho at 191, 803 P.2d at 920. Consequently, contrary to the
hearing officer’s reasoning, Gibbar should have been permitted to present his own expert
testimony challenging the basis of the test had he requested to do so. However, the risk of
erroneous deprivation of Gibbar’s license, analyzed under the second Mathews factor, would not
have been decreased if he had questioned the director of the state’s breath testing program
because there is no reason to believe that she would have testified that the state has unlawfully
failed to set wet bath standards. Additionally, under the final Mathews factor, requiring hearing
officers to order the attendance of the director whenever a petitioner desired would impose an
unjustifiably heavy burden on the state. See Ankeny, 109 Idaho at 4-5, 704 P.2d at 336-37;
McNeely, 119 Idaho at 191, 803 P.2d at 920. Complainants should not be allowed to subpoena
state employees as a substitute for obtaining their own expert witnesses to testify concerning the
validity or adequacy of standards or procedures utilized by the state agency.
       An appellate court may affirm a lower court’s decision on a legal theory different from
the one applied by that court. Matter of Estate of Bagley, 117 Idaho 1091, 1093, 793 P.2d 1263,
1265 (Ct. App. 1990). Therefore, we hold that the director’s testimony was not necessary to
support Gibbar’s stated challenge to the basis of the BAC test and would impose an unreasonable
burden on the state when alternative methods of presenting such a challenge were available.
Contrary to the implications of the hearing officer’s rationale for denying the subpoena, Gibbar
should have been permitted to challenge the basis of the BAC test had he attempted to present
testimony from a privately retained expert. Gibbar’s procedural due process rights were not
violated by the hearing officer’s erroneous reasoning because Gibbar was not denied the
opportunity to present his own expert witness or otherwise challenge the basis of the BAC test.
       In his brief, Gibbar also vaguely argues he was deprived of access to the log for the
breath testing instrument used in his case. The record indicates that Gibbar was provided with
the portion of the log showing the instrument’s use and maintenance for one month prior to his
arrest. Gibbar does not assert in his brief that the period of one month prior to his arrest was
insufficient or why. Nor does he cite to any part of the record where he explained to the hearing
officer the relevance of the additional logs. See Mahurin, 140 Idaho at 659, 99 P.3d at 128


                                                12
(appellant did not demonstrate deprivation of due process from hearing officer’s refusal of
discovery request where appellant did not inform hearing officer of the relevance of requested
maintenance logs). Therefore, we decline to address the question of how much of the log Gibbar
was entitled to inspect prior to his hearing. Because Gibbar was provided with access to a
portion of the log and does not assert in his brief that he was entitled to a more substantial
portion of the log, or why it would be relevant, we cannot find a procedural due process
violation. See Fee, 124 Idaho at 174, 857 P.2d at 653.
       Gibbar also argues in passing in his brief that he was unlawfully denied access to
“COBRA” information and training information for operators of the Intoxilyzer 5000, without
citing any portion of the record where he requested, explained the relevance of, or was denied
access to such information. Because Gibbar failed to provide sufficient argument and citations
to the record regarding these requests, we cannot find a procedural due process violation.
       Gibbar also appears to argue that his procedural due process rights were violated because
the discovery period in his case was too short. To the extent that Gibbar does make such an
argument, we find it unpersuasive. The discovery process enabled Gibbar to receive, a few days
in advance of the hearing, the log for the breath testing instrument used in his case as well as all
materials forwarded to the ITD by the Clearwater County Sheriff’s Office pursuant to I.C. § 18-
8002A(5)(b). Gibbar was also allowed to subpoena the arresting officer and a certified breath
testing specialist from the Clearwater County Sheriff’s Office who was responsible for
maintaining the breathalyzer machine used in Gibbar’s case. The timeframe for discovery in
Gibbar’s case was long enough to provide him with discovery responses in sufficient time that he
could utilize them for the hearing and thus did not violate his due process rights. Therefore,
there has been no showing of a procedural due process violation in the length of the discovery
period provided to Gibbar.
       2.      Telephone hearing
       Gibbar next argues that his procedural due process rights were violated because his
hearing was conducted over the telephone. The district court found no procedural due process
violation because the credibility of witnesses was not in issue in Gibbar’s hearing.
       Under I.C. § 18-8002A(7), the ITD “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.” Gibbar relies upon an Alaska line of cases to argue that his telephone hearing


                                                13
violated his procedural due process rights. See Midgett v. Cook Inlet Pre-Trial Facility, 53 P.3d
1105 (Alaska 2002); Whitesides v. State, Dep’t of Public Safety, Div. of Motor Vehicles, 20 P.3d
1130 (Alaska 2001). In order to avoid a due process violation under the Matthews test, the
Whitesides court construed Alaska’s ALS statute to require in-person hearings where material
questions depend on the credibility of the parties’ testimony. Whitesides, 20 P.3d at 1139.
       In the present case, the district court agreed with Gibbar that a telephone hearing would
be inadequate if witness credibility were in issue, but found that the testimony in Gibbar’s case
was uncontested. Gibbar implies that witness credibility is always at issue and that in-person
hearings are required to adequately cross-examine witnesses.             Gibbar also argues that
examination of the state’s witnesses was inadequate because those witnesses did not have
relevant materials in front of them while participating in the hearings. However, as the district
court properly found, the underlying facts were not contested in this case. Gibbar admitted to
drinking the day of his arrest. He indicated that he was baling hay, which may have caused him
to have bloodshot eyes. Gibbar’s testimony does 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 center line of the street by explaining that there was a
pedestrian on the side of the street. Rather than stating that there was no pedestrian, the officer
indicated that there may have been a pedestrian. Because the testimony was not contested in this
case, Whitesides is distinguishable.
       We find this case more analogous to State, ex. rel. Human Servs. Dep’t v. Gomez, 657
P.2d 117 (N.M. 1982). In Gomez, a welfare beneficiary argued that terminating his welfare
benefits after a telephone hearing violated his due process rights because the hearing officer
could not observe his demeanor. The beneficiary would have been entitled to benefits if he were
unable to work. The beneficiary testified over the telephone that he could not work. However,
this testimony was not inconsistent with reports of medical specialists that he erroneously
believed that he was incapable of working. His demeanor and credibility were therefore not in
issue because both his testimony and the reports supported the proposition that he believed he
could not work. The New Mexico court concluded that the telephone hearing did not deprive the
beneficiary of due process because his credibility was not in issue. Id. at 118.
       Likewise, Gibbar does not contest the other witnesses’ versions of the underlying events.
We conclude that the telephone hearing posed no risk of erroneous deprivation of Gibbar’s


                                                 14
driver’s license because credibility was not in issue. See Mathews, 424 U.S. at 335. Therefore,
Gibbar’s due process rights were not violated when he was only allowed to cross-examine
witnesses over the telephone.
       3.      Facial challenge
       Gibbar also argues that the ALS statute and ITD rules are facially unconstitutional.
Gibbar appears to argue that I.C. § 18-8002A, on its face, violates both the procedural and
substantive due process guarantees. In support of his facial challenge, Gibbar uses evidence
outside of the administrative record to make broad policy arguments. For example, Gibbar relies
upon statistics supplied with his brief that show a higher rate of suspensions are vacated at in-
person hearings that were conducted under a previous incarnation of the ALS statute. Gibbar
also relies upon cases, other than his own, where the ALS scheme has resulted in delays in
administrative decisions.
       Gibbar argues that the ALS scheme deprives petitioners of procedural due process
because it provides limited discovery, permits use of telephone hearings, and creates potential for
lengthy delays in the administrative process while a driver’s license is suspended, perhaps
erroneously. Even assuming that Gibbar may assert a facial due process challenge to portions of
the statute that did not infringe his own due process rights, Gibbar’s general policy arguments
and reliance on other ALS proceedings and statistics outside of the administrative record are
inadequate.   While it may be true that some petitioners in ALS hearings may experience
unreasonable and prejudicial delays under the current system, there is no evidence of such
circumstance before us but only counsel’s unsubstantiated assertions. The record before us does
not show the ALS statute fails to provide procedural due process on its face. See Ankeny, 109
Idaho at 4-5, 704 P.2d at 336-37; McNeely, 119 Idaho at 191, 803 P.2d at 920.
       We are also unpersuaded by Gibbar’s substantive due process argument. In McNeeley,
this Court considered a substantive due process challenge to the ALS statute then in effect.
Substantive due process, as guaranteed by both the United States and Idaho Constitutions,
embodies the requirement that a statute bear a reasonable relationship to a permissible legislative
objective. McNeely, 119 Idaho at 189, 804 P.2d at 918; State v. Reed, 107 Idaho 162, 167, 686
P.2d 842, 847 (Ct. App. 1984). When legislation involves social or economic interests, it may
deprive a person of life, liberty or property only if it has a rational basis--that is, the reason for
the deprivation may not be so inadequate that it may be characterized as arbitrary. Sandpoint


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Convalescent Servs., Inc. v. Idaho Dep’t of Health and Welfare, 114 Idaho 281, 282, 756 P.2d
398, 399 (1988); Pace v. Hymas, 111 Idaho 581, 586, 726 P.2d 693, 698 (1986); McNeely, 119
Idaho at 189, 804 P.2d at 918. Gibbar has failed to demonstrate that I.C. § 18-8002A may be
characterized as arbitrary.
                                               IV.
                                        CONCLUSION
       Gibbar has not shown that the officer lacked legal cause to stop his pickup or to believe
he was driving while under the influence of alcohol. Furthermore, Gibbar has not demonstrated
that the officer failed to observe the fifteen-minute waiting period prior to administering
Gibbar’s BAC test. Finally, Gibbar has not shown that his due process rights were violated or
that the ALS statute is facially unconstitutional. Accordingly, we affirm the district court’s
decision upon judicial review affirming ITD’s order suspending Gibbar’s driver’s license after he
failed a BAC test. Costs, but not attorney fees, are awarded to the respondent, State of Idaho.
       Judge LANSING and Judge GUTIERREZ, CONCUR.




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