                  IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                          Docket No. 42682

JONNA LYNN BOBECK,                                 ) 2015 Opinion No. 59
                                                   )
          Petitioner-Appellant,                    ) Filed: September 24, 2015
                                                   )
v.                                                 ) Stephen W. Kenyon, Clerk
                                                   )
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, acting in its appellate capacity, affirming the
          administrative suspension of driver’s license, affirmed.

          Clark and Feeney; Paul T. Clark, Lewiston, for appellant.

          Hon. Lawrence G. Wasden, Attorney General; Edwin L. Litteneker, Special
          Deputy Attorney General, Lewiston, for respondent.
                    ________________________________________________

GRATTON, Judge
          Jonna Lynn Bobeck appeals from the district court’s decision upon judicial review
affirming the Idaho Transportation Department’s order suspending her driver’s license. We
affirm.
                                                   I.
                        FACTUAL AND PROCEDURAL BACKGROUND
          The district court summarized the facts as follows:
                  On December 4, 2013, Petitioner Jonna Bobeck and her four-year-old son
          were in a motor vehicle accident around 9:30 p.m. Ms. Bobeck’s vehicle, which
          was being pursued at a low speed by a Lewiston Police patrol vehicle, came to a
          stop after striking a utility pole and a stationary patrol vehicle with its overhead
          lights flashing. At the time of the accident, Bobeck was dressed only in a
          bathrobe and underwear and her four-year-old son, who was strapped in his car
          seat, was dressed in his pajamas. Bobeck was taken to the hospital in Lewiston to

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       be treated for her injuries. [An] Idaho State Trooper [ ] contacted Bobeck at the
       hospital and read her the administrative license suspension (“ALS”) advisory
       form prior to a blood draw to test Ms. Bobeck for alcohol or other intoxicating
       substances. During the reading of the ALS form, Ms. Bobeck did not respond,
       was in a semi-conscious state, and has no memory of the events. The blood test
       revealed Ms. Bobeck had Zolpidem and Trazodone in her system, medications for
       which she has lawful prescriptions.
       Bobeck’s driver’s license was subsequently suspended by the Idaho Transportation
Department (ITD) for ninety days. Bobeck requested an administrative hearing to contest her
administrative license suspension (ALS), during which she asserted she was not properly advised
of the consequences of failing or refusing the test because she was asleep at the time the officer
read the ALS advisory form to her. The hearing officer found that Bobeck was substantially
informed of the consequences of failing or refusing evidentiary testing and sustained the ninety-
day license suspension. Bobeck petitioned for judicial review by the district court. The district
court affirmed the hearing officer’s decision. Bobeck again appeals.1
                                                 II.
                                            ANALYSIS
       The administrative license suspension statute, Idaho Code § 18-8002A, requires that the
ITD suspend the driver’s license of a driver who has failed a blood alcohol concentration (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 an ALS 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:




1
       A stay of Bobeck’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
               (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;
       or
               (e) The person was not informed of the consequences of submitting to
       evidentiary testing as required in subsection (2) of this section.
I.C. § 18-8002A(7).
       An ITD administrative 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. 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 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 Comm’rs, 134 Idaho 353, 357, 2 P.3d 738, 742 (2000);
Marshall, 137 Idaho at 340, 48 P.3d at 669.
       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

                                                3
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.
A.     License Suspension Advisory
       At the time of evidentiary testing, law enforcement officers are required to inform drivers
of the consequences of failing or refusing evidentiary testing for the presence of intoxicating
substances. I.C. § 18-8002A(2). Bobeck contends that the hearing officer’s finding that she was
informed of the consequences of failing or refusing evidentiary testing is not supported by
substantial and competent evidence because the record contains evidence that she was asleep
when the officer read the ALS advisory to her.2 The hearing officer relied on State v. DeWitt,
145 Idaho 709, 184 P.3d 215 (2008) in determining that Bobeck’s level of consciousness was not
determinative as to whether she was properly informed pursuant to I.C. § 18-8002A(2). In
DeWitt, an officer read out loud an ALS advisory form while DeWitt was unconscious. This
Court affirmed DeWitt’s license suspension, despite the fact that he was unconscious when he
was informed of the consequences of failing or refusing evidentiary testing for DUI because at
that time, a drunken driver had no legal right to refuse evidentiary testing. Id. at 713-14,
184 P.3d at 219-20. Accordingly, we held that whether or not an officer advised a defendant of
the consequences of refusal, the results of the evidentiary test were admissible in a criminal
prosecution. Id. Bobeck argues that DeWitt has been overruled. DeWitt has been overruled only
to the extent that it held that a driver had no legal right to refuse evidentiary testing. See
Missouri v. McNeely, ___ U.S. ___, ___, 133 S. Ct. 1552, 1563 (2013); State v. Wulff, 157 Idaho
416, 423, 337 P.3d 575, 582 (2014).
       Other courts, as well as state legislatures, have addressed the issue of whether an officer
is required to ensure a driver understands an advisory when the officer reads it to them.3 A

2
       While there is conflicting testimony in the record as to the level of Bobeck’s
consciousness during the reading of the ALS form, it is undisputed that she was asleep or semi-
conscious at least some of the time.
3
        For example, Pennsylvania addressed the issue of whether an officer had a duty to ensure
that a driver understood the consequences of refusing an evidentiary test where the driver did not
understand the English language. Martinovic v. Com. Dep’t of Transp., Bureau of Driver
Licensing, 881 A.2d 30 (Pa. Commw. Ct. 2005). The Martinovic court held that, even where the
                                                 4
number of states have in fact codified the same principle, determining that an unconscious
person may be tested for alcohol or other intoxicating substances and in such circumstances,
notification of the consequences of refusing evidentiary testing is not necessary. E.g., Cal. Veh.
Code § 23612(a)(1)(5) (West 2015); Md. Code Ann., Transp. § 10-305(c) (West 2015); Minn.
Stat. Ann. § 169A.51 (West 2015); N.C. Gen. Stat. Ann. § 20-16.2(b) (West 2015); N.D. Cent.
Code Ann. § 39-20-03 (West 2015); Or. Rev. Stat. Ann. § 813.140 (West 2015). We agree with
this principle.
        The law requires that the officer inform the driver of the consequences of failing or
refusing evidentiary testing. It does not require that the officer make certain the driver fully
understands the advisory. Specifically, in this case we hold that police officers are not required
to ensure comprehension of a person who is under the influence to the point of being semi-
conscious or unconscious at times. See Dewitt, 145 Idaho at 714, 184 P.3d at 220. If law
enforcement officers were required to ensure comprehension in order to comply with I.C. § 18-
8002A(2), drivers could avoid suspension of their driver’s licenses for any host of reasons,
including being too intoxicated to understand the advisory. Although Bobeck was asleep or
semi-conscious, the officer’s reading of the advisory to her satisfied the statutory obligation to
inform her of the consequences of failing or refusing evidentiary testing.           Under these
circumstances, the officer had no further duty to ensure that Bobeck comprehended the advisory
before testing. Accordingly, the hearing officer did not err in concluding that Bobeck was
properly informed of the consequences of failing or refusing evidentiary testing pursuant to I.C.
§ 18-8002A(2).
B.      Implied Consent
        Bobeck further contends that the hearing officer erred when it based its decision on the
applicability of Idaho’s implied consent statute, I.C. § 18-8002(1), arguing that the statute has
been overruled. This is not the case. 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); Wulff, 157 Idaho at 418, 337 P.3d at 577. Therefore, warrantless


driver does not understand the English language, the police have no duty to make certain that he
or she understands the consequences of refusing a blood test. Id. at 35-36. We need not go so
far.
                                                5
forced blood draws are generally violative of the state and federal constitutions. McNeely, ____
U.S. at ___, 133 S. Ct. 1552, 1558; Wulff, 157 Idaho at 419, 337 P.3d at 578. However, the
warrant requirement does not apply if the person subjected to the search has consented.
Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973); State v. Dominguez, 137 Idaho 681, 683,
52 P.3d 325, 327 (Ct. App. 2002). Consent must be voluntary and not the result of duress or
coercion, either direct or implied. Schneckloth, 412 U.S. at 248; State v. Whiteley, 124 Idaho
261, 264, 858 P.2d 800, 803 (Ct. App. 1993). The voluntariness of an individual’s consent is
evaluated in light of all the circumstances. United States v. Mendenhall, 446 U.S. 544, 557
(1980); Schneckloth, 412 U.S. at 226-27; State v. Hansen, 138 Idaho 791, 796, 69 P.3d 1052,
1057 (2003); Whiteley, 124 Idaho at 264, 858 P.2d at 803. Mere acquiescence to a claim of
authority by a law enforcement officer does not constitute consent. Bumper v. North Carolina,
391 U.S. 543, 549 (1968); State v. Smith, 144 Idaho 482, 488, 163 P.3d 1194, 1200 (2007); State
v. Tietsort, 145 Idaho 112, 118, 175 P.3d 801, 807 (Ct. App. 2007). Whether consent was
granted voluntarily, or was a product of coercion, is a question of fact to be determined by all the
surrounding circumstances. Hansen, 138 Idaho at 796, 69 P.3d at 1057. The State bears the
burden to prove consent by a preponderance of the evidence. United States v. Matlock, 415 U.S.
164, 177 n.14 (1974); Hansen, 138 Idaho at 796, 69 P.3d at 1057; State v. Kilby, 130 Idaho 747,
749, 947 P.2d 420, 422 (Ct. App. 1997).
       Once given, consent may also be revoked for “[i]nherent in the requirement that consent
be voluntary is the right of the person to withdraw that consent.” State v. Halseth, 157 Idaho
643, 646, 339 P.3d 368, 371 (2014). Thus, after a defendant has revoked consent, officers no
longer may act pursuant to that initial voluntary consent. State v. Thorpe, 141 Idaho 151, 154,
106 P.3d 477, 480 (Ct. App. 2004). Of course, an individual may renew his consent after
revoking it. Id.
       Relying on Wulff, Bobeck claims that following McNeely, the Idaho Supreme Court has
held that Idaho’s implied consent law violated the Fourth Amendment, and therefore, she did not
consent to the warrantless blood draw.     This Court has explained the state of Idaho’s implied
consent statute in light of the United States Supreme Court’s decision in McNeely, rejecting
Bobeck’s contention:
              In Wulff, our Supreme Court held that the district court “properly
       concluded that Idaho’s implied consent statute was not a valid exception to the
       warrant requirement.” Wulff, 157 Idaho at 423, 337 P.3d at 582. At first glance,

                                                 6
       this holding would appear to preclude the State from continuing to rely on the
       implied consent statute to provide the requisite consent for a warrantless blood
       draw in a suspected DUI case. However, in addressing the constitutionality of the
       statute, the Wulff Court made a salient distinction. It identified “two hurdles” the
       statutory consent must overcome to “qualify as voluntary: (1) drivers give their
       initial consent voluntarily and (2) drivers must continue to give voluntary
       consent.” Id. The Court considered that the first hurdle was met by the statute:
       “Drivers in Idaho give their initial consent to evidentiary testing by driving on
       Idaho roads voluntarily.” Id. (emphasis added). It was the second hurdle the
       [C]ourt found problematic, noting that Idaho appellate decisions interpreting
       section 18-8002 had held that a person could not revoke his statutorily implied
       consent. “Because Idaho does not recognize a driver’s right to revoke his implied
       consent,” the Court held, “Idaho has a per se exception to the warrant
       requirement.” Wulff, 157 Idaho at 423, 337 P.3d at 582. Thus, the Court held, it
       was overruling previous case law “to the extent that they applied Idaho’s implied
       consent statute as an irrevocable per se rule that constitutionally allowed forced
       warrantless blood draws.” Id.
               That Idaho’s implied consent statute continues to be valid, albeit in a form
       that is revocable, is supported by two subsequent cases issued by our Supreme
       Court. Approximately one month after Wulff, the Court decided Halseth,
       157 Idaho 643, 339 P.3d 368, holding:
               [A]n implied consent statute such as . . . Idaho’s does not justify a
               warrantless blood draw from a driver who refuses to consent . . . or objects
               to the blood draw . . . . Inherent in the requirement that consent be
               voluntary is the right of the person to withdraw that consent.
       Id. at 646, 339 P.3d at 371. Then, several weeks later in State v. Arrotta,
       157 Idaho 773, 774, 339 P.3d 1177, 1178 (2014), the Court cited to Wulff and
       Halseth for the proposition that “a suspect can withdraw his or her statutorily
       implied consent to a test for the presence of alcohol.” Taken together, these
       decisions lead to the conclusion that Idaho’s law regarding statutorily implied
       consent retains validity, but that consent may be terminated by a defendant’s
       refusal, protest, or objection to alcohol concentration testing.
State v. Smith, ___ Idaho ___, ___, 355 P.3d 644, ___ (Ct. App. 2015) (footnotes omitted)
(internal citations omitted).
       In this ALS context, we need not determine the legality of the blood draw. However,
addressing Bobeck’s argument, we turn to the application of the facts in this case as they relate to
the current state of the law. Any person who drives or is in actual physical control of a motor
vehicle in Idaho consents to be tested for alcohol, at the request of a peace officer with
reasonable grounds to believe the person drove under the influence, which includes consent to
draw blood. I.C. § 18-8002(1), (10). However, the suspect may withdraw his or her consent by
affirmatively resisting the blood draw. Halseth, 157 Idaho 643, 646, 339 P.3d 368, 371. Here,
Bobeck impliedly consented to be tested for alcohol by driving a motor vehicle in Idaho. At no
                                                 7
point did Bobeck object to or resist the blood draw. The fact that she was allegedly unconscious
when the officer read her the advisory does not effectively operate as a withdrawal of her
consent.   Therefore, Bobeck’s statutorily implied consent was effective at the time of the
warrantless blood draw as it was justified by Idaho’s implied consent statute.
                                               III.
                                        CONCLUSION
       The hearing officer did not err in concluding that Bobeck was properly informed of the
consequences of failing or refusing evidentiary testing pursuant to I.C. § 18-8002A(2), or that
Bobeck impliedly consented to a warrantless blood draw. Accordingly, we affirm the district
court’s decision upon judicial review affirming the ITD’s order suspending Bobeck’s driver’s
license.
       Chief Judge MELANSON CONCURS.
       Judge GUTIERREZ, DISSENTING
       I respectfully dissent from the majority’s conclusion that Bobeck consented to a blood
draw. Since the United States Supreme Court issued Missouri v. McNeely, ___ U.S. ___,
133 S. Ct. 1552 (2013), the Idaho Supreme Court has not yet addressed unconscious drivers
within the context of Idaho’s implied consent law. In my view, an unconscious individual is
incapable of giving the consent required for a warrantless blood draw. Because Bobeck did not
give actual consent to the blood draw, there is no warrant requirement exception applicable here.
The warrantless search (the blood draw) was therefore unconstitutional.
       The majority notes that a warrantless search must fall into a warrant requirement
exception, such as consent. Idaho Code § 18-8002 creates implied consent in an attempt to
satisfy the warrant requirement exception, allowing officers to perform warrantless evidentiary
tests on suspected intoxicated drivers. But statutorily implied consent is insufficient to satisfy
the consent exception to the warrant requirement. The consent exception requires actual consent.
Implied consent may lead to actual consent when a driver agrees to submit to an evidentiary test.
But without such agreement, there is no consent for performing the test. Indeed, the majority,
citing Bumper v. North Carolina, 391 U.S. 543, 549 (1968), acknowledges that “mere
acquiescence to a claim of authority by a law enforcement officer does not constitute consent.”
Instead, as Justice W. Jones writes in a concurrence for the recently issued decision in State v.
Haynes, ___ Idaho ___, ___ P.3d ___ (Aug. 20, 2015), a driver must either give actual consent,


                                                8
or “object or take steps to withdraw her implied consent.” See also State v. Riendeau, ___ Idaho
___, ___ P.3d ___ (Aug. 24, 2015) (Jones, W., J., concurring) (recognizing the “well-established
rule that an explicitly recognized exception to the warrant requirement is needed,” and
disagreeing with the majority’s holding that a reasonable search (i.e., an evidentiary test) is
sufficient to justify a warrantless search).
        There is little discussion on the term “actual consent” within the context of implied
consent laws. The Court of Appeals of Wisconsin clarified and distinguished between actual
consent and implied consent. In State v. Padley, 849 N.W.2d 867, 879 (Wis. Ct. App. 2014), the
court held that if a driver consents to a blood draw after being read the advisement, the driver’s
consent is actual--not implied.1 If the driver refuses to submit to a blood draw, the driver
withdraws “implied consent.” Id. The Padley court noted the term “implied consent” is “used
inappropriately to refer to the consent a driver gives to a blood draw at the time a law
enforcement officer requires that driver to decide whether to give consent.” Id. at 876. Instead,
“implied consent” refers to the driver’s choice to impart or refuse actual consent to a blood draw.
Id. at 879. But “implied consent,” as set forth in the statute, does not replace actual consent.
Actual consent is still required to perform the blood test. The Padley court concluded that any
search of drivers covered by the state’s implied consent law must be based on a warrant, actual
consent, or another warrant requirement exception.         Id. at 882.     Effectively, that court
distinguished implied consent from actual consent, holding that even within the context of
implied consent laws, a search requires actual consent.
        Similarly, in Justice W. Jones’ concurrence in Haynes, he describes Idaho’s implied
consent law as a choice--a driver may elect to revoke her implied consent by refusing an
evidentiary test and face harsh administrative penalties, or a driver may elect to continue to give
her voluntary consent by taking an evidentiary test and run the risk of failing, thereby facing
criminal charges for driving under the influence. Recognizing the need to effectively enforce
DUI laws, Justice W. Jones writes that “it is reasonable for the Legislature to encourage or
incentivize this choice.” But an unconscious person is unable to make this choice. When the

1
       Neither State v. Haynes, ___ Idaho ___, ___ P.3d ___ (Aug. 20, 2015), State v. Riendeau,
___ Idaho ___, ___ P.3d ___ (Aug. 24, 2015), nor State v. Padley, 849 N.W.2d 867, 879 (Wis.
Ct. App. 2014) are administrative licensing cases--rather, they are criminal cases and the United
States Supreme Court has not yet indicated whether constitutional safeguards apply equally to
both administrative cases and criminal cases.
                                                9
officer drew Bobeck’s blood, the officer made that choice for Bobeck. And while the majority
cites several state statutes that expressly permit officers to draw blood from unconscious drivers,
Idaho does not have such a statute.
       Here, the officer did not ask Bobeck to submit to the test. He merely read the ALS form
to Bobeck, which informed Bobeck of her right to refuse to submit to the test. Bobeck did not
give actual consent to a blood draw, and she was unable to otherwise resist, protest, or object to a
blood draw.
       As the majority further notes, consent must be voluntary, and whether consent is
voluntary is determined by the totality of circumstances. Idaho precedent makes clear that
implied consent must overcome two hurdles to qualify as voluntary: “(1) drivers give their
initial consent voluntarily and (2) drivers must continue to give voluntary consent.” State v.
Wulff, 157 Idaho 416, 423, 337 P.3d 575, 582 (2014). In Justice W. Jones’ concurrence in
Haynes, he elaborates, “Idaho’s implied consent statute requires the State to prove that a driver
gave his or her initial consent voluntarily and also gave voluntary consent at the time of the
evidentiary test.” Haynes, ___ Idaho at ___, ___ P.3d at ___. Justice Jones stresses that unless a
driver objects or takes steps to withdraw implied consent, the driver must still give actual,
voluntary consent to a blood draw. Id. at ___, ___, ___ P.3d at ___, ___.
       The totality of circumstances analysis for determining whether consent is voluntary
confirms that one circumstance--driving on Idaho roads--is insufficient to constitute actual,
voluntary consent.    If voluntarily driving on the roads was sufficient, the second prong
articulated in Wulff (drivers must continue to give voluntary consent) would be superfluous, and
there would be no need for a totality of circumstances analysis (which is required).
       In sum, despite the misleading term “implied consent law,” actual consent is still required
for a warrantless blood draw.




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