               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 37041

STATE OF IDAHO,                                  )      2010 Unpublished Opinion No. 584
                                                 )
       Plaintiff-Respondent,                     )      Filed: August 9, 2010
                                                 )
v.                                               )      Stephen W. Kenyon, Clerk
                                                 )
BRIAN KEITH BLACKMON,                            )      THIS IS AN UNPUBLISHED
                                                 )      OPINION AND SHALL NOT
       Defendant-Appellant.                      )      BE CITED AS AUTHORITY
                                                 )

       Appeal from the District Court of the Fifth Judicial District, State of Idaho,
       Jerome County. Hon. John K. Butler, District Judge. Hon. Thomas H. Borresen,
       Magistrate.

       Order of the district court, on intermediate appeal from the magistrate division,
       affirming judgment of conviction for driving under the influence, affirmed.

       Daniel S. Brown of Fuller Law Offices, Twin Falls, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
       Attorney General, Boise, for respondent.
                  ______________________________________________
MELANSON, Judge
       Brian Keith Blackmon appeals from the district court’s intermediate appellate decision
affirming the magistrate’s order affirming Blackmon’s judgment of conviction for driving under
the influence. For the reasons set forth below, we affirm.
                                                I.
                                 FACTS AND PROCEDURE
       Blackmon was arrested on suspicion of misdemeanor driving under the influence of
alcohol (DUI). I.C. §§ 18-8004, 18-8005. The arresting officer transported Blackmon to the
county jail, where he submitted to a breath alcohol concentration (BAC) test. The breath test
revealed that Blackmon’s BAC was 0.130/0.138. Blackmon was charged with DUI.
       Prior to trial, Blackmon filed a motion to suppress the results of the breath test, asserting
that the county jail officers denied him a second or independent BAC test pursuant to I.C. § 18-
8002(3). Specifically, Blackmon argued that officers would not allow him to use the telephone

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in order to arrange for an additional test. After a hearing, the magistrate denied Blackmon’s
motion, holding that Blackmon failed to show that he made an affirmative request to use the
telephone to arrange independent testing.         Blackmon was found guilty by a jury of DUI.
Blackmon appealed to the district court, which affirmed the magistrate’s denial of Blackmon’s
motion to suppress. Blackmon again appeals.
                                                   II.
                                              ANALYSIS
        Blackmon argues that the district court erred by affirming the magistrate’s order denying
his motion to suppress. Blackmon contends that the magistrate erroneously concluded that the
county jail officers did not interfere with his right to an independent BAC test. On the contrary,
Blackmon asserts, the evidence presented at the hearing on the motion to suppress established
that the officers refused to allow Blackmon to use the telephone to arrange for an independent
test at his own expense.
        On review of a decision of the district court, rendered in its appellate capacity, we review
the decision of the district court directly. Losser v. Bradstreet, 145 Idaho 670, 672, 183 P.3d 758,
760 (2008).    We examine the magistrate record to determine whether there is substantial and
competent evidence to support the magistrate’s findings of fact and whether the magistrate’s
conclusions of law follow from those findings. Id. If those findings are so supported and the
conclusions follow therefrom and if the district court affirmed the magistrate’s decision, we affirm
the district court’s decision as a matter of procedure. Id.
        The standard of review of a suppression motion is bifurcated. When a decision on a
motion to suppress is challenged, we accept the trial court’s findings of fact that are supported by
substantial evidence, but we freely review the application of constitutional principles to the facts
as found. State v. Atkinson, 128 Idaho 559, 561, 916 P.2d 1284, 1286 (Ct. App. 1996). At a
suppression hearing, the power to assess the credibility of witnesses, resolve factual conflicts,
weigh evidence, and draw factual inferences is vested in the trial court. State v. Valdez-Molina,
127 Idaho 102, 106, 897 P.2d 993, 997 (1995); State v. Schevers, 132 Idaho 786, 789, 979 P.2d
659, 662 (Ct. App. 1999).
        Relying on this Court’s decision in State v. Hedges, 143 Idaho 884, 154 P.3d 1074 (Ct.
App. 2007), Blackmon contends that officers refused to allow him to make a telephone call and




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denied him his right to obtain an independent blood test. In Hedges, this Court described the
right of a defendant to obtain additional evidentiary testing as follows:
                The right of a defendant charged with an alcohol-related driving offense to
        obtain additional testing is derived from both statutory and constitutional sources.
        Idaho Code Section 18-8002(4)(d) provides:
                        After submitting to evidentiary testing at the request of the
                peace officer, he may, when practicable, at his own expense, have
                additional tests made by a person of his own choosing. The failure
                or inability to obtain an additional test or tests by a person shall not
                preclude the admission of results of evidentiary testing for alcohol
                concentration or for the presence of drugs or other intoxicating
                substances taken at the direction of the peace officer unless the
                additional test was denied by the peace officer.
        (Emphasis added). Police are also required to inform a defendant of this right to
        an independent BAC test after submitting to evidentiary testing, when practicable
        and at the defendant’s own expense. I.C. § 18-8002(3)(e); State v. Rountree, 129
        Idaho 146, 148, 922 P.2d 1072, 1074 (Ct. App. 1996). A detainee’s inability to
        obtain additional BAC testing will not result in suppression of the test completed
        by the state unless this right was affirmatively denied or materially interfered with
        by the state. Rountree, 129 Idaho at 150, 922 P.2d at 1076; see also [State v.
        Cantrell, 139 Idaho 409, 411, 80 P.3d 345, 347 (Ct. App. 2003)]. In the context
        of a DUI arrest, due process requires that police give a person accused of DUI a
        reasonable opportunity to procure a timely BAC sample through the accused’s
        own efforts and expense. See State v. Hayes, 108 Idaho 556, 559, 700 P.2d 959,
        962 (Ct. App. 1985).
                Idaho courts recognize that there is an inherent exigency in DUI cases due
        to the destruction of evidence through the metabolism of alcohol in the blood.
        State v. Madden, 127 Idaho 894, 896, 908 P.2d 587, 589 (Ct. App. 1995).
        Because of this exigency, the only opportunity to obtain a meaningful,
        independent BAC test is within a reasonable time following arrest and
        administration of the state’s evidentiary BAC test. State v. Carr, 128 Idaho 181,
        184, 911 P.2d 774, 777 (Ct. App. 1995). This means that, after administration of
        the evidentiary BAC test, a defendant cannot be denied access to a telephone upon
        request to arrange for an independent test. Id.; see also Madden, 127 Idaho at
        896, 908 P.2d at 589.

Hedges, 143 Idaho at 886-87, 154 P.3d at 1076-77. In Hedges, we also held that, once an
accused expresses a desire for independent testing, the police have no duty to administer the test,
participate in arranging the test, or transport the accused to a facility to obtain the test. Hedges,
143 Idaho at 887-88, 154 P. 3d at 1077-78; see also Rountree, 129 Idaho at 150, 922 P.2d at
1076.




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       At the hearing on the motion to suppress, Blackmon testified that he asked the arresting
officer for a second BAC test and a telephone call soon after submitting to the BAC test. The
arresting officer testified that Blackmon did not request an additional evidentiary test or the use
of a telephone to arrange a second test at that time. Blackmon further testified that he asked for a
second BAC test while in the booking room at the jail but testified that this request was never
addressed by the officers. A county jail officer who came on duty soon after Blackmon was
booked into the jail testified that Blackmon asked to use the telephone to call his parole officer.
The officers on duty placed the call for Blackmon, but the parole officer refused to speak to
Blackmon. Finally, both Blackmon and another county jail officer testified that Blackmon asked
for an additional test approximately five to eight hours after Blackmon submitted to the BAC
test. The officer refused to administer such a test. Further, the officer testified that Blackmon
never asked to use the telephone to arrange for an additional test.
       Substantial evidence supports the magistrate’s finding that Blackmon failed to
affirmatively request a telephone call in order to obtain an additional evidentiary test. While the
testimony at the suppression hearing was at times conflicting, the magistrate’s decision is
supported by substantial evidence. As this Court stated in Hedges, officers are not required to
facilitate, perform, or administer additional evidentiary testing. Hedges, 143 Idaho at 887-88,
154 P. 3d at 1077-78. Rather, officers are prohibited from denying or interfering with the
accused’s ability to obtain an independent blood alcohol test. Id. It appears from the record that
the officers complied with Blackmon’s request to call his parole officer and did not otherwise
prevent Blackmon from using the telephone to make arrangements for an additional test.1 The
officer’s refusal to administer a second test at the jail did not amount to a denial of or
interference with Blackmon’s right to obtain additional testing at his own expense. Thus, the
magistrate’s conclusion that the officers did not interfere with Blackmon’s right to additional
evidentiary testing followed from the magistrate’s findings. Therefore, Blackmon has failed to
show that the magistrate erred when it denied his motion to suppress.
                                                III.
                                         CONCLUSION



1
        It should also be noted that Blackmon could not be released on bond to obtain additional
testing because he was placed on a parole hold.

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       Based upon a review of the record, we hold that the magistrate’s factual findings were
supported by substantial and competent evidence and that the magistrate’s conclusions of law
followed therefrom. Therefore, the magistrate did not err in denying Blackmon’s motion to
suppress.   Accordingly, the district court’s decision affirming Blackmon’s judgment of
conviction is affirmed.
       Judge GUTIERREZ and Judge GRATTON, CONCUR.




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