               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 45751

STATE OF IDAHO,                                )
                                               )    Filed: July 22, 2020
       Plaintiff-Respondent,                   )
                                               )    Melanie Gagnepain, Clerk
v.                                             )
                                               )    THIS IS AN UNPUBLISHED
KENNETH RICHARD ROSE, JR.,                     )    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 Christensen; Hon. John P. Luster, District
       Judges.

       Judgment of conviction for aggravated driving under the influence, affirmed.

       Eric D. Fredericksen, State Appellate Public Defender; Justin M. Curtis, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
BRAILSFORD, Judge
       Kenneth Richard Rose, Jr., appeals from the judgment of conviction entered on his
conditional guilty plea for felony aggravated driving under the influence (DUI), Idaho
Code § 18-8006.    Specifically, he asserts the district court erred in denying his motion to
suppress the results of a warrantless blood draw. We affirm.
                                               I.
                    FACTUAL AND PROCEDURAL BACKGROUND
       Based on the parties’ stipulated facts, the district court found the following facts in its
decision denying Rose’s suppression motion:
               On July 1, 2016, Detective Mumford was dispatched to Clagstone Road
       near Custer Street in reference to a two car collision. The drivers of the two
       vehicles were transported to Kootenai Medical Center because of the severity of
       their injuries. At some unknown point in time, Detective Mumford was told by an
       unknown person or persons that Rose had been drinking alcohol. When near

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       Rose, Detective Mumford smelled the odor of alcohol coming from his person.
       He requested medical staff draw Rose’s blood, without a warrant, because he
       feared a blood draw after his imminent surgery would not accurately reflect his
       level of intoxication at the time of the traffic collision. Then a registered nurse
       employed with Kootenai Medical Center, drew Rose’s blood.
               Prior to the blood draw, Rose’s pants were removed and placed into an
       opaque plastic bag, not at the direction of law enforcement. Medical staff
       informed Detective Mumford that Rose’s pants contained marijuana; he then
       reached into the right front pocket of Rose’s pants and seized it.
       As a result of these events, the State charged Rose with felony aggravated DUI and
misdemeanor possession of marijuana. Rose moved to suppress both the evidence obtained from
the warrantless blood draw and also the marijuana. After a hearing, the district court issued a
written decision denying in part and granting in part Rose’s motion. Specifically, the court
granted Rose’s motion to suppress the marijuana found in his pants at the hospital but denied his
motion to suppress the results of the warrantless blood draw. Regarding this latter ruling, the
court cited Sims v. State, 159 Idaho 249, 358 P.3d 810 (Ct. App. 2015), and concluded it was
bound under stare decisis to rule that Rose had impliedly consented to the warrantless blood
draw under I.C. § 18-8002.
       Following this ruling, Rose pled guilty conditionally to DUI, reserved his right to appeal
the district court’s denial of his motion to suppress, and appealed that denial. Thereafter,
however, Rose moved to suspend his appeal pending the resolution of State v. Pool, 166 Idaho
238, 457 P.3d 890 (2020), which raised the issue of whether the State can rely on implied
consent under I.C. § 18-8002 for a warrantless blood draw. The Supreme Court granted Rose’s
motion, suspended his appeal, and has now ruled in Pool. Accordingly, we address Rose’s
timely appeal.
                                                II.
                                   STANDARD OF REVIEW
       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,



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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).
                                               III.
                                           ANALYSIS
       At issue is whether Rose impliedly consented under I.C. § 18-8002 to a warrantless blood
draw because he did not affirmatively revoke his consent. The Fourth Amendment to the United
States Constitution prohibits unreasonable searches and seizures.         Warrantless searches are
presumed to be unreasonable and, therefore, violate the Fourth Amendment. State v. Weaver,
127 Idaho 288, 290, 900 P.2d 196, 198 (1995). Requiring a person to submit to a warrantless
blood draw for evidentiary purposes is a search and seizure under the Fourth Amendment. State
v. Eversole, 160 Idaho 239, 242, 371 P.3d 293, 296 (2016). The warrant requirement, however,
does not apply if the person who is subjected to the warrantless blood draw has consented. Id.
Idaho Code Section 18-8002 impliedly provides such consent stating, in relevant part, 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 [and] for the
presence of drugs or other intoxicating substances.” I.C. § 18-8002(1).
       The Idaho Supreme Court has repeatedly held that a driver’s statutorily implied consent
under I.C. § 18-8002(1) remains valid unless affirmatively revoked. See, e.g., State v. Charlson,
160 Idaho 610, 616-67, 377 P.3d 1073, 1079-80 (2016) (noting driver consents to evidentiary
testing by driving on Idaho roads voluntarily but may withdraw implied consent); State v. Rios,
160 Idaho 262, 265-66, 371 P.3d 316, 319-20 (2016) (“Under Idaho law, a driver’s implied
consent continues if it is not revoked before the time of evidentiary testing.”); Eversole, 160
Idaho at 243, 371 P.3d at 297 (“Idaho’s implied consent statute makes clear that a defendant is
deemed to give implied consent to evidentiary testing for alcohol concentration.”).          Rose
acknowledges he did not revoke his implied consent under these authorities but asks the Court to
overrule these cases and to hold that implied consent does not satisfy the consent exception to the
warrant requirement but, rather, the State must demonstrate actual consent.
       The Idaho Supreme Court, however, has recently declined again in Pool to rule that the
State must demonstrate a driver’s actual consent to satisfy the exception to the warrant
requirement for purposes of evidentiary testing for alcohol concentration and the presence of
drugs or other intoxicating substances. Pool, 166 Idaho at 245, 457 P.3d at 897. In Pool, the

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Court discussed its prior decisions, including Charlson, Rios and Eversole, and expressly
declined to overrule these cases stating, “This Court has repeatedly rejected the notion that actual
consent is the only way to demonstrate consent for Fourth Amendment purposes, and we find no
compelling reason to overturn our controlling precedent in that regard.” Pool, 166 Idaho at 245,
457 P.3d at 897. 1 The Court held that “absent evidence that a defendant has affirmatively
withdrawn his or her consent, implied consent for warrantless blood draws remains a valid
exception to the Fourth Amendment warrant requirement, unless or until the legislature changes
Idaho’s implied consent laws or the U.S. Supreme Court provides further guidance.” Id. at 246,
457 P.3d at 898.
       Following Pool, Idaho’s implied consent law remains the same: A driver in Idaho gives
his implied consent under I.C. § 18-8002(1) to evidentiary testing for alcohol concentration or
the presence of drugs or other intoxicating substances by voluntarily driving on Idaho roads.
Pool, 166 Idaho at 244, 457 P.3d at 896. This statutorily implied consent is valid and remains
valid until the driver affirmatively withdraws it. Id. Absent proof that a driver withdrew his
consent to evidentiary testing, “a trial court may, consistent with the concept of implied consent,
infer from the totality of the circumstances that consent to evidentiary testing was voluntary
under [I.C. §] 18-8002.” Id. at 245, 457 P.3d at 897.
       As the district court correctly concluded in this case, this Court’s decision in Sims
controls the resolution of whether Rose affirmatively withdrew his implied consent under
I.C. § 18-8002. In Sims, Sims’ vehicle collided with another vehicle while Sims was fleeing the
police. Id. at 252, 358 P.3d at 813. As a result of this collision, Sims was injured and
transported to a hospital for treatment. Id. While in the hospital and unconscious, Sims was
subjected to a warrantless blood draw to test for alcohol and other intoxicating substances. Id.
As a result of these events, Sims pled guilty to aggravated DUI. Id. Subsequently, he filed a
petition for post-conviction relief, alleging his trial counsel provided ineffective assistance of


1
        In Pool, the Idaho Supreme Court also acknowledged the concurrence and dissent in
State v. Smith, 159 Idaho 15, 28, 355 P.3d 644, 657 (Ct. App. 2015) (Lansing, J., specially
concurring), and Bobeck v. Idaho Transp. Dep’t, 19 Idaho 539, 546, 363 P.3d 861, 868 (Ct. App.
2015) (Gutierrez, J., dissenting), on which Rose relies to support his argument that the State must
demonstrate actual consent to satisfy the exception to the warrant requirement. Pool, 166 Idaho
at 245, 457 P.3d at 897. The Court noted, however, that its decisions in Rios and Eversole
implicitly rejected the concurrence in Smith and the dissent in Bobeck. Pool, 166 Idaho at 245,
457 P.3d at 897.
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counsel by failing to move to suppress the results of the warrantless blood draw. Id. Affirming
the district court’s summary dismissal of this claim, this Court ruled:
       Sims impliedly consented to be tested for alcohol by driving a motor vehicle in
       Idaho. At no point did Sims object to or resist the blood draw. His alleged
       unconsciousness does not effectively operate as a withdrawal of his consent.
       Therefore, Sims’ statutorily implied consent was effective at the time of the blood
       draw.
Id. at 256-67, 358 P.3d at 817-18.
       Just as in Sims, Rose’s unconsciousness did not operate to withdraw his implied consent
under I.C. § 18-8002(1). Rather, the district court correctly ruled that Rose’s implied consent to
evidentiary testing under I.C. § 18-8002(1) remained valid absent proof that Rose affirmatively
withdrew his consent. See Pool, 166 Idaho at 245, 457 P.3d at 897 (“[A]bsent proof that a driver
later withdrew his consent to testing, a trial court may, consistent with the concept of implied
consent, infer from the totality of the circumstances that consent to evidentiary testing was
voluntary under [I.C. §] 18-8002.”).
                                                IV.
                                         CONCLUSION
       We hold that Rose failed to establish he affirmatively withdrew his implied consent under
I.C. § 18-8002(1) as required by the applicable, binding legal precedents in Idaho. Accordingly,
the blood draw did not violate Rose’s Fourth Amendment rights, and we affirm the district
court’s order denying his motion to suppress the results of the warrantless blood draw and the
judgment of conviction.
       Judge GRATTON and Judge LORELLO CONCUR.




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