                    IN THE SUPREME COURT OF THE STATE OF IDAHO

                                              Docket No. 45569

STATE OF IDAHO,                                              )
                                                             )
           Plaintiff-Appellant,                              )          Boise, February 2019 Term
                                                             )
v.                                                           )          Opinion filed: February 7, 2020
                                                             )
DAVID ALLEN POOL,                                            )          Karel A. Lehrman, Clerk
                                                             )
           Defendant-Respondent.                             )          AMENDED OPINION
                                                             )          THE COURT’S PRIOR
                                                             )          OPINION DATED FEBRUARY
                                                             )          7, 2020 IS HEREBY AMENDED.
                                                             )

        Appeal from the District Court of the Fourth Judicial District of the State of
        Idaho, Ada County. Deborah A. Bail, District Judge.

        The district court’s decision granting the motion to suppress the results of the
        blood draw is reversed.

        Lawrence G. Wasden, Idaho Attorney General, Boise, for Appellant. Kenneth K.
        Jorgensen argued.

        Eric Don Fredericksen, State Appellate Public Defender, Boise, for Respondent.
        Justin Curtis argued.
              _______________________________________________

MOELLER, Justice.


        The State appeals from a district court decision granting David Allen Pool’s motion to
suppress the results of a warrantless blood draw on the grounds that it was an unreasonable
search under the Fourth Amendment to the U.S. Constitution. The State maintains that pursuant
to Idaho’s implied consent law, I.C. § 18-8002(1), the search was reasonable and the district
court erred in requiring proof of exigency. For the reasons stated below, we reverse. 1


1
  This opinion was suspended for several months, pursuant to a stipulation of counsel, in light of the U.S. Supreme
Court’s pending decision in Mitchell v. Wisconsin, 139 S.Ct. 2525 (2019), a case wherein certiorari was granted on
the issue of implied consent. Unfortunately, a plurality of the Supreme Court decided the case on different grounds,
holding:


                                                         1
                     I.        FACTUAL AND PROCEDURAL BACKGROUND
         On Tuesday, January 12, 2016, at around 5:45 P.M., Officer Casey Hancuff came upon
the scene of an automobile accident involving two vehicles, one of which was driven by Pool.
Pool had failed to negotiate a turn and his vehicle was hit by oncoming traffic. He was not
wearing a seatbelt and his airbag deployed in the crash. As a result, he sustained a head injury
and was unconscious when the officer arrived at the scene. Pool’s son, a passenger in the vehicle,
informed the officer that Pool had not been staying in his traffic lane prior to the crash. He also
asserted that the doctors who had prescribed medication to Pool never told him that he could not
drive while taking his medications.
         When Pool regained consciousness, the officer questioned him and noted that he
appeared “very lethargic” and “had a presentation similar to a drunk driver . . . slurred speech
and thick tongue and obviously disoriented.” Pool told the officer that he believed he had taken
his prescription medications that day. Shortly thereafter, a large “baggy” containing seven bottles
of prescription medication was recovered from Pool’s vehicle. The officer recognized several of
the medications and suspected that they had caused Pool to be impaired. Around that time, Pool
and his son were taken to the hospital. The officer followed to question Pool further.
         At the hospital, the officer ruled out alcohol as a cause of Pool’s impairment based upon
the results of a horizontal gaze nystagmus test. The officer did not conduct other field sobriety
tests, as he believed Pool’s medical condition rendered it improper for him to do so. Instead, he
obtained a blood sample to be used for evidentiary testing.
         This appeal revolves around the officer’s justification for obtaining the blood sample
without a warrant. The facts surrounding the blood draw are as follows: While a phlebotomist
was taking blood samples from Pool for medical purposes, he recognized the officer’s
evidentiary kit and asked if he should also take a blood sample for the officer at that time. The


         When police have probable cause to believe a person has committed a drunk-driving offense and
         the driver’s unconsciousness or stupor requires him to be taken to the hospital or similar facility
         before police have a reasonable opportunity to administer a standard evidentiary breath test, they
         may almost always order a warrantless blood test to measure the driver’s BAC without offending
         the Fourth Amendment.
Id. at 2539; see also id. at 2551(Gorsuch, J., dissenting) (“We took this case to decide whether Wisconsin drivers
impliedly consent to blood alcohol tests thanks to a state statute.”). Although this holding is a helpful clarification of
the exigency exception, it does not address the question presented on appeal in this case, where the State has rested
its argument entirely on the basis of Idaho’s implied consent law, rather than exigency. We note, however, that had
Mitchell been decided prior to the district court’s ruling on the motion to suppress, the proceedings below likely
would have been briefed, argued, and ruled upon under a different standard.


                                                            2
officer replied, “Yes, of course.” Pool did not resist the blood draw but also did not appear to
understand what was happening, as evidenced by his question to the phlebotomist: “Is that an
IV?” At that point, Pool was told that it was a blood draw, but he was not told that his blood
would be used for evidentiary testing. The officer received two vials of Pool’s blood from the
phlebotomist.
         Although the officer initially testified that Pool consented to the blood draw before it
occurred, he later corrected that testimony and acknowledged that Pool did not actually consent
to the blood draw at any time. He also acknowledged that Pool was not informed before the
blood draw that his blood would be used for evidentiary testing. In addition, the officer stated
that he did not make any effort to secure a warrant for the blood draw. Approximately ten
minutes after the blood draw occurred, the officer read the administrative license suspension
(ALS) advisory form to Pool. The officer testified that the normal procedure for taking a blood
draw involves reading the advisory form and asking the driver for verbal consent prior to the
blood draw. After the ALS form was read to him, Pool did not object to the blood draw. 2
         An analysis of Pool’s blood sample examined by the State Crime Lab revealed that he
was under the influence of multiple medications that would have impaired his ability to drive.
Consequently, Pool was charged with felony Injury to Children, I.C. § 18-1501(3), felony
Persons Under the Influence of Alcohol, Drugs or Any Other Intoxicating Substances (one prior
felony conviction within fifteen years), I.C. §§ 18-8004, -8005(9), and misdemeanor Driving
Without Privileges (second offense within five years), I.C. § 18-8001(4).
         On August 21, 2017, Pool filed a motion to suppress the results of the State’s blood
draw, arguing that he did not consent to the blood draw, nor could he have done so due to
his condition. As a result, he argued that the blood draw violated his right to be free from
unreasonable searches and seizures. In response, the State argued that the implied consent law
applied, and, therefore, the warrantless blood draw was not an unreasonable search. In ruling
on the motion to suppress, the district court held that because (1) Pool had not given actual

2
  The ALS advisory notifies an individual that he is required by law to submit to evidentiary testing and enumerates
the civil consequences (i.e., license suspension, civil penalty, installation of an ignition interlock device) of refusing
or failing an evidentiary test. Pursuant to Idaho Code section 18-8002(3), officers are required to provide such notice
prior to evidentiary testing. Failure to read the ALS form prior to evidentiary testing results in the inability of the
State to enforce a license suspension. See Halen v. State, 136 Idaho 829, 834, 41 P.3d 257, 262 (2002) (“Motorists
who refuse to submit to requested tests are entitled to have their licenses reinstated if they can establish at the refusal
hearing that they were not completely advised . . . .”). However, since this advisory concerns only civil
consequences, it is of no consequence to the Fourth Amendment analysis in this case.


                                                            3
consent, (2) there were no exigent circumstances involved, and (3) a warrant could have
easily been obtained, a warrant was required to draw his blood for evidentiary purposes.
Accordingly, the district court granted Pool’s motion to suppress. The State timely appealed.

                               II.     STANDARD OF REVIEW
       “We review a district court’s order granting a motion to suppress evidence using a
bifurcated standard of review.” State v. Wulff, 157 Idaho 416, 418, 337 P.3d 575, 577 (2014).
This means that when a ruling on a suppression motion is challenged on appeal, “the Court
accepts the trial court’s findings of fact that are supported by substantial evidence, but freely
reviews the application of constitutional principles to the facts as found.” State v. Page, 140
Idaho 841, 843, 103 P.3d 454, 456 (2004).
                                        III.    ANALYSIS
        The district court held that “[b]ased upon the totality of the circumstances in this
case, when a warrant can be readily obtained and there is no exigency, a warrant must be
obtained.” The State argues that pursuant to Idaho’s implied consent statute, Idaho Code section
18-8002(1), the district court erred in requiring exigency in order to invoke the consent
exception. Pool concedes that the district court erred “by requiring evidence of an exigency,” but
argues that “the district court’s ultimate conclusion—that the State must demonstrate either an
exigency or actual consent—is correct,” and urges this Court to “reconsider and overrule its prior
decisions.” Thus, this case squarely presents us with the issue of whether the State can rely
wholly on implied consent as a basis for a warrantless blood draw when the defendant has not
expressly revoked consent.
A.     The district court erred in holding that exigent circumstances are required for a
       warrantless blood draw.
       The district court broadly held that the State must show exigency in order to conduct a
warrantless blood draw. The State argues, and Pool has conceded, that the exigent circumstances
exception to the warrant requirement is separate from the consent exception. We agree.
Therefore, we conclude that by conflating the exigency exception and consent exceptions, and
then applying a totality of the circumstances test, the district court erred. It still remains for us,
however, to determine whether there are limits when consent can be implied under Idaho’s
implied consent law.
B.     Idaho’s implied consent laws remain valid in the aftermath of McNeely.



                                                  4
       The central thesis of Pool’s argument on appeal is that statutorily implied consent alone is
not sufficient to satisfy the consent exception to the Fourth Amendment’s warrant requirement.
Accordingly, he asks the Court to “reconsider its prior decisions that have held that statutorily
implied consent remains valid until affirmatively withdrawn.”
       We have recognized that “[r]equiring [] a person submit to a blood alcohol test is a search
and seizure under the Fourth Amendment to the United States Constitution . . . .” Wulff, 157
Idaho at 418, 337 P.3d at 577. “Warrantless searches and seizures are presumptively
unreasonable under the Fourth Amendment. To overcome this presumption of unreasonableness,
the search must fall within a well-recognized exception to the warrant requirement.” Id. Consent
is one such well-recognized exception. Id. Absent express consent, all fifty states, including
Idaho, have adopted implied consent laws as a condition for exercising the privilege of driving
upon the states’ roads and highways. Idaho’s implied consent law is set forth in Idaho Code
section 18-8002(1) and provides:
       Any person who drives or is in actual physical control of a motor vehicle in this
       state shall be deemed to have given his consent to evidentiary testing for
       concentration of alcohol as defined in section 18-8004, Idaho Code, and to have
       given his consent to evidentiary testing for the presence of drugs or other
       intoxicating substances, provided that such testing is administered at the request
       of a peace officer having reasonable grounds to believe that person has been
       driving or was in actual physical control of a motor vehicle in violation of the
       provisions of section 18-8004 or 18-8006, Idaho Code.
       The extent to which implied consent laws act as an exception to the Fourth Amendment
warrant requirement has been litigated extensively since Missouri v. McNeely, where the U.S.
Supreme Court held that dissipation of alcohol in the blood, alone, does not qualify as a per se
exigency allowing for a warrantless blood draw, but that exigency must be judged on a case-by-
case basis based on the totality of the circumstances. 569 U.S. 141 (2013). However, in dicta, the
Supreme Court opined that implied consent statutes are one type of “a broad range of legal tools
to enforce [ ] drunk-driving laws and to secure BAC evidence without undertaking warrantless
nonconsensual blood draws.” Id (emphasis added).
       We have previously rejected the notion of “irrevocable implied consent” because it acts
as a “per se rule” that improperly disregards the voluntariness of that consent:

       Voluntariness has always been analyzed under the totality of the circumstances
       approach: “whether a consent to a search was in fact ‘voluntary’ . . . is a question
       of fact to be determined from the totality of all the circumstances.” Schneckloth v.


                                                 5
        Bustamonte, 412 U.S. 218, 227 (1973). Further, the State has the burden to prove
        that “consent was, in fact, freely and voluntarily given.” Id. at 222
        (quoting Bumper v. N. Carolina, 391 U.S. 543 (1968)). . . . When the Court has
        determined whether a suspect’s consent was voluntary or coerced, its decisions
        “each reflected a careful scrutiny of all the surrounding circumstances” and “none
        of them turned on the presence or absence of a single controlling criterion.” Id. at
        226.
Wulff, 157 Idaho at 422, 337 P.3d at 581. 3 “Where the validity of a search rests on consent, the
State has the burden of proving that the necessary consent was obtained and that it was freely
and voluntarily given.” State v. Rios, 160 Idaho 262, 265, 371 P.3d 316, 319 (2016) (quoting
Florida v. Royer, 460 U.S. 491, 497 (1983)).
        In the years since McNeely, this Court has repeatedly concluded that the implied consent
law creates a valid exception to the warrant requirement. For instance, in State v. Eversole,
Eversole argued that the U.S. Supreme Court’s decision in McNeely clarified that consent cannot
be statutorily implied. 160 Idaho 239, 242–43, 371 P.3d 293, 296–97 (2016). We rejected his
argument, stating:
                McNeely did not specifically address the validity of implied consent
        statutes much less hold that implied consent statutes cannot serve as an exception
        to the warrant requirement.
                ....
                Instead, McNeely recognized that implied consent statutes are one type of
        “a broad range of legal tools to enforce [ ] drunk-driving laws and to secure BAC
        evidence without undertaking warrantless nonconsensual blood draws.” 569 U.S.
        at 160–61 (emphasis added). The Court stated, “[s]uch laws impose significant
        consequences when a motorist withdraws consent; typically the motorist’s
        driver’s license is immediately suspended or revoked, and most States allow the
        motorist’s refusal to take a BAC test to be used as evidence against him in a
        subsequent criminal prosecution.” Id. Thus, McNeely suggests that implied
        consent statutes are still a valid means of obtaining BAC evidence.
Id.
        In State v. Rios, this Court affirmed Eversole and again concluded that implied consent is
a valid exception to the warrant requirement. 160 Idaho 262, 266, 371 P.3d 316, 320 (2016).
Pool’s argument here is identical to Rios’s argument in that case—i.e., that “implied consent
alone does not satisfy the consent exception to the warrant requirement.” Id. In rejecting Rios’s

3
  Prior to McNeely, this Court held that implied consent could not be withdrawn, and on that basis, we affirmed
denials of suppression motions in these types of cases. See State v. Diaz, 144 Idaho 300, 160 P.3d 739 (2007); State
v. Woolery, 116 Idaho 368, 775 P.2d 1210 (1989). However, in light of McNeely, we determined that consent must
be revocable, and accordingly, we overruled those decisions in Wulff.


                                                         6
argument, we stated, “[a]s we concluded in Eversole, under McNeely, implied consent may
satisfy the consent exception to the warrant requirement. . . . [A]ctual consent is not required.”
Id. at 266, 371 P.3d at 320.
       In State v. Charlson, 160 Idaho 610, 377 P.3d 1073 (2016), we relied on McNeely to
uphold Idaho’s implied consent scheme. Charlson is the first post-McNeely case in which we
affirmed a denial of a motion to suppress the results of a blood draw based on application of the
implied consent statute. See id. In so doing, we recognized that the totality of the circumstances
must be evaluated in determining whether consent to evidentiary testing was voluntary.
       In Charlson, a driver was deemed to have given implied consent to a blood test pursuant
to section 18-8002. Id. On appeal, he argued that the State failed to prove voluntary consent
under the totality of the circumstances. Id. At the outset of the analysis, we recognized in light of
McNeely, that, “[t]o be voluntary, consent based upon Idaho’s implied consent statute must
overcome two hurdles: ‘(1) drivers give their initial consent voluntarily[;] and (2) drivers must
continue to give voluntary consent.’ ” Id. (quoting Wulff, 157 Idaho at 423, 337 P.3d at 582). We
further acknowledged that, “[t]he State bears the burden of proving by a preponderance of the
evidence that consent was voluntary. Whether consent was voluntary is determined by
examining a totality of the circumstances.” Id. (internal citation omitted). In addition, we noted
that, although McNeely could be construed narrowly as applying only to exigency, “the better
reading is ‘that implied consent is no longer acceptable when it operates as a per se exception to
the warrant requirement because the Court repeatedly expressed disapproval for categorical
rules.’ ” Id. at 614, 377 P.3d at 1077 (quoting Wulff, 157 Idaho at 421, 337 P.3d at 580).
       Regarding the first element of the implied consent test—that drivers must give their
initial consent voluntarily—Charlson reiterated an assertion from Wulff that “[d]rivers in Idaho
give their initial consent to evidentiary testing by driving on Idaho roads voluntarily.” Id. at 616,
377 P.3d at 1079 (quoting Wulff, 157 Idaho at 423, 337 P.3d at 582). In essence, Charlson
equates voluntary driving with voluntary consent to evidentiary testing. Id. Charlson argued that
under the Wulff standard, the State needed to prove that he drove voluntarily. Id. However, this
Court rejected this notion, asserting that, “it is not the State’s burden to affirmatively prove that
Charlson drove voluntarily.” Id. at 617, 377 P.3d at 1080. Instead, it focused on the fact that
there was “evidence that Charlson drove on an Idaho road. There is no evidence whatsoever that
he did so involuntarily.” Id. Accordingly, this Court concluded that, “[s]hould the facts of a



                                                 7
particular case give any indication that the defendant did not drive voluntarily, then courts should
consider such an argument. Absent any such indication, this Court need not engage in the
analysis.” Id. In a footnote corresponding to the statement that the Court need not engage in the
“involuntary” analysis, we explained that Idaho precedent relating to the implied consent law did
not require the State to prove voluntary consent:
       This interpretation is consistent with this Court’s precedent. In Wulff, Halseth,
       and Arrotta, the State did not prove that the defendants had initially consented
       voluntarily or that the defendant continued to do so. Rather, at some point, the
       defendants withdrew that consent. Had the rule operated as Charlson desires, this
       Court’s analysis would have begun and ended with finding that the State had not
       proven that the driving was voluntary. Instead, this Court allowed the State to rest
       on the presumption that one typically drives voluntarily, and examined whether
       revoking consent later could serve to sever the statutorily implied consent.
Id. (emphasis added) (internal citations omitted). From this, it is evident that Charlson
implemented a rebuttable presumption that any time a person drives on an Idaho road, he is
presumed to have done so voluntarily.
       The Charlson opinion went on to analyze the second element of the implied consent test,
which requires that “drivers must continue to give voluntary consent.” 160 Idaho at 617, 377
P.3d at 1080 (quoting Wulff, 157 Idaho at 423, 337 P.3d at 582). The Court asserted that:
       [T]he only way to affirmatively establish that consent is continuously given, as
       advocated for by Charlson, would be to have officers repeatedly ask defendants if
       they continue to consent. This Court and the United States Supreme Court have
       held that officers do not have to inform defendants of their right to refuse to
       consent. State v. Christofferson, 101 Idaho 156, 158, 610 P.2d 515, 517 (1980)
       (citing Schneckloth v. Bustamonte, 412 U.S. 218, 229 (1973)). If officers are not
       required to inform a defendant of their right to refuse to consent, it logically
       follows that they do not have to affirmatively ask the defendant whether or not he
       or she does consent.
Id. The Court further stated that “[r]equiring the State to affirmatively prove continuous consent
would thus run afoul of this Court’s precedent. Indeed, in Rios, this Court stated that ‘[u]nder
Idaho law, a driver’s implied consent continues if it is not revoked before the time of evidentiary
testing.’ ” Id. at 617–18, 377 P.3d at 1080–81 (quoting Rios, 160 Idaho at 164, 371 P.3d at 319–
20). Accordingly, we determined that, “where no evidence is presented indicating that consent
was not voluntary, the statutorily provided implied consent is valid and remains in place until
affirmatively withdrawn.” Id. at 618, 377 P.3d at 1081.




                                                 8
       After addressing the elements of the implied consent test, we conducted a totality of the
circumstances analysis, concluding:
       There is absolutely no evidence suggesting that the blood draw was non-
       consensual. Given the statutorily provided implied consent, the totality of the
       circumstances establishes by a preponderance of the evidence that the blood draw
       was consensual. The circumstances are that a blood draw occurred, that
       Charlson had consented to one evidentiary test, and that Charlson did not revoke
       his consent before the blood draw. The totality of the circumstances indicates that
       the blood draw was consensual and that the consent was voluntary.
               This logic is consistent with this Court’s practice of examining whether
       the withdrawal of consent eliminates implied consent, rather than examining
       whether it is further evidence that the State has failed to meet its burden of
       establishing affirmative and continuous consent.
Id. (emphasis added). Thus, we see that although we have rejected a construction of Idaho’s
implied consent laws that renders a driver’s implied consent irrevocable, we have clearly upheld
the principle of implied revocable consent. Therefore, absent 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
section 18-8002. Id.
       Although Pool and the dissent have cited a concurrence and a dissent from the Idaho
Court of Appeals to support their position that actual consent is required to satisfy the consent
exception to the warrant requirement, those opinions were implicitly rejected by this Court’s
decisions in Rios and Eversole. See State v. Smith, 159 Idaho 15, 28, 355 P.3d 644, 657 (Ct. App.
2015) (Lansing, J., specially concurring); Bobeck v. Idaho Transp. Dep’t, 159 Idaho 539, 546,
363 P.3d 861, 868 (Ct. App. 2015) (Gutierrez, J., dissenting). With the exception of one case
from Arizona that does not appear to be on point because it concerns a clause not present in the
comparable Idaho statute, see State v. Havatone, 389 P.3d 1251 (Ariz. 2017), Pool does not cite
any subsequent case law from any jurisdiction to demonstrate that this Court’s stance on the
issue is incorrect. Consequently, we find his argument to be without merit.
C.      Under the totality of the circumstances, as applied to Idaho’s implied consent law,
the record does not support a finding that Pool revoked his consent.
       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. While we continue to hold that implied consent
does not create a per se exception to the warrant requirement, we acknowledge that it creates a


                                                9
high bar for a defendant to overcome, requiring the finder of fact to conclude from the totality of
the circumstances that the driver withdrew consent. In this case, the district court did not make a
finding that Pool withdrew his consent, and nothing in the record would support such a finding.
        Therefore, applying the same analysis to the case at bar as we did in Charlson, we must
likewise conclude that the totality of the circumstances establish that Pool never revoked his
consent to a blood draw for evidentiary purposes. The record shows conclusively that Pool was
driving voluntarily at the time of the accident. Immediately preceding the blood draw in
question, Pool had undergone a medical blood draw, with no apparent objection, which was
performed by the hospital for diagnostic purposes. Seconds later, with little additional physical
intrusion, Pool’s apparent awareness that a medical procedure was taking place, and no objection
to the medical procedure, a second blood draw was performed by the same phlebotomist. As this
occurred, Pool gave no indication that he had withdrawn or was withdrawing his consent. Given
the current state of the law, there is simply no requirement that the State establish anything more
in order to comply with section 18-8002.
        We acknowledge the concerns of the dissent. Nevertheless, we note that the first concern
raised—justiciability due to the availability of an independent source of the same evidence—
was not argued by Pool in his briefing nor addressed by the district court below. Although this
concern is well taken, it is not our place to raise such issues sua sponte on appeal and grant relief
accordingly. As to the second concern, the dissent adopts and expands on Pool’s contention that
aspects of Idaho’s implied consent law are unconstitutional, 4 and would require that all drivers
“first be advised” of (1) the consequences of refusing to submit to evidentiary testing and (2) that
“by driving on Idaho roads [they are] consenting to a warrantless blood draw that could be used
against [them] in a criminal proceeding.” The dissent concludes that, “[b]efore a citizen can
impliedly consent to having waived a fundamental constitutional right, the citizen must first be
advised of the consequences.” In essence, the dissent suggests we take the “implied” out of
“implied consent.”
        Ignoring the practical concerns of such a ruling, this would require us to effectively
rewrite Idaho’s implied consent statute and replace it with an actual consent standard. Indeed, it
is impossible to reconcile such an approach with the clearly stated policy of the Idaho legislature:


4
  While conceding that Idaho’s implied consent statute is not unconstitutional in all respects, Pool argues that
“Idaho’s ‘implied consent’ statute cannot, on its own, establish consent for Fourth Amendment purposes.”


                                                      10
       Any person who drives or is in actual physical control of a motor vehicle in this
       state shall be deemed to have given his consent to evidentiary testing for
       concentration of alcohol as defined in section 18-8004, Idaho Code, and to have
       given his consent to evidentiary testing for the presence of drugs or other
       intoxicating substances . . . .
I.C. § 18-8002(1) (emphasis added). As this Court has consistently held to be axiomatic,
“ignorance of the law is not a defense.” State v. Fox, 124 Idaho 924, 926, 866 P.2d 181, 183
(1993). The Idaho Court of Appeals has previously applied this principle to DUIs and the
consequences of sentencing enhancements. See Wilson v. State, 133 Idaho 874, 880, 993 P.2d
1205, 1211 (Ct. App. 2000) (“[I]t is axiomatic that citizens are presumptively charged with
knowledge of the law once such laws are passed.”). Additionally, the U.S. Supreme Court has
noted that “[t]he entire structure of our democratic government rests on the premise that the
individual citizen is capable of informing himself about the particular policies that affect his
destiny.” Atkins v. Parker, 472 U.S. 115, 131 (1985).
       In sum, while we understand Pool’s Fourth Amendment concerns, to hold in his favor
would require us to ignore well-established state law and overturn years of post-McNeeley
jurisprudence in order to reach a different result. Principles of stare decisis compel us against
taking such a course. Accordingly, we hold 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.
                                     IV.     CONCLUSION
       For the reasons set forth above, we reverse the district court’s decision granting Pool’s
motion to suppress the results of the blood draw, and remand this matter for further proceedings
consistent with this opinion.

       Chief Justice BURDICK, and Justices BRODY and BEVAN CONCUR.

STEGNER, J., dissenting.
       This is a troubling case for several reasons.
       First, I note that the State did not need to bring this appeal in order to obtain evidence to
prove Pool was driving under the influence of medication. The record demonstrates that, at the
State’s request, the district court issued a subpoena for the results of the medical blood test
lawfully performed by the hospital for diagnostic purposes. The State acknowledged during oral


                                                11
argument that it intends to rely on those test results to prosecute Pool if it does not prevail in this
appeal. I acknowledge that the State had a right to appeal the district court’s order granting a
motion to suppress pursuant to Idaho Appellate Rule 11(c)(7). However, I do not think this Court
is obliged to hear an appeal that is admittedly duplicative. In fact, such an appeal runs afoul of
the purpose of Rule 11(c)(7). “The purpose for allowing an interlocutory appeal of an order
suppressing evidence is to correct errors in the exclusion of evidence prior to an improper
acquittal of a defendant based on such exclusion because the defendant could not be retried after
acquittal and a subsequent appeal.” State v. Savage, 145 Idaho 756, 759, 185 P.3d 268, 271 (Ct.
App. 2008) (citing State v. Young, 136 Idaho 113, 118, 29 P.3d 949, 954 (2001)).
       Here, there is no danger of an improper acquittal because the State has identical evidence
obtained by the hospital for diagnostic purposes that establishes that Pool was driving under the
influence of medication. “The independent source doctrine allows admission of evidence that has
been discovered by means wholly independent of any constitutional violation.” State v. Russo,
157 Idaho 299, 306, 336 P.3d 232, 239 (2014) (quoting Nix v. Williams, 467 U.S. 431, 443
(1984)). The blood draw performed by the hospital was not taken in violation of Pool’s
constitutional rights. Accordingly, it would be admissible under the independent source doctrine.
Because the State already has the evidence it now seeks in this appeal, it is hard to characterize
our efforts as anything other than academic. Although the majority contends that this issue was
not addressed below, concerns regarding justiciability may be generally raised by this Court sua
sponte. See Tucker v. State, 162 Idaho 11, 18 n.4, 394 P.3d 54, 61 n.4 (2017) (citations omitted).
Further, whether this Court should address an appeal under its own appellate rules, can and
should be considered by this Court, even if done so sua sponte. Accordingly, I would dismiss the
State’s appeal.
       Second, Pool never knowingly consented, either impliedly or otherwise, to a warrantless
blood draw which could be used as evidence against him in a criminal proceeding. As the
majority correctly notes in footnote 2,
       [t]he ALS [Administrative License Suspension] advisory notifies an individual
       that he is required by law to submit to evidentiary testing and enumerates the civil
       consequences (i.e., license suspension, civil penalty, installation of an ignition
       interlock device) of refusing or failing an evidentiary test. . . . However, since this
       advisory concerns only civil consequences, it is of no consequence to the Fourth
       Amendment analysis.




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(Italics added.) Notwithstanding this acknowledgement, the majority goes on to conclude that
Idaho’s implied consent law creates a mechanism to countenance the warrantless drawing of
Pool’s blood for purposes of a criminal prosecution. The majority’s statement begs an important
and critical question: What is the source of the majority’s conclusion that Pool impliedly
consented to waive his Fourth Amendment rights under the United States Constitution? The
simple answer is there is none.
       In actuality, Pool was never advised, by statute or otherwise, that if he were to drive
under the influence he had somehow waived his Fourth Amendment right against unreasonable
searches. He has never impliedly or explicitly consented to a warrantless blood draw which may
be used as evidence against him in a criminal proceeding. I have scoured Idaho Code section 18-
8002, the statute relied on by the majority to establish implied consent in this case. Nowhere
does the statute advise a motorist that one of the consequences of driving in Idaho is that a
warrantless blood draw may be used as evidence against him in a criminal proceeding. Nor can
the majority identify a source for Pool’s implied consent. A sine qua non to a finding of implied
consent (especially one which waives a constitutional right) is a statute which implements and
explains such a consequence. The legislature simply has not created a statute from which implied
consent in a criminal context may be found.
       In State v. Eversole, 160 Idaho 239, 371 P.3d 293 (2016), a case quoted and relied on by
the majority, the Court wrote:
                Instead, McNeely recognized that implied consent statutes are one type of
       “a broad range of legal tools to enforce [ ] drunk-driving laws and to secure BAC
       evidence without undertaking warrantless nonconsensual blood draws.”
       [Missouri v. McNeely, 569 U.S. 141, 160–61 (2013)] (emphasis added). The
       Court stated, “[s]uch laws impose significant consequences when a motorist
       withdraws consent; typically the motorist’s driver’s license is immediately
       suspended or revoked, and most States allow the motorist’s refusal to take a BAC
       test to be used as evidence against him in a subsequent criminal prosecution.” Id.
Id. at 243, 371 P.3d at 297. What the majority in this case has not grasped, and consequently
failed to grapple with, is the simple fact that Idaho is not one of the “most States” which has
legislation that establishes the criminal repercussions for a motorist who fails to comply with the
law. See, e.g., Wis. Stat. § 343.305 (establishing that evidence acquired pursuant to the implied
consent laws is admissible at a criminal proceeding).
       Before a citizen can impliedly consent to having waived a fundamental constitutional
right, the citizen must first be advised of the consequences of his behavior. Pool was never


                                                13
advised that by driving on Idaho’s roads he was consenting to a warrantless blood draw that
could be used against him in a criminal proceeding. Without such notice, it cannot be said that
Pool has given knowing consent, implied or otherwise.
        The majority appears to misperceive this dissent by suggesting that I would require
“actual consent.” That is not the case. I agree with the majority that Idaho Code section 18-8002
states, “[a]ny 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.” However, the majority’s
opinion has not pointed to anything in Idaho Code section 18-8002 that indicates a driver will
face a criminal consequence. In fact, there is nothing in Idaho Code section 18-8002 which
informs a driver that he is waiving his Fourth Amendment rights in a criminal proceeding. Our
jurisprudence correctly recognizes that a warrantless search is presumptively unconstitutional.
State v. Albertson, 165 Idaho 126, 129, 443 P.3d 140, 143 (2019). Yet, the majority casually
disregards our established case law to somehow create an exception to the warrant requirement
where one does not exist.
        The statute in question specifies the civil and administrative penalties associated with
refusing to engage in the testing. This is unlike other states’ implied consent laws that explicitly
describe how the tests will be used, especially in criminal cases. See, e.g., Wis. Stat. § 343.305.
The basis upon which those other states conclude a driver has waived his Fourth Amendment
rights is “implied consent” via a statute, not “actual consent.”
        Nothing in my dissent should be construed to state that “actual consent” is required over
“implied consent.” I simply conclude that Idaho’s implied consent statute has no application in a
criminal prosecution. 5 Without the adoption of an implied consent statute apprising driver of
what consent will be implied in a criminal context, actual consent from Idaho drivers (or a
warrant from a judge) would be required to conduct evidentiary testing in accordance with the
Fourth Amendment. Upon adoption of such a statute, a driver, by driving on Idaho’s roads,
would impliedly consent to the evidentiary tests stated in the statute. However, if a consequence


5
  This is best demonstrated by examining the statute. Idaho Code section 18-8002(3) provides, “[a]t the time
evidentiary testing for concentration of alcohol or for the presence of drugs or other intoxicating substances is
requested, the person shall be informed” of the consequences of refusing to submit to the evidentiary testing.
Generally, law enforcement requires a reading of the ALS form as the means to inform Idaho drivers of the
consequences of their conduct. However, the consequences detailed in that form only relate to civil and
administrative penalties. The ALS advisory is silent when it comes to criminal consequences. In order to deprive
someone of his constitutional rights, it is first necessary to advise him of the consequences of his actions.


                                                       14
is not set forth in such a statute, a driver cannot be said to have impliedly consented to such a
consequence.
       While I obviously agree with the majority that “ignorance of the law” is not a defense, a
natural predicate to this proposition is that the legislature must have enacted a law before the
adage has any applicability. Here, the legislature has not enacted a statute. Consequently, Pool
has not consented to anything as it relates to a criminal prosecution. A citizen cannot inform
himself of a law which does not exist. The majority’s reasoning does nothing to persuade me to
alter my conclusion.
       Until the legislature corrects this fatal omission, I cannot agree that a driver impliedly
consents that a warrantless blood draw may be used against him in a criminal proceeding.
Because the majority’s analysis does not pass constitutional scrutiny under the Fourth
Amendment, I respectfully dissent.




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