               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 40149

STATE OF IDAHO, TRANSPORTATION                   )
DEPARTMENT,                                      )     2013 Opinion No. 50
                                                 )
       Petitioner-Appellant,                     )     Filed: September 10, 2013
                                                 )
v.                                               )     Stephen W. Kenyon, Clerk
                                                 )
MARINA KALANI-KEEGAN,                            )
                                                 )
       Respondent.                               )
                                                 )

       Appeal from the District Court of the First Judicial District, State of Idaho,
       Kootenai County. Hon. John R. Stegner, District Judge.

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

       Hon. Lawrence G. Wasden, Attorney General; Susan K. Servick, Special Deputy
       Attorney General, Coeur d’Alene, for appellant. Susan K. Servick argued.

       Greg D. Horne, Coeur d’Alene, for respondent.
                 ________________________________________________
MELANSON, Judge
       The State of Idaho Transportation Department (ITD) appeals from the district court’s
decision, upon judicial review, affirming the ITD’s order vacating the suspension of Marina
Kalani-Keegan’s driver’s license after she failed a blood alcohol concentration test. For the
reasons set forth below, we reverse.
                                                I.
                                 FACTS AND PROCEDURE
       On June 10, 2011, an officer stopped Kalani-Keegan’s vehicle for failure to maintain its
lane of travel. The officer detected an odor of alcohol and administered field sobriety tests,
which Kalani-Keegan failed. Kalani-Keegan was arrested for driving under the influence (DUI)
and taken to a medical center for an involuntary blood draw. A probable cause affidavit in
support of Kalani-Keegan’s arrest dated June 14 and bearing a signature of the arresting officer
was received by the ITD on June 17. The results of the blood alcohol test, which were available

                                                1
on June 23, revealed that Kalani-Keegan’s blood alcohol concentration was above the legal limit.
On June 29, the ITD sent Kalani-Keegan a notice of administrative license suspension (ALS).
       In July, Kalani-Keegan requested an administrative hearing to contest the suspension of
her license. On August 11, the same day as the hearing, the hearing officer issued its findings of
fact and conclusions of law and order. 1 The hearing officer vacated the suspension of Kalani-
Keegan’s license because the required documents were not forwarded to the ITD in compliance
with I.C. § 18-8002A(5)(b). Specifically, I.C. § 18-8002A(5)(b) provides that, within five
business days following service of a notice of suspension, the arresting officer shall forward to
the ITD a sworn statement of the officer, which may incorporate any arrest or incident reports
relevant to the arrest and evidentiary testing.      The hearing officer found that, because the
probable cause affidavit did not contain the original signature of the arresting officer, the notary
certificate which followed was invalid. 2       On August 23, the ITD filed a motion for
reconsideration, which contained a statement from the notary whose name appeared on the
probable cause affidavit. In her statement, the notary declared that the arresting officer appeared
before her on June 14 and, in her presence, signed the probable cause affidavit relating to the
DUI arrest of Kalani-Keegan. On September 20, the hearing officer issued an order denying the
motion. On October 7, the ITD filed a petition for judicial review. The district court affirmed
the hearing officer’s decision. The ITD appeals.




1
        There is no transcript of the ALS hearing in the record because the ITD did not request it
in its notice of appeal. However, the ITD asserts, and Kalani-Keegan does not dispute, that
Kalani-Keegan’s counsel made no legal or factual argument at this hearing and merely asked the
hearing officer to leave the record open for fifteen days to provide an opportunity to supplement
the record. This request was apparently granted.
2
        There is nothing in the record to explain why the hearing officer determined the signature
was not original. The ITD complains the hearing officer made the determination erroneously.
Kalani-Keegan replies that the hearing officer presumptively had possession of, or access to, the
original copies of the documents that were sent to the ITD, including the sworn statement, and
made a factual determination, apparently based upon his own observation, that the affidavit did
not contain the original signature of the arresting officer.


                                                 2
                                                 II.
                                   STANDARD OF REVIEW
         The ALS statute, I.C. § 18-8002A, requires that the ITD suspend the driver’s license of a
driver who has failed a blood alcohol concentration test administered by a law enforcement
officer. A person who has been notified of such an ALS may request a hearing before a hearing
officer designated by the ITD to contest the suspension. I.C. § 18-8002A(7). 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 five grounds enumerated in I.C. § 18-8002A(7) for vacating the
suspension. Once the driver has made an initial prima facie showing of evidence proving some
basis for vacating the suspension, the burden shifts to the state to rebut the evidence presented by
the driver. See Kane v. Idaho Dep’t of Transp., 139 Idaho 586, 590, 83 P.3d 130, 134 (Ct. App.
2003).
         An ITD administrative hearing officer’s decision regarding the suspension of a person’s
driver’s license 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 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).
                                                III.
                                            ANALYSIS
A.       Prejudice to a Substantial Right
         It is well established that the party challenging an agency decision must demonstrate the
agency erred in a manner specified in I.C. § 67-5279(3) and that a substantial right of that party
has been prejudiced. Wheeler v. Idaho Dep’t of Health & Welfare, 147 Idaho 257, 260, 207 P.3d
988, 991 (2009).      Further, nothing in IDAPA requires the courts to address these two


                                                  3
requirements in any particular order. Hawkins v. Bonneville Cnty. Bd. of Comm’rs, 151 Idaho
228, 232, 254 P.3d 1224, 1228 (2011). Therefore, an agency’s decision may be affirmed solely
on the grounds that the petitioner has not shown prejudice to a substantial right. Id. In other
words, the courts may forego analyzing whether an agency erred in a manner specified by I.C. §
67-5279(3) if the petitioner does not show that a substantial right was violated. Id.
        Citing Wheeler and Hawkins, the district court affirmed the hearing officer’s decision
without addressing the substantive issues raised by the ITD 3 because it determined the ITD had
not established, or even alleged, that a substantial right was violated. Kalani-Keegan argues that,
having failed to specifically allege that a substantial right was prejudiced, the ITD is precluded
from raising the issue for the first time on appeal. The ITD responds that Kalani-Keegan’s
argument has no merit because, 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. Thus, the ITD concludes this Court should review the issue of whether
the substantial rights of the ITD were violated by the unfair decision-making process of the
hearing officer.
        We must decide whether, and to what extent in an ALS proceeding, the ITD must allege
and demonstrate prejudice to a substantial right.        In an ALS proceeding, the ITD is the
statutorily4 designated representative of the state and the interests of the people of the state that
lie behind the driver’s license suspension law. As such, the ITD has, as a matter of law,
substantial rights in the fairness of the decision-making process and the outcome of the
proceeding--namely, proper adjudication through application of correct legal standards which,
upon violation, are prejudiced.     While in some proceedings there may be parties that can
demonstrate a substantial interest in the matter such that it can then be adjudicated, the directly
affected parties--in this case statutorily mandated--have substantial rights in the proceeding as a
matter of law. In Hawkins, the Idaho Supreme Court recognized a substantial right to fairness

3
        The ITD asserted in its petition that “the actions by the hearing officer were not
supported by law or fact and/or the record before the agency including the following issue[]: the
sufficiency of the probable cause affidavit submitted by the police officer in support of the
license suspension.” The ITD brief filed with the district court asserted, among other things, that
the hearing officer “did not comply with the mandates of Idaho Code Section 18-8002 and 18-
8002A.”
4
       Idaho Code Section 18-8002A.

                                                 4
owed to parties, which appears to be akin to a right to due process, in the context of land-use
cases, stating:
                 Generally, as a procedural matter, all the parties involved in a land-use
        decision have a substantial right to a reasonably fair decision-making process.
        Governing boards owe procedural fairness not just to applicants but also their
        interested opponents. Both should expect proceedings that are free from
        procedural defects that might reasonably have affected the final outcome. See
        Noble v. Kootenai Cnty., 148 Idaho 937, 942-43, 231 P.3d 1034, 1039-40 (2010)
        (holding that, even though the county board disallowed the public from
        participating in a site visit, doing so did not likely affect the decision); Eacret v.
        Bonner Cnty., 139 Idaho 780, 787, 86 P.3d 494, 501 (2004) (vacating a county
        board’s decision due to a commissioner’s likely bias). This includes the right for
        all interested parties to have a meaningful opportunity to present evidence to the
        governing board on salient factual issues. Cnty. Residents Against Pollution from
        Septage Sludge v. Bonner Cnty., 138 Idaho 585, 588-89, 67 P.3d 64, 67-68
        (2003); Sanders Orchard v. Gem Cnty. ex rel. Bd. of Cnty. Comm’rs, 137 Idaho
        695, 702, 52 P.3d 840, 847 (2002).
                 These cases align with the overarching due-process principle that
        everyone with a statutory interest in the outcome of a decision is entitled to
        meaningful notice and a fair hearing before an impartial decision-maker. Eacret,
        139 Idaho at 787, 86 P.3d at 501; see also Eddins v. City of Lewiston, 150 Idaho
        30, 36, 244 P.3d 174, 180 (2010) (“[D]ue process rights are substantial rights.”).
        Accordingly, the Legislature has provided that people who are affected by land-
        use proceedings for the most part have a statutory right to notice and for a chance
        to participate in a hearing. E.g. I.C. § 67-6512(2) (requiring public notice and
        hearing for special-use permits); id. § 67-6515 (planned-unit developments); id. §
        67-6516 (variances).
                 Of course, assuming that a decision is procedurally fair, applicants for a
        permit also have a substantial right in having the governing board properly
        adjudicate their applications by applying correct legal standards. Lane Ranch
        P’ship v. City of Sun Valley, 145 Idaho 87, 91, 175 P.3d 776, 780 (2007); cf.
        Sagewillow, Inc. v. Idaho Dep’t of Water Res., 138 Idaho 831, 842, 70 P.3d 669,
        680 (2003) (remanding because the agency misstated the relevant legal standard
        and denied an application to transfer water rights). Landowner applicants,
        however, also have a substantial right to develop their own property. Terrazas v.
        Blaine Cnty. ex rel. Bd. of Comm’rs, 147 Idaho 193, 198, 207 P.3d 169, 174
        (2009).
                 On the other hand, when a petitioner opposes a governing board’s decision
        to grant a permit authorizing development, as Hawkins has, the petitioner must
        still show, not merely allege, real or potential prejudice to his or her substantial
        rights. I.C. § 67-5279(4). Since a party opposing a landowner’s request for a
        development permit has no substantial right in seeing someone else’s application
        adjudicated correctly, he or she must therefore show something more. The
        petitioner opposing a permit must be in jeopardy of suffering substantial harm if
        the project goes forward, such as a reduction in the opponent’s land value or


                                                  5
       interference with his or her use or ownership of the land. See Price v. Payette
       Cnty. Bd. of Cnty. Comm’rs, 131 Idaho 426, 431, 958 P.2d 583, 588 (1998)
       (vacating a board decision because it could impact property value or the
       petitioners’ use and enjoyment of their land). It would be instructive to look to
       law relating to property rights, nuisance, and trespass when determining if a
       substantial right is at stake in a case such as this.

Hawkins, 151 Idaho at 232-33, 254 P.3d at 1228-29.
       Thus, directly interested parties (statutorily required parties in this case) generally have,
as a procedural matter, substantial rights in a reasonably fair decision-making process and, of
course, in proper adjudication of the proceeding by application of correct legal standards.
However, it is principally those who, “on the other hand,” assert an outside, secondary, or other
interest that must “show something more.” 5 Id. Idaho Code Section 67-5279(4) has dual
components of the materiality of the effect of the decision--prejudice and standing. The Hawkins
Court underscores the substantial rights of an applicant as a directly interested party, but also
addresses the rights and interests of “interested opponents” and “interested parties” and states
that nonapplicant parties must show something more even if they may have statutorily provided
rights to notice and a chance to participate. Hawkins, 151 Idaho at 232-33, 254 P.3d at 1228-29.
That is the standing component. The Hawkins Court references and requires, as to opposing or
interested parties such as Hawkins who was a neighbor to the property but not an applicant,
demonstration of both the materiality of the harm and the existence of a substantial right. The
Court first mentions substantial harm such as diminution in value or interference with use, citing
Price v. Payette Cnty. Bd. of Cnty. Comm’rs, 131 Idaho 426, 431, 958 P.2d 583, 588 (1998)



5
         Wheeler, 147 Idaho at 260, 207 P.3d at 991 is cited by Kalani-Keegan for the proposition
that it is the burden of the party contesting the ITD’s decision to show how the ITD erred in a
manner specified under I.C. § 67-5279 and to establish that a substantial right has been
prejudiced. That is true when not established as a matter of law. Moreover, the proposition cited
is merely a recitation of applicable standards, which we also routinely include in ALS opinions.
See In re Kimbley, 154 Idaho 799, 802-03, 302 P.3d 1072, 1074-75 (Ct. App. 2013). In Wheeler,
although involving a license suspension under the Family Law License Suspensions Act, I.C. §§
7-1401 to -1417, similar to numerous ALS opinions from the Supreme Court and this Court,
while the proposition is stated, no discussion of any substantial right allegation, proof,
demonstration, finding or issue is mentioned. This is so because, the appeals, including
intermediate appeal, involve the directly interested parties--the driver and the ITD, who have a
substantial interest which is prejudiced by an erroneous decision.


                                                6
(vacating a board decision because it could impact property value or the petitioners’ use and
enjoyment of their land). Hawkins, 151 Idaho at 233, 254 P.3d at 1229. The Court then turns to
the existence of a substantial right, suggesting that it “would be instructive to look to law relating
to property rights, nuisance, and trespass when determining if a substantial right is at stake in a
case such as this.” Id. The Court would not need to look to property rights, nuisance, and
trespass if it was simply looking at materiality of harm.
       It is difficult to imagine just what the district court would have the ITD submit to
demonstrate prejudice to a substantial right. 6 Turning first to the issue of a substantial right or
standing, there are only two parties to an appeal of an ALS decision--the driver and the ITD. See
I.C. § 18-8002A. 7 In this context, these are the directly interested parties who, according to
Hawkins, have as a procedural matter, a substantial right to a reasonably fair decision-making
process and of course in the outcome of the proceeding by application of correct legal standards.


6
        The district court here stated that the ITD “has not alleged, much less established, that
any of its substantial rights were prejudiced by the Hearing Officer’s decision.” Even in those
cases, not present here, where some overt demonstration of prejudice to a substantial right is
required, neither Wheeler, cited by the district court, nor any of the numerous ALS opinions
which recite to the standards of review, require some form of pleading or allegation. Indeed, I.C.
§ 67-5279(4) states that, “notwithstanding the provisions of subsections (2) and (3) of this
section, agency action shall be affirmed unless substantial rights of the appellant have been
prejudiced.”
7
        It is important to note that ALS proceedings represent an unusual place in the context of
appeals of agency decisions, to which I.C. § 67-5279(4) might apply. Pursuant to I.C. § 18-
8002A, the legislature designated the ITD to act on behalf of the state in processing and
adjudication of license suspensions. A peace officer serves a driver with a notice of suspension
or the ITD if the peace officer fails to do so. Upon receipt of the officer’s sworn statement of
probable cause, the ITD suspends the driver’s license. The driver may request an administrative
hearing. Pursuant to I.C. § 18-8002A(1)(f), the hearing officer is a person designated by the
ITD. The hearing officer must enter an order vacating or sustaining the suspension. I.C. § 18-
8002A(7). The hearing officer’s decision is final. Id. In other circumstances, the final agency
decision is made by the board (which would then not normally be in a position to appeal its own
decision). A party to the ALS proceeding may appeal if aggrieved by the hearing officer’s
decision. I.C. § 18-8002A(8). While the ITD may be treated as an agency for purposes of
judicial review, see Wheeler, 147 Idaho at 260, 207 P.3d at 991, in this unique situation, the ITD
is the only entity with standing to prosecute an appeal of a hearing officer’s erroneous decision to
vacate a license suspension. The ITD is the party named as respondent in any appeal brought by
a driver and may be the appellant from an adverse decision below. See generally Kimbley, 154
Idaho 799, 302 P.3d 1072.


                                                  7
Hawkins, 151 Idaho at 233, 254 P.3d at 1229. These substantial rights existing as a matter of
course or procedure are established, demonstrated, and determined as a matter of law. There is
no factual recitation or demonstration for the ITD to submit. 8 BLACK’S LAW DICTIONARY 1000
(8th ed. 2004), defines “matter of law” as a “matter involving a judicial inquiry into the
applicable law.” The existence of a substantial right in the ITD in an ALS proceeding and appeal
is demonstrated and ascertained by the application of the statute and case law, not from any
particular facts.
        As to prejudice, the statute provides that the hearing officer must enter an order deciding
the ultimate issue of whether the license suspension will be vacated or sustained, which order is
final. I.C. § 18-8002A(7). As the district court noted, the ITD filed the petition for judicial
review of the “decision vacating the suspension.” This is not an appeal which involves some
interlocutory decision or issue ancillary to the ultimate outcome 9 of an ALS proceeding vacating
or sustaining a license suspension. The ITD contends that the hearing officer should have
sustained, not vacated the suspension. This appeal involves both aspects of the substantial rights
noted in Hawkins, namely whether the decision-making process was reasonably fair and whether
the matter was properly adjudicated through the application of correct legal standards. See
Hawkins, 151 Idaho at 233, 254 P.3d at 1229. Looking at prejudice from the standpoint of
material effect, no more prejudicial effect can be shown than an erroneous decision on the


8
         Surely, the ITD need not, in some pro forma sense, cite to the law, I.C. § 18-8002A
and/or an abundance of published appellate ALS opinions that establishes its role in this context
or its relationship to Kalani-Keegan in this case. At oral argument, Kalani-Keegan admitted that
her substantial interest, should she have been the appellant, is a matter of law. There would be,
as with the ITD, nothing factual for her to submit. And, similar to the ITD, she should not be
required in some meaningless deference to formalism to cite to the very same law or cases that
hold, as a matter of law, the importance of a driver’s interest in her driver’s license demands due
process protections. See Bell v. Idaho Transp. Dep’t, 151 Idaho 659, 664, 262 P.3d 1030, 1035
(Ct. App. 2011). The ITD has and can establish no general relationship to Kalani-Keegan or her
license beyond that which I.C. § 18-8002A establishes as a matter of law.
9
        In Evans v. Bd. of Comm’rs, 137 Idaho 428, 433, 50 P.3d 443, 448 (2002), the Court
determined there was no prejudice to substantial rights when the county board visited a proposed
site without notice, an issue subsidiary and ancillary to the question of approval of the
application. But see Comer v. Cnty. of Twin Falls, 130 Idaho 433, 439, 942 P.2d 557, 563 (1997)
(vacating a county board’s decision when it made a site visit without notice). It cannot be more
apparent that this type of issue, relative to prejudice, simply is not at play in this appeal.


                                                 8
ultimate outcome of a matter in which there can be but two opposing results. 10 Once again, it is
difficult to imagine what the ITD could present to the district court in satisfaction of I.C. § 67-
5279(4), other than what is apparent as a matter of fact and law, which would demonstrate
prejudicial effect of an erroneous decision to vacate as opposed to sustain the suspension.
        We next address whether the ITD is precluded from raising the question of prejudice to a
substantial right for the first time on appeal. 11 Generally, issues not raised below may not be
considered for the first time on appeal. State v. Fodge, 121 Idaho 192, 195, 824 P.2d. 123, 126
(1992). However, we have concluded that the ITD has, as a matter of law, substantial rights in
the decision-making process and that prejudice to those rights was adequately raised below. We
need not further address this issue.
       Thus, the district court erred in affirming the vacation of the suspension on the ground
that the ITD did not allege or demonstrate prejudice to a substantial right. The substantial
interest and the prejudicial effect of an erroneous decision of the hearing officer exist and are
demonstrated as a matter of law. The ITD need not have done more.
B.     Hearing Officer’s Decision
       This Court, on appeal from the decision of the district court in its appellate capacity,
reviews the agency record independently of the district court’s decision. Marshall, 137 Idaho at




10
        Where it can be readily determined that either the particular party does not have a
substantial interest in the matter, Hawkins, 151 Idaho at 233, 254 P.3d at 1229, and/or where that
party’s interest was not materially affected by the issue(s) raised on appeal, then determining
first whether an error occurred at all may be unnecessary. However, here, as set forth above, the
ITD has a substantial interest and one of two (along with the driver) stakes in the ALS
proceeding--the ITD’s being that of the state itself. So, an erroneous decision to vacate as
opposed to sustain, predicated upon improper procedure or failure in the application of correct
legal standards, materially prejudices the ITD’s substantial interests. Thus, determination of
whether error occurred is necessary.
11
        The question of whether a substantial right of the ITD has been violated is, essentially,
one of standing--that is, whether the ITD has a substantial interest in the outcome of an ALS
case. We have previously permitted the state to raise the question of a defendant’s Fourth
Amendment standing for the first time on appeal. State v. Hanson, 142 Idaho 711, 132 P.3d 468
(2006). The Ninth Circuit Court of Appeals has also permitted a lack of constitutional standing
to be raised for the first time on appeal. Laub v. United States Dep’t of Interior, 342 F.3d 1080
(9th Cir. 2003). However, we need not rely upon the applicability or rationale of these cases.


                                                9
340, 48 P.3d at 669. Therefore, we address the merits of the appeal of the hearing officer’s
decision.
       The hearing officer held as follows:
                1.    Idaho code § 18-8002A95)(b) provides that within five business
       days following service of a notice of suspension, the peace officer shall forward to
       the department, among other things, a sworn statement of the officer, which may
       incorporate any arrest or incident reports relevant to the arrest.
                2.    The probable cause affidavit acts as the sworn statement of the
       officer.
                3.    Exhibit 2, the probable cause affidavit, does not contain the
       original signature of the police officer, thereby invalidating the notary certificate
       which follows.
                4.    The probable cause affidavit does not meet the requirements of
       Idaho Code.
                5.    Therefore, the required documents were not forwarded to the
       Department in compliance with Idaho Code.

In addition, the hearing officer stated that a “fatal error in procedure requires this administrative
license suspension to be vacated.”
       The hearing officer erred in several ways. First, the hearing officer determined that the
packet of information to be sent to him must contain a sworn statement with an original signature
of the arresting officer. Idaho Code Section 18-8002A(5)(b) requires, in pertinent part:
               Within five (5) business days following service of a notice of suspension
       the peace officer shall forward to the department a copy of the completed notice
       of suspension form upon which the date of service upon the driver shall be clearly
       indicated, a certified copy or duplicate original of the results of all tests for
       alcohol concentration, as shown by analysis of breath administered at the
       direction of the peace officer, and a sworn statement of the officer, which may
       incorporate any arrest or incident reports relevant to the arrest and evidentiary
       testing setting forth . . .[ 12]


12
       The applicable rule, IDAPA 39.02.72.200.01, states:

               Upon service of a Notice of Suspension, a law enforcement agency shall,
       in accordance with Section 18-8002A, Idaho Code, forward the following
       documents to the Department within five (5) business days:
               a.        Notice of Suspension.
               b.        The sworn statement of the officer incorporating any arrest or
       incident reports relevant to the arrest and evidentiary testing.
               c.        A certified copy or duplicate original of the test results or log of
       test results if the officer has directed an evidentiary test of the petitioner’s breath.

                                                 10
       Note that the statute is specific as to “a copy” of the suspension form and “a certified
copy or duplicate original” of the test results. However, the statute simply says “a sworn
statement” of the officer, without specificity as to whether it must be the original signed
statement, a certified or duplicate original, or a copy.        The hearing officer made a legal
determination that the reference to “sworn statement” in the statute means an original document
with original signature, but that conclusion is not compelled by either the statute or the IDAPA.
Documentary evidence may be received in the form of copies or excerpts. Upon request, parties
shall be given an opportunity to compare the copy with the original if available. IDAPA
04.11.01.601. There is no evidence Kalani-Keegan ever asked to compare an original to her
copy or objected to the sworn statement rejected by the hearing officer.
       Second, it appears that the hearing officer made an evidentiary ruling--that in an ALS
proceeding, nothing but the original signature sworn statement will be accepted. 13 The Rules of
Evidence do not apply and IDAPA 04.11.01.600 provides:

               Evidence should be taken by the agency to assist the parties’ development
       of the record, not excluded to frustrate that development. The presiding officer at
       hearing is not bound by the Idaho Rules of Evidence. No informality in any
       proceeding or in the manner of taking testimony invalidates any order. The
       presiding officer, with or without objection, may exclude evidence that is
       irrelevant, unduly repetitious, inadmissible on constitutional or statutory grounds,
       or on the basis of any evidentiary privilege provided by statute or recognized in
       the courts of Idaho. All other evidence may be admitted if it is of a type
       commonly relied upon by prudent persons in the conduct of their affairs. The
       agency’s experience, technical competence and specialized knowledge may be
       used in evaluation of evidence.

       Third, the hearing officer rendered a legal conclusion that his perceived lack of an
original signature had the effect of “invalidating the notary certificate.” Without any citation to
legal authority for that conclusion, we do not speculate as to its basis.
       Fourth, the hearing officer rendered the further legal conclusion that a failure to submit
an “original” signature constituted a “fatal error in procedure [that] requires this administrative


13
        Perhaps the hearing officer had in mind the best evidence rule which generally calls for
the original writing. See I.R.E. 1002. But see I.R.E. 1003 (allowing duplicates as evidence).


                                                 11
license suspension to be vacated.” It is not clear why the hearing officer concluded that the
perceived procedural error was fatal to the license suspension. Perhaps the reference to the
invalidating of the notary certificate meant, to the hearing officer, that the sworn statement was
no longer sworn, although it is not clear how that would constitute a procedural error. 14 Perhaps
the statement that the required documents were not forwarded to the ITD in compliance with the
Idaho Code constituted the fatal failure in procedure for the hearing officer. However, there is
nothing in the Idaho Code which demands that the suspension be vacated upon some
failing--perhaps, even minor, in the documentation. 15
       This leads, fifth, to the grounds for vacating a license suspension. 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 five grounds enumerated in I.C. § 18-8002A(7) for vacating the
suspension. The grounds set forth in I.C. § 18-8002A(7) are:
               (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



14
        As noted, Kalani-Keegan did not object to the sworn statement, its signature or notary
certificate. More importantly, Kalani-Keegan did not contend that an irregularity in the sworn
statement meant that it could not be considered and, thus, she had satisfied her burden to
demonstrate a ground for vacating the suspension--lack of legal cause.
15
       The ALS proceeding is not the equivalent of a criminal or civil trial in which the rules of
procedure and evidence must be adhered. According to IDAPA 04.11.01.052:
               The rules in this chapter will be liberally construed to secure just, speedy
       and economical determination of all issues presented to the agency. Unless
       prohibited by statute, the agency may permit deviation from these rules when it
       finds that compliance with them is impracticable, unnecessary or not in the public
       interest. Unless required by statute, the Idaho Rules of Civil Procedure and the
       Idaho Rules of Evidence do not apply to contested case proceedings conducted
       before the agency.

                                                12
       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.

The failure to forward documentation mentioned in I.C. § 18-8002A(5) does not appear as a
ground for vacating a suspension. Moreover, a perceived irregularity in the documentation does
not appear as a ground for vacating a suspension. While the hearing officer here determined that
the asserted procedural error required that the suspension be vacated, at the same time, the
hearing officer expressly found that none of the grounds for vacating a suspension set forth in
I.C. § 18-8002A(7) had been established.
       Sixth, we turn to the unusual procedure employed by the hearing officer. We note that
the hearing officer conducted the hearing at 9:00 a.m. and transmitted his detailed seven-page
findings of fact and conclusions of law and order at 9:32 a.m. Apparently, the hearing officer
had identified a problem with the sworn statement before the hearing, but then determined that
there were no steps that could be taken to address the concern in securing the “just, speedy and
economical determination” of the issues. The IDAPA allows the hearing officer to have some
ex parte contact with staff, staff attorneys, and agency head so long as it is not with those directly
involved in the investigation or prosecution of the instant matter. See IDAPA 04.11.01.423 and
424. On the other hand, while IDAPA 04.11.01.423.04 precludes a hearing officer from ex parte
contact with the attorney for a party, Kalani-Keegan’s counsel acknowledged at oral argument
that the hearing officer called him before the ruling was issued to mention the concern about the
sworn statement.
       Seventh, it appears that the issue could have been remedied had the hearing officer taken
up his duties with respect to the motion for reconsideration. Idaho Code Section 18-8002A(7)(e)
provides that motions for reconsideration shall be allowed and new evidence can be submitted.
According to IDAPA 39.02.72.600:
              The Hearing Officer shall make Findings of Fact, Conclusions of Law and
       Order either sustaining or vacating the license suspension in question. The
       Findings of Fact, Conclusions of Law and Order shall be the final order of the
       Department. A request for reconsideration must be made within fourteen (14)
       days of the issuance of the Findings of Fact, Conclusions of Law and Order. The
       request for reconsideration shall contain a request to submit new evidence if the
       party wishes the hearing officer to consider any new evidence.



                                                 13
          On August 23, 2011, a motion for reconsideration was presented in which the notary
submitted a statement declaring that the arresting officer appeared before her on June 14, 2011,
and, in her presence, signed the probable cause affidavit. On September 20, 2011, the hearing
officer entered an order denying the motion, stating that the “hearing officer failed to act upon
the motion within ten (10) days of its receipt. The motion is thereby deemed Denied, in
accordance with Idaho Code § 67-5243(3).” That statute provides:
                  (3)     Unless otherwise provided by statute or rule, any party may file a
          motion for reconsideration of a recommended order or a preliminary order within
          fourteen (14) days of the service date of that order. The presiding officer shall
          render a written order disposing of the petition. The petition is deemed denied if
          the presiding officer does not dispose of it within twenty-one (21) days after the
          filing of the petition.

          The hearing officer refused or failed to timely take up the merits of the motion for
reconsideration. Further, the hearing officer deemed the motion denied after ten days, when the
statute clearly references twenty-one days. The statute, by its express terms, only relates to
motions (petitions) for reconsideration “of a recommended order or a preliminary order,” and
I.C. § 18-8002A(7)(e) states that the findings of fact, conclusions of law and order of the hearing
officer is the final order. However, it appears that IDAPA 04.11.01.740.02.a indicates that
motions for reconsideration of final orders will be decided within twenty-one days or considered
denied by operation of law.
          Thus, we conclude the ITD’s substantial rights in the ALS proceeding, the fairness of the
decision-making process, and the proper adjudication of the decision to vacate or sustain the
license suspension through application of correct legal standards exist as a matter of law. The
district court erred in demanding something more than that which the law provides. Moreover,
the hearing officer’s erroneous decision to vacate the suspension prejudiced those substantial
rights.
C.        Attorney Fees
          Kalani-Keegen requests attorney fees on appeal pursuant to I.C. § 12-117. However,
Kalani-Keegan is not the prevailing party. Therefore, we decline to award attorney fees.




                                                 14
                                               IV.
                                         CONCLUSION
       We reverse the district court’s decision upon judicial review affirming the ITD’s order
vacating the suspension of Kalani-Keegan’s driver’s license and we vacate the hearing officer’s
decision.   Costs, but not attorney fees, are awarded to the ITD on appeal.
       Chief Judge GUTIERREZ and Judge GRATTON, CONCUR.




                                                15
