               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 38502

IN THE MATTER OF THE DRIVER’S                    )
LICENSE SUSPENSION OF MICHAEL                    )
SHERMAN MECHAM.                                  )
MICHAEL SHERMAN MECHAM,                          )     2012 Unpublished Opinion No. 420
                                                 )
       Petitioner-Appellant,                     )     Filed: March 29, 2012
                                                 )
v.                                               )     Stephen W. Kenyon, Clerk
                                                 )
STATE OF IDAHO, DEPARTMENT OF                    )     THIS IS AN UNPUBLISHED
TRANSPORTATION,                                  )     OPINION AND SHALL NOT
                                                 )     BE CITED AS AUTHORITY
       Respondent.                               )
                                                 )

       Appeal from the District Court of the Seventh Judicial District, State of Idaho,
       Bonneville County. Hon. Jon J. Shindurling, District Judge.

       District court decision affirming administrative suspension of driver’s
       license, affirmed.

       Swafford Law, P.C., Idaho Falls, for appellant. Larren K. Covert argued.

       Harrison Law, Idaho Falls, for respondent. Alan R. Harrison argued.
                 ________________________________________________
WALTERS, Judge Pro Tem
       Michael Sherman Mecham appeals from the district court’s appellate memorandum
decision entered on judicial review affirming an Idaho Transportation Department (ITD) hearing
officer’s order administratively suspending his driver’s license. We affirm.
                                                I.
                                       BACKGROUND
       Shortly before midnight on June 1, 2010, Deputy Flegel of the Bingham County Sheriff’s
Department observed a vehicle on the side of the road with its lights on. Flegel stopped to
investigate and found Mecham passed out in the driver’s seat. Flegel roused Mecham and
administered field sobriety tests, which Mecham failed, and he was arrested for driving under the
influence of alcohol in violation of Idaho Code § 18-8004. At the jail, Mecham consented to a

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breath test, taken on an Intoxilyzer 5000EN. The test showed breath alcohol concentrations of
.155 and .158 and Mecham’s driver’s license was administratively suspended. He appealed this
suspension to the ITD. Following a hearing, an ITD hearing officer sustained the license
suspension. Mecham filed a petition for review of the hearing officer’s decision by the district
court. The district court affirmed the suspension order, and Mecham now appeals.
                                                II.
                                     LEGAL STANDARDS
       Idaho Code § 18-8002A(4) directs the ITD to suspend the driver’s license of any driver
who fails an alcohol concentration test. A driver whose license has been suspended may request
a hearing to contest the suspension before a hearing officer designated by the ITD. I.C. § 18-
8002A(7). In the administrative hearing, the burden of proof rests upon the driver to prove
grounds sufficient to vacate the suspension. I.C. § 18-8002A(7); In re Suspension of Driver’s
License of Gibbar, 143 Idaho 937, 942, 155 P.3d 1176, 1181 (Ct. App. 2006); In re Mahurin,
140 Idaho 656, 658, 99 P.3d 125, 127 (Ct. App. 2004); Kane v. State, Dep’t of Transp., 139
Idaho 586, 590, 83 P.3d 130, 134 (Ct. App. 2003).          The hearing officer must uphold the
suspension unless the officer finds, by a preponderance of the evidence, that the driver has
shown one of several grounds enumerated in Idaho Code § 18-8002A(7) for vacating the
suspension. These grounds include:
               (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
               ....
               (d) The tests for alcohol concentration, drugs or other intoxicating
       substances administered at the direction of the peace officer were not conducted
       in accordance with the requirements of section 18-8004(4), Idaho Code, or the
       testing equipment was not functioning properly when the test was
       administered. . . .

       The hearing officer’s decision is subject to challenge through a petition for judicial
review. I.C. § 18-8002A(8); Gibbar, 143 Idaho at 942, 155 P.3d at 1181; Mahurin, 140 Idaho at
658, 99 P.3d at 127; Kane, 139 Idaho at 589, 83 P.3d at 133. Upon judicial review, a hearing
officer’s decision must be affirmed unless the court determines that the hearing officer’s
findings, inferences, conclusions, or decisions are: (a) in violation of constitutional or statutory
provisions; (b) in excess of statutory authority of the agency; (c) made upon unlawful procedure;

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(d) not supported by substantial evidence on the record as a whole; or (e) arbitrary, capricious, or
an abuse of discretion. I.C. § 67-5279(3). The reviewing court may not substitute its judgment
for that of the hearing officer as to the weight of the evidence on questions of fact. I.C. § 67-
5279(1). In an appeal from a district court’s decision where the district court was acting in its
appellate capacity over an agency, this Court will review the agency record independently of the
district court’s decision. Castaneda v. Brighton Corp., 130 Idaho 923, 926, 950 P.2d 1262, 1265
(1998).
                                                 III.
                                             ANALYSIS
          If a hearing officer finds, by a preponderance of the evidence, that “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,” 1 a license suspension for failure of an evidentiary
test for alcohol concentration must be vacated.         At the administrative hearing, Mecham
contended that his suspension should be vacated because the agency record did not establish that
he was in actual physical control of the vehicle when Deputy Flegel encountered him parked
alongside the road. More specifically, he asserted that in order to be in “actual physical control”
of the vehicle as statutorily defined, he had to be in the driver’s position of a motor vehicle with
the engine running 2 and because the deputy’s arrest report did not affirmatively state that the
engine of his vehicle was running, he should prevail.
          The hearing officer disagreed. The agency record before the hearing officer in this case
included the deputy’s affidavit stating that actual physical control of the vehicle by Mecham was
based upon “observation by officer.” Attached to the affidavit was the deputy’s written arrest
report. The hearing officer, recognizing that Mecham bore the burden to prove a ground for
vacation of the suspension, held that because Mecham did not submit any affirmative evidence
that the vehicle was not running, the deputy’s affidavit recounting that “he established actual
physical control is uncontroverted in this record.” On these findings, the hearing officer denied
relief.




1
          See Idaho Code § 18-8002A(7)(b).
2
          See Idaho Code § 18-8002A(1)(a).

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       On appeal, Mecham asserts that the hearing officer’s findings were not based on
substantial and competent evidence because, he says, there was no evidence in the record
establishing that the engine was running.      We disagree, because the deputy’s affidavit is
evidence. The ITD suspends a driver’s license or privileges upon receipt of an officer’s “sworn
statement” that there existed legal cause to believe a person was driving or was in actual physical
control of a vehicle while under the influence of alcohol. I.C. § 18-8002A(4)(a). That sworn
statement, or affidavit, is admissible at an administrative hearing challenging a suspension.
I.C. § 18-8002A(7); Wheeler v. Idaho Transp. Dep’t, 148 Idaho 378, 383, 223 P.3d 761, 766 (Ct.
App. 2009). Thus, the deputy’s affidavit was admissible evidence on the question of whether the
engine was running, and Mecham’s assertion otherwise is without merit.
       Perhaps more importantly, Mecham’s argument fails to appreciate that, at his
administrative hearing challenging the suspension of his driver’s license, the ITD did not have
the burden to prove that there existed legal cause for the deputy to believe that Mecham was in
actual physical control of the vehicle. Instead, Mecham bore the burden of proving one or more
of the statutory grounds for vacating a suspension. See I.C. § 18-8002A(7) (“The burden of
proof shall be on the person requesting the hearing.”) Mecham attended the hearing but did not
testify, and he presented no other fact witnesses at the hearing. 3 Mecham’s failure to present
affirmative evidence at the hearing, under the circumstances here, was fatal to his claim. As we
stated in Kane, 139 Idaho at 590, 83 P.3d at 134 (emphasis in original):
               Kane’s second contention is that because of their nonconformity with
       certain requirements of the statutes and regulations, the documents sent by Officer
       Erickson did not prove legal cause to stop his car or prove that the blood alcohol
       test was properly administered. This argument misperceives the burden of proof
       at the hearing. It was not the ITD’s burden at the administrative hearing to prove
       legal cause for the stop, to prove the reliability of the blood alcohol tests, or to
       disprove any of the possible grounds for challenging a suspension under § 18-
       8002A(7). To the contrary, the statute directs that “[t]he burden of proof shall be
       on the person requesting the hearing.” I.C. § 18-8002A(7). Thus, it was Kane’s
       burden to present evidence affirmatively showing one or more of the grounds for
       relief enumerated in § 18-8002A(7). That is, it was his burden to prove that, in
       fact, the officer lacked legal cause to stop Kane’s vehicle or that the blood test
       was, in fact, not conducted in accordance with legal requirements. This burden is
       not met by merely showing that documents in the hands of the ITD are inadequate


3
       Mecham presented the testimony of an “expert” who explained why certain documents in
the agency record were, in his opinion, insufficient to prove certain matters.

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       or inadmissible to reveal whether legal cause existed or whether the blood test
       was conducted properly. Kane presented no evidence to meet his burden; his
       challenge to the suspension consisted solely of a technical attack upon the
       adequacy of the ITD’s documentation. Because Kane made no prima facie
       showing, the ITD had no burden to present any evidence at all to the hearing
       officer.
                Perhaps flaws in documents submitted to the ITD could render them
       inadmissible or inadequate to rebut a petitioner’s prima facie proof of one of the
       five statutory grounds to vacate a suspension, but that is a question that we need
       not decide today because Kane failed entirely to meet his initial burden to go
       forward with evidence proving some basis for relief.

       Similarly, in Mahurin, 140 Idaho at 660, 99 P.3d at 129 (footnote omitted) (emphasis in
original), this Court held:
                Next, we address Mahurin’s contention that the maintenance logs that
       were produced and placed in evidence showed that the calibration check solution
       for the Intoxilyzer 5000 had not been changed within the preceding month as
       prescribed in the manual. According to Mahurin, the directive in the
       Intoxilyzer 5000 manual that “solutions should be changed approximately every
       100 calibration checks or every month whichever comes first,” creates a strict
       requirement that solutions be changed no less than every thirty days. The hearing
       officer concluded that the language relied upon by Mahurin was recommendatory,
       not mandatory, and inferred that a solution change occurred on May 30 when the
       equipment was placed in service. On appeal, Mahurin contends that the hearing
       officer’s interpretation of the manual was incorrect and that the inference drawn
       by the hearing officer is unsupported by the evidence.
               We need not decide the merit of either of Mahurin’s contentions because
       on the record presented, Mahurin failed to meet his burden to prove that the
       calibration check solution was not changed when the equipment was placed back
       in service on May 30. Mahurin’s argument is predicated on a misperception that
       the ITD bore the burden of proof at the hearing to show that the equipment was
       properly calibrated and maintained. To the contrary, as noted above, the person
       requesting a hearing on a license suspension bears the burden under I.C. § 18-
       8002A(7)(b) to prove one of the enumerated grounds to vacate the suspension.
       Hence, if the evidentiary record is insufficient to establish whether the solution
       was changed on May 30, it is Mahurin, not the ITD, who failed in the burden of
       proof. Here, the machine was placed in service thirty-one days prior to Mahurin’s
       test, and there is ambiguity as to whether the solution was changed on that date.
       As previously noted, Mahurin did not subpoena a witness to testify about the
       procedures conducted on May 30. Because Mahurin presented no affirmative
       evidence showing that the calibration check solution had not been changed within
       one month before his June 30 test, any error in the hearing officer’s finding or in
       his interpretation of the manual was harmless.

On this authority, Mecham’s first claim of error is without merit.


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       Mecham’s second claim of error suffers from these same infirmities. He contends that
the hearing officer erred in rejecting his claim for relief from suspension asserting his tests for
alcohol concentration were not conducted by a method that has been approved by the Idaho State
Police pursuant to Idaho Code § 18-8004(4). See I.C. § 18-8002A(7)(d). He asserts that the ISP
has adopted standards requiring that a driver be observed for fifteen minutes before tests are
administered to assure that the subject does not smoke, ingest any substance, vomit, or belch,
which actions could render the breath test inaccurate 4 and that discrepancies in documentation in
the agency record show, he says, that this was not done. Specifically, Mecham references the
report of Deputy Wren, who administered the tests, stating that Deputy Flegel asked him to do so
“at approximately 0100 hours” and that he observed Mecham for fifteen minutes before
administering the tests, and further references the machine printout of the tests, signed by Wren,
which shows that testing began at “01:00” hours. Mecham concludes from these documents that
Wren could not possibly have observed him for the requisite fifteen minutes and asserts that he is
entitled to relief because the hearing officer’s conclusion otherwise “is not based on clear
evidence in the record.” We disagree.
       The hearing officer found that Flegel’s report showed that he was present with Wren
during the observation period and that Flegel’s affidavit averred that testing was done after
compliance with the fifteen-minute observation period. The hearing officer further found that
Wren wrote on the printout that he first observed Mecham at 0029 hours, which is not
inconsistent with Wren’s report statement that Flegel asked him to administer the tests “at
approximately 0100 hours.” Mecham presented no affirmative evidence that the fifteen-minute
observation period had not been observed; instead, he based his claim for relief on the assertion
that Wren’s report and the printout established that the fifteen minutes of observation could not
have occurred because, according to Mecham, the documents showed that “the test started at the
same time Officer Wren was asked to administer the test.” The hearing officer found that “the
timelines in this record are confusing but not necessarily fatal,” and concluded from the record
that existed that a valid observation period had occurred. The hearing officer did not err as this
conclusion is supported by substantial evidence on the record as a whole.




4
       See Mahurin, 140 Idaho at 660, 99 P.3d at 129.

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                                           IV.
                                     CONCLUSION
       The district court’s decision affirming the hearing officer’s order upholding the
administrative suspension of Mecham’s driver’s license is affirmed. Costs on appeal to the
respondent.
       Chief Judge GRATTON and Judge GUTIERREZ CONCUR.




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