               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 42641

STATE OF IDAHO,                                 )    2015 Unpublished Opinion No. 705
                                                )
       Plaintiff-Respondent,                    )    Filed: November 10, 2015
                                                )
v.                                              )    Stephen W. Kenyon, Clerk
                                                )
GARRITT NICHOLS,                                )    THIS IS AN UNPUBLISHED
                                                )    OPINION AND SHALL NOT
       Defendant-Appellant.                     )    BE CITED AS AUTHORITY
                                                )

       Appeal from the District Court of the Third Judicial District, State of Idaho,
       Canyon County. Hon. D. Duff McKee, District Judge. Hon. F. Randall Kline,
       Magistrate.

       Intermediate appellate decision affirming order granting motion in limine,
       affirmed.

       Tera Harden, Chief Canyon County Public Defender; David Smethers, Deputy
       Public Defender, Caldwell, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Russell J. Spencer, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________

GRATTON, Judge
       Garritt Nichols appeals from the district court’s intermediate appellate decision affirming
the magistrate court’s order granting the State’s motion in limine. We affirm.
                                                I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       Nichols lost control of his vehicle, overcorrected, and rolled it into a ditch. Nichols left
the vehicle and walked to a nearby home to ask for help. The resident told law enforcement that
Nichols appeared to be highly intoxicated and that he passed out in the back of her vehicle while
she drove him to the scene of the accident. Paramedics responded and Nichols was transported
to a hospital where his blood was drawn showing a blood alcohol concentration of .08. Nichols



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was charged with misdemeanor driving under the influence pursuant to Idaho Code § 18-8004,
and the State filed a motion in limine to prohibit Nichols from:
          (1) calling any expert witnesses or eliciting any testimony from the State’s
          witnesses regarding the measurement of uncertainty or margin of error on the
          blood test, (2) arguing or mentioning the measurement of uncertainty in any way
          at trial, (3) calling any expert witness or eliciting testimony from the State’s
          witness regarding any alleged rising blood alcohol content, (4) arguing or
          mentioning rising blood alcohol content in [any] way at trial, and (5) arguing or
          mentioning that the State cannot prove the Defendant’s alcohol concentration at
          the time he was driving.
The magistrate granted the State’s motion in limine. Nichols entered a conditional guilty plea,
reserving his right to appeal. Nichols appealed to the district court. The district court, sitting in
its intermediate appellate capacity, affirmed the magistrate court’s decision on the motion in
limine.
                                                  II.
                                             ANALYSIS
          When reviewing the decision of a district court sitting in its appellate capacity, our
standard of review is the same as expressed by the Idaho Supreme Court:
          The Supreme Court reviews the trial court (magistrate) record to determine
          whether there is substantial and competent evidence to support the magistrate’s
          findings of fact and whether the magistrate’s conclusions of law follow from
          those findings. If those findings are so supported and the conclusions follow
          therefrom and if the district court affirmed the magistrate’s decision, we affirm
          the district court’s decision as a matter of procedure.
Pelayo v. Pelayo, 154 Idaho 855, 858-59, 303 P.3d 214, 217-18 (2013) (quoting Bailey v. Bailey,
153 Idaho 526, 529, 284 P.3d 970, 973 (2012)). Thus, the appellate courts do not review the
decision of the magistrate court. Bailey, 153 Idaho at 529, 284 P.3d at 973. Rather, we are
procedurally bound to affirm or reverse the decisions of the district court. State v. Korn, 148
Idaho 413, 415 n.1, 224 P.3d 480, 482 n.1 (2009).
          Nichols claims the State failed to give notice that it was proceeding on a per se basis, and
therefore may only proceed under the impairment theory.              Nichols argues that under the
impairment theory, evidence challenging the accuracy and reliability of testing procedures is
relevant. He further asserts that the evidence is also relevant to his prosecution for driving under
the influence, even under the per se theory. Finally, he contends that exclusion of that evidence
violates his due process rights.


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       Nichols claims that the State’s charging documents failed to specify that the State was
proceeding on a per se basis for the charge of driving under the influence. Nichols reasons that
the State’s failure to provide such notice required the State to proceed under the impairment
theory. He concludes that under that theory, evidence challenging the general reliability of blood
alcohol concentration tests is admissible. We disagree with his first contention, and thus have no
reason to analyze the others. Idaho Code § 18-8004 establishes one crime with two ways of
proving a violation, the impairment theory and the per se theory. State v. Garrett, 119 Idaho
878, 881-82, 811 P.2d 488, 491-92 (1991); State v. Knoll, 110 Idaho 678, 682, 718 P.2d 589, 593
(Ct. App. 1986). The impairment theory requires the State to show that under the totality of the
evidence the defendant was driving under the influence. The per se theory requires the State
only to establish that the defendant had an alcohol concentration of .08 or above, as shown by
analysis of blood, breath, or urine. State v. Robinett, 141 Idaho 110, 112, 106 P.3d 436, 438
(2005). The State may proceed against the defendant under either or both theories, and evidence
that is relevant under one theory of proof is not necessarily relevant under the other. Id.
       Here, the State charged Nichols with misdemeanor driving under the influence and
specified in the charging documents that Nichols “did drive and/or was in actual physical control
of a motor vehicle . . . while under the influence of drugs and/or alcohol and/or with an alcohol
concentration of .08 or more as shown by analysis of the Defendant’s blood.” The State clearly
included the per se theory. Thus, the State provided adequate notice of its intent to proceed on a
per se basis and submit evidence that Nichols’ blood alcohol concentration was .08 or more.
Because the State did notify Nichols of the intent to use the per se theory, it is unnecessary to
analyze whether the evidence excluded in the motion in limine would be admissible under the
impairment theory. Thus, our analysis is limited to the admissibility of such evidence under the
per se theory.1
       Next, Nichols claims that evidence challenging the general reliability of blood alcohol
concentration tests is relevant even under the per se theory. The magistrate granted the State’s
motion in limine and the district court, sitting in its intermediate appellate capacity, affirmed the
magistrate’s finding that evidence attacking the general reliability of blood alcohol testing is

1
        Furthermore, we note that this issue was never raised on intermediate appeal, and where a
party appeals the decision of an intermediate appellate court, the appellant may not raise issues
that are different from those presented to the intermediate court. State v. Sheahan, 139 Idaho
267, 275, 77 P.3d 956, 964 (2003).
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irrelevant. We agree. Evidence that is relevant to a material and disputed issue concerning the
crime charged is generally admissible. State v. Stevens, 146 Idaho 139, 143, 191 P.3d 217, 221
(2008). Evidence is relevant if it has “any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than it would be
without the evidence.” I.R.E. 401; see also Stevens, 146 Idaho at 143, 191 P.3d at 221. Whether
a fact is of consequence or material is determined by its relationship to the legal theories
presented by the parties. State v. Johnson, 148 Idaho 664, 671, 227 P.3d 918, 925 (2010). We
review questions of relevance de novo. State v. Raudebaugh, 124 Idaho 758, 764, 864 P.2d 596,
602 (1993); State v. Aguilar, 154 Idaho 201, 203, 296 P.3d 407, 409 (Ct. App. 2012).
          The State charged Nichols with driving under the influence. Idaho Code § 18-8004(1)(a)
states:
                  It is unlawful for any person who is under the influence of alcohol, drugs
          or any other intoxicating substances, or any combination of alcohol, drugs and/or
          any other intoxicating substances, or who has an alcohol concentration of 0.08, as
          defined in subsection (4) of this section, or more, as shown by analysis of his
          blood, urine, or breath, to drive or be in actual physical control of a motor vehicle
          within this state, whether upon a highway, street or bridge, or upon public or
          private property open to the public.
Subsection four states that “an evidentiary test for alcohol concentration shall be based upon a
formula of grams of alcohol per one hundred (100) cubic centimeters of blood, per two hundred
ten (210) liters of breath or sixty-seven (67) milliliters of urine.” I.C. § 18-8004(4). Since I.C.
§ 18-8004 was amended in 1987, the standard for proceeding on a per se basis has changed:
          [It] is no longer the concentration of alcohol in the driver’s blood. It is simply the
          alcohol concentration shown by an approved and properly administered test of the
          driver’s breath, blood, or urine. Because the actual alcohol concentration in the
          driver’s blood is no longer the standard, the testing machine’s margin of error is
          irrelevant.
Elias-Cruz v. Idaho Dep’t of Transp., 153 Idaho 200, 205-06, 280 P.3d 703, 708-09 (2012); State
v. Roach, 157 Idaho 551, 554, 337 P.3d 1280, 1283 (Ct. App. 2014).
          Nichols is not attempting to challenge the blood draw process to establish that it did not
accurately measure his blood alcohol concentration in the sample taken. Nichols only argues
that he is entitled to challenge the general reliability and accuracy of blood draws. But the Idaho
Supreme Court has previously held that evidence is irrelevant if it challenges the general
reliability of an approved and properly administered test of a driver’s breath, blood, or urine.
Elias-Cruz, 153 Idaho at 205-06, 280 P.3d at 708-09. The Court has specifically held that

                                                    4
evidence is irrelevant under the per se theory if it regards: measurement of uncertainty, margin
of error, and rising and dissipating blood alcohol content in relation to the State’s inability to
prove the defendant’s actual alcohol concentration at the time he was driving. Elias-Cruz, 153
Idaho at 203, 280 P.3d at 706; Robinett, 141 Idaho at 112, 106 P.3d at 438. Evidence that is not
relevant is not admissible. I.R.E. 402.
       The State’s motion in limine sought to exclude evidence of blood alcohol testing margin
of error, measurement of uncertainty, rising blood alcohol content, and mentioning that the State
cannot prove Nichols’ alcohol concentration at the time he was driving. This information does
not relate to whether an individual violated the per se DUI offense, which simply requires that
the blood test yielded a result above the per se limit. Therefore, evidence generally attacking the
validity of blood testing is irrelevant and inadmissible.
        It is also well established that a defendant may challenge an alcohol concentration test
insofar as whether it measured the defendant’s alcohol concentration, whether the particular
device was working properly at the time of the breath test, and whether the breath test was
properly administered. State v. Tomlinson, ___ Idaho ___, ___ P.3d ___ (Ct. App. Apr. 7,
2015).2 Here, the State’s motion in limine did not seek to limit evidence challenging the margin
of error, uncertainty of measurement, or reliability and accuracy of the specific blood draw
performed on Nichols.
       Finally, Nichols argues that the motion in limine excludes relevant evidence in violation
of his Sixth and Fourteenth Amendment right to due process. Specifically, Nichols contends that
because Elias-Cruz was a civil case, its holding is inapplicable in a criminal case because the
standard is higher in the criminal context--guilt beyond a reasonable doubt. He alleges that the
exclusion of evidence denies him a meaningful opportunity to present a complete defense. Yet,
this Court previously extended the ruling in Elias-Cruz to the criminal context. Roach, 157


2
        See also State v. Alford, 139 Idaho 595, 598, 83 P.3d 139, 142 (Ct. App. 2004) (failure of
defendant to put forth any evidence demonstrating the reliability of a specific breathalyzer); State
v. Hardesty, 136 Idaho 707, 710, 39 P.3d 647, 650 (Ct. App. 2002) (introducing a contradictory
blood or urine alcohol concentration test to impeach the accuracy of an individual’s breath test
result is relevant evidence); State v. Hopkins, 113 Idaho 679, 680, 747 P.2d 88, 89 (Ct. App.
1987) (challenging whether the particular instrument used to measure his breath alcohol
concentration was working properly at the time of the test and whether the test was administered
correctly is acceptable).


                                                  5
Idaho at 554-56, 337 P.3d at 1283-85. In Roach, this Court followed the guidance offered by the
Idaho Supreme Court in Elias-Cruz, which specifically examined the legislative history of I.C.
§ 18-8004, the statute at issue here. Elias-Cruz, 153 Idaho at 203-04, 280 P.3d at 706-07.3 The
Court held that under that statute, general challenges to the reliability and accuracy of the
approved testing methods is irrelevant, and a defendant does not have a constitutional right to
submit irrelevant evidence. Id. at 205, 280 P.3d at 708; Roach, 157 Idaho at 556, 337 P.3d at
1285. Thus, the magistrate’s order granting the State’s motion in limine did not exclude relevant
evidence in violation of Nichols’ Sixth and Fourteenth Amendment rights to due process.
                                               III.
                                        CONCLUSION
       The magistrate properly granted the State’s motion in limine, finding that evidence
attacking the general reliability of blood alcohol testing is irrelevant. Therefore, the district
court’s intermediate appellate decision affirming the magistrate court’s order granting the State’s
motion in limine is affirmed.
       Chief Judge MELANSON and Judge GUTIERREZ CONCUR.




3
       [A]fter the 1987 amendment, a per se violation of the statute no longer need be
       based upon showing “a determination of the percent by weight of alcohol
       concentration in blood.” . . .
       . . . [A] violation can be shown simply by the results of a test for alcohol
       concentration that complies with the statutory requirements. With that change,
       the margin of error in the testing equipment is irrelevant. The equipment need not
       precisely measure the alcohol concentration in the person’s blood. The test need
       only be based upon the correct formula, and the equipment must be properly
       approved and certified.
Elias-Cruz v. Idaho Dep’t of Transp., 153 Idaho 200, 204, 280 P.3d 703, 707 (2012).


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