               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 46103

STATE OF IDAHO,                                 )
                                                )    Filed: December 5, 2019
       Plaintiff-Respondent,                    )
                                                )    Karel A. Lehrman, Clerk
v.                                              )
                                                )    THIS IS AN UNPUBLISHED
GAYLON EUGENE LORDS,                            )    OPINION AND SHALL NOT
                                                )    BE CITED AS AUTHORITY
       Defendant-Appellant.                     )
                                                )

       Appeal from the District Court of the Seventh Judicial District, State of Idaho,
       Bonneville County. Hon. Bruce L. Pickett, District Judge.

       Order dismissing complaint without prejudice, affirmed.

       Eric D. Fredericksen, State Appellate Public Defender; Sally J. Cooley, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________

LORELLO, Judge
       Gaylon Eugene Lords appeals from the district court’s order dismissing a complaint
charging him with felony driving under the influence (DUI). Lords asserts the district court
abused its discretion and violated his due process rights by dismissing his case without prejudice
rather than with prejudice. For the reasons set forth below, we affirm.
                                                I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       The State charged Lords with felony DUI, alleging both the impairment and per se
theories of liability. Lords requested and received two continuances in order to obtain medical
and jail records. Lords waived his speedy trial rights in conjunction with his requests for a
continuance. The State subsequently filed a motion in limine to exclude evidence of Lords’



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medical records or any uncertainty related to the breathalyzer test results. Lords objected to the
motion arguing that, because the State alleged an impairment theory, he was entitled to present
the evidence the State was seeking to exclude. In response, the State indicated it would amend
the information to allege only the per se theory of liability, i.e., that Lords drove with a blood
alcohol concentration of .08 or more. The State amended the information accordingly.
       Six days before trial, the State filed a motion for continuance in order to “provide expert
witness disclosure regarding the breath test in this case.” At a hearing on the motion, the
prosecutor explained that, while preparing for trial, he noticed “some issues with standard
operating procedures” in relation to the breathalyzer machine, which could be cured with expert
testimony. In order to address those issues, the State requested a continuance to allow proper
disclosure of the expert. Lords objected and the district court denied the State’s motion to
continue. The same day, the State filed a motion to dismiss pursuant to Idaho Criminal Rules 47
and 48. Lords objected to dismissing the case without prejudice. The district court granted the
State’s motion and dismissed the case without prejudice. Lords appeals.
                                                 II.
                                   STANDARD OF REVIEW
       The granting or denying of a motion to dismiss under I.C.R. 48 is reviewed for an abuse
of discretion. State v. Martinez-Gonzalez, 152 Idaho 775, 778, 275 P.3d 1, 4 (Ct. App. 2012);
State v. Dixon, 140 Idaho 301, 304, 92 P.3d 551, 554 (Ct. App. 2004). When a trial court’s
discretionary decision is reviewed on appeal, the appellate court conducts a multi-tiered inquiry
to determine whether the lower court: (1) correctly perceived the issue as one of discretion;
(2) acted within the boundaries of such discretion; (3) acted consistently with any legal standards
applicable to the specific choices before it; and (4) reached its decision by an exercise of reason.
State v. Herrera, 164 Idaho 261, 270, 429 P.3d 149, 158 (2018).
       Where a defendant claims that his or her right to due process was violated, we defer to
the trial court’s findings of fact, if supported by substantial evidence. State v. Smith, 135 Idaho
712, 720, 23 P.3d 786, 794 (Ct. App. 2001). However, we freely review the application of
constitutional principles to those facts found. Id.




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                                                 III.
                                            ANALYSIS
       Lords asserts that the district court abused its discretion by dismissing his case without
prejudice rather than with prejudice. Lords also asserts that dismissal without prejudice violated
his due process rights. The State responds that Lords has failed to show either an abuse of
discretion or a constitutional violation. We hold that Lords has failed to show the district court
abused its discretion or violated Lords’ due process rights by dismissing the criminal charge
against Lords without prejudice.
A.     Idaho Criminal Rule 48
       After the district court denied the State’s motion to continue to allow it additional time to
disclose an expert witness in order to meet its burden of proving that Lords drove under the
influence, the State filed a motion to dismiss pursuant to I.C.R. 48. Idaho Criminal Rule 48(a)(2)
authorizes dismissal of a criminal case if the court concludes that dismissal will serve the ends of
justice and the effective administration of the court’s business. Although an order for dismissal
precludes refiling if the charge is a misdemeanor, an order for dismissal does not bar further
prosecution if the charged offense is a felony. I.C.R. 48(c). Because the charge against Lords
was a felony, I.C.R. 48 did not require dismissal with prejudice and the district court concluded
that dismissal without prejudice would serve the ends of justice and the effective administration
of the court’s business.
       Lords argues that the district court’s dismissal decision constitutes an abuse of discretion
because the State sought dismissal “to circumvent” the order denying its request for a
continuance. That the State sought dismissal because its motion to continue was denied is not
disputed.   However, seeking dismissal of a charge without prejudice because a motion to
continue has been denied is not per se impermissible, nor does granting such a request constitute
an abuse of discretion. See State v. Huntsman, 146 Idaho 580, 584, 199 P.3d 155, 159 (Ct. App.
2008); State v. Davis, 141 Idaho 828, 842, 118 P.3d 160, 174 (Ct. App. 2005). In this case,
Lords has failed to show the district court abused its discretion.
       In reaching its decision, the district court correctly perceived the issue as one of
discretion and acted within the boundaries of the discretion afforded by I.C.R. 48. As to prong
three of the abuse of discretion standard, Lords has failed to identify any applicable law that


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foreclosed the district court’s decision. Lords’ argument appears to be that the district court
failed to exercise reason because, he contends, the State engaged in a “scheme to avoid
complying with a court order,” “inexcusably failed to disclose the expert witness it later deemed
necessary,” and “then improperly attempted to avoid the consequences of its inattention by filing
a motion to dismiss without prejudice.” However, the district court made contrary findings. The
district court concluded that dismissal without prejudice was appropriate because, although the
reason the State sought dismissal was because it needed to disclose an expert for trial, the lack of
preparation was “not the result of bad faith and was not deliberate or intentional.” Rather, the
lack of preparation was “the result of inexperience and/or inadvertence.” That Lords’ “trial
strategy” would be “compromised” by expert testimony introduced by the State does not mean
dismissal without prejudice did not serve the ends of justice and the effective administration of
the court’s business. Lords has failed to show the district court abused its discretion by granting
the State’s motion to dismiss without prejudice.
B.     Due Process
       Lords’ related constitutional claim is that his due process rights were also violated based
on the dismissal without prejudice because the State sought dismissal in “bad faith.” Lords’
constitutional argument fails. The dismissal and refiling of criminal complaints can violate due
process if done for the purpose of harassment, delay, or forum-shopping. Davis, 141 Idaho at
842, 118 P.3d at 174. However, because an order of dismissal is a final appealable order, a
defendant must seek review of that order even absent refiled charges. See Huntsman, 146 Idaho
at 584, 199 P.3d at 159. Conduct that can be characterized as negligent or the result of poor
management falls significantly short of the type of deliberate bad faith conduct necessary to
support a due process claim. See Davis, 141 Idaho at 843, 118 P.3d at 175. To support a due
process claim, it is incumbent upon the defendant to affirmatively show actual prejudice and the
effect of that prejudice upon his or her ability to present a defense. Id. The proof of prejudice
must be definite and not speculative. Id.
       As previously noted, the district court found that the State did not engage in bad faith in
seeking dismissal without prejudice and that finding is supported by the record. The district
court’s conclusion that dismissal without prejudice was appropriate is also supported by law.
See id. Regarding prejudice, Lords has cited none in the context of his due process claim. To


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the extent Lords claims prejudice based on the “tactical advantage” the State would gain by
having the ability to present expert testimony at any trial following refiling the charge, this
claimed prejudice is inadequate to establish a due process violation. If presenting evidence that
the State would not otherwise be able to present were sufficient to show prejudice, any dismissal
on this basis would violate due process. That is not the law. See State v. Averett, 142 Idaho 879,
885, 136 P.3d 350, 356 (Ct. App. 2006) (concluding new evidence constitutes sufficient basis to
dismiss and refile charges). Lords has failed to establish any due process violation resulting
from the district court’s decision granting the State’s motion to dismiss without prejudice.
                                                IV.
                                         CONCLUSION
       Lords has failed to show the district court abused its discretion or violated his due process
rights by dismissing his case without prejudice.          Accordingly, the district court’s order
dismissing the complaint without prejudice is affirmed.
       Chief Judge GRATTON and Judge HUSKEY, CONCUR.




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