               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 46674

STATE OF IDAHO,                                 )
                                                )    Filed: March 26, 2020
       Plaintiff-Respondent,                    )
                                                )    Karel A. Lehrman, Clerk
v.                                              )
                                                )    THIS IS AN UNPUBLISHED
JENNIFER NICOLE HULL,                           )    OPINION AND SHALL NOT
                                                )    BE CITED AS AUTHORITY
       Defendant-Appellant.                     )
                                                )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
       County. Hon. Steven Hippler, District Judge.

       Judgment of conviction for driving under the influence, affirmed.

       Fyffe Law; Robyn A. Fyffe, Boise, for appellant.

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

HUSKEY, Chief Judge
       Jennifer Nicole Hull appeals from the judgment of conviction entered upon her
conditional guilty plea to driving under the influence (DUI). Hull argues the district court erred
when it denied her motion to suppress. Because Hull’s consent to a blood draw was voluntary
and there is no evidence of coercion, we affirm the district court’s denial of Hull’s motion to
suppress and judgment of conviction.
                                                I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       Hull was involved in a single vehicle accident and was transported to the hospital. At the
hospital, a police officer visited Hull and conducted a DUI investigation, during which the
officer smelled alcohol. Hull admitted to drinking alcohol, but she could not remember how
much she drank, when she started to drink, or when she last had a drink. The officer explained
he was not arresting Hull but was investigating a DUI and would read her an advisory regarding

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her rights. The officer then read Hull the “Notice of Suspension for Failure of Evidentiary
Testing,” otherwise known as the ALS advisory form, which included an explanation of Hull’s
right to refuse evidentiary testing and the consequences of refusal.
       While the officer was reading the ALS advisory form, Hull acknowledged her
understanding by nodding and confirming.          Once the officer finished, he asked if Hull
understood what he read. Hull said: “Yeah.” The officer then informed Hull that he intended to
collect a blood sample as evidence, wherein the following exchange occurred:
       Hull:             Can I ask a question?
       Officer:          You can ask a question.
       Hull:             Is that normal? (To nurse and gesturing at the blood kit).
       Nurse:            This? Process?
       Hull:             No. Well, like, is it normal to give him a blood sample? (To
                         nurse).
       Officer:          Well . . .
       Nurse:            You are required by law. So, yeah.
       Hull:             Oh. Ok, ok.
       Officer:          Yeah, you’re required by law to . . . .
       Hull:             Totally fine, I was just asking.
       Officer:          Remember that portion I read about refusing in it?
       Hull:             Oh, I know, I know.
       Nurse:            This happens all the time. (To Defendant).
       Officer:          I’m not arresting you. I’m just explaining it to you.
       Hull:             Oh, well. I know, I know.
Hull was cooperative during the blood draw, and at no time before or after the draw did she
verbally or physically resist or object. The sample was analyzed and revealed a 0.34 blood
alcohol concentration.
       The State charged Hull with felony driving under the influence, Idaho Code § 18-8004C,
with an enhancement for excessive alcohol concentration.               Hull was also charged with
misdemeanor possession of an open container, I.C. § 23-505. Hull moved to suppress the
evidence from the blood draw. After a hearing, the district court denied Hull’s motion to
suppress.
       Hull entered a conditional guilty plea to the DUI charge, and in exchange, the State
dismissed the misdemeanor open container charge. As part of the agreement, Hull reserved the
right to appeal the denial of her motion to suppress. The district court imposed a unified
sentence of five years, with two years determinate. The district court suspended the sentence for
a five-year term of probation. Hull timely appeals.


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                                                II.
                                   STANDARD OF REVIEW
       The standard of review of a suppression motion is bifurcated. When a decision on a
motion to suppress is challenged, we accept the trial court’s findings of fact that are supported by
substantial evidence, but we freely review the application of constitutional principles to the facts
as found. State v. Atkinson, 128 Idaho 559, 561, 916 P.2d 1284, 1286 (Ct. App. 1996). At a
suppression hearing, the power to assess the credibility of witnesses, resolve factual conflicts,
weigh evidence, and draw factual inferences is vested in the trial court. State v. Valdez-Molina,
127 Idaho 102, 106, 897 P.2d 993, 997 (1995); State v. Schevers, 132 Idaho 786, 789, 979 P.2d
659, 662 (Ct. App. 1999).
                                                III.
                                           ANALYSIS
       Hull argues the district court erred in denying her motion to suppress. Hull claims her
consent for a blood draw was involuntary because the officer told Hull she was required to
submit to the blood draw. As such, Hull asserts the blood draw constituted an illegal search and
seizure. In response, the State contends that Hull consented to alcohol concentration testing
under Idaho’s implied consent statute, and Hull never withdrew this consent.
       Requiring a person to submit to a blood draw for evidentiary testing is a search and
seizure under the Fourth Amendment to the United States Constitution and Article I, Section 17
of the Idaho Constitution. Schmerber v. California, 384 U.S. 757, 767 (1966); State v. Wulff,
157 Idaho 416, 418, 337 P.3d 575, 577 (2014). Therefore, warrantless forced blood draws
generally violate both constitutions. See Missouri v. McNeely, 569 U.S. 141, 147 (2013); State v.
Eversole, 160 Idaho 239, 242, 371 P.3d 293, 296 (2016). However, the warrant requirement
does not apply if the person subjected to the blood draw consents to the search. Schneckloth v.
Bustamonte, 412 U.S. 218, 221-22 (1973); Wulff, 157 Idaho at 419, 337 P.3d at 578. “The State
bears the burden of proving by a preponderance of the evidence that consent was voluntary.”
State v. Charlson, 160 Idaho 610, 617, 377 P.3d 1073, 1080 (2016). “Whether consent was
voluntary is determined by examining a totality of the circumstances.” Id.
       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 I.C. § 18-8002(1), which states, in relevant part: “Any person who drives or is

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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 . . . .” In McNeely, the United States
Supreme Court held that “the natural dissipation of alcohol in the bloodstream does not
constitute an exigency in every case sufficient to justify conducting a blood test without a
warrant.” McNeely, 569 U.S. at 165. Following McNeely, the Idaho Supreme Court held that a
per se implied consent exception is a categorical rule disapproved by the Supreme Court. Wulff,
157 Idaho at 421, 337 P.3d at 580. Accordingly, the Court held: “Idaho’s implied consent
statute must jump two hurdles to qualify as voluntary: (1) drivers give their initial consent
voluntarily and (2) drivers must continue to give voluntary consent.” Id. at 423, 337 P.3d at 582.
The Court overruled its prior implied consent cases “to the extent that they applied Idaho’s
implied consent statute as an irrevocable per se rule.” Id.
       With regard to the first hurdle, the Wulff Court stated: “Drivers in Idaho give their initial
consent to evidentiary testing by driving on Idaho roads voluntarily.” Id. With regard to the
second hurdle, the Idaho Supreme Court has since clarified its holding from Wulff. In State v.
Eversole, 160 Idaho 239, 371 P.3d 293 (2016), the Court explained the consent implied under
Idaho’s statute is voluntary only so long as that consent may be withdrawn. Id. at 242, 371 P.3d
at 296. Thus, “under current Idaho law, a defendant’s refusal, protest, or objection to alcohol
concentration testing terminates the implied consent given under Idaho’s implied consent
statute.” Id. Further, in State v. Rios, 160 Idaho 262, 371 P.3d 316 (2016), the Court recognized
that “implied consent may be withdrawn where a suspect refuses to consent.” Id. at 266, 371
P.3d at 320. Finally, in Charlson, the Court held that “the statutorily provided implied consent is
valid and remains in place until affirmatively withdrawn.” Charlson, 160 Idaho at 618, 377 P.3d
at 1081. Thus, a driver on Idaho roads impliedly consents to a warrantless blood draw unless he
affirmatively withdraws his statutorily implied consent by refusing, objecting to, or protesting
the blood draw.
       Here, Hull does not contest that she voluntarily drove her automobile on Idaho roads,
thereby giving her initial consent to evidentiary testing. The issue is whether Hull revoked her
initial consent. Although Idaho precedent has held that a defendant may withdraw his or her
consent by refusing, objecting to, or protesting the blood draw, that issue is not presented on
appeal. Hull argues only that her continued consent was not voluntary because she was coerced
by the nurse’s and officer’s statements. Specifically, Hull claims it was coercion when, after

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Hull asked if it was normal to give a blood sample, the nurse and the officer both responded she
was “required by law.” These comments, according to Hull, rendered any continuing consent
involuntary because Hull believed she had no right to refuse the blood draw.
       The district court addressed Hull’s narrow argument in its order denying Hull’s motion to
suppress, and the court concluded Hull’s position was not supported by the record. We agree.
The officer read Hull her rights under Idaho law, which included her right to refuse a blood test
and the consequences for doing so. Hull acknowledged her understanding by nodding and
confirming while the officer spoke. Once the officer finished and asked if Hull understood what
he read, Hull said, “Yeah.” While the nurse and the officer stated Hull was “required by law” to
submit to the blood draw, the officer immediately clarified the statement by saying: “Remember
that portion I read about refusing in it?” When Hull responded “Oh, I know, I know,” the officer
also indicated he was not arresting Hull, but rather, was simply explaining the situation to her.
The facts therefore support the district court’s finding that Hull’s consent to the blood draw was
not coerced.
       In the alternative, Hull asserts that the district court failed to consider the totality of
circumstances. Hull claims the evidence showed that she was in obvious pain, could not clearly
answer questions, and exhibited delayed processing and memory problems. According to Hull,
her vulnerable subjective state made the consent involuntary. The district court addressed Hull’s
argument regarding her subjective state in a footnote to its memorandum decision on the motion
to suppress.   There, the district court explained Hull did not present any evidence of her
subjective understanding. Even with Hull’s objective expression of pain and delayed processing,
the district court refused to infer that Hull did not understand her right to refuse the blood draw.
The district court found that all objective signs demonstrated that Hull was aware she could
refuse the blood draw. The district court therefore considered Hull’s subjective belief and the
totality of circumstances in this case, and Hull has not shown error in the district court’s findings.
       The district court did not err when it denied Hull’s motion to suppress. Hull gave her
initial consent voluntarily as a result of driving on Idaho roads, and such voluntary consent
continued through the time her blood was obtained because it was not expressly revoked. Hull
was informed of her right to refuse a blood test under Idaho law and then was reminded of this
right to refuse. Hull was coherent and indicated she understood what the officer was saying.
Hull did not affirmatively revoke her consent, and Hull has not shown she was pressured by the

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officer or the nurse, such that Hull’s continued consent was coerced. The district court therefore
did not err when it denied Hull’s motion to suppress and concluded: “In sum, the totality of
circumstances indicate that Defendant gave her initial statutorily derived consent voluntarily and
such voluntary consent continued through the time her blood was obtained.”
                                               IV.
                                        CONCLUSION
       Because Hull’s consent to a blood draw was voluntary and there is no evidence of
coercion, we affirm the district court’s denial of Hull’s motion to suppress and judgment of
conviction.
       Judge GRATTON and Judge LORELLO CONCUR.




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