               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 46702

STATE OF IDAHO,                                  )
                                                 )   Filed: October 21, 2019
       Plaintiff-Respondent,                     )
                                                 )   Karel A. Lehrman, Clerk
v.                                               )
                                                 )   THIS IS AN UNPUBLISHED
KYLE JOSEPH EVENSON,                             )   OPINION AND SHALL NOT
                                                 )   BE CITED AS AUTHORITY
       Defendant-Appellant.                      )
                                                 )

       Appeal from the District Court of the First Judicial District, State of Idaho,
       Kootenai County. Hon. Richard S. Christensen, District Judge.

       Judgment of conviction for felony driving under the influence, affirmed.

       Eric D. Fredericksen, State Appellate Public Defender; Kim A. Coster, Deputy
       Appellate Public Defender, Boise, for appellant.

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

HUSKEY, Judge
       Kyle Joseph Evenson appeals from the district court’s judgment of conviction and asserts
the district court erred by denying his motion to suppress. Evenson asserts the district court
erred in finding that his grandmother did not accept his telephone calls from jail after he was
arrested for felony driving under the influence. Evenson also contends that the district court
erred in concluding the officers did not interfere with Evenson’s right to collect potentially
exculpatory evidence because the State provided Evenson with a dysfunctional telephone system.
Because Evenson stipulated that his grandmother was unable to accept the calls, he has not
shown that the State materially interfered with his assertion of his right to gather potentially
exculpatory evidence. Thus, the district court did not err when it denied Evenson’s motion to
suppress, and the district court’s judgment of conviction is affirmed.




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                                                  I.
                         FACTUAL AND PROCEDURAL HISTORY
       Evenson was arrested for felony driving under the influence. After Evenson provided
two breath samples that indicated his blood alcohol content was over the legal limit, he
affirmatively expressed his desire for an additional, independent blood alcohol concentration
(BAC) test as contemplated in Idaho Code § 18-8002(4)(e). Evenson was transported to the
Kootenai County Public Safety Building where he was held without bond.
       While Evenson was waiting to be formally processed into the facility, an officer provided
Evenson a telephone and indicated that he could call whomever he wanted. The Kootenai
County Public Safety Building uses Telmate, a correctional telecommunication company, to
operate the telephones for individuals housed within the building, including telephones for
individuals to use prior to being formally processed into the facility. These “pre-booking”
telephones allow users one free, sixty-second telephone call or an unlimited number of collect
telephone calls. However, a free sixty-second call will automatically be processed as a collect
call if the caller dials a number that has previously accepted collect calls from the facility and has
a credit card number associated with the telephone number. This occurs because when a collect
call is made, it is billed to a credit card, and Telmate permanently attaches the credit card
information provided to the associated telephone number. Thus, once a credit card is used, the
three-digit verification code associated with that credit card at the time of first use is the only
three-digit verification code Telmate will accept, regardless of whether the verification code has
changed, unless the person who owns the card affirmatively updates the information in the
system. For these calls, in order to speak with the person in custody, the receiver of the
telephone call is required to enter the three-digit verification code of the credit card on file with
Telmate, regardless of whether the card has expired or how long ago the card was used.
       Evenson used a “pre-booking” telephone to call his grandmother. Because Evenson’s
grandmother had previously provided her credit card number to accept a collect call from
Telmate, each call from Evenson was processed as a collect call requiring Evenson’s
grandmother to enter the three-digit verification code that matched the number on file with
Telmate. During three of Evenson’s four call attempts, the Telmate system prompted Evenson’s




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grandmother to enter the three-digit verification code associated with the credit card on file. 1
Because Evenson’s grandmother had an unspecified difficulty entering the correct three-digit
verification code, she was unable to accept the phone calls. Evenson did not obtain independent
BAC testing.
       Evenson filed a motion to suppress or, in the alternative, a motion in limine. Evenson
claimed that he was denied the right to gather exculpatory evidence, specifically independent
BAC testing, due to the Telmate system at the Kootenai County Public Safety Building.
Following the suppression hearing, Evenson and the State signed and submitted a joint set of
stipulated facts expressly to be used by the district court in consideration of Evenson’s motion to
suppress. In relevant part, the parties stipulated that “due to some difficulty in the Defendant’s
grandmother entering her credit card number’s correct three (3) digit verification code, she was
unable to accept the Defendant’s phone calls.” The district court adopted the facts in whole and
denied Evenson’s motion, finding:
       Although Defendant did not receive the benefit of a free 60 second phone call to
       that number and although Defendant’s grandmother failed to accept Defendant’s
       call, the factual record fails to show that law enforcement interfered with or
       affirmatively denied Defendant access to a telephone once he requested to make
       telephonic arrangements for an independent BAC test. The record here shows
       that Defendant was given access to a telephone but was unsuccessful in arranging
       independent BAC testing.
       Pursuant to an Idaho Criminal Rule 11 plea agreement, Evenson entered an Alford 2 plea
to felony driving under the influence in violation of I.C. § 18-8004 and I.C. § 18-8005(6). 3
Evenson reserved the right to appeal the district court’s denial of his motion to suppress. The
district court sentenced Evenson to six years, with three years determinate. The court suspended
the sentence and placed Evenson on probation. Evenson timely appeals.




1
        The fourth telephone call was disconnected for an unknown reason and did not provide
an automated prompt for Evenson’s grandmother to enter the verification code associated with
the credit card on file.
2
       See North Carolina v. Alford, 400 U.S. 25, 91 (1970).
3
        Additionally, Evenson entered an Alford plea to possession of a controlled substance in
violation of Idaho Code § 37-2732(c)(3), a misdemeanor.
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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
       Evenson disputes both the factual findings and the legal conclusions of the district court.
As an initial matter, Evenson argues the district court erred in finding that Evenson’s
grandmother did not accept Evenson’s telephone calls. Evenson argues that his grandmother
accepted the calls but they were automatically disconnected because the Telmate system did not
recognize the three-digit verification number she entered. Further, Evenson contends the district
court erred in concluding the officers did not interfere with Evenson’s right to collect potentially
exculpatory evidence because the State provided Evenson with a dysfunctional telephone system
that failed to permit him to make a call to the number he desired.
       The State contends that its actions did not affirmatively deny or materially interfere with
Evenson’s efforts to secure independent BAC testing; the State provided him with a telephone,
and the only reason he was not able to speak with his grandmother was because she had an
unspecified difficulty entering the three-digit verification code that matched the number in
Telmate’s system.
       Based on the stipulated facts submitted by the parties, the district court made a factual
finding that Evenson’s grandmother was unable to accept Evenson’s calls. Stipulations serve as
a form of judicial admission that removes the necessity for a party to prove the facts admitted.
Reding v. Reding, 141 Idaho 369, 373, 109 P.3d 1111, 1115 (2005). When parties agree to a set
of stipulated facts, the district court may rely on the stipulation as undisputed proof of the factual
matters asserted. State v. Hochrein, 154 Idaho 993, 1000, 303 P.3d 1249, 1256 (Ct. App. 2013).

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“As a general rule, stipulations of parties or counsel made in pending proceedings are conclusive
as to all matters properly contained or included therein.” Id. Although in certain situations a
district court may relieve a party from the binding effect of a stipulation, a party must
affirmatively seek this relief at the district court. Workman Family P’ship v. City of Twin Falls,
104 Idaho 32, 35, 655 P.2d 926, 929 (1982).
       Here, the district court adopted the factual stipulation that Evenson’s grandmother was
unable to accept the calls. The district court also found that Evenson’s grandmother failed to
accept the calls. Whether Evenson’s grandmother was unable to accept the calls or failed to
accept the calls is merely semantics; the end result was the calls were not completed. Thus,
failing to accept the call is, practically speaking, the same as the inability to accept the call, and
the different word choices do not change the outcome in this case.            In this case, there is
substantial and competent evidence to support the district court’s factual findings, and they will
not be overturned on appeal.
       This Court also considers whether the Telmate telephone system deprived Evenson of his
right to gather potentially exculpatory evidence in violation of the Fourteenth Amendment and
I.C. § 18-8002A(6).      Individuals charged with an alcohol-related driving offense have a
constitutional right to gather exculpatory evidence under the due process clause of the Fourteenth
Amendment, State v. Carr, 128 Idaho 181, 184, 911 P.2d 774, 777 (Ct. App. 1995), and a
qualified statutory right to obtain additional, independent BAC testing under I.C. § 18-8002A(6),
State v. Hedges, 143 Idaho 884, 886-87, 154 P.3d 1074, 1076-77 (Ct. App. 2007). These means
provide an individual the chance to gather evidence to refute the State’s evidence of intoxication,
preserving the right to a fair opportunity to defend against the State’s accusations. See Carr, 128
Idaho at 184, 911 P.2d at 777.
       These statutory and constitutional rights mandate that after submitting to evidentiary
testing at the request of a police officer, a driver may have additional, independent testing done
at his own expense, I.C. § 18-8002A(6), and must be allowed, at a minimum, to make a
telephone call upon request to do so. Carr, 128 Idaho at 184, 911 P.2d at 777. These rights must
be affirmatively asserted. Hedges, 143 Idaho at 887-88, 154 P.3d at 1077-78. Once asserted,
officers have a duty, at a minimum, to not affirmatively deny or materially interfere with the
individual’s right to gather potentially exculpatory evidence to refute the State’s charges of
intoxication. Id. at 888, 154 P.3d at 1078. This is because the metabolism of alcohol in the

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blood creates an inherent exigency so that “the only opportunity to obtain a meaningful,
independent BAC test is within a reasonable time following arrest and administration of the
state’s evidentiary BAC test.” Id. at 887, 154 P.3d at 1077.          Courts have held the State
materially interferes with this right when it unreasonably lengthens the booking process, delays
subsequent release on bond, or interferes with or denies access to a telephone. See id. at 888,
154 P.3d at 1078; State v. Shelton, 129 Idaho 877, 880, 934 P.2d 943, 946 (Ct. App. 1997).
       For example, in Carr, despite the defendant’s expressed desire to speak to an attorney,
the officers denied her access to a telephone until five hours after her arrest. Carr, 128 Idaho at
182, 911 P.2d at 775. This Court held the State violated Carr’s right to due process because the
person contacted could facilitate the administration of an independent BAC test, document any
demonstrable characteristics of sobriety, or serve as a potential witness for the defense. Id. at
184-85, 911 P.2d at 777-78. When the officers denied Carr access to a telephone, the State
deprived her of the means by which she could establish her defense.
       On the other hand, if the action that results in an individual’s inability to gather
potentially exculpatory evidence is not attributable to the State, the defendant will not meet the
burden required to be successful on a motion to suppress. See State v. Cantrell, 139 Idaho 409,
412, 80 P.3d 345, 348 (Ct. App. 2013) (holding that defendant did not show that the delay in his
release from jail was attributable to the State because he did not show that the officers were
interfering or preventing his release); Shelton, 129 Idaho 877, 880, 934 P.2d 943, 946 (holding
that because the defendant did not affirmatively exercise his right to an independent BAC test,
the State did not violate his rights). Thus, in order to prevail on his motion to suppress, Evenson
must establish that the State caused his inability to gather potentially exculpatory evidence
following his arrest for driving under the influence.
       Evenson relies on the holding in Carr to support his conclusion that the State interfered
with his due process rights in this regard.          However, because Carr dealt with officers
affirmatively denying Carr access to a telephone for five hours after her arrest, her inability to
gather potentially exculpatory evidence was clearly linked to the State’s actions. Here, the
connection is not as clear.
       A public safety facility’s use of a telephone system that does not allow for calls to be
completed because of system issues may constitute an action by the State that materially



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interferes with an individual’s right to gather potentially exculpatory evidence. 4 This is because
it could deny an individual the means necessary to communicate with others who could aid in the
inherent exigency of gathering potentially exculpatory evidence following a driving under the
influence arrest. In this case, however, the record does not show that Evenson’s inability to
speak with his grandmother was due to a dysfunctional telephone system. The stipulated facts in
the record simply provide that “due to some difficulty in the Defendant’s grandmother entering
her credit card number’s correct three (3) digit verification code, she was unable to accept the
Defendant’s phone calls.”      While it is possible that Evenson’s attempts to speak to his
grandmother were not successful due to the limitations of the telephone system, it is also possible
that they were not successful because of human error. Therefore, this Court does not have
sufficient facts to conclude that Evenson’s inability to speak with his grandmother was caused by
the State, and Evenson has not sustained his burden of proof on this issue. 5
                                                IV.
                                         CONCLUSION
       The stipulated facts presented in the record establish that Evenson’s grandmother was
unable to accept Evenson’s telephone calls. Further, the record presented does not provide
evidence that the reason Evenson was unable to speak with his grandmother was due to a
dysfunctional telephone system at the Kootenai County Public Safety Building as opposed to his
grandmother’s error entering the three-digit verification code necessary to accept the telephone
call. Consequently, this Court cannot conclude the State materially interfered with Evenson’s
assertion of his right to gather potentially exculpatory evidence. The district court did not err by
denying Evenson’s motion to suppress, and the judgment of conviction is affirmed.
       Chief Judge GRATTON and Judge BRAILSFORD CONCUR.




4
       The record suggests that Evenson’s grandmother prepared an affidavit prior to the motion
to suppress hearing. However, the affidavit was objected to on hearsay grounds and was not
entered into the district court record.
5
        Although we have insufficient evidence that the Kootenai County Sheriff’s Department
telephone system is “dysfunctional,” this Court shares the district court’s concern that it may not
satisfy constitutional dictates.
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