               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 41210

STATE OF IDAHO,                                  )     2014 Unpublished Opinion No. 705
                                                 )
       Plaintiff-Respondent,                     )     Filed: August 29, 2014
                                                 )
v.                                               )     Stephen W. Kenyon, Clerk
                                                 )
AMY JO VANTASSEL,                                )     THIS IS AN UNPUBLISHED
                                                 )     OPINION AND SHALL NOT
       Defendant-Appellant.                      )     BE CITED AS AUTHORITY
                                                 )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
       County. Hon. Michael R. McLaughlin, District Judge. Hon. Thomas P. Watkins,
       Magistrate.

       Intermediate appellate decision of the district court affirming the magistrate
       court’s order of license suspension, affirmed.

       Gabriel J. McCarthy, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy
       Attorney General, Boise, for respondent. Jessica M. Lorello argued.
                 ________________________________________________
GRATTON, Judge
       Amy Jo VanTassel appeals from the district court’s intermediate appellate decision
affirming the magistrate’s order suspending her driver’s license pursuant to Idaho’s implied
consent statute, Idaho Code § 18-8002. She asserts the finding that she refused to submit to the
evidentiary testing is not supported by substantial and competent evidence.
                                               I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       Officer Erickson with the Meridian Police Department was dispatched in an attempt to
locate a possible drunk driver. The officer located and observed the suspect’s vehicle swerving.
Officer Erickson stopped VanTassel and, upon making contact, observed an odor of an alcoholic
beverage coming from her. He then conducted field sobriety tests and VanTassel failed the
horizontal gaze nystagmus and the walk-and-turn tests and scored no points on the one-leg stand
test. VanTassel was subsequently arrested for misdemeanor DUI and the officer provided her

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the opportunity to take a breathalyzer test while seated in the back of his patrol car. Initially she
refused, but changed her mind and agreed to perform the test. She provided insufficient breath
samples on three separate attempts. After the third attempt, Officer Erickson considered her
conduct a refusal to take the breath test; he seized her license and submitted an affidavit of
refusal to the magistrate court.
         VanTassel filed a request for a refusal hearing five days later on whether she refused the
test. At the hearing, she testified that she attempted to blow three times and was confused that
her failed efforts were considered a refusal. Officer Erickson testified that VanTassel took one
short breath and stopped blowing, took intermittent breaths, and also pulled her head away from
the breath tube during the tests. He also stated there was no indication that she had physical
limitations that would prohibit her from taking the test.
         An audio recording of the three attempts to get a sufficient reading was also admitted.
Officer Erickson can be heard telling VanTassel to take a deep breath and blow until he tells her
to stop. Thereafter, he instructs her that she needs to blow harder and keep her lips on the breath
tube. There is a two-minute wait for the machine to reset after this first failed attempt. On the
second attempt, the officer can be heard again instructing her not to stop blowing until he tells
her to stop. He then says she pulled away from the machine. After this second insufficient
reading, Officer Erickson informs VanTassel that if she continues to “mess with” the instrument
during her third attempt, it will be considered a refusal. During the third attempt, the officer can
be heard telling her to keep going and shortly after, he and the other officer at the scene can be
heard telling her they both saw her stop blowing and that she was giving intermittent breaths.
VanTassel then replied that she was blowing.
         The magistrate issued a decision suspending VanTassel’s license, but stayed the
suspension during an appeal.       The magistrate held that she failed to carry her burden of
establishing that her license should be reinstated. On intermediate appeal, the district court
affirmed the magistrate’s decision suspending her license. VanTassel timely appeals to this
Court.
                                                 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:


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       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).
       Idaho Code § 18-8002 governs the rights and penalties implicit in a decision to refuse to
submit to evidentiary testing. It provides, in part, that if a motorist “refuses” to take an alcohol-
concentration test after he or she has been arrested for driving under the influence, the operator’s
license shall be suspended. I.C. § 18-8002(4). The concept of refusal, as embodied in I.C. § 18-
8002, has factual and legal dimensions. In re Smith, 115 Idaho 808, 809, 770 P.2d 817, 818 (Ct.
App. 1989). When a question of refusal turns upon a determination of the motorist’s words or
expressive acts, the issue is one of fact. Id. However, when the question turns not upon whether
certain things were said or done, but upon whether such words or acts are of legal significance,
then the issue is one of law. Id. Thus, the courts have ruled, as a matter of law, that if a motorist
simply feigns consent and fails to take an alcohol-concentration test, such behavior is deemed to
be a refusal. Id. (citing State v. Clark, 425 N.W.2d 347 (Neb. 1988)). Similarly, if a motorist
engages in delaying tactics to avoid deciding whether to refuse or to take the test, such acts are
deemed to constitute a refusal. Smith, 115 Idaho at 809, 770 P.2d at 818 (citing Marmo v.
Commonwealth Department of Transportation, 543 A.2d 236 (1988)).            Over questions of law,
we exercise free review. State v. O’Neill, 118 Idaho 244, 245, 796 P.2d 121, 122 (1990).
       VanTassel relies on In re Griffiths, 113 Idaho 364, 744 P.2d 92 (1987), and Helfrich v.
State, 131 Idaho 349, 955 P.2d 1128 (Ct. App. 1998), to support her argument that the lower
court’s decision should be reversed. In both cases, the driver was appealing the suspension of his
or her driver’s license pursuant to I.C. § 18-8002, and the cases were remanded.
       The driver in Helfrich had her license suspended for failure to submit to evidentiary
testing. Helfrich, 131 Idaho at 350, 955 P.2d at 1129. At the time of her testing, the officer told



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her that she was taking the test incorrectly and needed to blow air through the tube for a longer
period of time. She informed the officer that she was blowing all the air she could blow. Id. at
349, 955 P.2d at 1128. After several deficient readings, the officer concluded that Helfrich did
not want to complete the test and her failed efforts constituted a refusal. Id. at 350, 955 P.2d at
1129. At her refusal hearing, the officer testified that the driver would either briefly spurt air
into the tube or would not blow long enough to complete the test. Id. at 349, 955 P.2d at 1128.
Helfrich testified that she suffered from bronchitis at the time of her arrest and therefore could
not successfully complete the breathalyzer test. Id. at 350, 955 P.2d at 1129.
       On her appeal from the order suspending her license, this Court held the officer’s
decision to treat her actions as a refusal may not be upheld if she proves that she suffered from a
physical impediment which prevented her from successfully completing the breath test. Id. at
352, 955 P.2d at 1131. This Court reasoned that a driver may be physically unable to complete
the breath test because he or she suffers from an illness, and even though in that case Helfrich
did not specifically state that she had bronchitis, she had sufficiently articulated a physical
inability to complete the task so as to put the officer on notice that a different test should be
utilized when she told the officer that she was doing the best she could and blowing all the air
she had. Id. at 351-52, 955 P.2d at 1130-31. The Court noted that a driver may suffer from an
illness that prevents them from completing the test that is still undiagnosed, and “[i]n such
circumstances, the suspect could hardly be required to inform the officer of the name of the
physical condition that was unknown at the time.” Id.
       In Griffiths, the driver refused to submit to evidentiary testing after being arrested for
driving under the influence. Griffiths, 113 Idaho at 366, 744 P.2d at 94. The breathalyzer was
inoperative and he was asked to submit to a blood draw, which he refused. Id. Thereafter, his
driver’s license was suspended. At his refusal hearing, he testified that he refused the test
because of his fear of needles. Id. at 367, 744 P.2d at 95. The magistrate held that the driver
failed to show cause for refusing the test, although it did not issue findings of fact as to whether
the driver did in fact have a fear of needles or whether he communicated this fear to the officer.
Id. On appeal, the Idaho Supreme Court remanded the case back to the magistrate to make these
factual determinations. Id. at 372, 744 P.2d at 100. It held that a fear of needles may establish
sufficient cause for refusing to submit to a requested blood test pursuant to I.C. § 18-8002 “if the
fear is of such a magnitude that as a practical matter the defendant is psychologically unable to


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submit to the test, and if the fear is sufficiently articulated to the police officer at the time of
refusal so that the officer is given an opportunity to request a different test.” Griffiths, 113 Idaho
at 372, 744 P.2d at 100. Further, the Court stated, “Clearly, a demonstrated physical inability to
perform the requested test would be sufficient cause.” Id. (emphasis added).
       VanTassel likens her situation to that of Helfrich in that she did communicate that she
was having difficulty completing the test; however, unlike the driver in Helfrich, VanTassel has
not proven or even asserted that she suffered from a physical impediment which prevented her
from successfully completing the breath test. VanTassel cites Griffiths’ holding that even though
the choice as to which evidentiary test will be requested rests with the officer, “a psychological
inability to perform the requested test may, if supported by the evidence, establish sufficient
cause for refusing the test.” Griffiths, 113 Idaho at 372, 744 P.2d at 100. However, unlike the
driver in that case, she does not argue there is evidence to support a psychological inability to
perform the test, other than her assertions at the refusal hearing that she was intimidated, that she
was unable to complete the test due to the stressful circumstances of the DUI investigation that
were distracting and confusing to her, and that the test was more difficult for her than the average
person. VanTassel’s assertions fall short of the physical and psychological inabilities recognized
in Helfrich and Griffiths.
        The magistrate heard the audio recording and VanTassel’s testimony concerning whether
she was unable to perform the breathalyzer test due to physical or psychological reasons. Upon
consideration of the evidence and testimony, the magistrate found that, “[s]he gave no logical
reason to the officers as to why she couldn’t complete the test, other than to say that she was
blowing as instructed. The audio recording does not bear this out.” It concluded that VanTassel
was given adequate instructions on how to complete the breath test, failed to comply, and that
her conduct in doing so constituted a refusal. While VanTassel maintains that she did follow the
officer’s instructions, as the district court noted, the magistrate did not find her credible when she
testified that she “did what they asked me to do.” This Court will not substitute its view for that
of the trier of fact as to the credibility of the witnesses, the weight to be given to the testimony,
and the reasonable inferences to be drawn from the evidence. State v. Flowers, 131 Idaho 205,
207, 953 P.2d 645, 647 (Ct. App. 1998). Moreover, contrary to VanTassel’s contention, the




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magistrate did not fail to take into consideration her explanations as to her circumstances, state of
mind, and her impediments to complying with the instructions. 1
       Finally, VanTassel asserts that she should have been offered a different evidentiary test
after the insufficient readings. This Court has held that if a driver cannot perform a test, the
officer may request a different test. State v. Wagner, 149 Idaho 268, 271, 233 P.3d 199, 202 (Ct.
App. 2010). However, the officer is not required to do so. If the driver cannot perform the
requested test, the officer may either: (1) request a different test; or (2) treat the failure to take
the test as a refusal and submit the issue of whether the driver was actually unable to perform the
test for decision at the hearing. Id. The officer in this case chose the second option, and
therefore, left the decision as to whether she was unable to perform the test to the magistrate at
the refusal hearing.
                                                 III.
                                          CONCLUSION
       There is substantial and competent evidence to support the lower court’s finding that
VanTassel refused to submit to the evidentiary testing. Therefore, the intermediate appellate
decision of the district court, affirming the license suspension order by the magistrate court, is
affirmed.
       Chief Judge GUTIERREZ and Judge MELANSON CONCUR.




1
        VanTassel argued that the magistrate improperly ignored her “subjective belief,”
suggesting that the magistrate’s reference to “whatever” her subjective belief may have been
related to her explanation of her circumstances, confusion, and state of mind. However, the
magistrate’s reference to her “subjective belief,” related to her contention that she was trying
because she was under the impression that if she did not complete the test a blood sample would
be taken from her. The magistrate appropriately considered the evidence and the legal standards.

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