                IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 37322

IN THE MATTER OF THE DRIVER’S                     )
LICENSE SUSPENSION OF MATILDA K.                  )
KLING.                                            )
STATE OF IDAHO,                                   )
                                                  )    2010 Opinion No. 83S
       Plaintiff-Appellant-                       )
       Cross-Respondent,                          )    Filed: December 14, 2010
                                                  )
v.                                                )    Stephen W. Kenyon, Clerk
                                                  )
MATILDA K. KLING,                                 )    SUBSTITUTE OPINION
                                                  )    THE COURT’S PRIOR OPINION
       Defendant-Respondent-                      )    DATED DECEMBER 10, 2010 IS
       Cross-Appellant.                           )    HEREBY WITHDRAWN
                                                  )

       Appeal from the District Court of the Fifth Judicial District, State of Idaho, Blaine
       County. Hon. Robert J. Elgee, District Judge; Hon. R. Ted Israel, Magistrate.

       District court‟s order affirming magistrate‟s order denying driver‟s license
       suspension, affirmed.

       Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
       Attorney General, Boise, for appellant. Kenneth K. Jorgensen argued.

       Brian E. Elkins, Ketchum, for respondent.

                   ________________________________________________

LANSING, Chief Judge
       The State appeals from the district court‟s appellate decision affirming the magistrate‟s
order declining to suspend the nonresident driver‟s license of Matilda K. Kling for Kling‟s
refusal to submit to an alcohol concentration test.
                                                 I.
                                  FACTS AND PROCEDURE
       Kling, who held a Washington state driver‟s license, was arrested for driving under the
influence of alcohol in Blaine County. When asked by the officer to perform a breath test for
alcohol concentration, Kling refused. The officer did not seize Kling‟s driver‟s license at that

                                                 1
time as he was directed to do by Idaho Code § 18-8002(4)(a), although, as a result of her refusal
of the test, Kling‟s driving privileges were subject to suspension by a court pursuant to Idaho
Code § 18-8002.
       Kling sought to prevent suspension of her driving privileges by filing a motion with the
magistrate court. She contended that suspension was not warranted because the arresting officer
had not accurately and completely advised her of the consequences of test refusal for motorists
with nonresident licenses, as mandated by I.C. § 18-8002(3), and because the officer had
deprived her of due process by not filing an affidavit with the court attesting to her refusal within
seven days of the event. At the ensuing hearing the parties stipulated that before asking Kling to
submit to evidentiary testing, the arresting officer had used an advisory form issued by the Idaho
Transportation Department (ITD) to inform Kling of the information required by I.C. § 18-
8002(3), including the consequences of refusing an alcohol concentration test. A copy of the
form was placed in evidence.
       Consistent with his prior rulings on the same issues dating back a number of years, the
magistrate held that the ITD advisory form utilized by the officer did not conform to the statute
with respect to the seizure and suspension of a nonresident driver‟s license and was ambiguous.
The magistrate further held, as he had in prior cases, that although I.C. § 18-8002 does not
express a time limit for an officer to file an affidavit attesting to the driver‟s refusal of an
evidentiary test, due process principles require that the affidavit be filed within seven days of the
refusal. The magistrate therefore refused to order suspension of Kling‟s license because the
advisory she received did not conform to statutory requirements and because the officer‟s failure
to file the affidavit of refusal within seven days deprived Kling of due process.
       The State appealed to the district court, which affirmed. The State now further appeals.
                                                  II.
                                            ANALYSIS
A.     Officer’s Noncompliance with I.C. § 18-8002(3)
       We first address the determination by the magistrate and the district court that Kling‟s
driver‟s license should not be suspended because she was not properly advised of the
consequences of refusal of evidentiary testing as required by I.C. § 18-8002(3). The pertinent
provisions of I.C. § 18-8002, as in effect at the time in question, stated:



                                                  2
         (1) Any person who drives or is 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 as defined in section 18-8004, Idaho Code,
and to have given his consent to evidentiary testing for the presence of drugs or
other intoxicating substances, provided that such testing is administered at the
request of a peace officer having reasonable grounds to believe that person has
been driving or in actual physical control of a motor vehicle in violation of the
provisions of section 18-8004, Idaho Code, or section 18-8006, Idaho Code.
         ....
         (3) At the time evidentiary testing for concentration of alcohol, or for the
presence of drugs or other intoxicating substances is requested, the person shall
be informed that if he refuses to submit to or if he fails to complete, evidentiary
testing:
         (a) He is subject to a civil penalty of two hundred fifty dollars ($250) for
refusing to take the test;
         (b) His driver’s license will be seized by the peace officer and a temporary
permit will be issued . . . .
         (c) He has the right to request a hearing within seven (7) days to show
cause why he refused to submit to, or complete evidentiary testing;
         (d) If he does not request a hearing or does not prevail at the hearing, the
court shall sustain the civil penalty and his driver‟s license will be suspended
absolutely for one (1) year if this is his first refusal and two (2) years if this is his
second refusal within ten (10) years; and
         (e) After submitting to evidentiary testing he may, when practicable, at his
own expense, have additional tests made by a person of his own choosing.
         (4) If the motorist refuses to submit to or complete evidentiary testing after
the information has been given in accordance with subsection (3) above:
         (a) He shall be fined a civil penalty of two hundred fifty dollars ($250) and
his driver’s license or permit shall be seized by the peace officer and forwarded to
the court and a temporary permit shall be issued by the peace officer which
allows him to operate a motor vehicle until the date of his hearing, if a hearing is
requested, but in no event for more than thirty (30) days . . . ;
         (b) A written request may be made within seven (7) calendar days for a
hearing before the court . . . . The hearing shall be limited to the question of why
the defendant did not submit to, or complete, evidentiary testing, and the burden
of proof shall be upon the defendant; the court shall sustain a two hundred fifty
dollar ($250) civil penalty immediately and suspend all the defendant‟s driving
privileges immediately for one hundred eighty (180) days for a first refusal and
one (1) year for a second refusal within five (5) years unless it finds that the peace
officer did not have legal cause to stop and request him to take the test or that the
request violated his civil rights;
         (c) If a hearing is not requested by written notice to the court concerned
within seven (7) calendar days, upon receipt of a sworn statement by the peace
officer of the circumstances of the refusal, the court shall sustain a two hundred
fifty dollar ($250) civil penalty and suspend the defendant’s driving privileges for
one hundred eighty (180) days for a first refusal and one (1) year for a second

                                           3
       refusal within five (5) years, during which time he shall have absolutely no
       driving privileges of any kind; and

(Emphasis added.)
       The advisory form used by the arresting officer here departed from the statutory language
in the following way. Instead of informing Kling that if she refused or failed to complete
evidentiary testing her driver‟s license “will be seized by the peace officer and a temporary
permit will be issued,” as specified in I.C. § 18-8002(3)(b), the advisory form said:
       Your Idaho driver‟s license or permit will be seized if you have it in your
       possession, and if it is current and valid you will be issued a temporary permit.
       Non-resident licenses will not be seized and will be valid in Idaho for thirty (30)
       days from the service of this notice of suspension unless modified or restricted by
       the court, provided the license is valid in the issuing state.1

(Emphasis added.) Thus, the advisory form that was read to Kling differentiated between
resident driver‟s licenses and nonresident licenses, while the statute does not.2 The magistrate
and district court held that this departure from the notification required by the statute constituted
a fatal noncompliance that precludes the suspension of Kling‟s Washington driver‟s license or
Idaho driving privileges for her refusal of the breath test.
       A similar version of I.C. § 18-8002 was considered by our Supreme Court in State v.
Griffiths, 113 Idaho 364, 744 P.2d 92 (1987). Construing the statute as a whole, the Court held
that a driver challenging a license suspension under this section may prevail by showing any of
the following:
                 (1) that the police officer stopping defendant did so without probable
       cause;




1
        In the proceedings in the magistrate division and district court, and in briefing on this
appeal, the State offered no explanation as to why the ITD form does not conform to the
provisions of the statute. At oral argument to this Court, counsel for the State represented that
the ITD views I.C. § 18-8002, when applied to nonresident licenses, to be inconsistent with other
Idaho statutes concerning motor vehicle driver‟s licenses. However, because no issue of conflict
between statutes was raised below or in briefing to this Court, this opinion should not be
interpreted as implicitly resolving any such issues.
2
       Notably, the officer also did not comply with I.C. § 18-8002(4)(a), which required him to
seize Kling‟s driver‟s license, forward it to the court, and issue her a temporary driving permit.


                                                  4
                (2) that defendant was not requested by a police officer to submit to an
       evidentiary test;
                (3) that the requesting police officer did not have “reasonable grounds” or
       “probable cause” to believe that defendant had been driving or in actual physical
       control of a motor vehicle while under the influence of alcohol, drugs or of any
       other intoxicating substances;
                (4) that the request violated defendant‟s civil rights;
                (5) that defendant was not advised of the information regarding refusal
       mandated by I.C. § 18-8002(3);
                (6) that defendant did not refuse to submit to the requested evidentiary
       test; or
                (7) that, although defendant refused the requested evidentiary test, he did
       so with sufficient cause.

Id. at 368, 744 P.2d at 96 (emphasis added). The holding in Griffith that a driver facing
suspension will prevail at a hearing if the person “was not advised of the information regarding
refusal mandated by I.C. § 18-8002(3),” was predicated on the provision in subsection (4) of the
statute that authorizes a court to impose a civil penalty and suspend driving privileges only “[i]f
the motorist refuses to submit to or complete evidentiary testing after the information has been
given in accordance with subsection (3).” Later in the Griffith opinion, the Court reasoned that
because the officer asking the driver to submit to a blood test had not informed the driver, as the
statute mandates, that he could have additional tests conducted at his own expense, “the
[driver‟s] failure to cooperate at this point in time was not technically a „refusal‟ within the
meaning of the statute.” Id. at 370, 744 P.2d at 98.3 Thus, the Griffiths Court strictly applied the
statutory language concerning the information that must be imparted to the motorist.
       Subsequent to Griffiths, this Court noted that the information required by I.C. § 18-
8002(3) is set forth “in no uncertain terms,” and that Griffiths “emphatically discountenanced
interjection of judicial gloss upon the legislature‟s license suspension scheme.” In re Beem, 119
Idaho 289, 291, 292, 805 P.2d 495, 497, 498 (Ct. App. 1991). In In re Virgil, 126 Idaho 946,
947, 895 P.2d 182, 183 (Ct. App. 1995), we held that “Idaho law requires strict adherence to the
statutory language of I.C. § 18-8002(3).” Thus it appears that I.C. § 18-8002 and the judicial
decisions applying it preclude suspension of a driver‟s license if the officer did not closely


3
       The Griffiths Court ultimately held that the motorist was not entitled to relief from
suspension on this basis because the officer later “read the standard consent form to defendant
which included all of the information required by section 18-8002(3)” and the motorist again
refused to submit to an evidentiary test. Griffiths, 113 Idaho at 370, 744 P.2d at 98.
                                                 5
comply with the statutory directive concerning the advisory information to be given to motorists
when a BAC test is requested. The ITD advisory form used here did not comply with I.C. § 18-
8002 with respect to actions that would be taken vis-à-vis a nonresident driver‟s license if testing
were refused.
       Although neither party relies upon it, we recognize that a closely-related statute, I.C.
§ 18-8002A, overlaps I.C. § 18-8002 in large degree, and contains somewhat different provisions
concerning the information to be given to a motorist prior to the motorist‟s decision whether to
submit to evidentiary testing. Before enumerating the information to be given to the motorist,
I.C. § 18-8002A(2) specifies that the person “shall be informed substantially as follows (but need
not be informed verbatim).” This provision calls into question whether the strict compliance
seemingly required by I.C. § 18-8002 and interpretive case law has been legislatively overridden.
However, in Halen v. State, 136 Idaho 829, 834, 41 P.3d 257, 262 (2002), while recognizing the
overlap between the two statutes (but stating that the required information was “similar”), our
Supreme Court held that “[m]otorists who refuse to submit to requested tests are entitled to have
their licenses reinstated if they can establish at the refusal hearing that they were not completely
advised according to these code sections.” (Emphasis added.) Moreover, even if “substantial
compliance” with the statutorily prescribed advisory is all that is required of an officer, that
standard was not satisfied here. The advisory form used in this case did not substantially comply
with the provisions, found in both I.C. § 18-8002 and I.C. § 18-8002A, requiring that the
motorist be advised that upon refusal to submit to a BAC test, the driver‟s license will be seized
by the police officer and a temporary permit issued. The advisory given to Kling did not merely
use different words to substantially convey the required information; it directly contradicted the
statutory directive by affirmatively informing Kling that her nonresident driver‟s license would
not be seized by the officer.
       The State maintains, however, that even if the advisory information given to Kling did
not comply with statutory requirements, her driver‟s license is nevertheless subject to suspension
because Kling has not shown that she was misled by the deficient advisory. That is, she was told
that her driver‟s license would not be seized by the officer, and it was not, so the information
given to her accurately described what would happen if she refused testing. Implicit in the
State‟s argument is an assertion that a person facing suspension must show prejudice arising
from a deviation from the requirements of Section 18-8002(3) before relief from suspension

                                                 6
proceedings may result. The State suggests that a post-Griffiths decision of the Idaho Supreme
Court, Head v. State, 137 Idaho 1, 4-5, 43 P.3d 760, 763-64 (2002), departed from Griffiths by
imposing such a prejudice requirement. According to the State, Head stands for the proposition
that “not all inaccuracies in the advisory are fatal to suspension.”
       We conclude, however, that Head is inapposite. In Head, the Court held that inaccurate
information imparted to a driver concerning sanctions imposed for failure of an evidentiary test
for alcohol concentration was not a ground for relief from suspension where the driver had
refused to perform the requested test. The Court held:
       Head concedes that his challenge to the suspension of his driving privileges does
       not fit within any of the grounds listed in Griffiths. Rather, he asks this Court to
       expand the grounds listed in Griffiths to include this situation. Because the
       grounds for challenging the suspension are statutory, we cannot do so.

Head, 137 Idaho at 5, 43 P.3d at 764. Thus, not only does Head not depart from Griffiths, it
reaffirms it by stating that the Court was without authority to add to the grounds for relief
authorized by I.C. § 18-8002 as recognized in Griffiths. We conclude that coordinate reasoning
precludes a court from disregarding a ground for relief from suspension that is mandated by the
statute, including an officer‟s failure to give the driver the statutorily required information on
consequences for refusal of evidentiary testing.
       Accepting the State‟s position would allow officers to unilaterally modify the statutorily
prescribed procedures so long as the modified procedures are accurately described to the
motorist when testing is requested.       The statute does not confer such authority upon law
enforcement officers. Nor does the statute require that a driver show detrimental reliance or
other form of prejudice from an officer‟s omission of a portion of the required terms of the
advisory. While the State, essentially, argues that the procedures of (a) seizing the in-state
license and issuing a thirty-day permit and (b) not seizing the out-of-state license but advising
that it is only valid for another thirty days, are functionally equivalent, the second procedure is
not described in and is inconsistent with the procedure described in the statute. In addition, they
may not be functionally equivalent.       The actual seizure of an individual‟s license is more
detrimental than not doing so. Also, the out-of-state driver may well not understand what
impact, if any, the limitation that the license is valid in Idaho for only thirty days has on its
validity outside of Idaho, including in the issuing state. Under these circumstances, an out-of-



                                                   7
state driver who does not plan to remain in this State may be substantially more likely than the
in-state counterpart to refuse evidentiary testing.4
       The information provided to Kling did not comport with that required by I.C. § 18-
8002(3). The magistrate was therefore correct in declining to suspend Kling‟s driver‟s license.
B.     Timeliness of Officer’s Affidavit
       The magistrate also held that Kling‟s driver‟s license should not be suspended because
the officer deprived her of due process by failing to file an affidavit attesting to her refusal of
evidentiary testing within seven days of the refusal. We conclude that the magistrate court, and
the district court on intermediate appeal, were incorrect in this analysis.
       The Fourteenth Amendment prohibits the governmental action that deprives an individual
of property without due process. The United States Supreme Court has held that licensure to
operate a motor vehicle represents a property interest that may not be suspended without due
process. Illinois v. Batchelder, 463 U.S. 1112, 1116-17 (1983); Mackey v. Montrym, 443 U.S. 1,
20 (1979); Dixon v. Love, 431 U.S. 105, 112 (1977). Due process ordinarily requires, at a
minimum, notice of the contemplated deprivation and a meaningful opportunity to be heard.
McGloon v. Gwynn, 140 Idaho 727, 729, 100 P.3d 621, 623 (2004); Rudd v. Rudd, 105 Idaho
112, 115, 666 P.2d 639, 642 (1983). Due process is “flexible and calls for such procedural
protections as the particular situation demands.” Bowler v. Bd. of Trustees, of School Dist. No.
392, Shoshone County, Mullan, 101 Idaho 537, 542, 617 P.2d 841, 846 (1980).
       We begin our analysis by noting that although I.C. § 18-8002(4)(b) requires that a driver
request a court hearing in writing within seven days in order to show why a license should not be
suspended, the statute does not state a deadline for an officer to file the affidavit of refusal. To
the contrary, I.C. § 18-8002(4)(c), as in effect at the time of Kling‟s hearing, required the officer
to file such an affidavit only if the driver had not timely requested a hearing:



4
        There may be good reasons, both practical and legal, for a procedure by which the state
of Idaho does not seize a license issued by another state. While this has been alluded to, it was
not raised below or properly in this appeal. Moreover, while ITD has, apparently, determined
that the procedure actually described and employed by the officer in this case is the appropriate
procedure for out-of-state licensees, it has not secured an amendment of the controlling statute to
provide for the procedure. No authority has been cited, short of amendment, for modification of
the statutory procedure and commensurate warnings. It is apparent that amendment of the statute
is needed to address the out-of-state license issue.
                                                  8
               If a hearing is not requested by written notice to the court concerned
       within seven (7) calendar days, upon receipt of a sworn statement by the peace
       officer of the circumstances of the refusal, the court . . . shall suspend the
       defendant‟s driving privileges . . . .

The only purpose of the officer‟s affidavit of refusal is to obtain judicial suspension of the
driver‟s license if no hearing has been requested. In re Hanson, 121 Idaho 507, 511-14, 826 P.2d
468, 472-75 (1992). Contrary to Kling‟s argument, the filing of an affidavit of refusal is not
necessary to enable a driver to challenge the officer‟s justification for the stop or justification for
requesting evidentiary testing. Indeed, nothing in the statute requires that the officer‟s affidavit
of refusal describe the reasons for the stop nor the reasons for the officer‟s request that the driver
submit to tests; it need only set forth “the circumstances of the refusal.” I.C. § 18-8002(4)(c). A
driver wishing to challenge the basis for the stop or the request for evidentiary testing may gain
such information from the police report describing the incident or any probable cause affidavit
that may be filed by the officer in related criminal proceedings or by subpoenaing the officer to
the evidentiary hearing. The timing of the filing of the officer‟s affidavit here did not deprive
Kling of a meaningful opportunity to oppose the suspension of her driver‟s license and present
supporting evidence.
       The magistrate court and the district court on intermediate appeal were concerned that
without a deadline for the officer‟s refusal affidavit, an officer could theoretically wait months or
even years to file a refusal affidavit to initiate a license suspension and thereby deprive a driver
of due process. We conclude, however, that such a hypothetical risk is not an appropriate basis
for a finding of a due process violation in this case where no such delay occurred as the officer
filed the affidavit ten days after the traffic stop and prior to the hearing that was conducted on
Kling‟s motion.
C.     Attorney Fees
       Kling requested an award of attorney fees in the district court, which that court denied.
On cross-appeal to this Court, she requests that we reverse the district court‟s denial and also
award her attorney fees for the present appeal pursuant to I.C. § 12-117(1) and I.C. § 12-121.
Kling asserts that the State has pursued both appeals frivolously, unreasonably and without
foundation. We decline either to reverse the district court in this regard or to award attorney fees
to Kling for this appeal because although the State did not prevail at either level, we cannot say
that it has acted “without reasonable basis in fact or law” as required for an award under I.C.

                                                  9
§ 12-117 or that its appeals were taken “frivolously, unreasonably or without foundation” as
required for an award under I.C. § 12-121. See Idaho Rule of Civil Procedure 54(e)(1). Indeed,
the State correctly asserted on appeal that the magistrate and district court erred in imposing a
seven-day time limit for filing of an officer‟s refusal affidavit under I.C. § 18-8002(4)(a), and its
argument concerning the effect of an officer‟s departure from the advisory terms required by I.C.
§ 18-8002(3), although not accepted by this Court, was not frivolous or unreasonable.5
                                                III.
                                         CONCLUSION
       Because the officer who requested that Kling submit to evidentiary testing did not
comply with the mandates of I.C. § 18-8002(3), Kling‟s driving privileges were not subject to
suspension.    The appellate decision of the district court affirming the magistrate‟s order
dismissing license suspension proceedings is therefore affirmed.         Costs on appeal, but not
attorney fees, to respondent.
       Judge GRATTON and Judge MELANSON CONCUR.




5
        In light of this determination we need not address the State‟s argument that I.C. § 12-117
is inapplicable because no “state agency” is a party to this litigation.
                                                 10
