               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 39161

STATE OF IDAHO,                                   )     2014 Opinion No. 49
                                                  )
       Plaintiff-Respondent,                      )     Filed: June 30, 2014
                                                  )
v.                                                )     Stephen W. Kenyon, Clerk
                                                  )
ARLYN V. ORR,                                     )
                                                  )
       Defendant-Appellant.                       )
                                                  )

       Appeal from the District Court of the Seventh Judicial District, State of Idaho,
       Madison County. Hon. Gregory W. Moeller, District Judge.

       Judgment of conviction for resisting and obstructing officers, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Spencer J. Hahn, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Russell J. Spencer, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
GUTIERREZ, Chief Judge
       Arlyn V. Orr appeals from his judgment of conviction following a jury verdict finding
him guilty of resisting and obstructing officers. For the reasons set forth below, we affirm.
                                                 I.
                                  FACTS AND PROCEDURE
       While on patrol at approximately 12:20 a.m., Deputy Shawn Scott noticed a vehicle in a
public parking lot. As he approached, Deputy Scott observed the car was running with a person
who appeared to be asleep in the driver’s seat and five open cans of beer inside. Deputy Scott
attempted several times, unsuccessfully, to wake the driver, who he identified as Orr through a
license plate search. Seeing the door was unlocked, Deputy Scott opened the door, turned off the
ignition, and continued trying to wake Orr. Deputy Scott smelled the odor of alcohol inside the
vehicle. Eventually, Deputy Scott had to shake Orr in order to wake him up.




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       After Orr finally awoke, Deputy Scott identified himself, informed Orr he was with the
Madison County Sheriff’s Office, and stated he believed Orr had been drinking. Deputy Scott
observed that Orr’s eyes were bloodshot and glassy, his speech was slurred, and his breath
smelled like an alcoholic beverage. Deputy Scott also noted that Orr was exhibiting impaired
memory and displaying poor judgment.         For approximately twenty minutes, Deputy Scott
attempted to coax Orr to exit the vehicle to perform field sobriety tests, but Orr adamantly
refused.
       Corporal Dallin Wrigley arrived as backup and the two attempted to physically remove
Orr from the vehicle; however, Orr stiffened his body so they could not. Eventually, Corporal
Wrigley utilized pepper spray to induce Orr’s cooperation in exiting the vehicle. Orr was
transported to the Sheriff’s office where he submitted to breath alcohol tests that indicated he
was well over the legal limit.
       Orr was charged with driving under the influence (DUI), enhanced to a felony because he
was previously convicted of felony DUI within fifteen years, Idaho Code §§ 18-8004(1)(a),
18-8005(9); possession of an open container of alcohol, I.C. § 23-505; and resisting and
obstructing officers, I.C. § 18-705. The charge for resisting and obstructing officers read as
follows:
       The Defendant . . . on or about March 11, 2011 . . . did willfully resist, delay or
       obstruct a public officer in the discharge, or attempted discharge, of a duty of his
       office, to wit: by disobeying and resisting a lawful order to exit his vehicle and/or
       other lawful requests or commands of Deputy Shawn Scott and/or Deputy Dallin
       Wrigley . . . .
Following a trial, a jury acquitted Orr of the open container violation, but found him guilty of
felony DUI and resisting and obstructing officers. The district court entered a judgment of
conviction and sentenced Orr to a unified term of ten years, with three years determinate, for the
DUI and a concurrent term of 180 days for the resisting and obstructing. Orr now appeals the
resisting and obstructing conviction.
                                                II.
                                          ANALYSIS
       Orr contends there was insufficient evidence presented at trial to support his conviction
for resisting and obstructing officers. Specifically, he contends the evidence that he refused to
perform field sobriety tests was insufficient because he could not be convicted of a crime for


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exercising his constitutional rights and because the State failed to present evidence that Orr knew
the officers’ requests were lawful.
       Appellate review of the sufficiency of the evidence is limited in scope. A finding of guilt
will not be overturned on appeal where there is substantial evidence upon which a reasonable
trier of fact could have found that the prosecution sustained its burden of proving the essential
elements of a crime beyond a reasonable doubt. State v. Herrera-Brito, 131 Idaho 383, 385, 957
P.2d 1099, 1101 (Ct. App. 1998); State v. Knutson, 121 Idaho 101, 104, 822 P.2d 998, 1001 (Ct.
App. 1991). We will not substitute our 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. Knutson, 121 Idaho at 104, 822 P.2d at 1001; State v. Decker, 108 Idaho 683,
684, 701 P.2d 303, 304 (Ct. App. 1985). Moreover, we will consider the evidence in the light
most favorable to the prosecution. Herrera-Brito, 131 Idaho at 385, 957 P.2d at 1101; Knutson,
121 Idaho at 104, 822 P.2d at 1001.
       Idaho Code § 18-705 makes it a crime to “willfully resist[ ], delay[ ] or obstruct[ ] any
public officer, in the discharge, or attempt to discharge, . . . any duty of his office.” Three
elements must be satisfied in order to find a violation of the statute: (1) the person who was
resisted, delayed, or obstructed was a law enforcement officer; (2) the defendant knew the person
was an officer; and (3) the defendant also knew at the time of the resistance that the officer was
attempting to perform some official act or duty. State v. Bishop, 146 Idaho 804, 816, 203 P.3d
1203, 1215 (2009); State v. Adams, 138 Idaho 624, 629, 67 P.3d 103, 108 (Ct. App. 2003). The
term “duty” in section 18-705 includes only lawful and authorized acts of a public officer.
Bishop, 146 Idaho at 817, 203 P.3d at 1216; State v. Wilkerson, 114 Idaho 174, 180, 755 P.2d
471, 477 (Ct. App. 1988). Because an unlawful act is not considered a “duty” under the statute,
an individual may peacefully obstruct or refuse to obey an officer’s unlawful act without
violating the statute. Bishop, 146 Idaho at 817, 203 P.3d at 1216; Wilkerson, 114 Idaho at 180,
755 P.2d at 477. An individual may not, however, use force or violence to resist. Bishop, 146
Idaho at 817, 203 P.3d at 1216; Wilkerson, 114 Idaho at 180, 755 P.2d at 477.
       When an officer conducts a legal search, he or she is performing a duty of his or her
office under section 18-705. Bishop, 146 Idaho at 817, 203 P.3d at 1216. Thus, if the evidence
presented at trial showed that Orr resisted and/or obstructed the officers in their attempt to




                                                  3
conduct a lawful search, Orr did not have a constitutional right to refuse (as he asserts on
appeal). See Bishop, 146 Idaho at 818, 203 P.3d at 1217.
       The Fourth Amendment to the United States Constitution prohibits the unreasonable
searches or seizures of persons or property. A search or seizure conducted without a warrant
issued on probable cause is presumptively unreasonable unless it falls within one of the
established exceptions to the warrant requirement. Minnesota v. Dickerson, 508 U.S. 366, 372
(1993); State v. Weaver, 127 Idaho 288, 290, 900 P.2d 196, 198 (1995). One exception applies
when there is an investigative detention based upon reasonable suspicion of criminal activity.
See Terry v. Ohio, 392 U.S. 1, 21-22 (1968). An investigative detention must be justified by
articulable facts raising reasonable suspicion that the individual has been or is about to be
engaged in criminal conduct. See id. at 21; State v. Zuniga, 143 Idaho 431, 434, 146 P.3d 697,
700 (Ct. App. 2006). The detention of an individual who is reasonably suspected of driving
under the influence of intoxicants constitutes such a permissible warrantless detention. State v.
Buell, 145 Idaho 54, 56, 175 P.3d 216, 218 (Ct. App. 2008). Field sobriety tests, although
searches, are a reasonable and permissible component of an investigation where the officer has
detained the individual on reasonable suspicion of DUI. Id. at 56, 175 P.3d at 218; 1 State v.
Ferreira, 133 Idaho 474, 479-81, 988 P.2d 700, 705-07 (Ct. App. 1999). In addition, during a
traffic stop, an officer may direct the temporarily detained driver to step outside the vehicle.
Pennsylvania v. Mimms, 434 U.S. 106, 111 (1977); State v. Irwin, 143 Idaho 102, 104, 137 P.3d
1024, 1026 (Ct. App. 2006).
       Here, there was sufficient evidence presented at trial that Orr was properly detained on
suspicion of driving under the influence. Deputy Scott observed Orr in the driver’s seat of his
vehicle with the motor running and five open cans of beer in the vehicle. Deputy Scott attempted
to wake Orr by knocking on the vehicle window, which was not successful, and ultimately
opened the car door and shook Orr in order to rouse him. Upon opening the door, Deputy Scott



1
        On appeal, Orr argues that our holding in State v. Buell, 145 Idaho 54, 56, 175 P.3d 216,
18 (Ct. App. 2008), that an individual who is reasonably suspected of driving under the influence
of intoxicants has no right to refuse to perform field sobriety tests, is incorrect. Buell rests, Orr
contends, on a misinterpretation of this Court’s case law and misapplication of Idaho and United
States Supreme Court precedent. We disagree and decline Orr’s implicit invitation to overrule
our decision in Buell.


                                                 4
smelled alcohol and, after interacting with Orr, observed that Orr had slurred speech, glassy and
bloodshot eyes, and breath smelling of alcohol. Deputy Scott also noted that Orr was exhibiting
impaired memory and poor judgment. Based on these facts, Deputy Scott possessed the requisite
reasonable suspicion to investigate Orr for driving under the influence. It therefore follows that
the officer’s attempt to administer field sobriety tests (and order Orr out of the vehicle to do so)
was a permissible component of his investigation--and thus was a lawful act that may comprise
the basis of a resisting and obstructing charge. See Bishop, 146 Idaho at 817, 203 P.3d at 1216.
Accordingly, Orr had no “constitutional right” to refuse to comply with Deputy Scott’s lawful
request.
       Orr also contends that even if an officer has the authority to order a defendant to engage
in field sobriety tests upon reasonable suspicion of driving under the influence, this does not
“inexorably lead to the conclusion that failing to participate in the field sobriety tests is itself a
violation of the resisting or obstructing statute.” Specifically, he contends the statute “appears to
require more than a mere refusal to perform some requested action” and cites to several cases
where active resistance was involved. Orr’s argument in this regard is not well taken. The plain
language of the statute criminalizes “resist[ing], delay[ing] or obstruct[ing]” an officer in the
discharge of his duties--language that does not plainly require resistance beyond refusal to
comply with lawful orders. Nor does Orr cite any authority where Idaho courts have found this
statute to require more active resistance than what occurred here.
       We also find no merit in Orr’s contention that because the legislature has specifically
provided a noncriminal penalty for refusing to provide a breath sample during a DUI
investigation, see Idaho Code § 18-8002(3), it has implied that the refusal to engage in field
sobriety tests is “not criminal conduct under any statute.” Orr has provided no citation to
authority to support this proposition and thus we do not address it further. See State v. Zichko,
129 Idaho 259, 263, 923 P.2d 966, 970 (1996) (holding that a party waives an issue on appeal if
either authority or argument is lacking).
       Finally, Orr contends the State failed to present evidence that he knew the officers’
requests were lawful. As indicated above, the Idaho Supreme Court has stated that an element of
section 18-705 is that the defendant also knew at the time of the resistance that the officer was
attempting to perform some official act or duty. Bishop, 146 Idaho at 816, 203 P.3d at 1215. Orr




                                                  5
argues this element was not satisfied because he testified at trial that he believed the officers
were violating his rights when they ordered him to exit and perform field sobriety tests.
       The language cited in Bishop apparently originated in the Supreme Court’s decision in
State v. Winter, 24 Idaho 749, 135 P. 739 (1913), where the court addressed the elements of the
predecessor to section 18-705: 2
       It is necessary, we think, in a case of this kind, for the state to show that the
       person who was resisted was at the time an officer, and that the defendant knew
       such fact, and that the defendant also knew at the time that he offered resistance
       that the officer was attempting to serve process or perform some official act or
       was engaged in or was in pursuit of some official duty. The mere fact that the
       party was an officer would of itself not call into operation the provisions of the
       statute . . . or entitle him to invoke its protection, unless he was also engaged in
       the performance or discharge of some official duty. The state only clothes
       officials with its protection and immunity from resistance when employed in the
       discharge of public or official duty. When so employed, the interests of the public
       and of the state are superior to the rights of any individual, and so the state says to
       every individual, “You cannot--you must not--offer resistance to these officials
       when going about the discharge of the public service.”
Winter, 24 Idaho at 757-58, 135 P. at 740 (emphasis added). Orr argues that this holding in
Winter, combined with the decision in Wilkerson, 114 Idaho at 180, 755 P.2d at 477, 3 which
held that “duty” as used in section 18-705 encompasses only those “lawful and authorized acts of
a public officer,” require that a defendant subjectively know an officer’s conduct is lawful. The
problems inherent in such an interpretation are not difficult to imagine. The Oregon Court of
Appeals recently summarized the difficulties that would arise if a defendant’s subjective belief as
to the lawfulness of an officer’s action must be proven in order to establish a resisting and
obstructing offense:
       [D]ecisively, requiring a culpable mental state regarding the lawfulness of the
       refused order would severely complicate enforcement of the statute, if not render
       enforcement impossible. Whether a particular police order is “lawful” is
       frequently a complex question involving some of the most vexing and intractable

2
       Aside from the addition of the alternative element of knowingly giving a false report, the
elements of section 18-705 remain the same as the predecessor statue discussed in State v.
Winter, 24 Idaho 749, 135 P. 739 (1913). State v. Wilkerson, 114 Idaho 174, 179, 755 P.2d 471,
476 (Ct. App. 1988).
3
       Wilkerson was affirmed by the Supreme Court without discussion. State v. Wilkerson,
115 Idaho 357, 766 P.2d 1238 (1988).


                                                 6
        issues in constitutional law. For example, a police order such as “Stop!” can be
        an unlawful seizure of a person under Article I, section 9, of the Oregon
        Constitution, depending on whether the order is accompanied by a sufficient show
        of authority and the officer who issues the order is subsequently found to have
        lacked reasonable suspicion to believe that criminal activity was afoot. The
        inquiry is addressed on a case-by-case basis, there are few if any bright line rules,
        and there is an almost infinite variety of variables--some of which, such as the
        officer’s state of mind, could not possibly be known by a defendant. Likewise, an
        order to disperse might unlawfully interfere with a person’s right of free
        expression under Article I, section 8, of the Oregon Constitution--a determination
        that can surely confound ordinary citizens and has in fact confounded even judges
        of this court. It is difficult to imagine a prosecution in which the state could prove
        that a defendant knew or should have known that a particular order was lawful.
        We conclude that, clearly, the legislature intended to dispense with a culpable
        mental state requirement with respect to a defendant’s knowledge that a particular
        police order is lawful.
State v. Ruggles, 242 P.3d 643, 646 (Or. Ct. App. 2010) (citations omitted).
        In addition to Bishop, numerous Idaho cases since Winter have listed as an element of a
resisting and obstructing offense that the defendant also knew at the time of the resistance that
the officer was attempting to perform some official act or duty. See e.g., Adams, 138 Idaho at
629, 67 P.3d at 108; State v. Hollon, 136 Idaho 499, 502, 36 P.3d 1287, 1290 (Ct. App. 2001);
Wilkerson, 114 Idaho at 178-79, 755 P.2d at 475-76. But see State v. Goerig, 121 Idaho 108,
113, 822 P.2d 1005, 1010 (Ct. App. 1991) (“The essential elements of the crime of resisting a
public officer are that a person resists, delays, or obstructs that public officer, while the officer is
discharging or attempting to discharge his official duties.”). However, the crux of the challenge
to this element in many of these cases was the defendant’s assertion that the officer was not,
objectively, acting lawfully and therefore the defendant could not be convicted pursuant to
section 18-705.
        Given the possibility of confusion, we take this opportunity to clarify the language used
in our past cases and hold that a defendant’s subjective belief that the officer’s act is lawful is not
an element of resisting and obstructing officers. Rather, what is required is that the officer was,
in fact, lawfully attempting to perform some official act or duty and that the defendant knew that
the officer was attempting that act. As the Oregon Court of Appeals noted, to hold otherwise
would render enforcement of resisting and obstructing statutes nearly impossible.




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       Even so, Orr’s assertion that he did not subjectively know the officers were authorized to
investigate in this instance is disproved by Orr’s own testimony. During cross-examination, Orr
was asked:
               So if Deputy Scott approaches your vehicle in the night and sees you in
       the condition you were that night and sees what appears to be open containers of
       alcohol in your vehicle and he sees that your engine is running, he has a duty to
       further investigate that; doesn’t he?
In response, Orr eventually admitted, “I’m going to assume that that’s probably what a deputy
should do.” Accordingly, there was sufficient evidence to support the jury’s verdict finding Orr
guilty of resisting and obstructing officers.
       Since Deputy Scott possessed the requisite reasonable suspicion to investigate Orr for
driving under the influence, Deputy Scott was engaging in a lawful act in requesting that Orr exit
his vehicle; thus, Orr had no “constitutional right” to refuse to comply with the request.
Additionally, Orr’s subjective belief that the officers’ acts were lawful is not an element of
resisting and obstructing officers. The evidence was sufficient to support the jury’s verdict.
Orr’s judgment of conviction for resisting and obstructing officers is affirmed.
       Judge LANSING and Judge MELANSON CONCUR.




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