               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 42622

STATE OF IDAHO,                                 )    2016 Unpublished Opinion No. 417
                                                )
       Plaintiff-Respondent,                    )    Filed: March 7, 2016
                                                )
v.                                              )    Stephen W. Kenyon, Clerk
                                                )
BRIAN P. BAILEY,                                )    THIS IS AN UNPUBLISHED
                                                )    OPINION AND SHALL NOT
       Defendant-Appellant.                     )    BE CITED AS AUTHORITY
                                                )

       Appeal from the District Court of the First Judicial District, State of Idaho,
       Kootenai County. Hon. Benjamin R. Simpson, District Judge; Hon. James Stow,
       Magistrate.

       Decision of the district court on intermediate appeal, affirming the magistrate’s
       denial of motion in limine, motion to suppress, and request for funding, affirmed.

       John M. Adams, Kootenai County Public Defender; Jay W. Logsdon, Deputy
       Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________

GUTIERREZ, Judge
       Brian P. Bailey appeals from the district court’s decision, on intermediate appeal,
affirming the magistrate’s denial of Bailey’s motion in limine to exclude his breath test results,
motion to suppress his breath test results, and request for funding an expert witness.
Specifically, Bailey maintains his breath test results were inadmissible because the breath test
was not conducted in accordance with the law or in a manner that ensured reliability.
Additionally, Bailey contends his consent to breath testing was involuntary. For the reasons
explained below, we affirm the district court’s decision.




                                                 1
                                                I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       On July 6, 2013, Corporal Lind was dispatched to the scene of a three-vehicle collision.
In speaking with Bailey, one of the drivers involved in the collision, Corporal Lind smelled
alcohol on Bailey’s breath and noticed Bailey’s eyes were red and glassy. He also noticed that
Bailey had two large wads of gum in his mouth and heard Bailey’s slurred speech. Bailey
admitted to drinking prior to the collision. Corporal Lind played a recording of the “Notice of
Suspension for Failure of Evidentiary Testing” form--otherwise known as the “Administrative
License Suspension” (ALS) form--and subsequently conducted a breath test with a Lifeloc FC20
breath alcohol tester. The breath tests yielded a .233, .256, and .235. Corporal Lind arrested
Bailey for excessive driving under the influence.
       Bailey filed a motion in limine to exclude the breath test results because the Idaho State
Police (ISP) failed to establish a method for reliable breath testing, since, among other reasons,
its Standard Operating Procedures (SOPs) were not promulgated in compliance with the Idaho
Administrative Procedure Act (IDAPA). Additionally, Bailey filed a motion with the magistrate
to suppress his breath test results. Bailey argued that because the ALS form set forth a list of
consequences of not submitting to breath testing, his consent was involuntary and therefore
invalid. Bailey also filed a request for funding an expert to challenge the reliability of the
Lifeloc FC20. The magistrate denied both motions, as well as the request for funding.
       Bailey entered a conditional guilty plea and appealed. After hearing oral arguments, the
district court affirmed the magistrate’s denial of both the motion in limine and motion to
suppress. Regarding the motion in limine, the district court specifically determined that the
magistrate did not err in relying on State v. Besaw, 155 Idaho 134, 144, 306 P.3d 219, 229 (Ct.
App. 2013) to reject Bailey’s argument that the SOPs are incapable of yielding accurate results.
The district court also determined the magistrate did not err in determining that Bailey’s consent
was voluntary because the consequences in the ALS form do not amount to coercion. Moreover,
the district court affirmed the magistrate’s denial of the request for funding an expert because
Bailey failed to make the threshold showing required for funding. Bailey again appeals.




                                                2
                                                     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. The Supreme Court
reviews the 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. State v. Korn, 148 Idaho 413, 415, 224 P.3d 480, 482 (2009). 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. Id. Thus, we do not review the decision of the magistrate. State v. Trusdall, 155
Idaho 965, 968, 318 P.3d 955, 958 (Ct. App. 2014). Rather, we are procedurally bound to affirm
or reverse the decision of the district court. Id.
A.        Motion in Limine
          Bailey argues the district court erred in upholding the denial of his motion in limine to
exclude the breath test results. We review decisions on a motion in limine for an abuse of
discretion. State v. Richardson, 156 Idaho 524, 527, 328 P.3d 504, 507 (2014); State v. Boehm,
158 Idaho 294, 301, 346 P.3d 311, 318 (Ct. App. 2015). When a trial court’s discretionary
decision is reviewed on appeal, the appellate court conducts a multi-tiered inquiry to determine:
(1) whether the lower court correctly perceived the issue as one of discretion; (2) whether the
lower court acted within the boundaries of such discretion and consistently with any legal
standards applicable to the specific choices before it; and (3) whether the lower court reached its
decision by an exercise of reason. State v. Hedger, 115 Idaho 598, 600, 768 P.2d 1331, 1333
(1989).
          Bailey specifically argues the breath test results were inadmissible because his breath test
samples were not taken in a manner that ensured reliability, the SOPs used by the ISP were not
adopted in accordance with the IDAPA, and the SOPs do not guarantee accuracy. Idaho Code §
18-8004(4) provides that “analysis of . . . breath for the purpose of determining alcohol
concentration shall be performed . . . by any other method approved by the Idaho state police.”
The ISP therefore adopted administrative rules setting forth requirements for breath alcohol
testing. Pursuant to those rules, breath tests must be administered in accordance with standards
issued in the form of analytical methods and standard operating procedures. On January 16,

                                                     3
2013, the ISP issued a document titled “6.0 Idaho Standard Operating Procedure-Breath Alcohol
Testing.” The January 2013 SOPs are the fourth revision to the SOPs and have since been
revised several times. In Bailey’s case, the January 2013 SOPs govern because he was arrested
for his DUI in July 2013, shortly before the next revision to the SOPs.1
       A brief history of relevant Idaho case law is helpful. In 1988, this Court held that in
order for a blood alcohol test to produce an “extremely reliable” result, it must be the product of
a test procedure that is capable of producing an accurate result. State v. Bell, 115 Idaho 36, 39,
764 P.2d 113, 116 (Ct. App. 1988). We further held that to admit a blood alcohol test result, the
State must provide an adequate foundation consisting of either expert testimony or a showing
that the test was administered with applicable test procedures. Id. at 39-40, 764 P.2d at 116-17.
       More recently, we rejected the notion that the SOPs were incapable of yielding accurate
results. Besaw, 155 Idaho at 144, 306 P.3d at 229. In that case, the defendant argued that the
ISP had not complied with its statutory duty to adopt breath testing standards because it changed
a number of former “must” testing requirements to “should” recommendations within the SOPs.
Id. at 143, 306 P.3d at 228. We based our ruling on Wheeler v. Idaho Transp. Dep’t, 148 Idaho
378, 384, 223 P.3d 761, 767 (Ct. App. 2009), in which we ruled that “should,” as used in the
SOPs, is a recommendation, rather than a requirement. Besaw, 155 Idaho at 143-44, 306 P.3d at
228-29.
       The Idaho Supreme Court has since addressed the 2013 SOPs and declared them void
because they were not adopted in compliance with the IDAPA. State v. Haynes, 159 Idaho 36,
45, 355 P.3d 1266, 1275 (2015). However, showing that a breath test was administered in
conformity with applicable test procedures or expert testimony may suffice to establish an
adequate foundation for admissibility. Id. The Court ruled, “Therefore, the fact that the 2013
SOPs are void would not have prevented the State from establishing an adequate foundation for
the admissibility of the test results.” Id. Shortly after Haynes, the Court held that expert
testimony of a forensic scientist and testimony of the arresting officer was sufficient to show that
breath test results were admissible. State v. Riendeau, 159 Idaho 52, 55-56, 355 P.3d 1282,
1285-86 (2015).



1
       The SOPs have since been promulgated as rules.


                                                 4
       Bailey requests that we reverse and remand based on Besaw because the SOPs are not
capable of producing accurate results.2 Bailey argues that because the SOPs were not properly
promulgated, the trial court could not admit the breath test results. The Idaho Supreme Court has
since accepted the holding in Besaw and expanded upon its holding. Haynes, 159 Idaho at 43-
45, 355 P.3d at 1273-75 (permitting the admissibility of void SOPs with a showing that the test
was accurate); Riendeau, 159 Idaho at 54-55, 355 P.3d at 1284-85 (permitting the admissibility
of void SOPs when expert testimony shows that the test results were accurate). The Court ruled
in Haynes that “‘showing that the test was administered in conformity with applicable test
procedures or expert testimony may suffice to establish an adequate foundation.’ Therefore, the
fact that the 2013 SOPs were void would not have prevented the State from establishing an
adequate foundation for the admissibility of the test results.” Haynes, 159 Idaho at 45, 355 P.3d
at 1275 (quoting Dachlet v. State, 136 Idaho 752, 757, 40 P.3d 110, 115 (2002)). Thus, Bailey is
correct that the January 2013 SOPs are void and, as such, no method exists. However, the trial
court could still admit the breath test results, despite the 2013 SOPs being void, so long as the
State established an adequate foundation. For instance, in Riendeau, the Court found that expert
testimony from a forensic scientist and testimony from the arresting officer was sufficient to
show that the test results were admissible, despite the SOPs being void. Riendeau, 159 Idaho at
55, 355 P.3d at 1285.
       Here, the arresting officer who conducted Bailey’s breath test testified and indicated that
he followed the SOPs by waiting fifteen minutes before the second breath test. He testified that
he did not wait fifteen minutes before the third breath test. A forensic scientist who leads the
blood and breath program for the ISP and drafted the 2013 SOPs also testified that the officer
followed SOP. He stated there was no need for a new, separate fifteen-minute waiting period
after the second test. Moreover, the forensic scientist testified that the breath test instruments are
performance verified within twenty-four hours of an evidentiary breath test. Accordingly, the

2
        The State maintains this Court lacks jurisdiction to consider the validity of the SOPs. In
both State v. Haynes, 159 Idaho 36, 355 P.3d 1266 (2015) and State v. Riendeau, 159 Idaho 52,
355 P.3d 1282 (2015), however, the Idaho Supreme Court addressed the validity of the SOPs.
The Court declared the 2013 SOPS void because they were not “adopted in substantial
compliance with the Act.” Haynes, 156 Idaho at 45, 355 P.3d at 1275. In Riendeau, the Court
accepted the holding in Haynes. Riendeau, 159 Idaho at 55, 355 P.3d at 1285. Thus, although
the Court did not directly address jurisdictional issues in Haynes or Riendeau, the Court
implicitly found it had jurisdiction to consider the validity of the SOPs.
                                                  5
record reflects the State established an adequate foundation for admissibility of the breath test
results. The district court did not err in upholding the denial of Bailey’s motion in limine to
exclude the breath test results.
B.     Motion to Suppress
       Bailey also contends the district court erred in upholding the magistrate’s denial of his
motion to suppress his breath test results. He reasons that a law providing for various penalties
for relying on one’s constitutional rights is invalid and so is any consent provided after being
warned of those penalties.
       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).
       The United States and Idaho Constitutions prohibit unreasonable searches and seizures of
persons or property.3 U.S. CONST. amend. IV; IDAHO CONST. art. 1, § 17. Warrantless searches
are presumed to be unreasonable and therefore violative of the Fourth Amendment. State v.
Weaver, 127 Idaho 288, 290, 900 P.2d 196, 198 (1995); State v. Smith, 152 Idaho 115, 118, 266
P.3d 1220, 1223 (Ct. App. 2011). The State may overcome this presumption by demonstrating
that a warrantless search either fell within a well-recognized exception to the warrant
requirement or was otherwise reasonable under the circumstances. Smith, 152 Idaho at 118, 266
P.3d at 1223.
       Consent, when freely and voluntarily given, is an exception to the warrant requirement.
State v. Smith, 144 Idaho 482, 488, 163 P.3d 1194, 1200 (2007). The State has the burden of
proving, by a preponderance of the evidence, that direct or implied consent was freely and
voluntarily given. Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973). An individual’s
consent is involuntary “if his will has been overborne and his capacity for self-determination
critically impaired.” Id. at 225. Whether consent was granted voluntarily, or was a product of
coercion, is a factual determination to be based upon the surrounding circumstances. Id. at 229.
       Consent may be expressed through words, gestures, or other conduct.                 State v.
Dominguez, 137 Idaho 681, 683, 52 P.3d 325, 327 (Ct. App. 2002). When consent is implied

3
       Bailey does not argue the Idaho Constitution affords greater protection, so this Court
follows the analysis pursuant to the Fourth Amendment to the United States Constitution.
                                                 6
through conduct, the burden on the State of proving consent is “heaviest.” State v. Staatz, 132
Idaho 693, 695, 978 P.2d 881, 883 (Ct. App. 1999) (quoting United States v. Shaibu, 920 F.2d
1423, 1426 (9th Cir. 1990)).
       Once given, consent may also be revoked because “[i]nherent in the requirement that
consent be voluntary is the right of the person to withdraw that consent.” State v. Halseth, 157
Idaho 643, 646, 339 P.3d 368, 371 (2014). Thus, after a defendant has revoked consent, officers
no longer may act pursuant to that initial voluntary consent. State v. Thorpe, 141 Idaho 151, 154,
106 P.3d 477, 480 (Ct. App. 2004).
       Idaho Code § 18-8002 creates implied consent in specific circumstances, providing that
all drivers in Idaho impliedly consent to a warrantless blood draw by taking advantage of the
privilege of driving on Idaho’s roads. Such consent is revocable. State v. Wulff, 157 Idaho 416,
423, 337 P.3d 575, 582 (2014).
       Bailey argues that when an officer reads or plays a recording of the ALS form, which
informs a DUI suspect of the consequences of refusing to take or complete a breath test and of
failing a breath test, it frustrates a defendant’s ability to revoke implied consent.        More
specifically, Bailey asserts that the consequences listed within the form “are clearly intended and
do coerce citizens into taking a test,” and therefore his consent was involuntary. The Idaho
Supreme Court recently rejected this argument, however. In Haynes, the defendant argued that
by being advised of the consequence of refusing to consent to a breath test, the threat of this
consequence vitiated her consent. Id. at 45, 355 P.3d at 1275. The Court ruled that because both
the United States and Idaho Constitutions protect against unreasonable searches, “the issue is
whether a request by a peace officer that a person submit to a breath test constitutes an
unreasonable search where the officer had reasonable grounds to believe that the person was
operating or in actual control of a motor vehicle while under the influence of alcohol.” Id. The
Court concluded, “We hold that it does not.” Id.
       Justice Warren Jones wrote a separate concurrence in Haynes to note that “the proper
approach . . . is to look whether a previously established exception to the warrant requirement
applies (in this case consent).” Id. (Jones, W. J. concurring). We agree with this approach.
While acknowledging that a reasonableness analysis is still necessary, Justice W. Jones opined
that the analysis should take place within the broader context of the consent exception to the
warrant requirement. Id. The specific issue, then, becomes whether the defendant voluntarily

                                                7
consented to a breath test. Id. Justice W. Jones wrote that initial implied consent is created by
driving on Idaho roads, but that consent must be continued by either giving actual consent or by
not objecting or taking steps to withdraw implied consent. Id. Because the defendant in Haynes
agreed to take a breath test, and did not object or take steps to withdraw her implied consent,
Justice W. Jones agreed with the majority that the defendant gave actual consent. Id. at 48, 355
P.3d at 1278. The defendant argued that her consent was involuntary “because it was obtained
only after she was informed of the administrative penalties and license suspension consequences
that would result if she refused the test,” but Justice W. Jones described this argument as
“unavailing.” Id. He reasoned that consent to an evidentiary test can be voluntary even if given
to avoid consequences and the consequences are reasonable conditions attached to the privilege
of driving on Idaho roads. Id. at 49, 355 P.3d at 1279.
        Here, the record reflects that Bailey gave actual and voluntary consent to the breath test.
The probable cause affidavit indicates that Corporal Lind was dispatched to a three-vehicle
collision. Upon speaking with Bailey, Corporal Lind smelled alcohol, noticed that Bailey’s eyes
were red, heard Bailey’s slurred speech, and observed Bailey with two large wads of gum in his
mouth. Moreover, Bailey admitted he drank alcohol before the collision. Corporal Lind’s
request that Bailey perform a breath test was therefore reasonable. Similar to the defendant in
Haynes, Bailey agreed to take the breath test and did not object or take steps to revoke his
implied consent. Thus, Bailey gave actual and voluntary consent sufficient for the warrantless
breath test.
        Nevertheless, Bailey maintains the Haynes ruling is “incorrect.” Essentially, Bailey asks
this Court to reverse the Idaho Supreme Court. However, this Court lacks the authority to
overturn, or even review, a case from the Idaho Supreme Court. State v. Morgan, 153 Idaho 618,
620, 288 P.3d 835, 837 (Ct. App. 2012). Accordingly, the district court did not err in upholding
the magistrate’s denial of Bailey’s motion to suppress.
C.      Request for Funding
        Lastly, Bailey argues in his opening brief that the district court erred in affirming the
magistrate’s denial of Bailey’s request for funding an expert to challenge the reliability of the
Lifeloc FC20, an instrument that measures blood alcohol content. Because Bailey withdrew this
issue in his reply brief, we conduct no further review.



                                                 8
                                                 III.
                                          CONCLUSION
       The district court did not err in affirming the magistrate’s denial of Bailey’s motion in
limine to exclude breath test results because the State established an adequate foundation for
admissibility. Furthermore, because Bailey gave actual and voluntary consent to the breath tests,
the district court did not err in affirming the magistrate’s denial of Bailey’s motion to suppress
his breath test results. We therefore affirm the district court’s decision.
       Chief Judge MELANSON and Judge HUSKEY CONCUR.




                                                  9
