               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 42287

GARY ALEXANDER HERN,                             ) 2015 Opinion No. 87
                                                 )
       Petitioner-Appellant,                     ) Filed: December 30, 2015
                                                 )
v.                                               ) Stephen W. Kenyon, Clerk
                                                 )
IDAHO TRANSPORTATION                             )
DEPARTMENT,                                      )
                                                 )
       Respondent.                               )
                                                 )

       Appeal from the District Court of the Second Judicial District, State of Idaho, Nez
       Perce County. Hon. Jeff M. Brudie, District Judge.

       Decision of the district court, acting in its appellate capacity, affirming the
       administrative suspension of driver’s license, reversed; license suspension
       vacated.

       Clark and Feeney; Charles M. Stroschein, Lewiston, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Edwin L. Litteneker, Special
       Deputy Attorney General, Lewiston, for respondent.
                 ________________________________________________

GRATTON, Judge
       Gary Alexander Hern appeals from the district court’s decision, upon judicial review,
affirming the Idaho Transportation Department’s (ITD) order suspending his driver’s license.
Hern challenges the validity of the standard operating procedures (SOPs) for breath testing and
argues the hearing procedures deprived him of due process and the hearing officer violated his
equal protection rights. We reverse the district court’s decision affirming the hearing officer’s
decision and vacate Hern’s license suspension.




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                                                  I.
                     FACTUAL AND PROCEDURAL BACKGROUND
         On April 5, 2013, an officer arrested Hern for driving under the influence of alcohol
and issued him a notice of license suspension and temporary (thirty-day) driving permit.1 On
April 9, 2013, Hern requested an administrative hearing to contest his license suspension. Hern
also requested that the hearing officer issue several subpoenas. On April 15, 2013, the hearing
officer issued a notice for telephonic hearing to be held on May 9, 2013. On the same date, the
hearing officer issued the subpoenas requested by Hern, with a compliance date of April 29,
2013. The hearing officer also issued a show cause letter to Hern indicating that the officer had
extended the hearing date pursuant to Idaho Code § 18-8002A(7) to “allow time for the receipt of
subpoenaed evidence requested by [Hern].” In response, Hern filed an objection to the show
cause letter and extension of the hearing date and requested a hearing on the matter. The hearing
officer did not respond to Hern’s objection. Hern’s temporary driving permit expired four days
before the hearing, and he was without driving privileges at the time of the hearing.
       Hern raised an exhaustive list of challenges to his license suspension at the administrative
hearing. The hearing officer rejected each of these contentions and sustained the ninety-day
license suspension.2 Hern filed a petition for judicial review, and the district court affirmed the
hearing officer’s decision. Hern again appeals.
                                                  II.
                                           ANALYSIS
       Hern argues the applicable SOPs are invalid because they were not properly promulgated
as rules. He also contends that the administrative license suspension procedures fail to meet due
process requirements. According to Hern, the procedures violated his due process rights because
his temporary driver’s license expired prior to the hearing date. Finally, Hern claims the hearing
officer violated his equal protection rights by extending the hearing date to obtain discovery
under Hern’s requested subpoenas.
       The Idaho Administrative Procedure Act 2009 (IDAPA) governs the review of ITD
decisions to deny, cancel, suspend, disqualify, revoke, or restrict a person’s driver’s license. See

1
       The date of service on the notice of suspension was April 6, 2013.
2
        Because Hern’s license suspension had gone into effect prior to the hearing, the hearing
officer credited Hern with four days and ordered that Hern’s suspension run for eighty-six days.
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I.C. §§ 49-201, 49-330, 67-5201(2), 67-5270. In an appeal from the decision of the district court
acting in its appellate capacity under IDAPA, this Court reviews the agency record
independently of the district court’s decision. Marshall v. Dep’t of Transp., 137 Idaho 337, 340,
48 P.3d 666, 669 (Ct. App. 2002). This Court does not substitute its judgment for that of the
agency as to the weight of the evidence presented. I.C. § 67-5279(1); Marshall, 137 Idaho at
340, 48 P.3d at 669. This Court instead defers to the agency’s findings of fact unless they are
clearly erroneous. Castaneda v. Brighton Corp., 130 Idaho 923, 926, 950 P.2d 1262, 1265
(1998); Marshall, 137 Idaho at 340, 48 P.3d at 669. In other words, the agency’s factual
determinations are binding on the reviewing court, even where there is conflicting evidence
before the agency, so long as the determinations are supported by substantial and competent
evidence in the record. Urrutia v. Blaine County, ex rel. Bd. of Comm’rs, 134 Idaho 353, 357,
2 P.3d 738, 742 (2000); Marshall, 137 Idaho at 340, 48 P.3d at 669.
       The Court may overturn an agency’s decision where its findings, inferences, conclusions,
or decisions: (a) violate statutory or constitutional provisions; (b) exceed the agency’s statutory
authority; (c) are made upon unlawful procedure; (d) are not supported by substantial evidence
in the record; or (e) are arbitrary, capricious, or an abuse of discretion. I.C. § 67-5279(3). The
party challenging the agency decision must demonstrate that the agency erred in a manner
specified in I.C. § 67-5279(3) and that a substantial right of that party has been prejudiced. Price
v. Payette County Bd. of County Comm’rs, 131 Idaho 426, 429, 958 P.2d 583, 586 (1998);
Marshall, 137 Idaho at 340, 48 P.3d at 669. If the agency’s decision is not affirmed on appeal, it
shall be set aside and remanded for further proceedings as necessary. I.C. § 67-5279(3).
       The administrative license suspension statute, I.C. § 18-8002A, requires that ITD suspend
the driver’s license of a driver who has failed a breath alcohol content test administered by a law
enforcement officer. The period of suspension is ninety days for a driver’s first failure of an
evidentiary test, and one year for any subsequent test failure within five years. I.C. § 18-
8002A(4)(a). A person who has been notified of such an administrative license suspension may
request a hearing before a hearing officer designated by ITD to contest the suspension. I.C. § 18-
8002A(7). At the administrative hearing, the burden of proof rests upon the driver to prove any
of the grounds to vacate the suspension. I.C. § 18-8002A(7); Kane v. State, Dep’t of Transp.,
139 Idaho 586, 590, 83 P.3d 130, 134 (Ct. App. 2003). The hearing officer must uphold the
suspension unless he or she finds, by a preponderance of the evidence, that the driver has shown

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one of several grounds enumerated in I.C. § 18-8002A(7) for vacating the suspension. Those
grounds include:
               (a)     The peace officer did not have legal cause to stop the person; or
               (b)     The officer did not have legal cause to believe the person had been
       driving or was in actual physical control of a vehicle while under the influence of
       alcohol, drugs or other intoxicating substances in violation of the provisions of
       section 18-8004, 18-8004C or 18-8006, Idaho Code; or
               (c)     The test results did not show an alcohol concentration or the
       presence of drugs or other intoxicating substances in violation of section 18-8004,
       18-8004C or 18-8006, Idaho Code; or
               (d)     The tests for alcohol concentration, drugs or other intoxicating
       substances administered at the direction of the peace officer were not conducted
       in accordance with the requirements of section 18-8004(4), Idaho Code, or the
       testing equipment was not functioning properly when the test was administered;
       or
               (e)     The person was not informed of the consequences of submitting to
       evidentiary testing as required in subsection (2) of this section.
I.C. § 18-8002A(7). The hearing officer’s decision is subject to challenge through a petition for
judicial review. I.C. § 18-8002A(8); Kane, 139 Idaho at 589, 83 P.3d at 133.
       Hern argues that the SOPs for breath alcohol testing in place at the time he was tested do
not have the full force and effect of law, and accordingly, any agency action resting on the SOPs
must be set aside. The only applicable provision for the hearing officer to vacate Hern’s license
suspension is the first clause of subsection (d) of I.C. § 18-8002A(7), which requires a driver to
show that “the tests for alcohol concentration, drugs or other intoxicating substances
administered at the direction of the peace officer were not conducted in accordance with the
requirements of section 18-8004(4), Idaho Code.”        Idaho Code § 18-8004(4) provides, in
relevant part:
       Analysis of blood, urine or breath for the purpose of determining the alcohol
       concentration shall be performed by a laboratory operated by the Idaho state
       police or by a laboratory approved by the Idaho state police under the provisions
       of approval and certification standards to be set by that department, or by any
       other method approved by the Idaho state police. Notwithstanding any other
       provision of law or rule of court, the results of any test for alcohol concentration
       and records relating to calibration, approval, certification or quality control
       performed by a laboratory operated or approved by the Idaho state police or by
       any other method approved by the Idaho state police shall be admissible in any
       proceeding in this state without the necessity of producing a witness to establish
       the reliability of the testing procedure for examination.



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       The Idaho State Police (ISP) approved the SOPs for breath testing. Two cases recently
decided by the Idaho Supreme Court determined that the applicable SOPs are void because they
were not adopted pursuant to IDAPA.3 State v. Riendeau, 159 Idaho 52, 355 P.3d 1282 (2015);
State v. Haynes, 159 Idaho 36, 355 P.3d 1266 (2015).
       In Haynes, the Supreme Court analyzed I.C. § 18-8004(4). The Court noted that the
“statute requires that analysis of blood or urine ‘shall be performed by a laboratory operated by
the Idaho state police or by a laboratory approved by the Idaho state police under the provisions
of approval and certification standards to be set by that department.’” Haynes, 159 Idaho at 44,
355 P.3d at 1274 (emphasis added).       With respect to breath testing, the Court noted that
I.C. § 18-8004(4) provides that:
       “[a]nalysis of . . . breath for the purpose of determining the alcohol concentration
       shall be performed . . . by any other method approved by the Idaho state police.”
       The “any other method” would be a method other than in a laboratory operated or
       approved by the State Police. The 2013 SOPs set forth procedures to implement
       breath testing under section 18-8004(4).
Id. Because the 2013 SOPs substantially conformed to the Court’s definition in Asarco, Inc.
v. State, 138 Idaho 719, 69 P.3d 139 (2003) of a rule, the Court held “the 2013 SOPs would
constitute rules” that must be adopted in compliance with IDAPA. Haynes, 159 Idaho at 45, 355
P.3d at 1275. The 2013 SOPs were not adopted in compliance with IDAPA, and accordingly,
the Court held that the 2013 SOPs were void. Id.4
       In this case, the hearing officer concluded that “Hern’s evidentiary test was conducted in
accordance with the requirements of I.C. § 18-8004, the IDAPA Rules, and ISP’s Standard
Operating Procedure.” However, the Haynes Court interpreted I.C. § 18-8004(4) to require that
ISP’s approved method for breath testing be adopted in compliance with IDAPA. Thus, Hern’s
breath test could not be conducted in accordance with the requirements of I.C. § 18-8004(4)
because the method approved by ISP and used for Hern’s test (the 2013 SOPs) was not adopted
in compliance with IDAPA. Because Hern’s breath test was not conducted in accordance with
the requirements of I.C. § 18-8004(4), Hern successfully demonstrated that the grounds
enumerated in I.C. § 18-8002A(7)(d) for vacating the suspension were met. Thus, the hearing
3
       The Haynes and Riendeau Courts addressed the SOPs existing in 2013, which are
applicable to the present case. The SOPs have since been promulgated as rules.
4
         Hern’s challenge to the SOPs was similar to that in Haynes and Riendeau, and although
this is an ALS proceeding, not a criminal case, our analysis is the same.
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officer’s decision upholding the license suspension was contrary to I.C. § 18-8002A(7)(d) and
unsupported by evidence in the record. Accordingly, we reverse the district court’s decision
affirming the hearing officer’s decision and vacate Hern’s license suspension.
       Because we are vacating Hern’s license suspension, we need not address his claims that
the hearing procedures deprived him of due process and the hearing officer violated his equal
protection rights.
                                               III.
                                        CONCLUSION
       Hern’s breath test was not conducted in accordance with the requirements of I.C. § 18-
8004(4), Hern successfully demonstrated that the grounds enumerated in I.C. § 18-8002A(7)(d)
for vacating the suspension were met, and the hearing officer’s decision upholding the license
suspension was contrary to I.C. § 18-8002A(7)(d) and unsupported by evidence in the record.
The district court’s decision affirming the hearing officer’s decision is reversed. Hern’s license
suspension is vacated.
       Judge GUTIERREZ and Judge HUSKEY CONCUR.




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