               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 35150

STACIE DAWN BENNETT,                             )     2009 Opinion No. 23
                                                 )
       Plaintiff-Respondent,                     )     Filed: April 2, 2009
                                                 )
v.                                               )     Stephen W. Kenyon, Clerk
                                                 )
STATE OF IDAHO, DEPARTMENT OF                    )
TRANSPORTATION,                                  )
                                                 )
       Defendant-Appellant.                      )
                                                 )

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

       Memorandum decision and order of the district court vacating suspension of
       driver’s license, affirmed.

       Edwin L. Litteneker, Special Deputy Attorney General, Lewiston, for appellant.
       Edwin L. Litteneker argued

       Clark and Feeney, Lewiston, for respondent. Paul T. Clark argued.
                   ______________________________________________
GRATTON, Judge
       The Idaho Transportation Department appeals from the district court’s memorandum
decision and order, upon judicial review, reversing the Idaho Transportation Department’s order
suspending Stacie Dawn Bennett’s driver’s license. We affirm.
                                                I.
                       FACTS AND PROCEDURAL BACKGROUND
       Bennett was charged with driving under the influence. Idaho Code §18-8004. A breath
alcohol test, using an Intoxilyzer 5000, showed a blood alcohol concentration (BAC) of
.090/.095, exceeding the legal limit of .08. As a result, Bennett’s license was suspended by the
Idaho Transportation Department (ITD). Bennett requested an administrative hearing to contest
her license suspension. The hearing officer found that the proper procedures and standards were
followed by the officer administering the breath test and suspended Bennett’s driving privileges
for ninety days. Bennett appealed to the district court. The district court vacated the suspension

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of Bennett’s driver’s license holding that there was not substantial evidence in the record to
support a finding that the breath test was administered in compliance with procedural standards.
This appeal by ITD followed.
                                                II.
                                           ANALYSIS
       The Idaho Administrative Procedures Act (I.D.A.P.A.) governs the review of department
decisions to deny, cancel, suspend, disqualify, revoke, or restrict a person’s driver’s license. See
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 I.D.A.P.A., this Court reviews the agency record
independently of the district court’s decision. Marshall v. Idaho 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 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.
       A 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 (ALS) statute, I.C. § 18-8002A, requires that the
ITD suspend the driver’s license of a driver who has failed a BAC test administered by a law
enforcement officer. The period of suspension is ninety days for a driver’s first failure of an


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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 an ALS may request a hearing before a hearing
officer designated by the 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 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.
       The burden of proof at an ALS hearing is on the individual requesting the hearing, and
that burden is not satisfied merely by showing that the documents received by the ITD are
inadequate. Kane, 139 Idaho at 590, 83 P.3d at 134. The evidence presented at Bennett’s
administrative hearing was the officer’s probable cause affidavit and Bennett’s own testimony.
The affidavit is a computer-generated form document. The affidavit contains a paragraph above
the officer’s signature line that reads: “The test(s) was/were performed in compliance with
Section 18-8003 & 18-8004(4) Idaho Code and the standards and methods adopted by the
Department of Law Enforcement.” The officer did not testify. Bennett testified that the officer
left the room at least twice during the fifteen minutes of monitoring immediately prior to the
administration of the blood alcohol test. She also testified that during this monitoring period she



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was coughing continuously due to a sinus infection and bronchitis.             The hearing officer
concluded that the officer followed proper procedures and standards to ensure the reliability of
the operation of the Intoxilyzer 5000 and the test result. In pertinent part, the hearing officer
found:
                 The officer certified that he administered the breath test in compliance
         with the standards and methods adopted by the Department of Law Enforcement
         for the administration of breath tests which standards include specific directions
         on a 15 minute observation period prior to the test administration. While the
         driver testified that the officer was in and out of the room during the waiting
         period, no specific testimony was produced to show that the 15 minute period was
         not present. The driver had the burden to do so if she were to successfully
         challenge the officers [sic] statement that he had properly observed the waiting
         period.

         The district court reversed the hearing officer’s decision, concluding that his finding that
the officer properly monitored Bennett for fifteen minutes immediately prior to administering the
breath test was not supported by substantial evidence in the record, as a whole. The district court
held that Bennett’s testimony that the officer left the room on two occasions during the
monitoring period was not specifically controverted. The district court further held that the
officer’s computer-generated affidavit, which stated generally that proper procedures were
followed, was insufficient to rebut Bennett’s testimony. The district court concluded that,
because the officer left the room during the monitoring period, the officer failed to follow proper
procedure.
         Pursuant to I.C. § 18-8004(4), the Idaho State Police (ISP) are charged with promulgating
standards for administering tests for breath alcohol content. State v. DeFranco, 143 Idaho 335,
337, 144 P.3d 40, 42 (Ct. App. 2006). To carry out the authority conferred by that statute, the
ISP issued operating manuals establishing procedures for the maintenance and operation of
breath test equipment, including the Intoxilyzer 5000. In Re Mahurin, 140 Idaho 656, 659, 99
P.3d 125, 127 (Ct. App. 2004). Noncompliance with these procedures is a ground for vacating
an administrative license suspension under I.C. § 18-8002A(7)(d). Id. The pertinent portion of
the manual instructs:
         Observe the subject for 15 minutes. During this time, the subject may not smoke,
         consume alcohol, belch, vomit, use chewing tobacco, or have any other substance
         in the mouth. If belching or vomiting does occur or something is found in the
         mouth, wait an additional 15 minutes.



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State v. Carson, 133 Idaho 451, 453, 988 P.2d 225, 227 (Ct. App. 1999).
       Bennett testified that she was violently coughing throughout the monitoring period.
However, coughing during the monitoring period does not implicate an invalid test or improper
procedures. The operator’s manual for the Intoxilyzer 5000 requires that the breath test subject
be monitored immediately prior to administration of the breath test to assure that the subject did
not smoke, ingest any substance, vomit or belch, because such actions could render the breath
test inaccurate. Mahurin, 140 Idaho at 660, 99 P.3d at 129. The operator’s manual does not
mention coughing as an action which could render the breath test inaccurate.
       In Carson, 133 Idaho at 453, 988 P.2d at 227, we noted that the monitoring period is
required in order to rule out the possibility that alcohol or other substances have been introduced
into the subject’s mouth from the outside or by belching or regurgitation.            The level of
surveillance must be such as could reasonably be expected to accomplish the purpose of the
requirement. In light of the purposes of the requirement, “observation” can include not only
visual observation but use of other senses as well. So long as the officer is continually in
position to use his senses, not just sight, to determine that the defendant did not belch, burp or
vomit during the observation period, the observation complies with the training manual
instructions. In this regard, the officer need not “stare fixedly” at the subject for the entire
observation period. State v. Remsburg, 126 Idaho 338, 340-41, 882 P.2d 993, 995-96 (Ct. App.
1994). The fifteen-minute monitoring period is not an onerous burden and “[t]his foundational
standard ordinarily will be met if the officer stays in close physical proximity to the test subject
so that the officer’s senses of sight, smell and hearing can be employed.” DeFranco, 143 Idaho
at 338, 144 P.3d at 43. In State v. Utz, 125 Idaho 127, 128-29, 867 P.2d 1001, 1002-03 (Ct. App.
1993), we held that an officer who left the area in which the subject was being detained had not
adequately observed the subject for the requisite time period. Therefore, to the extent the
evidence demonstrates that the officer left the monitoring room and, as such, could not employ
his senses to monitor Bennett, proper procedures were not followed.
       Bennett bore the burden to prove grounds to vacate the suspension of her license.
Bennett testified that the officer left the room twice during the fifteen-minute monitoring period.
The hearing officer did not find Bennett’s testimony to lack credibility. This testimony, then,
would demonstrate that proper monitoring procedures were not followed, and that the test for
alcohol concentration was, therefore, not conducted in accordance with the requirements of I.C.


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§ 18-8004(4). The State presented only the officer’s probable cause affidavit. The officer’s
form affidavit provides only generalized statements regarding employment of proper procedures.
However, when specific, credible evidence demonstrates a violation of proper procedures, the
affidavit alone is insufficient to support a finding that proper procedures were followed. Thus,
the hearing officer’s finding that the breath test was conducted in compliance with procedural
standards is not supported by substantial evidence in the record as a whole.     Therefore, the
district court did not err in vacating the hearing officer’s decision.
                                                 III.
                                          CONCLUSION
       The hearing officer’s finding that the police officer complied with the monitoring period
procedures is not supported by substantial competent evidence in the record. Accordingly, the
memorandum decision and order of the district court is affirmed.
       Judge PERRY and Judge GUTIERREZ, CONCUR.




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