                  IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                               Docket No. 39829

IN THE MATTER OF THE DRIVER’S                              )   2013 Opinion No. 31
LICENSE SUSPENSION OF KAREN ANN )
KIMBLEY                                                    )   Filed: June 4, 2013
---------------------------------------------------------- )
                                                           )   Stephen W. Kenyon, Clerk
KAREN ANN KIMBLEY,                                         )
                                                           )
         Petitioner-Respondent,                            )
                                                           )
v.                                                         )
                                                           )
STATE OF IDAHO, TRANSPORTATION )
DEPARTMENT,                                                )
                                                           )
         Respondent-Appellant.                             )
                                                           )

        Appeal from the District Court of the Second Judicial District, State of Idaho,
        Latah County. Hon. John R. Stegner, District Judge.

        Order of the district court vacating hearing officer’s decision to suspend driver’s
        license, reversed.

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

        McCormick & Rokyta, PLLC, Moscow for respondent.    Deborah Lynn
        McCormick argued.
                ________________________________________________
GRATTON, Judge
        The Idaho Transportation Department (ITD) appeals from the district court’s order
vacating the hearing officer’s decision to sustain the suspension of Karen Ann Kimbley’s
driver’s license. ITD claims the district court erred by determining the hearing officer’s decision
was not supported by substantial and competent evidence in the record. ITD specifically argues
the hearing officer correctly found that Kimbley, prior to submitting a breath test, was properly
monitored in accordance with the Idaho State Police Standard Operating Procedure (SOP).




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                                                I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       On August 6, 2011, at approximately 9:13 p.m., Latah County Sheriff’s Deputy Duke
conducted a traffic stop of Kimbley for driving erratically. The deputy subsequently made
contact with Kimbley and suspected she was under the influence of alcohol because of her
driving, state of confusion, and trouble finding the appropriate documentation. After the deputy
checked her eyes for nystagmus and Kimbley admitted she had a drink, the deputy informed
Kimbley she was under arrest for DUI. Kimbley was then transported to the Latah County Jail.
       At the jail, Deputy Duke checked Kimbley’s mouth at 10:08:17 for anything that would
affect a breath test.   After approximately twenty-one minutes, Kimbley made three failed
attempts to provide a sufficient breath sample. 1 After a second fifteen-minute monitoring period,
Kimbley then provided sufficient breath samples. The breath samples showed a result of .126
and .127. ITD later served Kimbley with a notice of administrative license suspension (ALS),
pursuant to Idaho Code § 18-8002A, due to her failure of the breath test.
       Kimbley requested an ALS hearing. A hearing was held telephonically on September 6,
2011. The hearing officer’s findings of fact and conclusions of law and order was issued
September 19, 2011, sustaining the suspension of Kimbley’s driver’s license.
       Kimbley filed a petition for judicial review. On February 28, 2012, the district court
vacated the suspension on the ground that the hearing officer’s findings that the deputy complied
with the fifteen-minute monitoring period were not supported by substantial and competent
evidence. ITD timely appealed.




1
        After the first monitoring period, the recording of Kimbley stops. According to both
parties, once the recording resumes, Deputy Duke is in the process of explaining to Kimbley that
she failed the tests and is being arrested for DUI. However, the video in our record never
resumes after the first monitoring period.
        Deputy Duke testified that the prosecutor’s assistant informed him that the second
observation period was not included in the video. The deputy further testified that after the
insufficient breath tests, he turned off his recording in order to call his sergeant and discuss
whether to try another breath test or take Kimbley for a blood draw. While Kimbley was
providing the second set of breath samples, the deputy checked his recorder and noticed that it
was off.

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                                                II.
                                           ANALYSIS
A.     Standards
       The Idaho Administrative Procedures Act (IDAPA) governs the review of ITD 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 IDAPA, 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 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 BAC 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 an ALS may request a hearing before a hearing officer, designated by


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ITD, to contest the suspension. I.C. § 18-8002A(7); Kane v. State, Dep’t of Transp., 139 Idaho
586, 588, 83 P.3d 130, 132 (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
are:
               (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 ITD are inadequate. Kane, 139
Idaho at 590, 83 P.3d at 134.
B.     Fifteen-Minute Monitoring Period
       Pursuant to I.C. § 18-8004(4), the Idaho State Police 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, ISP
issued operating manuals as well as SOP for the maintenance and operation of breath test
equipment.    In re Mahurin, 140 Idaho 656, 658, 99 P.3d 125, 127 (Ct. App. 2004).
Noncompliance with these procedures is a ground for vacating an administrative license




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suspension under I.C. § 18-8002A(7)(d). Mahurin, 140 Idaho at 658-59, 99 P.3d at 127-28. In
this case there is no evidence in the record or argument based upon applicable manuals. 2
       The applicable SOP for breath alcohol testing provided that “[p]rior to evidentiary breath
alcohol testing, the subject/individual should be monitored for at least fifteen (15) minutes. . . .
During the monitoring period the subject/individual should not be allowed to smoke, drink, eat,
or belch/burp/vomit/regurgitate.”     6.0 Idaho Standard Operating Procedure Breath Alcohol
Testing, Section 6.1. The SOP noted that “[d]uring the monitoring period, the Operator must be
alert for any event that might influence the accuracy of the breath alcohol test.” Section 6.1.4.
“If mouth alcohol is suspected or indicated, the Operator should begin another 15-minute waiting
period before repeating the testing sequence.”        Section 6.1.4.1.      If the subject vomits or
regurgitates, the fifteen-minute monitoring period must begin again. Section 6.1.4.2. Pursuant
to Section 6.1.4.3, if there is doubt as to events occurring during the monitoring period, the
officer should look at the results of the two samples for evidence of potential alcohol
contamination, and the officer is referred to Section 6.2.2.2. Section 6.2.2.2 states that “[t]he
results for duplicate breath samples should correlate within 0.02 to indicate the absence of
alcohol contamination in the subject/individual’s breath pathway . . . .”
       This Court has addressed the fifteen-minute monitoring period in Bennett v. State, Dep’t
of Transp., 147 Idaho 141, 206 P.3d 505 (Ct. App. 2009). We noted that the purpose of the
monitoring period is 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. Id. at 144,
206 P.3d at 508. See also State v. Carson, 133 Idaho 451, 453, 988 P.2d 225, 227 (Ct. App.
1999). To satisfy the monitoring requirement, the level of surveillance “must be such as could
reasonably be expected to accomplish” that purpose. Bennett, 147 Idaho at 144, 206 P.3d at 508.
Furthermore, in DeFranco, this Court commented that the fifteen-minute monitoring period is
not an onerous burden and that “[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. Therefore, “[s]o long



2
       These manuals have changed over time. The courts have periodically looked to these
manuals for information regarding the requirements of the monitoring period. See State v.
Carson, 133 Idaho 451, 453, 988 P.2d 225, 227 (Ct. App. 1999). However, the requirements
appear to be focused on the SOP.

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as the officer is continually in [a] position to use his senses, not just sight, to determine that the
defendant did not belch, burp or vomit during the [monitoring] period, the observation complies
with the training manual instructions.” Bennett, 147 Idaho at 144, 206 P.3d at 508; cf. Carson,
133 Idaho at 453, 988 P.2d at 227 (holding that the arresting officer’s ability to supplement his
visual monitoring of Carson with his other senses was substantially impaired by numerous
sources of noise, the officer’s own hearing impairment, and his position facing away from
Carson while transporting him during the monitoring period).
       The evidence presented at Kimbley’s administrative hearing was the deputy’s probable
cause affidavit, the video recording of the first fifteen-minute monitoring period, the deputy’s
testimony, and Kimbley’s own testimony. During the administrative hearing, Deputy Duke
testified that he conducted two separate fifteen-minute monitoring periods. 3 Regarding the first
fifteen-minute monitoring period, the deputy stated that Kimbley was placed in the custody of
the jail deputy to be searched, as he checked the time on the breath test machine and noted it in
his report. According to the deputy, he could “stand with her and look into the room and check
the time . . . .” He then escorted Kimbley into an interview room, gave her a copy of the ITD
license suspension form, and played the advisory recording.          During this time, the deputy
observed Kimbley. After approximately thirteen to fourteen minutes, he escorted Kimbley into
the breath testing room, where he began entering information into the machine. At the end of the
first monitoring period, Kimbley submitted to the breath test, but failed to provide a sufficient
sample.
       The deputy then testified that he started another fifteen-minute monitoring period.
Regarding the second fifteen-minute monitoring period, the deputy testified, he “just observed
her the whole time” and did not replay the advisories. The deputy further explained he “walked
her back into the interview room and essentially just sat in the room with her.” According to the
testimony, only the deputy and Kimbley were in the interview room, but the other jail deputies
were in their office, which was approximately eight feet away with two windows in between the
two rooms. He then told the jail deputies his new start time and the time he would like to take
samples. He waited approximately thirteen minutes with Kimbley, before he escorted Kimbley




3
       As noted, there is no video of the second fifteen-minute monitoring period.

                                                  6
back into the breath testing room where he programmed the machine. Thereafter, Kimbley
submitted the breath samples of .126 and .127.
       Kimbley next testified at the administrative hearing. According to Kimbley’s testimony,
she was brought into the jail and patted down--she did not notice where the deputy was or what
he was doing at this time. She further testified that after the search she was taken into a room
with a table and chairs and listened to an audiotape. She was then taken into another room and
given a breath test. Kimbley testified at that point, she was unaware of the first fifteen-minute
monitoring period. Her first breath tests, she was told, did not provide sufficient samples and
would be marked as a refusal.
       Kimbley testified that after the first monitoring period, she was taken back into the
interview room where the deputy previously played the audio tape.
       A.     But I--but after these tests were done, I--the first set of tests were done, I was
              taken into a little room with a table and chairs.
       Q.     Is that the same room you were in earlier?
       A.     Yeah. And I was told to wait there and they were going to give me fifteen
              minutes until the next tests were done, and--
       Q.     Okay. So this was a different room from the breath testing machine; this was the
              other room--
       A.     Yes.
       Q.     --where you had earlier listened to the audiotape?
       A.     Yes, it was.
       Q.     Okay. And was just Deputy Duke in there with you at that time?
       A.     He was, for part of the time.
       Q.     He was for part of the time. Well, what happened?
       A.     Yeah.
       Q.     Why was he--did he leave the room?
       A.     Yeah, he did.
       Q.     Where did he go? Did you see where he went?
       A.     He sat with me for--he sat with me for a few minutes, and then he got up and went
              to another office where the other officers were at and where they sit and--where
              the other officers sit down there and hang out. He was walking back and forth.
       Q.     Okay. So he walked back and forth between the two rooms?
       A.     Yeah.
       Q.     So how--how many times did he come into the room and then leave the room, do
              you recall?
       A.     I--I don’t. I probably--probably, two or three times.
       Q.     Okay. Now, could you describe for me the location of the room where you were
              sitting in relation to the room where he was walking to? Is it--how far away is it?
       A.     I don’t know. I’m not very good with measurements.
       Q.     Is it--is it--are they completely adjacent? Is there a hallway in between?



                                                 7
       A.     Oh, they’re--they’re--they’re pretty much adjacent to each other, but he did go out
              of sight from me throughout a couple of them times that he walked away.
       A.     Okay.
       A.     He went into--he went into a different office.

       Following Kimbley’s testimony, the hearing officer allowed the deputy an opportunity to
comment. The deputy further explained:
               I would just like to add that I may have had Ms. Kimbley move back into
       the original room while I was in another room making a phone call to my
       sergeant, and then come back in to tell her maybe we’re going to give another
       breath test, and then go back into the Intox room to check the time. And that
       could have explained why I was in and out of the room. But given the time
       elapsed since that and I don’t have my recording to review, unfortunately, I can’t
       be totally sure about that.

       The hearing officer concluded that the deputy complied with the fifteen-minute
monitoring period. The hearing officer specifically found:
       1.     Deputy Duke’s affidavit states the evidentiary test was performed in
              compliance with Idaho Code and ISPFS SOPs.
       2.     ISPFS SOP § 6.1 provides a fifteen-minute monitoring period is required
              prior to an evidentiary test.                (SOPs are located at:
              www.isp.idaho.gov./forensic/alcohol.html).
       3.     Unlike Kimbley’s ALS testimony, the DVD (Exhibit C) at 22:21:33
              provides Deputy Duke informing Kimbley about the fifteen-minute
              monitoring period and the reasons for the monitoring period.
       4.     Exhibit C shows Deputy Duke informed the jail staff that he started
              Kimbley’s first monitoring period at approximately 22:12:41.
       5.     During the first monitoring period, Exhibit C (between 22:12:47 and
              22:29:53) provides Deputy Duke continuously in close proximity to
              Kimbley, able to use a combination of all of his senses to monitor
              Kimbley, and that he did not leave Kimbley’s presence at any time before
              Deputy Duke had Kimbley blow into the Intoxilyzer 5000EN.
       6.     Exhibit C additionally shows Kimbley’s first monitoring period was in
              excess of fifteen minutes.
       7.     Deputy Duke’s ALS testimony noted the reasons for leaving Kimbley’s
              location after Kimbley’s first breath test and prior to the start of her
              second monitoring period.
       8.     Kimbley’s two breath test printouts (Exhibits 2 and 3) demonstrate
              sufficient time for Deputy Duke to communicate with his sergeant and
              restart Kimbley’s fifteen-minute monitoring period.
       9.     Kimbley’s testimony noted she assumed the number of times Deputy
              Duke left her presence and she had no idea when or if he had restarted the
              monitoring period.



                                               8
        10.    Kimbley’s recollection of what occurred between the first and second
               evidentiary breath testing sequence is based upon a time when her
               memory was impaired (see Exhibit 4’s DUI NOTES) and having an
               alcohol content that was in excess of the legal limit to drive a vehicle (see
               Exhibit 3).
        11.    It is reasonable to deduce if Deputy Duke conducted Kimbley’s first
               evidentiary breath testing sequence in accordance with ISPFS SOPs, by
               natural habit, Deputy Duke would follow proper procedures again when
               he restarted the monitored period for Kimbley’s second evidentiary breath
               testing sequence.
        12.    Kimbley’s two subject tests noted in Exhibit 3 being within .02 of each
               other as required by SOP § 6.2 strongly shows the absence of alcohol
               contamination in Kimbley’s breath pathway as the result of an improper
               monitoring period (see SOP § 6.2.2.2).
        13.    Kimbley’s evidentiary test was performed in compliance with Idaho Code
               and SOPs.

        The district court, on judicial review, vacated the license suspension. The district court
held that the finding was not supported by substantial evidence in the record because the deputy
did not properly monitor Kimbley for fifteen minutes prior to administering the second breath
test.
                If it were just a pure credibility determination, I think I would throw in
        with you. But my dilemma is when Kimbley testifies that he [Deputy Duke] left
        the room during the second period, and the hearing officer gives Duke the
        opportunity to respond to that, he doesn’t--he doesn’t dispute her characterization
        of the testimony.
                And if he left the room, then I think the procedure hasn’t been followed.
        And so now I’m--she has direct testimony that he left the room during the second
        testing period. And he doesn’t contradict that. So, I don’t know that that’s truly a
        credibility determination. That’s my dilemma, right there.
                ....
                Well, I think if Duke had gotten on the stand after Kimbley testified and
        said, I stayed with her the entirety of that time, I’d affirm. But I don’t have that
        testimony.
                ....
                But I think--and maybe this is more philosophy than law, that when a
        device is being used to say, you no longer get to drive, that you ought to
        scrupulously comply with whatever requirements have been set out, and without
        that scrupulous performance, I’m not willing to say that that test is valid.
                And then I may be at the far end of the spectrum as far as district judges
        are concerned in saying that, but that’s--that’s really where I am. And until the
        Court gives me better guidance that I’m being too strict in my application of the
        regs, I’m probably going to continue to apply the regs in the way that I have.
                ....


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               Had Duke said, no, I sat with her the entirety of the fifteen minutes, I
       would affirm, but because he vacillates in his response to her testimony, I’m
       setting aside the ALS determination.

       The district court appears to have misunderstood the statement made by the deputy.
Without any context, which would have been provided by a question posed to the deputy, he
stated that his coming and going from the room was at the time he moved Kimbley back to the
original room between the two monitoring periods. He did not state that his movement in and
out of the room was during the second monitoring period. Consistently, he had previously
testified that he in fact was in and out of the room between the two monitoring periods to consult
with his sergeant. Further, the district court stated that the court would affirm if only the deputy
had, in his comment, denied Kimbley’s testimony that he left the room during the second
monitoring period. However, the deputy had previously testified that he had not left the room
during the second monitoring period. He was under no further obligation to expressly deny her
testimony to the extent he even understood it to suggest that he left the room during the second
monitoring period. The deputy had testified that he properly monitored Kimbley during the
second monitoring period and had not left the room during that time. Even if Kimbley’s
testimony was that the deputy did leave the room on two-to-three occasions during the second
monitoring period, that testimony is simply contradictory to the deputy’s prior testimony that he
did not do so. It remains the hearing officer’s province to resolve conflicting testimony. The
hearing officer’s determination that the second monitoring period complied with applicable
standards is supported by substantial and competent evidence in the record and the findings have
not been demonstrated to be clearly erroneous. 4
                                                III.
                                         CONCLUSION
       Substantial evidence exists in the record to support the hearing officer’s findings that the
deputy properly conducted the fifteen-minute monitoring period. Therefore, we reverse the



4
       Kimbley makes a number of arguments regarding credibility. Kimbley’s credibility
arguments center on her belief that the deputy’s testimony was inconsistent and contradicted her
testimony which, according to her, was wholly consistent.            However, the credibility
determination was resolved by the hearing officer in favor of the deputy. Her arguments do not
change our sufficiency of the evidence analysis. We conclude that substantial and competent
evidence in the record supports the hearing officer’s determination.

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district court’s order upon judicial review vacating the hearing officer’s decision suspending
Kimbley’s driver’s license.
       Judge LANSING and Judge MELANSON CONCUR.




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