               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 43870

STATE OF IDAHO,                                ) 2017 Opinion No. 55
                                               )
       Plaintiff-Respondent,                   ) Filed: November 2, 2017
                                               )
v.                                             ) Karel A. Lehrman, Clerk
                                               )
AMANDA LUCY BELLE DIAZ,                        )
                                               )
       Defendant-Appellant.                    )
                                               )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
       County. Hon. Deborah A. Bail, District Judge.

       Judgment of conviction, affirmed.

       Eric D. Fredericksen, State Appellate Public Defender; Brian R. Dickson, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________

HUSKEY, Judge
       Amanda Lucy Belle Diaz appeals from the judgment of conviction entered after a jury
found her guilty of driving while under the influence of drugs (DUI). Diaz argues the State
elicited improper testimony from two witnesses resulting in prosecutorial misconduct. Diaz
further asserts this misconduct rises to the level of fundamental error. Because the testimony
from the two witnesses was admissible and not improper, Diaz has not established either
prosecutorial misconduct or fundamental error. Consequently, we affirm the district court’s
judgment of conviction.
                                               I.
                    FACTUAL AND PROCEDURAL BACKGROUND
       A police officer stopped Diaz because the officer suspected Diaz was driving under the
influence of alcohol or controlled substances. A second officer arrived at the scene shortly
thereafter. Diaz stepped out of her car and stated that she was taking prescription medications.

                                               1
The second officer had Diaz perform field sobriety tests (FST). Diaz failed the tests. As a result,
the FST officer determined Diaz was operating her motor vehicle while under the influence of
some substance. The FST officer explained to Diaz that she was under arrest for suspicion of
DUI, and the officer performed an alcohol breath test on Diaz. The test results did not indicate
any breath alcohol. Because the FST officer suspected Diaz was under the influence of a
controlled substance, he transported Diaz to the police station to complete a drug recognition
evaluation (DRE). A different officer performed the DRE on Diaz. The DRE officer suspected
Diaz was under the influence of drugs and asked Diaz to submit to a urinalysis test at the jail.
Diaz agreed.
       Diaz was handcuffed and transported from the police station to jail. On the way to the
jail, Diaz became unconscious and was taken to the hospital where she was asked to provide a
urine sample.    Diaz voluntarily provided an initial sample, but the amount of urine was
insufficient to test. Ultimately, a urine sample was obtained 1 that indicated the presence of
various controlled substances in Diaz’s system. The State charged Diaz with felony DUI, Idaho
Code §§ 18-8004, 18-8005(6), and misdemeanor driving without privileges (DWP), I.C. § 18-
8001(3).
       At trial, the State called the FST officer and the DRE officer to testify. The State asked
the FST officer to explain the discussion he had with Diaz regarding obtaining a fluid sample for
drug testing. The officer testified that because he was a male officer he was not permitted to
collect a urine sample from Diaz and no female officer was present at the police station to do so.
The State then asked: “So what was the discussion--was there a further discussion with Ms. Diaz
about things at that point?” The FST officer answered: “There was. There was a discussion of
whether she would submit to a blood draw having Meridian Fire and Paramedics come take a
blood sample from her. She did not consent to that, but she did agree to provide a [urine] sample

1
         The record reflects there was a forced catheterization of Diaz. Diaz filed a motion to
suppress the urinalysis results from the urine obtained as a result of Diaz’s forced catheterization.
It is not clear whether medical staff ordered the catheterization to obtain a urine sample for
healthcare diagnosis and treatment or whether law enforcement ordered the forced
catheterization to obtain a urine sample for law enforcement purposes. The district court
suppressed any test results obtained from the urine sample taken as a result of the forced
catheterization for law enforcement purposes, finding it exceeded the scope of Diaz’s consent.
The court admitted the “presumptively positive” urinalysis results taken for purposes of
healthcare diagnosis and treatment. Diaz does not challenge the admission of the urinalysis test
results taken as part of her healthcare diagnosis and treatment.
                                                 2
at the jail.” Diaz made no contemporaneous objection to the prosecutor’s question of the FST
officer or his response.
        Later, the State asked the DRE officer whether Diaz was impaired. Diaz objected to the
prosecutor’s question of the DRE officer on the basis that the DRE officer had not been qualified
as an expert. The objection was overruled. The State asked the DRE officer: “Based on all the
data that you gathered, going through your checklist, looking at your matrix, comparing all of
that, what if any opinion would you be able to form about whether Ms. Diaz was impaired by
any drugs that night?” The DRE officer testified:
       Well, I came to the determination that she was impaired while she was operating
       that vehicle. And just under the DRE status is a drug defined as any substance
       that when taken into the human body can impair the ability of a person who can
       operate a vehicle safely. You know, I felt operating the vehicle at that time at the
       stop, she was impaired. I came to the conclusion she was impaired on CNS
       depressants, CNS stimulants and narcotic analgesics.
       The jury found Diaz guilty of felony DUI and misdemeanor DWP. After the jury
returned its verdict, Diaz admitted to two sentencing enhancements. For the DUI, the district
court imposed a unified sentence of fifteen years, with three years determinate, and retained
jurisdiction. For the DWP, Diaz was sentenced to ninety days of jail with credit for time served,
to run concurrently with the DUI sentence. Diaz timely appeals.
                                                II.
                                  STANDARD OF REVIEW
         In State v. Perry, 150 Idaho 209, 245 P.3d 961 (2010), the Idaho Supreme Court
clarified the fundamental error doctrine as it applies to allegations of prosecutorial misconduct.
Where a defendant demonstrates that prosecutorial misconduct has occurred, and such
misconduct was followed by a contemporaneous objection by defense counsel, such error shall
be reviewed for harmless error in accordance with Chapman. 2 Where a constitutional violation
occurs at trial, and is followed by a contemporaneous objection, a reversal is necessitated, unless
the State proves beyond a reasonable doubt that the error complained of did not contribute to the
verdict obtained. Perry, 150 Idaho at 221, 245 P.3d at 973.
       If the alleged prosecutorial misconduct was not followed by a contemporaneous
objection, fundamental error is established when the alleged error: (1) violates one or more of
the defendant’s unwaived constitutional rights; (2) is clear or obvious without the need for
2
       Chapman v. California, 386 U.S. 18 (1967).
                                                3
reference to any additional information not contained in the appellate record; and (3) affected the
outcome of the trial proceedings. Perry, 150 Idaho at 226, 245 P.3d at 978.
                                                   III.
                                              ANALYSIS
A.       The FST Officer’s Comment Regarding the Blood Draw Was Not Improper and Did
         Not Constitute Prosecutorial Misconduct
         Diaz argues the State elicited improper testimony from the FST officer during trial, which
constituted prosecutorial misconduct.         Specifically, Diaz asserts prosecutorial misconduct
occurred when the FST officer commented on Diaz’s refusal to allow a blood draw. The
comment, according to Diaz, was gratuitous and prejudicial regarding Diaz’s Fourth Amendment
right.   The State responds that Diaz had waived her Fourth Amendment right and, in the
alternative, Diaz cannot prove fundamental error.
         As a threshold matter, we must address whether the alleged misconduct involved a
constitutional right. Prosecutorial misconduct claims are grounded in the Fifth and Fourteenth
Amendments to the United States Constitution. The Fifth Amendment provides in relevant part,
“No person shall be . . . deprived of life, liberty, or property, without due process of law . . . .”
U.S. CONST. amend. V. The Due Process Clause of the Fourteenth Amendment applied the
federal right of due process to the states and guarantees that a state may not “deprive any person
of life, liberty, or property, without due process of law.” U.S. CONST. amend. XIV. The clause
has been interpreted to require states to ensure that criminal defendants’ trials be fundamentally
fair. Schwartzmiller v. Winters, 99 Idaho 18, 19, 576 P.2d 1052, 1053 (1978). To be regarded as
fundamentally fair, a trial need not be error-free. Id.; see also Bruton v. United States, 391 U.S.
123, 135 (1968). While our system of criminal justice is adversarial in nature, and the prosecutor
is expected to be diligent and leave no stone unturned, the prosecutor is nevertheless expected
and required to be fair. State v. Field, 144 Idaho 559, 571, 165 P.3d 273, 285 (2007). However,
in reviewing allegations of prosecutorial misconduct we must keep in mind the realities of trial.
Id. A fair trial is not necessarily a perfect trial. Id.
         Diaz asserts that when the prosecutor elicited testimony regarding her refusal to take a
blood test, the prosecutor infringed on her exercise of her Fourth Amendment right, which
negatively affected her rights to due process and fair proceedings. Requiring a person to submit
to a blood test is a search and seizure under the Fourth Amendment to the United States
Constitution and Article I § 17 of the Idaho Constitution. State v. Wulff, 157 Idaho 416, 418, 337
                                                    4
P.3d 575, 577 (2014). “Like the Fourth Amendment, the purpose of Art. I, § 17 is to protect
Idaho citizens’ reasonable expectation of privacy against arbitrary governmental intrusion.”
State v. Holton, 132 Idaho 501, 503, 975 P.2d 789, 791 (1999). 3 The Fourth Amendment to the
United States Constitution provides:
               The right of the people to be secure in their persons, houses, papers, and
       effects, against unreasonable searches and seizures, shall not be violated and no
       Warrants shall issue, but upon probable cause, supported by Oath or affirmation,
       and particularly describing the place to be searched, and the persons or things to
       be seized.
       Diaz argues on appeal that the FST officer’s comment that Diaz refused a blood draw but
consented to the urine test constituted prosecutorial misconduct because it was a “gratuitous and
prejudicial comment on Ms. Diaz’s decision to exercise her Fourth Amendment rights.” We
disagree. Diaz waived her Fourth Amendment right when she agreed to an analysis of the
controlled substances in her system. The FST officer’s testimony explained the circumstances
and context in which Diaz waived her Fourth Amendment right by consenting to provide a urine
sample.    The mechanism of testing--whether by a blood draw or a urine sample--was
clarification of the way in which Diaz consented to the analysis. Diaz’s consent to provide a
urine sample contradicts the assertion that Diaz exercised her Fourth Amendment right. The
FST officer’s comment was no more prejudicial than only stating she agreed to take a urine
sample.
       In support of her argument for fundamental error, Diaz relies on State v. Christiansen,
144 Idaho 463, 163 P.3d 1175 (2007) for the proposition that it is prejudicial to comment on a
defendant’s exercise of her constitutional right in order to infer guilt.      Diaz’s reliance on
Christiansen is misplaced.       First, any test articulated in Christiansen for determining
fundamental error was replaced by the test articulated in Perry. Second, the defendant in
Christiansen refused consent to the search of his business premises. Christiansen, 144 Idaho at
470-71, 163 P.3d at 1182-83. There, the State conceded the sole purpose of the testimony was
for the jury to infer the defendant’s guilt. Id. at 469, 163 P.3d at 1181. In contrast, unlike
Christiansen, Diaz waived her Fourth Amendment right when she agreed to submit to a urine
test. In addition, the FST officer’s testimony was not offered to infer Diaz’s guilt, but rather, to

3
        In this case, we focus on the United States Constitution rather than the Idaho
Constitution because Diaz does not cite to the Idaho Constitution as the basis of her Fourth
Amendment right.
                                                 5
explain the circumstances and context of the waiver of her Fourth Amendment right. As such,
Christiansen does not control the outcome of this issue.          Because there was no improper
comment on Diaz’s Fourth Amendment right, there was no violation of Diaz’s Fifth or
Fourteenth Amendment rights and thus, no prosecutorial misconduct.
B.        The DRE Officer’s Testimony Was Not Improper and Therefore, Did Not
          Constitute Prosecutorial Misconduct
          Diaz argues that the DRE officer offered improper testimony when he concluded that
Diaz was impaired while she was operating the vehicle. Diaz further asserts the improper
testimony was elicited as a result of prosecutorial misconduct that deprived Diaz of her due
process right to a fair trial by a jury. The State responds that the error did not concern a
constitutional right, but if it did, Diaz cannot show that the error affected the outcome of the trial
proceedings.
          The Perry fundamental error analysis does not apply where there is an evidentiary
objection, as in the case of the DRE officer’s testimony.            The application of the Perry
fundamental error analysis is only triggered when there is an error that is not followed by a
contemporaneous objection. Diaz’s attorney raised an evidentiary foundational objection to the
DRE officer’s qualifications. It is not unobjected to error when a party articulates a specific
basis to exclude evidence, receives a ruling, and then fails to offer a different basis on which to
exclude the evidence. Thus, this is not a case where trial counsel failed to object; instead, this is
a case where trial counsel failed to provide an adequate basis upon which the evidence could be
excluded. As such, the district court’s evidentiary ruling would be subject to a harmless error
analysis, which is not addressed by Diaz in her briefing. Typically, failure to argue an issue on
appeal precludes our review of the issue. State v. Zichko, 129 Idaho 259, 263, 923 P.2d 966, 970
(1996).
          As to the claim that the State engaged in prosecutorial misconduct when eliciting the
DRE officer’s testimony, Diaz does not establish a claim of fundamental error. First, as noted
above, there was an objection made; as such, there was no unobjected to violation of a
constitutional right.   Attempting to transform actual evidentiary objections into claims of
unobjected to error is an incorrect application of Perry. The Perry opinion defined fundamental
error as, “[e]rror [that] goes to the foundation or basis of a defendant’s rights or must go to the
foundation of the case or take from the defendant a right which was essential to his defense and
which no court could or ought to permit him to waive.” Perry, 150 Idaho at 226, 245 P.3d at
                                                  6
978. Trial counsel’s inadequate evidentiary objection did not rise to this level and even if it did,
it is more appropriately dealt with in post-conviction proceedings.       In cases of unobjected to
error, the “appellate court’s authority to remedy that error is strictly circumscribed to cases
where the error results in the defendant being deprived of his or her Fourteenth Amendment due
process right to a fair trial in a fair tribunal.” Id. at 224, 245 P.3d at 976. A substantial right of
the defendant is not infringed upon just because his or her trial counsel fails to make an
appropriate evidentiary objection. In fact, where “the asserted error relates not to infringement
upon a constitutional right, but to violation of a rule or statute, we hold that the ‘fundamental
error’ doctrine is not invoked.” Id. at 226, 245 P.3d at 978.
        Nonetheless, there was no error in admitting the testimony of the DRE officer. Idaho
Rule of Evidence 702 governs the admissibility of expert testimony and provides: “If scientific,
technical, or other specialized knowledge will assist the trier of fact to understand the evidence
or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience,
training, or education, may testify thereto in the form of an opinion or otherwise.” It is a
prosecutor’s duty to see that a defendant has a fair trial, and that nothing but competent evidence
is submitted to the jury. State v. Irwin, 9 Idaho 35, 44, 71 P. 608, 611 (1903). Prosecutors
should never seek to warp the minds of the juror by inferences or insinuations. Id. It is
inappropriate for a prosecutor to ask questions that are calculated to prejudice the jury. Id.
Prosecutorial misconduct occurs when a prosecutor uses tactics to elicit testimony the court has
already ruled inadmissible. Christiansen, 144 Idaho at 469, 163 P.3d at 1181; State v. Martinez,
136 Idaho 521, 525, 37 P.3d 18, 22 (Ct. App. 2001).
       To be admissible under I.R.E. 702, the expert’s testimony must assist the trier of fact to
understand the evidence or to determine a fact that is in issue. Swallow v. Emergency Med. of
Idaho, P.A., 138 Idaho 589, 592, 67 P.3d 68, 71 (2003). An expert’s opinion is not inadmissible
because it embraces an ultimate issue to be decided by the trier of fact. I.R.E. 704. Expert
testimony that concerns conclusions or opinions that the average juror is qualified to draw from
the facts utilizing the juror’s common sense and normal experience is inadmissible. Jones v.
Crawforth, 147 Idaho 11, 17, 205 P.3d 660, 666 (2009).
       We are cognizant of the opinion in State v. Ellington, 151 Idaho 53, 67, 253 P.3d 727,
741 (2011) holding, in part, that an officer’s “gratuitous and prejudicial response is imputed to
the State, whether or not the State intended to elicit that response.” In this case however, the

                                                  7
prosecutor did not attempt to elicit improper testimony or use unfair tactics and the DRE
officer’s answer was neither gratuitous nor prejudicial. It was not gratuitous because it was in
response to a direct question by the State. It was not prejudicial because the answer to this
question was admissible.
       A similar issue was addressed in State v. Corwin, 147 Idaho 893, 896-97 216 P.3d 651,
654-55 (Ct. App. 2009). There, two officers arrived at the scene of an automobile accident in
which Corwin was the alleged driver and the officers found no one in the vehicle. Id. at 895, 216
P.3d at 653. After Corwin was located, an officer administered the horizontal gaze nystagmus
test which Corwin failed. At the subsequent trial, the officer testified that Corwin was too
impaired to operate a motor vehicle. Following his conviction, Corwin appealed, arguing that it
was error to admit the testimony of the officer on the ultimate issue for the jury to determine:
whether or not Corwin was under the influence of alcohol. Id. This Court held that:
       The officers’ observations that Corwin was under the influence of alcohol and too
       impaired to drive went to an ultimate issue of fact, but did not invade the province
       of the jury as to its determination of whether Corwin was or was not guilty of
       having driven an automobile while under the influence of alcohol. 4
Id. at 896, 216 P.3d at 654.
       In this case, the DRE officer testified about the twelve-step process he used to conduct
investigations where the driver is allegedly impaired by drugs. He testified he used a checklist
with seven different drug categories.     For each drug category, there were nine different
indicators. The DRE officer considered the result of the breath alcohol test, talked with the
arresting officer, questioned Diaz, and then analyzed each of the nine indicators. These factors
included an evaluation of Diaz’s pulse, pupil size, gaze nystagmus, ability to perform the divided
attention tests, vital signs, and blood pressure. It also included three eye evaluations, a visual
exam of Diaz’s nostrils and mouth to detect foreign substances, a muscle tone check, and a visual
exam for injection sites. The DRE officer then questioned Diaz about what substances--legal or
illegal--that could affect the evaluation and whether Diaz had eaten. The officer testified he
evaluated the way in which Diaz responded to the questions and tasks put to her. The DRE
officer testified that the drug recognition evaluation is extensive because different drugs affect
people differently and that a person ingesting more than one drug in the same time-period could
4
       Because Corwin was not charged with a “per se” violation of the DUI statute, the
ultimate issue, and the context of the officer’s testimony, was that Corwin was too impaired to
operate a motor vehicle at the time of the accident.
                                                8
experience different symptoms. During the drug recognition evaluation, Diaz admitted that
within approximately twenty-four hours prior to the stop she had taken Oxycodone and Adderall.
Diaz also admitted that she had been prescribed Zoloft, Navene, and Elavil, although she had not
taken any on the day of the stop. Finally, the DRE officer testified that Diaz indicated she had
been released from the hospital approximately three days before the stop, at which time she was
given Dilaudid.
       Following the DRE officer’s testimony about the drug recognition methods, the State
asked the DRE officer whether Diaz was impaired by drugs the night she was stopped. Diaz
objected to the prosecutor’s question on the basis that the DRE officer had not been qualified as
an expert. The objection was overruled. The State then asked the DRE officer: “Based on all
the data that you gathered, going through your checklist, looking at your matrix, comparing all of
that, what if any opinion would you be able to form about whether Ms. Diaz was impaired by
any drugs that night?” The officer testified: “Well, I came to the determination that she was
impaired while she was operating that vehicle.”
       Diaz contends the DRE officer’s testimony was inadmissible because it answered a
question reserved for the jury, and one which the jury could have determined through common
sense and normal experience. State v. Ellington, 151 Idaho 53, 66, 253 P.3d 727, 740 (2011).
First, Diaz did not object at trial on this ground--that the DRE officer was testifying as to the
ultimate fact in issue--which would normally preclude consideration of this issue on appeal.
State v. Jackson, 151 Idaho 376, 378, 256 P.3d 784, 786 (Ct. App. 2011). However, even if Diaz
had objected to the evidence on the ground that the response addressed the ultimate issue, the
question was permissible and the answer was properly admitted.
       In Ellington, the question for the jury was whether Ellington acted intentionally.
Ellington, 151 Idaho at 66, 253 P.3d at 740. The Supreme Court held that because the jury heard
un-contradicted evidence from an accident-reconstruction expert that Ellington had control of his
vehicle and made no evasive maneuvers, the jury was as capable as the expert of determining
whether the act was intentional or accidental. Id. Additionally in Ellington, the expert not only
provided information about the events in question, but repeatedly issued his opinion that the
defendant acted intentionally and his actions were not accidental. Id. at 66-67, 253 P.3d at 740-
41. The Supreme Court held that the expert’s testimony that there was “not an accident” was
inadmissible because the jury could determine whether Ellington acted intentionally from the

                                                  9
evidence presented; thus, there was no need for an expert to opine on the issue. Id. at 67, 253
P.3d at 741.
       Here, the issue was whether Diaz was impaired at the time she was in actual, physical
control of a motor vehicle. The evidence on that issue was less conclusive than the evidence on
intentionality in Ellington. For example, Diaz’s urinalysis test results indicate a “presumptive
positive” for several different controlled substances. Diaz argued the hospital lab test results
were not conclusive for controlled substances because the test results were only “presumptive
positive” and did not establish the level of those substances in her system or the extent, if any, of
her impairment. Diaz further supported that argument by arguing hospital testing methods did
not have the same reliability as those tested by approved laboratories.           Diaz additionally
challenged the DRE results as being within normal ranges and not indicative of impairment.
Thus, there was no conclusive evidence of impairment in this case like the evidence of
intentionality in Ellington. For the jury to understand how the substances in Diaz’s system could
cause impairment at the time she was driving, expert testimony was necessary. The State asked
the DRE officer to synthesize the extensive data he gathered on the night of the arrest, overlay
the DRE checklist upon that data, and reach a conclusion from that information. We are not
convinced the jurors could reach a similar conclusion by an exercise of common sense or normal
experience, given the evidence in the case. 5 Therefore, the State’s questioning did not constitute
prosecutorial misconduct.
       Additionally, unlike the testimony at issue in Ellington, the DRE officer’s testimony was
not offered gratuitously or repeatedly. Instead, the DRE officer answered the question he was
asked; i.e. a question whether Diaz was impaired which anticipated a legally admissible
response. The answer was a recitation of the DRE officer’s opinion based on his observations of
Diaz and his training and experience. The parties have not alleged that the DRE officer could
not testify about the time frame in which Diaz was impaired. In DUI cases based on ingestion of
controlled substances, it seems too fine a distinction to permit testimony that an individual is


5
       Unlike DUI cases based on alcohol consumption for which there is a “per se” legal limit
for blood alcohol concentration, in DUI cases based on ingestion of controlled substances, no
such “per se” limit exists. The DRE officer’s testimony highlights the difficulty of determining
whether a person who has previously ingested a controlled substance is under the influence of
those substances while in actual, physical control of a motor vehicle, an element of the offense in
non-“per se” DUI cases.
                                                 10
impaired during a particular time frame or too impaired to drive but to exclude testimony that the
defendant was impaired while driving. 6 Therefore, unlike the testimony in Ellington, the DRE
officer’s testimony in this case was not improper and did not constitute error that should be
attributed to the prosecutor.
        The State did not elicit inadmissible testimony in this case, and there was no error that
could be attributed to the prosecutor. Since there was no error, there was no misconduct.
Because there was no other alleged constitutional violation and we cannot find any prosecutorial
error, Diaz has not established a claim that one of her unwaived constitutional rights was
violated. Having failed to establish the first prong of the Perry analysis, there is no fundamental
error in this case.
                                               IV.
                                        CONCLUSION
        Because the testimony from the FST officer and the DRE officer was admissible and no
error can be attributed to the prosecutor, Diaz has not established prosecutorial misconduct or
fundamental error in this case. We therefore affirm the district court’s judgment of conviction.
        Chief Judge GRATTON and Judge GUTIERREZ CONCUR.




6
       This semantic dance becomes a distinction without a difference, particularly when the
DRE officer could have testified that: 1) Diaz was impaired by the controlled substances she
ingested; 2) that the impairment existed during a defined time period; and 3) that Diaz had been
stopped for erratic driving during that time-period. In both contexts, the same testimony is
presented to the jury: that Diaz was impaired while in actual, physical control of a motor
vehicle.
                                                11
