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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 37553

IN THE MATTER OF THE DRIVER’S 

LICENSE SUSPENSION OF SCOTT T. 

CUNNINGHAM.

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SCOTT THOMAS CUNNINGHAM,

Petitioner-Appellant,

v.

STATE OF IDAHO,

Respondent.

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2011 Opinion No. 3

Filed: February 2, 2011

Stephen W. Kenyon, Clerk

Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada

County. Hon. Kathryn A. Sticklen, District Judge. Hon. Thomas Watkins, 

Magistrate.

Decision of the district court, on intermediate appeal from the magistrate, 

reversing the magistrate’s order reinstating driver’s license, reversed. 

Dean B. Arnold, Boise, for appellant. 

Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy 

Attorney General, Boise, for respondent. Kenneth K. Jorgensen argued.

______________________________________________

MELANSON, Judge

Scott Thomas Cunningham appeals from the district court’s intermediate appellate 

decision reversing the magistrate’s order reinstating Cunningham’s driver’s license. For the 

reasons set forth below, we reverse the district court’s decision and vacate the order suspending 

Cunningham’s driver’s license.

I.

FACTS AND PROCEDURE

Cunningham was arrested on suspicion of driving under the influence of alcohol (DUI). 

I.C. § 18-8004. The arresting officer transported Cunningham to jail and requested that

Cunningham submit to a breath alcohol concentration (BAC) test. The officer provided 

Cunningham with a notice of suspension form, which advised Cunningham of his rights and the 
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consequences for choosing to refuse to submit to the BAC test. I.C. § 18-8002. The officer also 

played Cunningham a recording, which detailed the information contained on the form. After 

listening to the recording and reviewing the form, Cunningham asked the officer if he had to pay 

$250 for refusing to submit to the BAC test. The officer responded that he would discuss that 

with Cunningham later and that he would explain to Cunningham what the law was and what the 

Idaho courts have said about the consequences for refusing to submit to a BAC test.

Soon thereafter, the officer informed Cunningham that the test was Cunningham’s 

opportunity to prove to the courts that he had not been drinking. The officer also stated that, if 

Cunningham refused to take the BAC test, his driver’s license would be automatically suspended

for one year without exception. When Cunningham attempted to ask the officer about requesting

a hearing on the license suspension, the officer interrupted him to assert that the BAC test was 

Cunningham’s only opportunity to prove his innocence. The officer also asserted that he 

specialized in DUI testing and then repeated that, if Cunningham refused to cooperate, he would 

lose his opportunity to prove his innocence. Cunningham again inquired about the consequences 

for refusing to submit to BAC testing, to which the officer responded that Cunningham would be 

charged with DUI, would lose his chance to prove that he was not driving under the influence of 

alcohol, and would have his license suspended without exception for one year. Cunningham also

asked the officer if he could request someone else to perform an independent BAC test. The 

officer replied that Cunningham could only obtain such a test after he bonded out of jail.

Cunningham refused to submit to the BAC test. The officer confiscated Cunningham’s 

license and issued him a temporary permit. Cunningham requested a hearing within seven days 

to demonstrate why he refused to submit to testing. At the hearing, the magistrate determined 

that the officer’s statements regarding the license suspension, the independent evidentiary test, 

and the requirement that Cunningham prove his innocence were incorrect. As a result, the 

magistrate ordered that Cunningham’s driver’s license be reinstated. The state appealed to the 

district court, which reversed the magistrate’s order and suspended Cunningham’s license. 

Cunningham appeals. 

II.

STANDARD OF REVIEW

On review of a decision of the district court, rendered in its appellate capacity, we review 

the decision of the district court directly. Losser v. Bradstreet, 145 Idaho 670, 672, 183 P.3d 758, 
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760 (2008). We examine 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. Id. An abuse of discretion will be found if the 

magistrate’s findings of fact are not supported by substantial evidence or if the magistrate does 

not correctly apply the law. Nicholls v. Blaser, 102 Idaho 559, 561, 633 P.2d 1137, 1139 (1981). 

III.

ANALYSIS

At his hearing to show cause for refusing to submit to evidentiary testing, Cunningham

argued that the officer did not completely advise him of the consequences of a refusal because 

the officer repeatedly provided incorrect and misleading information. The magistrate held that 

the information provided in an advisory must be accurate and determined that the officer’s 

incorrect statements rendered the advisory incomplete. On that basis, the magistrate reinstated 

Cunningham’s license. The district court reversed the magistrate’s order, holding that the 

officer’s statements, although incorrect, did not negate the proper warnings given to Cunningham 

via the written and recorded advisory. As such, the district court reversed the magistrate’s order

and suspended Cunningham’s driver’s license, holding that Cunningham failed to show 

sufficient cause for refusing to submit to testing. On appeal, Cunningham argues that the district 

court’s decision was in error and that the magistrate properly determined that the officer’s 

incorrect statements nullified the initial written and recorded advisory.

At the time of Cunningham’s show cause hearing, I.C. § 18-8002(3)1 provided:

At the time evidentiary testing for concentration of alcohol, or for the 

presence of drugs or other intoxicating substances is requested, the person shall be 

informed that if he refuses to submit to or if he fails to complete, evidentiary 

testing:

(a) He is subject to a civil penalty of two hundred fifty dollars 

($250) for refusing to take the test; 

(b) His driver’s license will be seized by the peace officer and a 

temporary permit will be issued; provided however, that no peace officer 

shall issue a temporary permit pursuant to this section to a driver whose 

driver’s license or permit has already been and is suspended or revoked 

because of previous violations, and in no instance shall a temporary permit 

 

1 This section was amended in 2009 after Cunningham’s arrest. The amendments made 

some redesignations and added a new subsection (3)(e), which involves participation in drug 

court. See 2009 Idaho Sess. Laws, ch. 184, § 1.
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be issued to a driver of a commercial vehicle who refuses to submit to or 

fails to complete an evidentiary test; 

(c) He has the right to request a hearing within seven (7) days to 

show cause why he refused to submit to, or complete evidentiary testing; 

(d) If he does not request a hearing or does not prevail at the 

hearing, the court shall sustain the civil penalty and his driver’s license 

will be suspended absolutely for one (1) year if this is his first refusal and 

two (2) years if this is his second refusal within ten (10) years; and

(e) After submitting to evidentiary testing he may, when 

practicable, at his own expense, have additional tests made by a person of

his own choosing.

Construing I.C. § 18-8002 as a whole, the Idaho Supreme Court in In re Griffiths, 113 

Idaho 364, 744 P.2d 92 (1987) held that a driver challenging a license suspension under this 

section may prevail by showing any of the following: 

(1) that the police officer stopping defendant did so without probable 

cause; 

(2) that defendant was not requested by a police officer to submit to an 

evidentiary test; 

(3) that the requesting police officer did not have “reasonable 

grounds” or “probable cause” to believe that defendant had been driving or in 

actual physical control of a motor vehicle while under the influence of alcohol, 

drugs or of any other intoxicating substances; 

(4) that the request violated defendant’s civil rights; 

(5) that defendant was not advised of the information regarding refusal 

mandated by I.C. § 18-8002(3); 

(6) that defendant did not refuse to submit to the requested evidentiary 

test; or 

(7) that, although defendant refused the requested evidentiary test, he 

did so with sufficient cause.

Id. at 368, 744 P.2d at 96 (footnote omitted). The Court held that, in order to meet the fifth 

ground for reinstatement under Griffiths, a driver who has refused testing must demonstrate at 

the show cause hearing that he or she was not completely informed of his or her rights and duties 

under I.C. § 18-8002(3). Id. at 370, 744 P.2d at 98. In that case, the driver initially declined to 

submit to testing, but the Court held that Griffiths’ failure to cooperate was not a refusal for 
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purposes of the statute because the officer had failed to inform Griffiths of his right to additional 

evidentiary testing as mandated by I.C. 18-8002(3). Griffiths, at 370, 744 P.2d at 98.

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Subsequent to Griffiths, this Court noted that the information required by I.C. § 18-

8002(3) is set forth in no uncertain terms. In re Beem, 119 Idaho 289, 291, 805 P.2d 495, 497

(Ct. App. 1991). In addition, the Idaho Supreme Court has emphatically discountenanced 

interjection of judicial gloss upon the legislature’s license suspension scheme. In re Brinks, 117 

Idaho 55, 56, 785 P.2d 620, 621 (1990); Beem, at 292, 805 P.2d at 498. In Beem, the Court 

affirmed the reinstatement of a driver’s license when the officer incorrectly informed the driver 

that his license could be suspended for 120 days for refusal to submit to testing, instead of the 

statutory 180 days. Beem, at 292, 805 P.2d at 498. In a later case, this Court further held that 

Idaho law requires strict adherence to the statutory language of I.C. § 18-8002(3). In re Virgil, 

126 Idaho 946, 947, 895 P.2d 182, 183 (Ct. App. 1995). This Court again affirmed the 

reinstatement of a driver’s license when the advisory incorrectly stated that the driver would be 

required to “explain why” he had refused an evidentiary test, when the statute required that the 

driver was required to “show cause” for his refusal. Virgil, 126 Idaho at 948, 895 P.2d at 184. 

Thus, it appears that I.C. § 18-8002 and the judicial decisions applying it preclude suspension of 

a driver’s license if the officer did not strictly comply with the statutory directive concerning the 

advisory information to be given to motorists when a BAC test is requested. 

Cunningham concedes on appeal that the information contained in the written advisory

form and the recording provided by the officer was correct. However, Cunningham contends 

that the officer’s inaccurate statements satisfied the fifth ground for refusal under Griffiths

because the statements nullified the correct information provided by the written and recorded 

advisory. In other words, Cunningham contends that, due to the inaccurate statements provided 

by the officer, he was not completely informed of his rights and duties under I.C. § 18-8002(3).

In support of this argument, Cunningham relies on cases in other jurisdictions. In 

Forman v. Motor Vehicle Admin., 630 A.2d 753 (Md. 1993), a driver arrested for DUI was 

 

2 After Griffiths was later informed of his rights under the statute and still refused to 

submit to evidentiary testing, the Court held that Griffiths was properly informed and affirmed 

Griffiths’ license suspension. Griffiths, 113 Idaho at 370, 744 P.2d at 98. In essence, the Court 

determined that, because the officer later completely informed Griffiths of his rights under the 

statute, the initial incorrect advisory was cured. 
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initially given a proper advisory of her rights should she refuse to submit to evidentiary testing.

However, while transporting Forman to jail, the arresting officer provided incorrect information

regarding the consequences for refusal. The Maryland Court of Appeals determined that 

Maryland’s implied consent statute requires a driver to be fully advised of the consequences for 

failing to submit to evidentiary testing. Id. at 762. Specifically, the Court held that an officer 

giving the advisory must take care not to subsequently confuse or mislead the driver as to his or 

her rights under the statute. Id. 

Similarly, in Gargano v. New York State Dep’t of Motor Vehicles, 500 N.Y.S.2d 346, 

346-47 (N.Y. App. Div. 1986), the court held that an officer’s incorrect statements regarding the 

length of a driver’s license suspension violated the requirement that a driver be warned “in clear 

or unequivocal language” of the consequences for refusal. In Gargano, the driver was initially 

provided proper warnings under New York law. However, the Court reversed Gargano’s license 

suspension due to the officer’s subsequent incorrect statements. Id. See also Mairs v. Dep’t of 

Licensing, 854 P.2d 665, 668-69 (Wash. Ct. App. 1993) (incorrect warnings deprived driver of 

the opportunity to make a knowing and intelligent decision whether to take or refuse an

evidentiary test). 

The state responds that Cunningham was completely informed of his rights under the 

statute because he was given the advisory form and listened to a recorded version of the advisory 

prior to his refusal. In addition, the state contends that, because the officer’s statements were 

consistent with the statutory requirements of I.C. § 18-8002(3), Cunningham has failed to 

demonstrate that he satisfied the fifth ground for reinstatement under Griffiths. 

The officer in this case provided a written advisory form and played a recording for 

Cunningham, which conveyed the information required under the statute. However, in response 

to Cunningham’s questions regarding the consequences of refusing testing, the officer repeatedly 

asserted that, if Cunningham refused to cooperate, he would lose his driver’s license for one 

year, without exception. In addition, in response to Cunningham’s question regarding whether 

he could obtain an additional evidentiary test, the officer stated that Cunningham had to wait 

until he bonded out of jail to obtain such a test. Finally, the officer reiterated that, if 

Cunningham refused to cooperate, he would lose his chance to prove his innocence. Based on 

the recording of this exchange and the officer’s testimony at the hearing, the magistrate 
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determined that the officer conveyed incorrect information regarding Cunningham’s rights and 

duties should he refuse to submit to evidentiary testing. 

On appeal, the state disputes these findings of fact, arguing that the officer’s statements 

were consistent with the warnings required by I.C. § 18-8002(3). First, the state contends that 

the officer’s statements regarding the automatic suspension were consistent with the statute

because Cunningham had previously been warned in writing and via a recording that he had the 

opportunity to request a hearing within seven days after refusing to submit to testing. The state 

argues that the officer never specifically told Cunningham that he was not entitled to a hearing 

after losing his license. Nevertheless, the officer repeatedly asserted that, if Cunningham refused 

to submit to testing, he would automatically lose his driver’s license without exception. These 

repeated statements contradict the advisory mandated by I.C. § 18-8002(3) because the statute 

did not indicate that a driver would automatically lose his or her driving privileges should the 

driver refuse to submit to testing. Rather, the statute provided that, upon refusal, a driver would 

have his or her license seized by the officer, would be issued a temporary permit, and would have 

the opportunity to have the license reinstated at a hearing if the driver requested such a hearing 

within seven days of the refusal. The officer’s repeated statements implied that Cunningham 

would not have the option to contest his suspension, which is not consistent with the warnings 

required by I.C. § 18-8002(3). 

The state also argues that the officer’s comment that Cunningham must bond out of jail in 

order to obtain an additional BAC test was not incorrect because Cunningham’s inquiry was 

about submitting to an independent evidentiary test instead of submitting to the BAC test at the 

jail. The recording of Cunningham’s encounter with the officer reveals that, just prior to 

Cunningham’s question about additional testing, the officer informed Cunningham that he could 

obtain such testing only after submitting to the BAC test. It appears that Cunningham’s inquiry

referred to the information listed on the advisory form, which stated that, if a person submitted to 

testing, he or she could request an independent evidentiary test.

Finally, the state contends that, when the officer repeatedly told Cunningham that the 

BAC test was his only opportunity to prove his innocence, the officer was correctly stating that 

passing the evidentiary test would demonstrate that Cunningham should not be arrested for DUI. 

However, it appears from the record that the officer continuously reiterated that the BAC test 

was Cunningham’s only opportunity to “prove his innocence.” More importantly, once 
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Cunningham indicated that he did not want to submit to testing, the officer asked Cunningham 

what he would like the officer to write down for the judge on the refusal form. The officer also

requested that Cunningham explain why he did not want to prove that he was innocent and why 

he failed the field sobriety tests, not explain his or her failure to submit to testing. Such 

statements suggest that Cunningham was required to explain to the judge at his show cause 

hearing why he was not guilty of DUI.3 On the contrary, the statute provided that a driver who 

requested a hearing was required to demonstrate why he or she refused to submit to evidentiary 

testing. Based on the foregoing, we conclude that substantial and competent evidence supports 

the magistrate’s findings that the officer’s statements were incorrect. 

As noted, the state contends that, since the complete advisory was presented to 

Cunningham, the fifth ground for refusal under Griffiths was inapposite. Instead, the state 

asserts that only the seventh ground for refusal under Griffiths may be applied under this 

circumstance. The state argues that, in order to demonstrate sufficient cause for refusal under the 

seventh ground in Griffiths, Cunningham must show that the refusal was actually caused by the 

officer’s action. Thus, the state contends that only incorrect statements directly leading to a 

refusal amount to sufficient cause for reinstatement under Griffiths. In support of this argument, 

the state relies upon Head v. State, 137 Idaho 1, 43 P.3d 760 (2002). In Head, the officer 

correctly informed the driver of the consequences for refusing to submit to evidentiary testing. 

However, the officer provided incorrect information regarding the consequences for failing an 

evidentiary test. The Idaho Supreme Court held that inaccurate information conveyed to a driver 

concerning sanctions imposed for failure of an evidentiary test for alcohol concentration was not 

a ground for relief from suspension under Griffiths where the driver had refused to perform the 

requested test. The Court held:

Head concedes that his challenge to the suspension of his driving 

privileges does not fit within any of the grounds listed in Griffiths. Rather, he 

asks this Court to expand the grounds listed in Griffiths to include this situation. 

Because the grounds for challenging the suspension are statutory, we cannot do 

so.

 

3 We recognize that a single statement by the officer that submitting to testing would allow 

a driver to prove his or her innocence does not necessarily contradict the language of the 

advisory under the statute. However, an officer’s repeated assertions that a driver is required to 

prove his innocence to the judge or explain why he failed field sobriety tests rises to the level of 

contradicting the language of the statute. 
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Head, 137 Idaho at 5, 43 P.3d at 764 (footnote omitted). In a footnote, the Court also determined 

that it would be difficult for the driver to argue that his refusal was caused by the incorrect 

information contained in the advisory. Head, 137 Idaho at 5 n.6, 43 P.3d at 764 n.6. The state 

interprets this statement to stand for the proposition that an incorrect advisory must cause the 

driver to refuse testing in order to provide a sufficient ground--the seventh ground--under 

Griffiths for reinstatement. 

Our recent decision in Kling v. State, ___ Idaho ___, ___ P.3d ___ (Ct. App. 2010)

directly addressed this argument. In Kling, the state conceded that the information contained in 

the advisory form provided to the driver was incorrect. However, the state, relying on Head, 

asserted that, because the driver did not rely upon the incorrect information when deciding to 

refuse to submit to testing, the driver could not establish a ground for refusal under Griffiths. 

Kling, ___ Idaho at ___, ___ P.3d at ___. This Court held that Head was inapposite, concluding:

Thus, not only does Head not depart from Griffiths, it reaffirms it by stating that 

the Court was without authority to add to the grounds for relief authorized by I.C. 

§ 18-8002 as recognized in Griffiths. We conclude that coordinate reasoning 

precludes a court from disregarding a ground for relief from suspension that is 

mandated by the statute, including an officer’s failure to give the driver the 

statutorily required information on consequences for refusal of evidentiary testing. 

Accepting the State’s position would allow officers to unilaterally modify 

the statutorily prescribed procedures so long as the modified procedures are 

accurately described to the motorist when testing is requested. The statute does 

not confer such authority upon law enforcement officers. Nor does the statute 

require that a driver show detrimental reliance or other form of prejudice from an 

officer’s omission of a portion of the required terms of the advisory. 

This Court’s reasoning in Kling is dispositive of the state’s argument in this case. Kling, 

like its predecessors Virgil, Beem, and Griffiths, held that contradictory information provided in 

an advisory renders that advisory incomplete. A claim that the advisory was incomplete under 

the fifth ground in Griffiths does not require that a driver establish detrimental reliance on an 

officer’s repeated incorrect recitation of the required terms of the advisory. As a result, we will 

not disregard a ground for relief from suspension that is mandated by the statute, including an 

officer’s failure to completely advise a driver of the consequences for refusal of evidentiary 

testing. 
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Based on the specific facts of this case, we conclude that the information provided to 

Cunningham did not comport with that required by I.C. § 18-8002(3) and, therefore, rendered the 

written and recorded advisory given to Cunningham incomplete. As mentioned above, the 

officer incorrectly asserted that Cunningham would immediately lose his license should he refuse 

to submit to testing, that he could only obtain additional evidentiary testing after bonding out of 

jail, and that he must prove his innocence to the judge at the show cause hearing. The officer 

conveyed such incorrect information after notifying Cunningham that he “specialized” in DUI 

testing and that he instructed officers on how to properly administer field sobriety tests. In 

addition, before answering any of Cunningham’s questions, the officer stated that he would 

explain what the Idaho Code required and what Idaho courts have said about the consequences of 

a refusal. The officer was adamant that the information he conveyed to Cunningham was the 

law, even if such information contradicted what was previously contained in the written and 

recorded advisory. The officer’s continuous, repetitive recitation of incorrect information 

regarding the consequences for refusal rendered the initial advisory incomplete. 

We do not intend the holding of this case to require officers to stand mute when 

answering a driver’s questions regarding the information contained in the implied consent 

advisory. However, the officer’s conduct in this case so contradicted the information provided in 

the initial advisory that it defeated the purpose of the statute’s requirement for such an advisory 

in the first place. Here, the officer’s repeated assertions went beyond mild misstatements or 

passing inaccuracies, which may occur during an advisory involving a presumably intoxicated 

driver. The magistrate was therefore correct in declining to suspend Cunningham’s driver’s 

license. Thus, we reverse the district court’s decision and vacate the suspension of 

Cunningham’s license.

IV.

CONCLUSION

Substantial and competent evidence supports the magistrate’s finding that the officer 

conveyed incorrect information to Cunningham prior to his refusal to submit to evidentiary 

testing. In addition, the magistrate correctly applied the law when it determined that 

Cunningham was not properly advised as mandated by I.C. § 18-8002(3). Accordingly, we 

reverse the district court’s intermediate appellate decision and vacate the order suspending 
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Cunningham’s driver’s license. Costs, but not attorney fees, are awarded on appeal to 

Cunningham. 

Chief Judge GRATTON and Judge GUTIERREZ, CONCUR.