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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 46241

STATE OF IDAHO,

Plaintiff-Respondent,

v.

CURTIS JOHN HOLLON,

Defendant-Appellant.

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Filed: December 23, 2019

Karel A. Lehrman, Clerk

THIS IS AN UNPUBLISHED

OPINION AND SHALL NOT

BE CITED AS AUTHORITY

Appeal from the District Court of the Fifth Judicial District, State of Idaho, Twin 

Falls County. Hon. G. Richard Bevan, District Judge. 

Judgment of conviction, vacated; case remanded.

Eric D. Fredericksen, State Appellate Public Defender; Sally J. Cooley, Deputy 

Appellate Public Defender, Boise, for appellant. 

Hon. Lawrence G. Wasden, Attorney General; Jeff Nye, Deputy Attorney 

General, Boise, for respondent. 

________________________________________________

GRATTON, Chief Judge 

Curtis John Hollon appeals from his judgment of conviction for driving under the 

influence of alcohol. Specifically, Hollon challenges the district court’s decision to exclude 

evidence of rising breath alcohol content (“BAC”). For the reasons set forth below we reverse 

and remand.

I.

FACTS AND PROCEDURAL BACKGROUND

Hollon was arrested and charged with driving under the influence of alcohol (DUI) after

his BAC samples of .092 and .100 reflected he exceeded the legal limit of .08, Idaho Code § 18-

8004.

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 The State charged Hollon under alternate theories. It alleged that he was driving while 

 1 Idaho Code § 18-8004(1)(a) provides: It is unlawful for any person who is under the 

influence of alcohol, drugs, or any other intoxicating substances, or any combination of alcohol, 

drugs and/or any other intoxicating substances, or who has an alcohol concentration of 0.08, as 
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under the influence and/or driving with an alcohol concentration of .08 or more (a per se 

violation). Based on previous DUI history, Hollon was charged with a felony. Prior to trial, the 

State filed a summary of expected testimony, which stated that an expert, Officer Wendler,

would testify to the length of time it takes for alcohol to rise, peak, and decline in a person’s 

body and that alcohol concentration peaks approximately thirty minutes to one hour after alcohol 

consumption stops. At trial, Hollon attempted to ask a non-expert witness about alcohol 

absorption. The State objected to any evidence of rising BAC as irrelevant, citing State v. 

Tomlinson, 159 Idaho 112, 357 P.3d 238 (Ct. App. 2015), which held the alcohol content of a 

defendant’s breath while driving is irrelevant. After a brief discussion outside the presence of 

the jury, the district court determined that Tomlinson was binding and sustained the State’s 

objection.

2 The court further directed the parties not to discuss the period of time between the 

stop and the test or any “notion of extrapolation.” The jury was instructed that in order to find 

Hollon guilty of driving under the influence, the State must prove either that he was driving 

while under the influence of alcohol or while having an alcohol concentration of .08 or more as 

shown by analysis of the defendant’s breath. The jury found Hollon guilty but there was no 

indication as to whether he was convicted under the per se theory, the driving under the influence 

theory, or both. The district court sentenced Hollon to a unified term of ten years with five years 

determinate. Hollon timely appeals. 

II.

ANALYSIS

Hollon argues the district court abused its discretion when it prohibited testimony and 

argument as to rising breath alcohol content, which violated his constitutional right to present a 

complete defense. When a trial court’s discretionary decision is reviewed on appeal, the 

appellate court conducts a multi-tiered inquiry to determine whether the lower court: 

(1) correctly perceived the issue as one of discretion; (2) acted within the boundaries of such 

discretion; (3) acted consistently with any legal standards applicable to the specific choices 

 

defined in subsection (4) of this section, or more, as shown by analysis of his blood, urine, or 

breath, to drive or be in actual physical control of a motor vehicle within this state, whether upon 

a highway, street or bridge, or upon public or private property open to the public. 

2 “[T]he alcohol concentration in a defendant’s blood, breath, or urine at the time he or she 

was driving is irrelevant.” State v. Tomlinson, 159 Idaho 112, 122, 357 P.3d 238, 248 (Ct. App. 

2015), abrogated by State v. Austin, 163 Idaho 378, 413 P.3d 778 (2018).
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before it; and (4) reached its decision by an exercise of reason. State v. Herrera, 164 Idaho 261, 

270, 429 P.3d 149, 158 (2018).

Both parties agree that although the district court properly relied on our decision in 

Tomlinson, in light of the Idaho Supreme Court’s subsequent decision in State v. Austin, 163 

Idaho 378, 413 P.3d 778 (2018), that decision was an abuse of discretion. As stated in Austin, 

“The Tomlinson decision erroneously extended the irrelevancy of a driver’s actual alcohol 

concentration while driving--not required in the State’s case-in-chief and not admissible as it 

relates to a machine’s margin of error--to deny a defendant’s right to present contrary evidence 

in his defense.” Austin, 163 Idaho at 382, 413 P.3d at 782. Because both parties agree that in the 

wake of Austin the decision to preclude Hollon from eliciting any evidence addressing rising 

BAC levels was in error, we need only address whether that error was harmless. 

Error is not reversible unless it is prejudicial. State v. Stoddard, 105 Idaho 169, 171, 667 

P.2d 272, 274 (Ct. App. 1983). With limited exceptions, even constitutional error is not 

necessarily prejudicial error. Id. Thus, we examine whether the alleged error complained of in 

the present case was harmless. See State v. Lopez, 141 Idaho 575, 578, 114 P.3d 133, 136 (Ct. 

App. 2005). Where a defendant meets his or her initial burden of showing that a constitutional 

violation has occurred, the State has the burden of demonstrating to the appellate court beyond a 

reasonable doubt that the violation did not contribute to the jury’s verdict. State v. Perry, 150 

Idaho 209, 227-28, 245 P.3d 961, 979-80 (2010). 

The State argues that the error in precluding evidence of rising BAC levels was harmless.

Specifically, the State asserts that the evidence could not have contributed to the verdict because 

Hollon had disclosed no exculpatory or favorable evidence: “The only available testimony on 

rising BAC was Officer Wendler’s testimony that alcohol concentration peaks one hour after 

consumption stops, and the undisputed evidence showed Hollon had stopped drinking two hours 

before Officer Arrington pulled him over.” The State’s position is too limiting and assumes too 

much. Without the ability to address the topic of rising BAC, Hollon was unable to properly 

address the issue and any argument as to what evidence he may have elicited is speculative. 

The State contends the district court’s error in precluding Hollon from presenting 

evidence of his rising BAC could not have contributed to the verdict obtained because, unlike the 

defendant in Austin, Hollon did not have an available defense to the alleged per se violation. The 

State contends this is so because Hollon did not disclose an expert who could present 
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exculpatory testimony regarding rising BAC. However, this argument overlooks that Hollon was 

not required to disclose his own expert in order to present such a defense. Rather, Hollon was 

entitled to inquire of the State’s previously disclosed expert on this point. As the State 

acknowledges, prior to trial, the prosecutor disclosed Officer Wendler as an expert who could 

testify, in relevant part, about the metabolization of alcohol; the length of time it takes alcohol to 

rise, peak, and decline in a person’s body; and that alcohol concentration peaks approximately 

thirty minutes to one hour after alcohol consumption stops. Based on this disclosure, Hollon 

initially inquired of Officer Arrington, the arresting officer and the State’s first witness, about the 

absorption of alcohol.3

 The prosecutor objected, citing Tomlinson and Elias-Cruz v. Idaho Dep’t 

of Transportation, 153 Idaho 200, 280 P.3d 703 (2012), and argued that, notwithstanding the 

State’s expert disclosure, she “no longer believe[d] such expert testimony is appropriate.” 

Because the district court understandably sustained the objection in light of then-existing case 

law, Hollon was foreclosed from pursuing the line of inquiry now permitted under Austin. Under 

these circumstances, we will not assume, as the State’s argument asks us to do, that Hollon could 

not have presented a defense through cross-examination of Officer Wendler.4

 See State v. 

Roach, 157 Idaho 551, 555, 337 P.3d 1280, 1284 (Ct. App. 2014) (“The physiological variables 

testified to by [Defendant’s expert] describe ways in which the result of a breath sample may 

vary depending on the individual.”). Therefore, we conclude the error was not harmless. 

 3 Hollon explained that because the State indicated its intent to introduce the type of 

evidence outlined in the expert disclosure related to Officer Wendler, Hollon was entitled to 

question “any and all of the witnesses” regarding such evidence. 

4 The State asserts that “the undisputed evidence at trial” was Hollon’s admission to 

Officer Arrington that “two hours prior to being stopped he had one beer and one shot of 

Fireball.” The State couples this testimony with the proffered testimony in the State’s expert 

disclosure to conclude that any expert testimony from Officer Wendler would not have been 

favorable to Hollon. However, Officer Arrington’s testimony regarding what Hollon said 

regarding his alcohol consumption was elicited on direct examination prior to the district court’s 

ruling on the admissibility of the anticipated expert testimony from Officer Wendler. Thus, the 

ability to dispute this evidence and its significance relevant to Hollon’s BAC was foreclosed by 

the district court’s evidentiary ruling. 
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III.

CONCLUSION

For the foregoing reasons, Hollon’s conviction is vacated and the case remanded for 

further proceedings consistent with this opinion. 

Judge HUSKEY and Judge LORELLO CONCUR.