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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 38104

STATE OF IDAHO,

Plaintiff-Respondent,

v.

KIMBERLEE ANN DECKER,

Defendant-Appellant.

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2011 Opinion No. 68

Filed: November 14, 2011

Stephen W. Kenyon, Clerk

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

County. Hon. Robert J. Elgee, District Judge; Hon. R. Ted Israel, Magistrate.

District court’s intermediate appellate decision affirming judgment of conviction 

for driving under the influence with an excessive alcohol concentration, affirmed. 

Werth Law Office, PLLC, Hailey, for appellant. Douglas A. Werth argued.

Hon. Lawrence G. Wasden, Attorney General; Nicole L. Schafer, Deputy 

Attorney General, Boise, for respondent. Nicole L. Schafer argued.

________________________________________________

GUTIERREZ, Judge

Kimberlee Ann Decker appeals from the district court’s intermediate appellate decision 

affirming her judgment of conviction, entered by the magistrate upon Decker’s conditional guilty 

plea, for driving under the influence with an excessive alcohol concentration. Specifically, she 

challenges the district court’s affirmance of the magistrate’s denial of her motion to suppress. 

For the reasons set forth below, we affirm.

I.

FACTS AND PROCEDURE

Kimberlee Ann Decker was involved in an automobile accident near Ketchum, Idaho. 

Blaine County Sheriff’s Office Deputy Daniel Turner, who had approximately nine months of 

law enforcement experience, responded to the scene. He observed Decker laying on a gurney, 

smelled alcohol on her person, and observed several small wine bottles on the floor of Decker’s 

vehicle. 
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Decker was transported to a hospital where Deputy Turner observed she had glassy and 

blood shot eyes, smelled of alcohol, had slurred speech, and was exhibiting slightly-impaired 

memory. Decker admitted she had consumed six glasses of wine. Deputy Turner requested she 

submit to a blood alcohol concentration (BAC) test. However, Deputy Turner did not read 

Decker the entirety of the standard “Suspension Advisory Form,” created pursuant to Idaho Code 

sections 18-8002(3)1 and 18-8002A,2 nor did he direct her to read the form. Instead, he

“paraphrased” it, but failed to advise her that after submitting to the test, she had the right to 

obtain her own independent testing. He later admitted he may have also failed to advise Decker 

that she did not have a right to consult an attorney prior to submitting to the test and completely 

failed to advise her of the civil consequences of refusing to consent, both as outlined by the 

advisory form. Finally, Deputy Turner departed from the statutory advisories by telling Decker 

that her driver’s license would be suspended regardless of the test outcome since she admitted to 

drinking, she smelled like alcohol, and wine bottles were found in her car. 

 

1 At the time, Idaho Code section 18-8002(3), applicable to drivers who are asked to

submit to an evidentiary test for the concentration of alcohol or other intoxicants, required the 

following:

At the time evidentiary testing for concentration of alcohol . . . the person shall 

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

testing:

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

temporary permit will be issued [except under certain circumstances 

where a temporary permit should not be issued];

(b) 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;

(c) If he does not request a hearing or does not prevail at the hearing, his 

driver’s license will be suspended absolutely for one year if this is his first 

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

and

(d) After submitting to evidentiary testing he may, when practicable, at 

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

choosing.

2 Idaho Code section 18-8002A required essentially the same advisory regarding the right 

to obtain an independent test, but was applicable where a driver submitted to an evidentiary test

and failed it.
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Decker signed a form consenting to a BAC test. Her blood alcohol level was found to be 

.33, well above the legal limit.3 She was charged with misdemeanor driving under the influence 

with “an alcohol concentration of 0.20 . . . or more, as shown by an analysis of his blood, breath 

or urine by a test requested by a police officer. . . .” I.C. § 18-8004C(1) (“excessive DUI”). She 

filed a motion to suppress the BAC results on the basis that Deputy Turner failed to comply with 

the statutory requirement that he advise her of her right to obtain an independent test and that this 

failure violated her federal and state due process rights. The magistrate denied the motion. 

Decker entered a conditional guilty plea, reserving her right to challenge the denial of her motion 

to suppress. On intermediate appeal, the district court affirmed the magistrate’s denial of her 

motion. Decker now appeals. 

II.

ANALYSIS

Decker argues her statutory and due process rights were violated by the officer’s failure 

to advise her of her right to obtain an additional, independent BAC test and, therefore, her BAC 

results should have been suppressed. The State concedes the officer failed to advise Decker of 

this right before her blood draw was performed; however, it contends Decker fails to show that a 

violation of the statutory notice requirement requires suppression or that such a failure implicates 

due process. 

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, 760 (2008); State v. DeWitt, 145 Idaho 709, 711, 184 P.3d 215, 217 (Ct. App. 2008). We 

examine the magistrate division 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. If those findings are so supported, and the conclusions 

follow therefrom, and if the district court affirmed the magistrate’s decision, we affirm the 

district court’s decision as a matter of procedure. Id. 

The standard of review of a suppression motion is bifurcated. When a decision on a 

motion to suppress is challenged, we accept the trial court’s findings of fact that are supported by 

substantial evidence, but we freely review the application of constitutional principles to the facts 

 

3 See I.C. § 18-8004.
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as found. State v. Atkinson, 128 Idaho 559, 561, 916 P.2d 1284, 1286 (Ct. App. 1996). At a 

suppression hearing, the power to assess the credibility of witnesses, resolve factual conflicts, 

weigh evidence, and draw factual inferences is vested in the trial court. State v. Valdez-Molina, 

127 Idaho 102, 106, 897 P.2d 993, 997 (1995); State v. Schevers, 132 Idaho 786, 789, 979 P.2d 

659, 662 (Ct. App. 1999). 

This Court exercises free review over the application and construction of statutes. State 

v. Reyes, 139 Idaho 502, 505, 80 P.3d 1103, 1106 (Ct. App. 2003). Where the language of a 

statute is plain and unambiguous, this Court must give effect to the statute as written, without 

engaging in statutory construction. State v. Rhode, 133 Idaho 459, 462, 988 P.2d 685, 688 

(1999); State v. Burnight, 132 Idaho 654, 659, 978 P.2d 214, 219 (1999); State v. Escobar, 134 

Idaho 387, 389, 3 P.3d 65, 67 (Ct. App. 2000). The language of the statute is to be given its 

plain, obvious, and rational meaning. Burnight, 132 Idaho at 659, 978 P.2d at 219. If the 

language is clear and unambiguous, there is no occasion for the court to resort to legislative 

history or rules of statutory interpretation. Escobar, 134 Idaho at 389, 3 P.3d at 67. When this 

Court must engage in statutory construction, it has the duty to ascertain the legislative intent and 

give effect to that intent. Rhode, 133 Idaho at 462, 988 P.2d at 688. To ascertain the intent of 

the legislature, not only must the literal words of the statute be examined, but also the context of 

those words, the public policy behind the statute, and its legislative history. Id. It is incumbent 

upon a court to give a statute an interpretation which will not render it a nullity. State v. Beard, 

135 Idaho 641, 646, 22 P.3d 116, 121 (Ct. App. 2001). Constructions of a statute that would 

lead to an absurd result are disfavored. State v. Doe, 140 Idaho 271, 275, 92 P.3d 521, 525 

(2004); State v. Yager, 139 Idaho 680, 690, 85 P.3d 656, 666 (2004). 

In denying Decker’s motion to suppress, the magistrate determined suppression was not 

required under the statute. The magistrate further determined suppression was not appropriate in 

this instance because more than one vial of blood was taken and preserved; therefore, Decker 

could still obtain an independent test. The magistrate also found Deputy Turner’s failure to 

properly advise Decker did not rise to the level of a due process violation. In affirming the 

magistrate, the district court declined to resolve the statutory and due process contentions, 

reasoning that only a Fourth Amendment violation would warrant suppression in this case and 

such a violation was not present here. 
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A. Statutory Grounds

On appeal, Decker contends the result of her BAC test should be suppressed because the 

officer failed to comply with the statutory requirement that she be advised of her right to obtain 

independent testing. Section 18-8002(3) provided for the suspension of the driving privileges of 

a motor vehicle operator who refused to submit, at the request of a peace officer, to an 

evidentiary test for the concentration of alcohol in his blood, urine, or breath. The section also 

required that at the time of the evidentiary test, the officer inform the arrestee that, among other 

things, “[a]fter submitting to evidentiary testing he may, when practicable, at his own expense, 

have additional tests made by a person of his own choosing.” I.C. § 18-8002(3)(d).4 Further, the 

statute provided:

After submitting to evidentiary testing at the request of the peace officer, 

he may, when practicable, at his own expense, have additional tests made by a 

person of his own choosing. The failure or inability to obtain an additional test or 

tests by a person shall not preclude the admission of results of evidentiary testing 

for alcohol concentration or for the presence of drugs or other intoxicating 

substances taken at the direction of the peace officer unless the additional test was 

denied by the peace officer.

I.C. § 18-8002(4)(d).5 Additionally, section 18-8002A, the related statute, which provided for 

the administrative suspension of the driving privileges of a motor vehicle operator who submits 

to an evidentiary test which shows an alcohol concentration in excess of that permitted by law, 

indicated that:

At the time of evidentiary testing for concentration of alcohol . . . . is requested, 

the person shall be informed that if the person refuses to submit to or fails to 

complete evidentiary testing, or if the person submits to and completes 

evidentiary testing and the test results indicate an alcohol concentration . . . in 

violation [of statutes], the person shall be informed substantially as follows (but 

need not be informed verbatim):

If you refuse to submit to or if you fail to complete and pass evidentiary 

testing for alcohol or other intoxicating substances:

. . . .

(e) After submitting to evidentiary testing you may, when practicable, at 

your own expense, have additional tests made by a person of your own choosing.

 

4 In the amended version of the statute, this subsection is now (3)(e).

5 This subsection is now codified as (4)(e). 
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I.C. 18-8002A(2)(e)6. Mirroring section 18-8002(4)(d), the statute further provided: 

Additional tests. After submitting to evidentiary testing at the request of 

the peace officer, the person may, when practicable, at his own expense, have 

additional tests for alcohol concentration or for the presence of drugs or other 

intoxicating substances made by a person of his own choosing. The person’s 

failure or inability to obtain additional tests shall not preclude admission of the 

results of evidentiary tests administered at the direction of the peace officer unless 

additional testing was denied by the peace officer.

I.C. 18-8002A(6).

Decker contends these statutes require the suppression of her BAC results in this 

instance. However, it is well-settled that even if an officer fails to notify the defendant of the 

consequences of refusal as required by section 18-8002(3), the results of the evidentiary test are 

still admissible in a criminal prosecution. State v. Woolery, 116 Idaho 368, 373, 775 P.2d 1210, 

1215 (1989); DeWitt, 145 Idaho at 714, 184 P.3d at 220; State v. Harmon, 131 Idaho 80, 85, 952 

P.2d 402, 407 (Ct. App. 1998). In other words, failure to advise a suspect of the consequences of 

refusal is significant only in regard to the administrative license suspension procedure 

encompassed by section 18-8002(3) following a refusal. DeWitt, 145 Idaho at 713-14, 184 P.3d 

at 199-200. And, given the similarity of the statutes and the fact section 18-8002A, like section

18-8002, is devoted entirely to “the administrative, or civil, suspension of the license of a 

driver,” Woolery, 116 Idaho at 373, 775 P.2d at 1215, we conclude a failure to provide the 

warnings under section 18-8002A also does not require suppression of test results in a criminal 

prosecution. 

Alternatively, Decker contends the officer’s failure to inform her of her right to obtain an 

independent test and misstatements of the law amounted to a “denial” of additional testing and,

therefore, pursuant to sections 18-8002(4)(d) and 18-8002A(6), her BAC result should have been 

suppressed. Decker’s attempt to equate the failure to advise her pursuant to section 18-8002(3) 

to a denial of the right to an additional test is untenable based on the plain language of the 

statutes. While the legislature specifically mandated that exclusion is appropriate when 

discussing the denial of the right to an additional test, I.C. §§ 18-8002(4)(d), 18-8002A(6), it did 

not do so with regard to the failure to inform an arrestee of this right pursuant to section

 

6 This statute has been amended and is now subsection (f). 
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18-8002(3). Rather, as we noted above, the remedy provided for the failure to advise an arrestee 

as dictated by section 18-8002(3) is in regard to an administrative license suspension. I.C. § 18-

8002(4). See also DeWitt, 145 Idaho at 713-14, 184 P.3d at 199-200. Given this distinction 

made by the legislature, we are not convinced the exclusionary provisions applicable to a denial 

of testing extend to a failure to advise. Rather, they comprise two distinct circumstances with 

two distinct statutory remedies. Accordingly, we conclude the magistrate did not err in refusing 

to suppress on statutory grounds because Decker is not entitled to statutory-mandated 

suppression of the BAC results in the criminal prosecution at issue where she was not “denied” 

the right to obtain an independent test.

B. Constitutional Grounds

We next turn to Decker’s argument that the results should be suppressed on constitutional 

grounds. Specifically, she contends “the failure of the officer to follow mandatory statutory 

requirements, and his abject misinformation, deprived [her] of the opportunity to obtain 

additional testing and the ability to obtain evidence to assist in her defense.” This, she contends, 

violated her right to due process under both the United States Constitution and the Idaho 

Constitution.7

Where a defendant claims his or her right to due process was violated, we defer to the 

trial court’s findings of fact, if supported by substantial evidence. State v. Jacobson, 150 Idaho 

131, 134, 244 P.3d 630, 633 (Ct. App. 2010); State v. Smith, 135 Idaho 712, 720, 23 P.3d 786, 

794 (Ct. App. 2001). However, we freely review the application of constitutional principles to 

those facts found. Id. It is the defendant’s burden to demonstrate facts that constitute a due 

process violation. See Jacobson, 150 Idaho at 134, 244 P.3d at 633; State v. Cantrell, 139 Idaho 

409, 412, 80 P.3d 345, 348 (Ct. App. 2003). 

It is fundamental to our legal system that the State shall not deprive “any person of life, 

liberty, or property, without due process of law.” U.S. CONST. amend. XIV, § 1. It is a two-

 

7 At the outset, we note that inasmuch as our courts have found that the due process 

guarantees under the federal and state constitutions are substantially the same, see, e.g., Rudd v. 

Rudd, 105 Idaho 112, 115, 666 P.2d 639, 642 (1983); McNeely v. State, 119 Idaho 182, 188, 804 

P.2d 911, 917 (Ct. App. 1990), we will address these arguments together. State v. Shelton, 129 

Idaho 877, 879, 934 P.2d 943, 945 (Ct. App. 1997).
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step process to determine due process rights: first, deciding whether a governmental decision 

would deprive an individual of a liberty or property interest within the meaning of the Fourteenth 

Amendment’s Due Process Clause; and second, if a liberty or property interest is implicated, a 

balancing test must be applied to determine what process is due. State v. Rogers, 144 Idaho 738, 

740, 170 P.3d 881, 883 (2007).

Decker’s contention that the advisory requirements of section 18-8002(3) created a due 

process right is untenable. She cites to no authority for the proposition that a statutory directive 

to law enforcement authorities amounts to a due process right of an accused merely on the basis 

that it is mandated by statute. Accordingly, we must conclude the magistrate did not err in 

denying her motion to suppress on constitutional grounds. 

III.

CONCLUSION

The magistrate did not err in concluding there was no basis to suppress Decker’s BAC 

results on either statutory or constitutional grounds. Thus, we affirm the district court’s decision 

affirming the magistrate’s denial of Decker’s motion to suppress. 

Chief Judge GRATTON and Judge LANSING CONCUR.