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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 46103

STATE OF IDAHO,

Plaintiff-Respondent,

v.

GAYLON EUGENE LORDS,

Defendant-Appellant.

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Filed: December 5, 2019

Karel A. Lehrman, Clerk

THIS IS AN UNPUBLISHED

OPINION AND SHALL NOT

BE CITED AS AUTHORITY

Appeal from the District Court of the Seventh Judicial District, State of Idaho, 

Bonneville County. Hon. Bruce L. Pickett, District Judge. 

Order dismissing complaint without prejudice, affirmed. 

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

Appellate Public Defender, Boise, for appellant. 

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

Attorney General, Boise, for respondent. 

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LORELLO, Judge 

Gaylon Eugene Lords appeals from the district court’s order dismissing a complaint 

charging him with felony driving under the influence (DUI). Lords asserts the district court 

abused its discretion and violated his due process rights by dismissing his case without prejudice 

rather than with prejudice. For the reasons set forth below, we affirm.

I.

FACTUAL AND PROCEDURAL BACKGROUND

The State charged Lords with felony DUI, alleging both the impairment and per se 

theories of liability. Lords requested and received two continuances in order to obtain medical 

and jail records. Lords waived his speedy trial rights in conjunction with his requests for a 

continuance. The State subsequently filed a motion in limine to exclude evidence of Lords’
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medical records or any uncertainty related to the breathalyzer test results. Lords objected to the 

motion arguing that, because the State alleged an impairment theory, he was entitled to present 

the evidence the State was seeking to exclude. In response, the State indicated it would amend 

the information to allege only the per se theory of liability, i.e., that Lords drove with a blood 

alcohol concentration of .08 or more. The State amended the information accordingly. 

Six days before trial, the State filed a motion for continuance in order to “provide expert 

witness disclosure regarding the breath test in this case.” At a hearing on the motion, the 

prosecutor explained that, while preparing for trial, he noticed “some issues with standard 

operating procedures” in relation to the breathalyzer machine, which could be cured with expert 

testimony. In order to address those issues, the State requested a continuance to allow proper 

disclosure of the expert. Lords objected and the district court denied the State’s motion to 

continue. The same day, the State filed a motion to dismiss pursuant to Idaho Criminal Rules 47 

and 48. Lords objected to dismissing the case without prejudice. The district court granted the 

State’s motion and dismissed the case without prejudice. Lords appeals. 

II.

STANDARD OF REVIEW

The granting or denying of a motion to dismiss under I.C.R. 48 is reviewed for an abuse 

of discretion. State v. Martinez-Gonzalez, 152 Idaho 775, 778, 275 P.3d 1, 4 (Ct. App. 2012); 

State v. Dixon, 140 Idaho 301, 304, 92 P.3d 551, 554 (Ct. App. 2004). 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 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). 

Where a defendant claims that 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. 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.
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III.

ANALYSIS

Lords asserts that the district court abused its discretion by dismissing his case without 

prejudice rather than with prejudice. Lords also asserts that dismissal without prejudice violated 

his due process rights. The State responds that Lords has failed to show either an abuse of 

discretion or a constitutional violation. We hold that Lords has failed to show the district court 

abused its discretion or violated Lords’ due process rights by dismissing the criminal charge 

against Lords without prejudice. 

A. Idaho Criminal Rule 48

After the district court denied the State’s motion to continue to allow it additional time to 

disclose an expert witness in order to meet its burden of proving that Lords drove under the 

influence, the State filed a motion to dismiss pursuant to I.C.R. 48. Idaho Criminal Rule 48(a)(2)

authorizes dismissal of a criminal case if the court concludes that dismissal will serve the ends of 

justice and the effective administration of the court’s business. Although an order for dismissal 

precludes refiling if the charge is a misdemeanor, an order for dismissal does not bar further 

prosecution if the charged offense is a felony. I.C.R. 48(c). Because the charge against Lords 

was a felony, I.C.R. 48 did not require dismissal with prejudice and the district court concluded 

that dismissal without prejudice would serve the ends of justice and the effective administration 

of the court’s business. 

Lords argues that the district court’s dismissal decision constitutes an abuse of discretion 

because the State sought dismissal “to circumvent” the order denying its request for a 

continuance. That the State sought dismissal because its motion to continue was denied is not 

disputed. However, seeking dismissal of a charge without prejudice because a motion to 

continue has been denied is not per se impermissible, nor does granting such a request constitute 

an abuse of discretion. See State v. Huntsman, 146 Idaho 580, 584, 199 P.3d 155, 159 (Ct. App. 

2008); State v. Davis, 141 Idaho 828, 842, 118 P.3d 160, 174 (Ct. App. 2005). In this case, 

Lords has failed to show the district court abused its discretion. 

In reaching its decision, the district court correctly perceived the issue as one of 

discretion and acted within the boundaries of the discretion afforded by I.C.R. 48. As to prong 

three of the abuse of discretion standard, Lords has failed to identify any applicable law that 
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foreclosed the district court’s decision. Lords’ argument appears to be that the district court 

failed to exercise reason because, he contends, the State engaged in a “scheme to avoid 

complying with a court order,” “inexcusably failed to disclose the expert witness it later deemed 

necessary,” and “then improperly attempted to avoid the consequences of its inattention by filing 

a motion to dismiss without prejudice.” However, the district court made contrary findings. The 

district court concluded that dismissal without prejudice was appropriate because, although the 

reason the State sought dismissal was because it needed to disclose an expert for trial, the lack of 

preparation was “not the result of bad faith and was not deliberate or intentional.” Rather, the 

lack of preparation was “the result of inexperience and/or inadvertence.” That Lords’ “trial 

strategy” would be “compromised” by expert testimony introduced by the State does not mean 

dismissal without prejudice did not serve the ends of justice and the effective administration of 

the court’s business. Lords has failed to show the district court abused its discretion by granting 

the State’s motion to dismiss without prejudice.

B. Due Process

Lords’ related constitutional claim is that his due process rights were also violated based 

on the dismissal without prejudice because the State sought dismissal in “bad faith.” Lords’

constitutional argument fails. The dismissal and refiling of criminal complaints can violate due 

process if done for the purpose of harassment, delay, or forum-shopping. Davis, 141 Idaho at 

842, 118 P.3d at 174. However, because an order of dismissal is a final appealable order, a 

defendant must seek review of that order even absent refiled charges. See Huntsman, 146 Idaho 

at 584, 199 P.3d at 159. Conduct that can be characterized as negligent or the result of poor 

management falls significantly short of the type of deliberate bad faith conduct necessary to 

support a due process claim. See Davis, 141 Idaho at 843, 118 P.3d at 175. To support a due 

process claim, it is incumbent upon the defendant to affirmatively show actual prejudice and the 

effect of that prejudice upon his or her ability to present a defense. Id. The proof of prejudice 

must be definite and not speculative. Id. 

As previously noted, the district court found that the State did not engage in bad faith in 

seeking dismissal without prejudice and that finding is supported by the record. The district 

court’s conclusion that dismissal without prejudice was appropriate is also supported by law. 

See id. Regarding prejudice, Lords has cited none in the context of his due process claim. To 
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the extent Lords claims prejudice based on the “tactical advantage” the State would gain by 

having the ability to present expert testimony at any trial following refiling the charge, this 

claimed prejudice is inadequate to establish a due process violation. If presenting evidence that 

the State would not otherwise be able to present were sufficient to show prejudice, any dismissal 

on this basis would violate due process. That is not the law. See State v. Averett, 142 Idaho 879, 

885, 136 P.3d 350, 356 (Ct. App. 2006) (concluding new evidence constitutes sufficient basis to 

dismiss and refile charges). Lords has failed to establish any due process violation resulting 

from the district court’s decision granting the State’s motion to dismiss without prejudice.

IV.

CONCLUSION

Lords has failed to show the district court abused its discretion or violated his due process 

rights by dismissing his case without prejudice. Accordingly, the district court’s order 

dismissing the complaint without prejudice is affirmed. 

Chief Judge GRATTON and Judge HUSKEY, CONCUR.