1 IN THE SUPREME COURT OF THE STATE OF IDAHO

Docket No. 47612

STATE OF IDAHO,

Plaintiff

- Appellant,

v.

JEFFERY DWAY NE STEGALL,

Defendant

- Respondent. ) ) ) ) ) ) ) ) ) Boise, September 2020 Term

Opinion Filed: December 22, 2020

Melanie Gagnepai n, Clerk

Appeal from the District Court of the First Judicial District, State of Idaho, Kootenai County. Cynthia K.C. Meyer, District Judge.

The decision of the district court is affirmed

. Lawrence G. Wasden, Idaho Attorney General, Boise, for App ellant. Kenneth K. Jorgensen argued.
Eric D. Frederickson, State Appellate Public Defender, Boise, for Respondent. Sally J. Cooley argued.

______________________________________ BURDICK, Chief Justice. This case arises from a DUI suspect’s request to make a phone call from jail following
his arrest. The State appeals an order of the Kootenai County district court granting Jeffery Dwayne Stegall’s motion to suppress blood alcohol concentration (BAC) evidence obtained from
a blood draw. The district court gr an ted Stegall’s motion after determining that his right to due process had been violated when police officers at the jail refused his request to make a phone
call. The State argues on appeal that the district court erred in determining Stegall’s due proces s rights were violated because the officers were not acting in bad fa ith when they failed to allow him access to a phone

.

I. FACTUAL AND PROCEDURAL BACKGROUND
On the evening of June 21, 2019, three Idaho State Police troopers were out searching for

a reported car accident when they came across a car parked on the shoulder of the interstate with2

its rear left tire on the fog line. One of the troopers stopped to investigate while the other two

con tinued to se arch for the reported accident. The trooper approached the vehicle and found Stegall slumpe d forward in the driver’s seat. The trooper woke Stegall up by knocking on the front passenger window. T he trooper then leaned toward the partially open back window to speak to Stegall and smelled the odor of alcohol co ming through the window

. He asked Stegall
whether he was “ all right. ” When Stegall responded, the trooper observed that his speech was
slurred and his eyes were glassy and bloodshot

. Based on his observations, the trooper suspected Stegall had been driving under the inf luence of alcohol and transitioned into a DUI investigation. Unable to find the reported accident, the o ther troopers returned to provide back up for the first trooper at around 6:30 p.m. Shortly after the other troopers arrived, the first tr ooper asked Ste gall to get out of the vehicle. They initially planned to question him and conduct field sobriety tests along the side of th e road. However, after learning that he had an outstanding arrest warrant, they decided to arrest him and conduct fie ld sobriety tests at the jail

. On the way to the jail, S tegall stated several times that he wanted a lawyer and tha t he was going to get a lawyer. At the jail, law enforcement officers obtained a warrant and drew Stegall’s blood for BAC testing. During th e blood draw, Stegall requested a lawyer several times. The officers at the jail had a difficult time hitting a vein while collecting a blood sample
, obtaining only a partial sample from Stegall

. After the blood draw, Stegall was moved into another room wh ere there was no access to a phone. He asked several times to make a phone call, but was not allowed access to a phone until the next morning. The resul t s of the blood test indicated that he had a
BAC of 0.232 g/100 cc. The State subsequently charged Stega ll with a felony for driving under
the influence in violation of I daho Code section 18

- 8004. Before a trial could take place, Ste gall filed a motion to suppress . He argued , among other things, that the State violated hi s right to due process by refusing t o allow him to make a phone call until the morning after his arrest. The district co urt held a hearing where Stegall
testified that he had asked the booking officer to let him make a phone call to a lawyer before the
blood draw , but was ignored. He further testified that he asked the booking officer and several other officers for a phone call after the blood draw, but was not allowed access to a pho ne until the following morning. After hearing the parties’ arguments and taking the matter under advisement, the district court issued a written decision granting Stegal l’s motion to suppress in part. T he district court3

reasoned that St egall’s testimony that he asked the booking officer and other jail officers for access to a phone was not challenged with conflic ting evidence by the S tate , and that due process required the officers to allow him to make a phone call once he had requested it. Because Stegall had not been allowed to use the phone until the next morning, when independent testing would no longer have b een of evidentiary value, the district court concluded that Stegall’s right to due process had been violated and ordered suppression of the BAC evidence on that basis

. The State timely appealed.
II. ISSUE ON APPEAL Did the district court err in granting Stegal l’s motion to suppress the BAC test results on the ground that his right to due process was violated when he was not allowed a phone call until the morning after his arrest?
III. STANDARD OF REVIEW

“ In reviewing a district court order granting or denying a mot ion to suppress evidence,
the standard of review is bifurcated. ” State v. Purdum , 147 Idaho 206, 207, 207 P.3d 182, 183 (2009) (quoting State v. Watts , 142 Idaho 230, 232, 127 P.3d 133, 135 (2005)). “ This Court will accept the trial court ’ s findings of fac t unless they are clearly erroneous but will freely review the
trial court ’ s application of constitutional principles to the facts found. ” State v. Danney , 153 Idaho 405, 408, 283 P.3d 722, 725 (2012) (citing Purdum , 147 Idaho at 207, 207 P.3d at 183).

“ Fi ndings of fact are not clearly erroneous if they are supported by substantial and competent
evidence. ” Id. (citing State v. Bishop
, 146 Idaho 804, 810, 203 P.3d 1203, 1209 (2009) )

. IV. ANALYSIS “Procedural due process imposes constraints on governmental decisi ons which deprive individuals of ‘liberty’ or ‘property’ interests within the meaning of the Due Process Clause of
the Fifth or Fourteenth Amendment.” Mathews v. Eldridge , 424 U.S. 319, 332 (19 76 ). “ The right of an accused in a criminal trial to due proces s is, in essence, the right to a fair oppor t unity to defend against the State ’ s accusations. ” Chambers v. Mississippi , 410 U.S. 284, 294 (1973). The concept of due process is flexible in nature, calling for “such procedural protections as the particular si tuation demands.” Morrissey v. Brewer , 408 U.S. 471, 481 (1972). To determine whether state action violates an individual’s right to procedural due process, three distinct factors must be considered: (1) “the private interest that will be affected by
the official action;” (2) “ the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural4

safeguards ;” and (3) “ the Government ’ s interest, including the function involve d and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. ”
Mathews , 424 U.S. at 334

– 35 (citation omitted)

. Stegall’s “right to a fair opportunity to defend against the State’s accusations” includes an interest in obtaining evidence to refute the State’s evidence against him. The Court of Appeals analyzed a nearly identical issue in State v. Car r , 128 Idaho 181 , 911 P.2d 774 (Ct. App. 1995). In that case, a police officer arrested Carr for driving und er the influence and transported her to the county jail. Id. at 182, 911 P.2d at 775. At the jail, the officer was preparing to administer an evidentiary breath test when Carr asked for access to a phone so that she could contact an attorney. Id. The offic er informed her that she did not have a right to an attorney before the
b reath test was administered

. Id. After the administration of the breath test, Carr was taken to a holding cell where her repeated requests to contact an attorney were denied. Id. Afte r approximately five hours had passed, she was allowed to make a phone call, which she used to
contact a bondsman. Id

. Applying the first factor listed above, the Court of Appeals explained that the private interest at stake was the arrested individual’s interest in “procuring evidence which would challenge the results of the State ’ s BAC test .” Id. at 184, 911 P.2d at 777. G iven the “inherent exigency” that exists in a DUI setting because of th e inevitable destruction of alcohol in the
blood by the metabol ism , the Court further reasoned that the “only opportunity for a defendant in a DUI case to gather exculpatory evidence is within a reasonable time following arrest and
administration of the State ’ s BAC test. ” Id. (citations omitted)

. Because a phone call provides the means by which an arrestee in a DUI case is able to gather evidence to refute the State’s evidence of intoxication, the Court of Appeals concluded that “ when a person is arrested for DUI and given an evidentiary BAC test, that person must be a llowed, at a minimum, to make a phone call upon request to do so. ” Id.
T he Court of Appeals is not alone in determining that a DUI arrestee has a due process
i nterest in procuring evidence within a reasonable time after the State has tested the individual ’s
BAC. See, e.g. , Bilbrey v. State
, 531 So. 2d 27 (Ala. Crim. App. 1987) , abrogated on other grounds by State v. Thrasher , 783 So. 2d 103 ( Ala. 2000) ; McNutt v. Superior Court , 648 P.2d 122 ( Ariz. 1982); Brown v . Mun. Court , 150 Cal. Rptr. 216 ( Ct. App. 1 978); Jones v. State , 409
S.E.2d 251 ( Ga. Ct. App. 1991); Scarborough v. State
, 261 So. 2d 475 (Miss. 1972); State v.5

Swanson , 722 P.2d 1155 ( Mont. 1986); State v. Bumgarner , 389 S.E.2d 425 ( N.C. Ct. App. 1990) ; State v. Choate
, 667 S.W.2d 111 (Tenn. Crim. App. 1983). We agree with the Idaho
Cour t of Appeals, as well as other courts ar ound the country, that Stegall had a due process interest in obtaining evidence to refute the State’s case against him. In the DUI context, this constitutional due process int erest in obtaining evidence overlaps with the statutorily provided right to independent testing. See I.C. § 18

- 8002(4)( f ). 1 The former is a broader constitutional right to obtain evidence used to build the case for one’s innocence. The latter is a specific statutory right to independent BAC testing, triggered by the State’s
administration of its own test. I d. The statutory right is also evidence that the legislature appreciates the importance of an arrestee’s ability to build his case for innocence without unreasonable interference by law enforcement officers. These concerns are further heightened in
the context of BAC testing due to the truncated timeframe in which an arrestee may obtain meaningful independent evidence because of the body’s natural metaboli zation of alcohol in the
blood stream

. See State v. Wulff , 157 Idaho 416, 420, 337 P.3d 575, 579 (2014) (stating that the body’s metabolization of alcohol is one factor to consider in an exigent circumstances analysis)

. To invoke the statutory right to inde pendent testing, the Court of Appeals has required
that DUI arrestee s do so explicitly. State v. Hedges , 143 Idaho 884, 887

– 88, 154 P.3d 1074,
1077

– 78 (Ct. App. 2007) (“ [P] olice are not required to guess whether a defendant has asserted his or her right ba sed upon the defendant's passing references to additional testing. We conclude that, once informed of this right, a defendant must make a clear and unambiguous statement of his or her desire to obtain an independent BAC test, such that a reasonable police officer under
the circumstances would understand the statement to be an affirmative assertion thereof. ”)

. Indeed, the statute only prohibits the use of evidence obtained pursuant to evidentiary testing where the DUI arrestee has been denied the ability to obtain such testing. See I.C. §
18

- 8002(4)(f) (“The failure or inability to obtain an additional test or tests by a person shall not

1 Idaho Code section 18

- 8002(4)(f) p rovides that: After submitting to evidentiary testing at the request of the peace officer, [a DUI arrestee] 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 additio nal 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)(f).6

preclude the admission of results of evidentiary testing . . . unless the additional test was denied by the peace officer.” ). It stands to reason that an officer cannot deny additional evidentiary testing if it was never explicitly requested by the DUI arrestee in the first place

. Similarly , to invoke the constitutiona l due process right to gather evidence, a DUI

arrestee mus t make clear to the S tate actors his desire to do so. There can be no doubt that a DUI
arrestee who explicitly requests a phone call to obtain independent evidentiary testing has invoked both his statutory right to independent testing and his constitutiona l due process right to obtaining evidence to rebut the case against him. Denial of such a request for an unreasonable

amoun t of time violates both rights. However, this case is not so clear

- cut. Stegall did not, at any point, state to any of the
officers t hat his desire to make a phone call was for the purpose of obtaining independent evidentiary testing. Instead, Stegall’s uncontroverted testimony was that he asked the booking officer for a phone call to a lawyer before his b lood was drawn and that he repe ated his phone
call request to the booking officer and several other officers after his blood was drawn. He did not specify whether he mentioned contacting a lawyer in making his post

- blood

- draw requests for a phone call. These facts require us to consider two questions: (1) Is a DUI arrestee’s request to make a phone call to contact an attorney sufficient to invoke his due process right to gather evidence?; and, if so, (2) did Stegall unequivocally request a phone call to an attorney? We
answer both questi ons in the affirmative. As to the first question, the Court of Appeals has explained that a request to call an attorney “is essentially considered the same as an outright request for alternative testing or evidence preservation.” State v. Jacobson
, 150 Ida ho 131, 137 n.2, 244 P.3d 630, 636 n.2 (Ct. App. 2010) (citing State v. Carr , 128 Idaho 181, 911 P.2d 774 (1995) ). As discussed above, the Court of Appeals also reasoned in State v. Carr that a phone call is the primary means by which
a DUI arrestee is abl e to gather evidence to refute the State’s case against him. 128 Idaho at 184,
911 P.2d at 777. In addition to arranging for independent BAC testing, a phone ca ll could be
used to arrange for a photograph to be taken to demonstrate that the arrestee's eye s were not bloodshot but were clear and white; prepare a tape recording to demonstrate that the arrestee had clear speech; videotape the arrestee to show that he or she has balance and is able to walk in a straight line; perform a gaze nystagmus test to sh ow smooth eye pursuit at all angles; or simply serve as a witness who observed the aforementioned characteristics of sobriety.7

Id. at 184

– 85, 911 P.2d at 777

– 78. While we do not think a request to call an attorney meets the requirement that a DUI

arrestee explicitly invoke his statutory right to independent evidentiary testing, we agree with the Court of Appeals that such a request is sufficient to invoke the broader constitutional due process right to procure evidence for his defense

. A DUI arrestee who i s detained without a means of communicating with the outside world has little to no ability to arrange for evidence to be gathered. Other than arranging for independent BAC testing himself, which would also typically require access to a phone, c ontact ing a n attorney very well may be a DUI arrestee’s best hope of obtaining evidence to build his case. Unreasonably d enying him access to a phone until after the alcohol in his blood has dissipated, despite his request to contact an attorney, interferes with his due process interest in obtaining such ev idence

. Other state courts have come to similar
conclusions. See , e

. g. , McNutt , 648 P.2d at 12 5 n.2 (“ If after taking or refusing to take the test a defendant demands to contact a lawyer, he should promptly be given that opportunity. ”) ; Scarborough , 261 So. 2d at 477 (“To limit [a DUI arrestee’s] access to an attorney or friends until after a certain number of hours have passed is in effect denying him effective means to prepare a defense. ”)

. 2 Therefore, we conclude that unreasonably denying a DUI arrestee’s request for a phone call to contact an attorney violates the arrestee’s right to due process. What is
reasonable depends upon the circumstances of each case. Bilbrey , 531 S o. 2d at 29. Having determined that a req uest for a phone call to an attorney invokes the due process right to obtain evidence, we turn now to whether Stegall unequivocally made such a request in
this case. Based on the uncontroverted testimony considered by the district court, we conclude
that h e did. Before the State’s BAC test was administered, Stegall asked the booking officer if he could “get a phone call to a lawyer,” but was never given an answer. He again asked the booking officer to let him make a phone call after his blood was drawn , tho ugh it is unclear from his testimony whether he indicated to the booking officer that the purpose of his request was still to contact an attorney. While it is true that a DUI arrestee has no right to access a phone or to call a lawyer before a BAC test is administered, State v. Green , 149 Idaho 706, 710, 239 P.3d 811, 815 (Ct. App. 2010), such a request can still help to inform S tate actors as to the purpose of a subsequent request. When Stegall again asked the booking officer for access to a phone after hi s

2 Because we ultimately conclude in this opinion that Stegall unequivocally requested access to a phone for the purpose of contacting an attorney, we need not determine whether denying a DUI arrestee’ s request for a phone call would violate due process where the arrestee does not specify the intended purpose of the call.8

blood was drawn , close i n time to his orig inal request and without any stated change in purpose
, a reasonable officer would understand that the purpose of the requested call was the same as
before

— to contact an attorney. Therefore, we conclude that a DUI arrestee invokes his due process right to gather evidence when he unequivocally requests access to a phone to contact an attorney and that Stegall invoked that right in this case. Having identified the private interest invoked in this case, we turn now to the second
factor articulated in Mathews v. Eldridge , 424 U.S. 319, 335 (1976) (citation omitted). In analyzing this factor, we conclude that the procedure followed by the law enforcement officers in
this case

— ignoring a DUI arrestee’s request to call an attorney until the morning after his

arrest

— presents a serious risk of erroneous deprivation of the DUI arrestee’s interest in gathering evidence for his defense. Furthermore, the probable utility of additional procedural safeguards, such as allowing a DUI arrestee , upon his request, to make a phone call to an attorney within a reasonable time after the State administers a BAC test , is great. Such a phone call ensures that the DUI arrestee is given an opportunity to gather evidence to refute the charge agai nst him. As to the third and final factor, the additional fiscal or administrative burden of allowing a DUI arrestee to make a phone call to an attorney after administration of a BAC test is minimal. Jails typically have phones designated for use by detai nees. Without evidence that a DUI
arrestee’s use of a phone would have posed a threat to officer safety or placed some other undue burden on law enforcement resources, the slight burden on the State does not outweigh the significant risk posed by de nying S tegall’s request to call an attorney . Therefore, we conclude that the officers’ failure to grant Stegall’s request for access to a phone to call an attorney within a reasonable amount of time denied him the opportunity to obtain independent evidence, and

t herefore, violated his right to due process. Finally, t he State argues that U.S. Supreme Court precedent requires a DUI arrestee to show bad faith on the part of law enforcement if the evidence the DUI arrestee seeks to obtain is of unknown exculpatory val ue. The State cites Arizona v. Youngblood
, 488 U.S. 51 (1988), in support of i ts argument. However, Youngblood involved law enforcement failing to preserve evidence that it had already collected. See Youngblood , 488 U.S. at 53

– 54, 57 (explaining that the p olice’s failure to put the clothing of a sexual assault victim in a refrigerator to preserve sensitive biological evidence was not a due process violation because the police had not acted in9

bad faith). As discussed above, the present case implicates the S tate’s duty to avoid impeding a defendant’s ability to obtain evidence through his own investigation, as opposed to a duty to preserve evidence that it has already collected or discovered. As such, the bad faith analysis from Youngblood is inapplicable.
V. CO NCLUSION In light of the foregoing , we hold t hat the district court did not err in determining the jail officers violated Stegall’s right to procedural due process when, despite his requests, they failed to allow him access to a phone for the purpose of co ntacting an attorney until the morning following his a rrest. Accordingly, the district court’s order granting Stegall’s motion to suppress
evidence of BAC is affirmed. Justices BRODY, BEVAN, STEGNER and MOELLER CONCUR.