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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 39759

IN THE MATTER OF DRIVER’S LICENSE 

SUSPENSION OF GEORGE JOSEPH 

BESAW, JR.

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GEORGE JOSEPH BESAW, JR.,

Petitioner-Appellant,

v.

STATE OF IDAHO, TRANSPORTATION

DEPARTMENT,

Respondent.

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2013 Unpublished Opinion No. 545

Filed: June 21, 2013

Stephen W. Kenyon, Clerk

THIS IS AN UNPUBLISHED

OPINION AND SHALL NOT

BE CITED AS AUTHORITY

Appeal from the District Court of the Second Judicial District, State of Idaho, Nez 

Perce County. Hon. Carl B. Kerrick, District Judge. 

District court order affirming decision of hearing officer, affirmed.

Clark and Feeney, Lewiston, for appellant. Charles M. Stroschein argued.

Hon. Lawrence G. Wasden, Attorney General; Edwin L. Litteneker, Special 

Deputy Attorney General, Lewiston, for respondent. Edwin L. Litteneker argued.

________________________________________________

LANSING, Judge

George Joseph Besaw, Jr. appeals from the district court’s decision on judicial review 

affirming a hearing officer’s order that sustained the suspension of Besaw’s driver’s license for 

failing a breath alcohol concentration test. 

I.

BACKGROUND

In the early morning hours of January 16, 2011, an Idaho State Police trooper observed a 

vehicle fail to signal and fail to maintain its lane of travel. The trooper stopped the vehicle and 

subsequently identified the driver as Besaw. As the trooper talked to Besaw, he smelled the odor 

of an alcoholic beverage coming from the vehicle and observed that Besaw’s eyes were 

bloodshot. He checked Besaw’s eyes for horizontal gaze nystagmus and had Besaw perform a 
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one-leg stand test and a walk-and-turn test. Based upon his observations, the trooper arrested 

Besaw for driving under the influence and then administered a breath test, which Besaw failed. 

The trooper then seized Besaw’s driver’s license, served him with notice of suspension of the 

license for ninety days, and issued a temporary thirty-day driving permit, all pursuant to Idaho 

Code § 18-8002A. 

On January 21, 2011, Besaw requested an Idaho Transportation Department (ITD) 

hearing to challenge the administrative license suspension (ALS). The hearing was conducted on 

February 8, 2011. Because the suspension order was soon to become effective, on February 11, 

2011, Besaw requested that the hearing officer stay that order pending issuance of the hearing 

officer’s decision, but the hearing officer denied the motion. On February 14, 2011, Besaw filed 

another motion for a stay, which was also denied by the hearing officer. The following day, 

February 15, 2011, Besaw filed a premature petition for judicial review with the district court,

along with an ex parte motion for a stay of the order of suspension pending judicial review. The 

district court granted the requested stay. 

On March 4, 2011, the hearing officer issued a final order sustaining the license 

suspension, and Besaw then filed an amended petition for judicial review to challenge the final 

order. On Besaw’s motion, the district court stayed the hearing officer’s decision pending 

judicial review. The district court ultimately affirmed the hearing officer’s decision. Besaw 

appeals, contending that he was not given a proper advisory on being requested to submit to a 

breath test, that the testing procedure did not comply with standards adopted by the Idaho State 

Police, that the testing standards fail to ensure the accuracy of test results, and that the 

administrative license suspension proceedings violated his right to due process. 

II.

ANALYSIS

The administrative license suspension statute, I.C. § 18-8002A, requires that ITD suspend 

the driver’s license of a driver who has failed a BAC test administered by a law enforcement 

officer. The period of suspension is ninety days for a driver’s first failure of an evidentiary test 

and one year for any subsequent test failure within five years. I.C. § 18-8002A(4)(a). A person 

who has been notified of an ALS may request a hearing before a hearing officer, designated by 

ITD, to contest the suspension. I.C. § 18-8002A(7); Kane v. State, Dep’t of Transp., 139 Idaho 

586, 588, 83 P.3d 130, 132 (Ct. App. 2003). The burden of proof at an ALS hearing is on the 
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individual challenging the license suspension. Kane, 139 Idaho at 590, 83 P.3d at 134. The 

hearing officer must uphold the suspension unless he or she finds, by a preponderance of the 

evidence, that the driver has shown one of several grounds enumerated in I.C. § 18-8002A(7) for 

vacating the suspension. Those grounds include:

(c) The test results did not show an alcohol concentration or the presence 

of drugs or other intoxicating substances in violation of section 18-8004, 18-

8004C or 18-8006, Idaho Code; or

(d) The tests for alcohol concentration, drugs or other intoxicating 

substances administered at the direction of the peace officer were not conducted 

in accordance with the requirements of section 18-8004(4), Idaho Code, or the 

testing equipment was not functioning properly when the test was administered; 

or

(e) The person was not informed of the consequences of submitting to 

evidentiary testing as required in subsection (2) of this section.

I.C. § 18-8002A(7). 

The hearing officer’s decision is subject to challenge through a petition for judicial 

review. I.C. § 18-8002A(8); Kane, 139 Idaho at 589, 83 P.3d at 133. The Idaho Administrative 

Procedures Act (IDAPA) governs the review of ITD decisions to deny, cancel, suspend, 

disqualify, revoke, or restrict a person’s driver’s license. See I.C. §§ 49-201, 49-330, 67-

5201(2), 67-5270. A court may overturn an agency’s decision where its findings, inferences, 

conclusions, or decisions: (a) violate statutory or constitutional provisions; (b) exceed the 

agency’s statutory authority; (c) are made upon unlawful procedure; (d) are not supported by 

substantial evidence in the record; or (e) are arbitrary, capricious, or an abuse of discretion. I.C. 

§ 67-5279(3). The party challenging the agency decision must demonstrate that the agency erred 

in a manner specified in I.C. § 67-5279(3) and that a substantial right of that party has been 

prejudiced. Price v. Payette County Bd. of County Comm’rs, 131 Idaho 426, 429, 958 P.2d 583, 

586 (1998); Marshall v. Dep’t of Transp., 137 Idaho 337, 340, 48 P.3d 666, 669 (Ct. App. 2002). 

If the agency’s decision is not affirmed on judicial review, “it shall be set aside . . . and 

remanded for further proceedings as necessary.” I.C. § 67-5279(3). 

In an appeal from the decision of the district court acting in its appellate capacity under 

IDAPA, this Court reviews the agency record independently of the district court’s decision. 

Marshall, 137 Idaho at 340, 48 P.3d at 669. This Court does not substitute its judgment for that 

of the agency as to the weight of the evidence presented. I.C. § 67-5279(1); Marshall, 137 Idaho 

at 340, 48 P.3d at 669. This Court instead defers to the agency’s findings of fact unless they are 
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clearly erroneous. Castaneda v. Brighton Corp., 130 Idaho 923, 926, 950 P.2d 1262, 1265 

(1998); Marshall, 137 Idaho at 340, 48 P.3d at 669. That is, the agency’s factual determinations 

are binding on the reviewing court, even where there is conflicting evidence before the agency, 

so long as the determinations are supported by substantial and competent evidence in the record. 

Urrutia v. Blaine County, 134 Idaho 353, 357, 2 P.3d 738, 742 (2000); Marshall, 137 Idaho at 

340, 48 P.3d at 669.

A. Alleged Noncompliance with I.C. § 18-8002A(3)

The hearing officer rejected Besaw’s assertion that his driver’s license should not be 

suspended because he was not properly advised of the consequences of a failure or refusal of 

evidentiary testing as required by I.C. § 18-8002A(2). A section 18-8002A license suspension 

must be vacated if an officer fails to inform the licensee of certain information, as required by the 

statute, prior to evidentiary testing. I.C. § 18-8002A(7)(e); Bell v. Idaho Transp. Dep’t, 151 

Idaho 659, 664, 262 P.3d 1030, 1035 (2011); State v. Kling, 150 Idaho 188, 192, 245 P.3d 499, 

503 (Ct. App. 2010). It is also a ground for relief from a license suspension if an officer makes 

further statements to a licensee that materially contradict the information in the statutorily 

mandated advisory. Cunningham v. State, 150 Idaho 687, 691, 249 P.3d 880, 884 (Ct. App. 

2011).

The trooper here, reading from an ITD-issued form, gave Besaw the statutory warnings 

and information required by I.C. § 18-8002A(2), and Besaw does not contend otherwise. 

Instead, Besaw first argues that he was not properly advised because the trooper did not read 

additional information contained on the ITD form stating that “[T]his suspension for failure or 

refusal of the evidentiary test(s) is separate from any other suspension ordered by the court.” 

This assertion of error is without merit because no statute requires that a driver be informed of 

that point before a BAC test. Besaw cites no authority for the proposition that a law enforcement 

officer must give any warnings other than those specifically required by I.C. § 18-8002A(2).

Besaw also asserts that he is entitled to relief because the trooper told him that there “was 

not any real difference” between the general license suspension periods under I.C. § 18-8002A 

for testing failure or refusal and separate suspension periods under I.C. § 49-335 for commercial 

motor vehicle driving privileges. Besaw contends that because a person who holds a Class A 

commercial driver’s license (CDL) and fails or refuses an evidentiary test is, pursuant to I.C. 
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§ 49-335, subject to longer periods of commercial driving disqualification than the license 

suspension periods under section 18-8002A, he was misled and is entitled to relief in this case. 

Besaw’s contention was rejected in Peck v. State, Dep’t of Transp., 153 Idaho 37, 278 

P.3d 439 (Ct. App. 2012), where we said:

Neither section 18-8002A nor due process requires an officer to inform a person 

subject to license suspension of the consequences regarding a separate 

disqualification under section 49-335(2). The notice of consequences contained 

in section 18-8002A (and reflected in the advisory form) is not deficient simply 

because it did not inform Peck of consequences under a different statute. See 

Buell v. Idaho Dep’t of Transp., 151 Idaho 257, 264, 254 P.3d 1253, 1260 (Ct.

App. 2011) (holding a person with a CDL is presumed to have knowledge of the 

laws governing CDLs, and therefore, Buell “was presumed to know that the 

disqualification of his CDL was in addition to any suspensions he received under 

[Title 18]”); Thompson v. State, 138 Idaho 512, 516, 65 P.3d 534, 538 (Ct. App.

2003) (rejecting an argument that the police officer was obligated to give a driver 

advice regarding all consequences of taking a breath test, not just those delineated 

in section 18-8002A).

Peck, 153 Idaho at 43, 278 P.3d at 445. Because no statute requires an officer to inform a person 

subject to license suspension of the consequences regarding a CDL disqualification under section 

49-335(2), and because the holder of a CDL is presumed to have knowledge of laws governing 

CLD disqualifications, an officer’s advice concerning those latter consequences, even if 

erroneous, does not provide a ground for relief from a section 18-8002A license suspension.

The hearing officer did not err in denying relief on this claim.

B. The Monitoring Period

Besaw next contends that his breath test was not conducted in compliance with testing 

standards because the trooper did not adequately monitor him for fifteen minutes before 

administering the test as required by the ISP’s Standard Operating Procedure 6.1 (11/1/10) for 

breath testing, which states:

Prior to evidentiary breath alcohol testing, the subject/individual should be 

monitored for at least fifteen (15) minutes. Any material which absorbs/adsorbs 

or traps alcohol should be removed from the mouth prior to the start of the 15 

minute waiting period. During the monitoring period the subject/individual 

should not be allowed to smoke, drink, eat, or belch/burp/vomit/regurgitate.

The purpose of the monitoring period is “to rule out the possibility that alcohol or other 

substances have been introduced into the subject’s mouth from the outside or by belching or 

regurgitation.” Bennett v. State, Dep’t of Transp., 147 Idaho 141, 144, 206 P.3d 505, 508 (Ct.

App. 2009); State v. Carson, 133 Idaho 451, 453, 988 P.2d 225, 227 (Ct. App. 1999). To satisfy 
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the observation requirement, the level of surveillance “must be such as could reasonably be 

expected to accomplish” that purpose. Bennett, 147 Idaho at 144, 206 P.3d at 508. “This 

foundational standard ordinarily will be met if the officer stays in close physical proximity to the 

test subject so that the officer’s senses of sight, smell and hearing can be employed.” State v. 

DeFranco, 143 Idaho 335, 338, 144 P.3d 40, 43 (Ct. App. 2006). However, the monitoring 

officer is not required to stare fixedly at the subject. “So long as the officer is continually in [a] 

position to use his senses, not just sight, to determine that the defendant did not belch, burp or 

vomit during the [monitoring] period,” the observation complies with the rule. Bennett, 147

Idaho at 144, 206 P.3d at 508. However, if the officer’s ability to supplement his visual 

observation of the subject with his other senses is substantially impaired by such factors as noise, 

the officer’s own hearing impairment, or the officer’s distance from or position facing away from 

the subject during the monitoring period, the monitoring requirement may not be satisfied. 

Based upon the trooper’s testimony and affidavit, and a video of the encounter, the 

hearing officer found that Besaw had not met his burden to show that the officer failed to 

adequately monitor Besaw for fifteen minutes before administering the breath test. The hearing 

officer found: 

During the observation period and after the mouth check, the DVD 

recording depicts very minimal radio communication or verbal communication 

from other people which would distract Tpr. Talbot from using all his senses 

while monitoring Besaw.

Besaw and Tpr. Talbot are continually conversing back and forth, thus a 

reasonable inference can be made that Tpr. Talbot was continually in a position to 

use all his senses and to determine that Besaw did nothing to invalidate the 

evidentiary testing procedure. 

. . . .

Besaw was within Tpr. Talbot’s vision and close proximity during the 

entire observation period.

Besaw contends, however, that the trooper’s vision and attention was fatally distracted when he 

looked toward and spoke to three individuals who approached him during the monitoring period.

The hearing officer’s findings are supported by the evidence. The trooper testified that 

during the monitoring period Besaw was seated in the backseat of the patrol car with the back 

door open, and the officer stood, bent over, watching Besaw during the monitoring period. The 

officer acknowledged that he spoke briefly with another officer, and two other people who 

approached him during the monitoring period. The video camera that recorded the stop was not 

pointed toward Besaw or the officer during the monitoring period, but the audio portion confirms 
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the trooper’s testimony that he had only brief verbal exchanges with the three people who 

approached him. From this evidence, the magistrate court could justifiably find that the trooper’s 

monitoring was such “as could reasonably be expected to accomplish the purposes of the 

requirement.” Bennett, 147 Idaho at 144, 206 P.3d at 508. This Court will not reweigh the 

evidence and substitute our judgment for that of the hearing officer. Substantial and competent 

evidence in the record supports the hearing officer’s finding that the trooper adequately 

monitored Besaw for the requisite time period.

C. Due Process 

Besaw next asserts that he was deprived of due process in the license suspension 

proceedings, but his argument is unfocused. He primarily complains about the timing of the 

hearing officer’s decision in his case and the timing of ALS hearing officers’ decisions in general 

which, he alleges, often issue after the license suspension period has begun. He complains of 

ITD hearing officers’ frequent unwillingness to issue stays of suspensions pending the issuance 

of their final decisions. 

As required by the 2009 version of I.C. § 18-8002A(2)(a), the trooper seized Besaw’s 

driver’s license and served him with a notice of suspension of the license for ninety days 

pursuant to I.C. §§ 18-8002A(4)(a)(i) and 18-8002A(5)(a). The notice stated that the license 

suspension would become effective thirty days from the service of the notice of suspension, or 

February 15, 2011. The trooper also issued Besaw a temporary thirty-day driving permit in 

accord with I.C. § 18-8002A(2)(a) (2009). 

Under section 18-8002A as it then existed, if Besaw had been driving a commercial 

vehicle at the time of his detention, he would not have received a temporary permit for his 

commercial driving privileges. See I.C. § 18-8002A(2)(a) (2010). However, because Besaw was 

driving a friend’s pickup truck at the time, the temporary permit continued his commercial 

driving privileges. Thus, there was at that time no deprivation of Besaw’s driving privileges, 

including his authorization to drive a commercial vehicle. Although the ITD hearing officer 

denied Besaw’s motions for a stay to prevent the suspension taking effect before the hearing 

officer rendered a decision, Besaw secured stays from the district court that prevented the 

suspension from occurring. After the district court affirmed the hearing officer, the court entered 

a stay of the license suspension pending this appeal. 
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Although Besaw asserts that “he had delay issues regarding the decision being issued” in 

his case, as the above recitation of events shows, thanks to stays issued by the district court, his 

license has not been suspended at any time from the date of his breath test through this appeal. 

Even though he seems to acknowledge that he has never been without a license due to the stays 

issued by the district court, he complains that he and others will not in the future be allowed to 

file a petition for review before a hearing officer’s decision has issued and thereby obtain a stay 

from the district court because of this Court’s decision in In re Johnson, 153 Idaho 246, 280 P.3d 

749, 753 (Ct. App. 2012). In that case, we held that a petition for judicial review that is filed 

before the administrative hearing officer has rendered a decision, even orally, confers no subject 

matter jurisdiction upon the district court and is ineffective to commence an appeal from the 

subsequently issued hearing officer’s decision. 

Apart from the fact that he has identified no deprivation of a property or liberty interest 

that he has suffered in this case, and complains only about a hypothetical deprivation that might 

or might not occur sometime in the future, Besaw’s argument is legally incorrect because the 

Johnson decision did not preclude obtaining a judicial stay of a license suspension when proper 

procedural steps are followed. As we have very recently explained in Platz v. State, Transp. 

Dep’t, ___ Idaho ___, ___ P.3d ___ (Ct. App. June 6, 2013), Idaho law authorizes issuance of 

stays of agency actions by the agency itself and an interlocutory appeal to the district court of an 

agency’s interlocutory order denying a stay: 

If the hearing officer chooses to deny the stay, then the driver may appeal 

that interlocutory decision to the district court under I.C. § 67-5271(2), which 

states: “A preliminary, procedural, or intermediate agency action or ruling is 

immediately reviewable if review of the final agency action would not provide an 

adequate remedy.” We noted in Bell that a driver may suffer an irremediable and 

unacceptable loss of driving privileges before issuance of the hearing officer’s 

decision, particularly in the case where the driver ultimately prevails. Bell, 151 

Idaho at 671, n.6, 262 P.3d at 1042 n.6. The specter of this irremediable loss may 

provide the basis for immediate review of the intermediate agency decision. 

While I.C. § 67-5271(2) may provide an avenue into the district court to 

obtain review of the hearing officer’s denial of a stay, the impending suspension 

may still take effect until there is action from the district court. Idaho Code § 67-

5274 provides, “The filing of the petition for review does not itself stay the 

effectiveness or enforcement of the agency action. The agency may grant, or the 

reviewing court may order, a stay upon appropriate terms.” Idaho Rule of Civil 

Procedure 84 governs judicial review of agency actions by the district court. 

Specifically, I.R.C.P. 84(m) states, in pertinent part, “Unless prohibited by statute, 

the agency may grant, or the reviewing court may order, a stay upon appropriate 
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terms.” The language allowing a reviewing court to grant a stay used in 

I.R.C.P. 84(m) tracks the language used in I.C. § 67-5274. However, while that 

language only refers to “petitions for review,” Rule 84 makes clear that judicial 

review includes “appeals” to the district court as well. I.R.C.P. 84(a)(2)(C). 

Through the procedure outlined above, the district court, on judicial 

review, may review the hearing officer’s order denying a stay, or the court may 

issue its own stay. Perhaps, technically, a stay issued by the district court could 

be argued as merely a stay of the order denying a stay, having no practical effect 

on the automatic suspension at the conclusion of the thirty-day period. However, 

that reading of the statute and rule providing for a stay is unduly narrow. The 

obvious effect of a hearing officer’s denial of a stay when the decision is not 

issued within the thirty-day window is suspension. We conclude, therefore, that 

the interplay between IDAPA, the Idaho Rules of Civil Procedure, and applicable 

Idaho Code provisions authorize the district court to stay the license suspension in 

this situation.

Besaw has demonstrated no deprivation of due process, either prior or prospective.

D. Violation of Idaho Rule of Civil Procedure 84(f)(5)

Besaw also argues that he was deprived of due process in the judicial review proceedings 

before the district court because the ITD clerk did not prepare and lodge the record with the 

agency within fourteen days from the filing of his petition for judicial review as required by 

Idaho Rule of Civil Procedure 84(f)(5). Besaw filed his amended petition for judicial review on 

March 7, 2011, and so far as we can discern from the record, the ITD clerk lodged the record 

with the agency on or about May 19, 2011. Thus, the lodging of the record was several weeks 

late. 

The day after the clerk lodged the record, Besaw moved the district court to vacate the 

license suspension, citing the time limit of I.R.C.P. 84(f)(5) and invoking the right to due 

process. At a hearing on the motion, the district court decided to reserve this issue and instead 

take up all the issues in the judicial review collectively. The district court then discussed the 

briefing schedule with the parties. Because of major delays in settling the record, Besaw did not 

file his opening brief until November 18, 2011. In the argument portion of his brief to the 

district court, Besaw did not mention the late lodging of the record. Therefore, not surprisingly, 

the district court did not address the issue in its ultimate decision on judicial review.

On appeal, Besaw claims error, but his argument consists only of a citation to the rule, a 

recitation of the procedural background, and an assertion that he raised the issue in the district 

court. 
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This argument does not demonstrate a deprivation of due process. Besaw has merely 

pointed out a violation of a procedural rule; he has not explained how this violation prejudiced 

him, resulted in unfair proceedings, or otherwise deprived him of due process. Nor do we 

perceive any such deprivation where the suspension of his license was stayed throughout the 

judicial review proceedings and remains stayed during the current appeal. Besaw has not cited 

any authority for the proposition that delay of this sort in preparation of a record may constitute a 

deprivation of due process. A party waives an issue on appeal if either sufficient authority or 

argument is lacking. Bell, 151 Idaho at 673, 262 P.3d at 1044; State v. Zichko, 129 Idaho 259, 

263, 923 P.2d 966, 970 (1996). Lastly, we note that Idaho Rule of Civil Procedure 61, 

addressing harmless error, specifies, “The court at every stage of the proceeding must disregard 

any error or defect in the proceeding which does not affect the substantial rights of the parties.” 

Besaw has not shown a deprivation of his right to due process from the untimely filing of the 

agency record.

E. Other Issues

Besaw has raised two other issues in this appeal that are addressed by this Court’s 

opinion in Besaw’s companion appeal, State v. Besaw, ___ Idaho ___, ___ P.3d ___ (Ct. App. 

June 21, 2013), which is his appeal from his conviction for driving under the influence. Those 

additional issues are a contention that Besaw’s breath test was not properly conducted because 

the performance verification for the LifeLoc FC20 instrument on which he was tested had not 

been conducted using a .20 performance verification solution within twenty-four hours of his test

and a contention that the ISP standards for conducting BAC tests do not comply with the 

requirements of I.C. § 18-8002A(7). Our analysis of those issues, in which we found Besaw’s 

positions to be without merit, are incorporated by reference and will not be repeated here.

III.

CONCLUSION

Besaw having shown no error, the district court’s decision on judicial review affirming 

the administrative suspension of Besaw’s driver’s license for failing a breath alcohol 

concentration test is affirmed. No costs or attorney fees to either party.

Judge GRATTON and Judge MELANSON CONCUR.