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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 43918

CRAIG WILLIAM HAWKINS,

Petitioner-Respondent,

v.

IDAHO TRANSPORTATION 

DEPARTMENT,

Respondent-Appellant.

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2016 Opinion No. 74

Filed: November 15, 2016

Stephen W. Kenyon, Clerk

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

Perce County. Hon. Jeff M. Brudie, District Judge. 

Order of the district court on intermediate appeal vacating driver’s license 

suspension, reversed and case remanded.

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

Attorney General, Lewiston, for appellant. 

Blewett Mushlitz LLP; Jonathan D. Hally, Lewiston, for respondent.

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GUTIERREZ, Judge

The Idaho Transportation Department (ITD) appeals from the district court’s order vacating 

the hearing officer’s decision to sustain the suspension of Craig William Hawkins’ driver’s license. 

The ITD contends the district court erred in determining that the procedure utilized by the ITD 

violated Hawkins’ constitutional right to procedural due process. We reverse the decision of the 

district court and remand.

I.

FACTUAL AND PROCEDURAL BACKGROUND

An officer stopped a vehicle driven by Hawkins after observing that the vehicle’s windshield 

was cracked. During the course of the stop, the officer came to suspect that Hawkins may be 

driving under the influence. The officer requested that Hawkins participate in field sobriety tests, 

which Hawkins refused. Hawkins was then transported to the county jail where he submitted two 
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blood alcohol concentration (BAC) breath samples measuring at 0.168 and 0.161. The ITD then 

administratively suspended Hawkins’ license, pursuant to Idaho Code § 18-8002A, based upon his

failure of evidentiary testing.

Hawkins filed a timely request for an administrative hearing to contest his license 

suspension. As part of that request, he asked the court to issue subpoenas for the production of the 

BAC instrument logs and calibration records and all audio and video recordings of the stop, 

detention, arrest, and administration of the breath test. 

On April 23, 2015, the hearing officer issued a notice for a telephonic hearing to be held on 

May 4, 2015. On the same date, the hearing officer also issued two subpoenas duces tecum to the 

Lewiston Police Department requiring production of the requested evidence. Both subpoenas had 

compliance dates of May 5, 2015, one day after the scheduled hearing date. The subpoenas also 

specified that the evidence was to be sent via U.S. Mail to the ITD office in Boise, not to Hawkins 

or his attorney in Lewiston. On May 1, 2015, the ITD received a DVD from the Lewiston Police 

Department and mailed it to Hawkins on the same day. 

A telephonic hearing was held on May 4, 2015. At this hearing, Hawkins argued his license 

suspension should be vacated on several statutory grounds, as required by and set forth in I.C. § 18-

8002A(7). During the hearing, Hawkins objected to not having received the subpoenaed video 

recording of the arrest prior to the hearing. 

In sustaining the administrative license suspension, the hearing officer found that the ITD’s 

failure to provide Hawkins with the video recording prior to the hearing did not violate his right to 

due process, nor did it provide grounds for vacating the suspension. The hearing officer concluded 

that Hawkins failed to meet his burden of establishing, by a preponderance of the evidence, any of 

the statutory grounds for vacating the suspension. 

In his petition for judicial review to the district court, Hawkins argued that his procedural 

and substantive due process rights were violated by the hearing officer’s act of setting the subpoena 

compliance deadline for the day after the administrative hearing and by requiring the evidence to be 

mailed to the ITD’s offices in Boise instead of to Hawkins. Hawkins also claimed that the arresting 

officer did not have legal cause to believe Hawkins was driving under the influence of alcohol. The 

district court did not address the issue of legal cause, instead finding the due process argument 

dispositive. The court held that the procedure utilized by the administrative hearing officer 

substantially burdened Hawkins’ ability to make his case in violation of his constitutional right to 
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procedural due process. The district court vacated Hawkins’ license suspension. The ITD now 

timely appeals. 

II.

ANALYSIS

The ITD argues that the district court erred in vacating the decision of the administrative 

hearing officer. The Idaho Administrative Procedures Act (IDAPA) governs the review of the 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. In an appeal from the decision of the district court 

acting in its appellate capacity under the IDAPA, this Court reviews the agency record 

independently of the district court’s decision. Bell v. Idaho Dep’t of Transp., 151 Idaho 659, 663, 

262 P.3d 1030, 1034 (Ct. App. 2011). 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); Bell, 151 Idaho at 663, 262 

P.3d at 1034. This Court instead defers to the agency’s findings of fact unless they are clearly 

erroneous. Castaneda v. Brighton Corp., 130 Idaho 923, 926, 950 P.2d 1262, 1265 (1998); Bell, 

151 Idaho at 663, 262 P.3d at 1034. In other words, 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 Cnty., ex rel. Bd. of Comm’rs, 134 Idaho 353, 357, 2 P.3d 738, 742 (2000); In re Beyer, 155 

Idaho 40, 44, 304 P.3d 1206, 1210 (Ct. App. 2013).

A court may overturn an agency’s decision where its findings, inferences, conclusions, or 

decisions violate statutory or constitutional provisions; exceed the agency’s statutory authority; are 

made upon unlawful procedure; are not supported by substantial evidence in the record; or 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 Cnty. Bd. of Cnty. 

Comm’rs, 131 Idaho 426, 429, 958 P.2d 583, 586 (1998); Bell, 151 Idaho at 664, 262 P.3d at 1035. 

If the agency’s decision is not affirmed on appeal, it shall be set aside and remanded for further 

proceedings as necessary. I.C. § 67-5279(3).

Hawkins maintains that the following processes employed by the ITD violated his right to 

procedural due process: (1) the hearing officer’s act of setting the subpoena compliance date for the 

day after the hearing; (2) the hearing officer’s mandate that the subpoenaed materials be mailed to 
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the ITD office in Boise instead of to Hawkins; and (3) the ITD’s failure to provide the subpoenaed 

materials to Hawkins until after the hearing was completed. On the other hand, the ITD argues that 

Hawkins failed to demonstrate a deprivation of the process to which he was entitled and, relatedly, 

that any error in the process was invited by Hawkins through his acquiescence and failure to request 

a continuance. Hawkins contends that he could not have invited the error, as he was under no 

affirmative duty to remedy the fundamentally flawed process employed by the hearing officer. 

We take this opportunity to point out that we have previously opined on the ITD’s 

questionable process of setting subpoena compliance dates dangerously close to administrative 

hearing dates. In Bell, we warned that “the issuance of subpoenas with a compliance date set the 

day before an administrative hearing, and even then requiring delivery of the subpoenaed items to 

the ITD instead of the petitioner, may raise the possibility of a due process violation due to 

insufficient time to prepare.” Bell, 151 Idaho at 666, 262 P.3d at 1037 (emphasis added). We 

acknowledged that “the hearing officer is entitled to conduct the proceedings in an efficient manner, 

but the practice of requiring compliance the day before a scheduled hearing is strongly 

discouraged.” Id. at 666 n.2, 262 P.3d at 1037 n.2. 

Then, in Beyer, we again criticized the ITD’s practice of setting a subpoena compliance date 

on the day of the hearing. Beyer, 155 Idaho at 47 n.7, 304 P.3d at 1213 n.7. We stated, “We 

continue to strongly discourage this practice. We see no reason for this practice except to cause a 

disadvantage to the driver who has the burden of proof at the ALS hearing.” Id. 

Although the rules governing administrative license suspensions do not provide a specific 

time frame in which subpoenas must be complied with prior to an administrative hearing, we again 

admonish the ITD for engaging in such questionable practices. The suspension of issued drivers’

licenses involves state action that adjudicates important interests of the licensees; therefore, drivers’ 

licenses may not be taken away without procedural due process. Dixon v. Love, 431 U.S. 105, 112 

(1977). The minimum constitutional due process requirements for administrative hearings are 

timely and adequate notice and an opportunity to be heard that is meaningful and appropriate to the 

nature of the case. Bell v. Burson, 402 U.S. 535, 541-42 (1971). It stands to reason that to 

effectuate a meaningful defense against an administrative license suspension for a violation under 

I.C. § 18-8002A, a driver should have sufficient prehearing access to the very evidence deemed 

relevant enough to warrant the issuance of a subpoena by the very administrative hearing officer 

deciding the case.
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However, in the case at hand, we need not reach the issue of the purported due process 

violation or whether Hawkins invited the error, as Hawkins has failed to establish that he was 

prejudiced by the agency’s actions. To challenge the agency’s decision, Hawkins was required to 

demonstrate that the agency acted improperly pursuant to I.C. § 67-5279(3) and that he was 

prejudiced as a result. See Price, 131 Idaho at 429, 958 P.2d at 586. Claims of prejudice must be 

specific and particularized, as error will not be presumed, but must be affirmatively shown. See 

Beyer, 155 Idaho at 48, 304 P.3d at 1214. To establish prejudice in the context of a party’s 

challenge to an administrative license suspension, a party must allege more than the mere possibility 

that evidence might have revealed something incriminating or discrediting or would have been 

helpful for preparation. See id.

In Beyer, this Court considered whether Beyer was prejudiced in his ability to prepare for 

the administrative hearing where the video recording of the underlying traffic stop was not ordered 

produced until the day of the hearing. Id. at 48, 304 P.3d at 1214. Although this Court did not 

decide the issue of whether the timeline for production of the video constituted a due process 

violation, we nonetheless addressed Beyer’s argument that he was prejudiced in his ability to 

prepare for the hearing due to the video’s absence. Id. Beyer argued that “having a video of the 

entire contact . . . would have been immensely important for the preparation of issues and 

preparation for examination of the arresting officer.” Id. We held that Beyer’s statements were 

insufficient to establish prejudice, as he did not indicate what additional questions he would have 

asked or what other evidence may have been produced had he possessed the video prior to the 

hearing. Id.

Similar to Beyer, Hawkins asserts he was harmed by not having sufficient ability to prepare 

for the hearing due to not having received the subpoenaed video recording. Hawkins argues that by 

not having the video prior to the hearing, he was deprived of key evidence that could have been 

used to challenge any claims that the officer had legal cause to believe Hawkins was driving under 

the influence. Hawkins appears to contend that because the hearing officer found the testimony of 

the arresting officer to be more credible than Hawkins’ testimony, he was prejudiced by not being 

able to use the video recording to discredit the officer. This basis for prejudice is bare and 

conclusory. Hawkins makes no mention of how the video would have discredited the officer’s 

sworn testimony. To accept Hawkins’ claim of prejudice, we would be required to assume that the 

video recording contradicts the arresting officer in a manner significant enough to discredit the 
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veracity of his testimony. The mere possibility that the video recording might have revealed facts 

that would discredit the arresting officer is not sufficient to establish actual prejudice. The only hint 

in the record at a possible contradiction between the video and the officer’s testimony came from 

Hawkins’ request to the hearing officer that, before rendering his decision, he “review [the video 

recording] to see whether or not the officer was following behind [Hawkins] or did a U-turn to go 

after him.” However, Hawkins makes no argument as to why such a distinction is significant or 

damaging to the credibility of the arresting officer. Just as Beyer’s assertion that he was unable to 

adequately prepare a defense was insufficient to establish prejudice, Hawkins’ identical assertion is 

likewise insufficient. 

Moreover, based upon our review of the record, we find no evidence of actual prejudice. 

Prior to the hearing, Hawkins had been provided the arrest and incident reports relevant to the

traffic stop and breath test, as required under IDAPA 39.02.72.200.01(b). During the hearing, 

Hawkins was able to cross-examine the arresting officer about the events leading up to the traffic 

stop as well as the arresting officer’s observations of Hawkins during the encounter. Both inquiries 

were relevant to the hearing officer’s determination that Hawkins did not meet his burden of 

showing that the arresting officer lacked cause to justify the stop or his belief that Hawkins was 

driving under the influence. 

Hawkins’ bare and conclusory assertion that not having the video recording prior to the 

hearing impeded his ability to prepare for the hearing is insufficient to show prejudice. Thus, the 

district court erred in overturning the agency’s decision without the requisite showing of prejudice 

by Hawkins. 

III.

CONCLUSION

Hawkins failed to prove that he was prejudiced by not having the video recording before the 

administrative hearing date. Therefore, the district court’s decision vacating Hawkins’ 

administrative license suspension is reversed. We remand for further proceedings before the district 

court for resolution of Hawkins’ argument that there was no legal cause to believe he was operating 

a vehicle in violation of I.C. § 18-8004. Costs, but not attorney fees, are awarded to the appellant, 

the ITD.

Chief Judge MELANSON and Judge HUSKEY CONCUR.