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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 37322

IN THE MATTER OF THE DRIVER’S 

LICENSE SUSPENSION OF MATILDA K. 

KLING.

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STATE OF IDAHO,

Plaintiff-AppellantCross-Respondent,

v.

MATILDA K. KLING,

Defendant-RespondentCross-Appellant.

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2010 Opinion No. 83S

Filed: December 14, 2010

Stephen W. Kenyon, Clerk

SUBSTITUTE OPINION

THE COURT’S PRIOR OPINION 

DATED DECEMBER 10, 2010 IS 

HEREBY WITHDRAWN

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 order affirming magistrate‟s order denying driver‟s license 

suspension, affirmed.

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

Attorney General, Boise, for appellant. Kenneth K. Jorgensen argued.

Brian E. Elkins, Ketchum, for respondent. 

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LANSING, Chief Judge

The State appeals from the district court‟s appellate decision affirming the magistrate‟s 

order declining to suspend the nonresident driver‟s license of Matilda K. Kling for Kling‟s 

refusal to submit to an alcohol concentration test. 

I.

FACTS AND PROCEDURE

Kling, who held a Washington state driver‟s license, was arrested for driving under the 

influence of alcohol in Blaine County. When asked by the officer to perform a breath test for 

alcohol concentration, Kling refused. The officer did not seize Kling‟s driver‟s license at that 
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time as he was directed to do by Idaho Code § 18-8002(4)(a), although, as a result of her refusal 

of the test, Kling‟s driving privileges were subject to suspension by a court pursuant to Idaho 

Code § 18-8002. 

Kling sought to prevent suspension of her driving privileges by filing a motion with the 

magistrate court. She contended that suspension was not warranted because the arresting officer 

had not accurately and completely advised her of the consequences of test refusal for motorists 

with nonresident licenses, as mandated by I.C. § 18-8002(3), and because the officer had 

deprived her of due process by not filing an affidavit with the court attesting to her refusal within 

seven days of the event. At the ensuing hearing the parties stipulated that before asking Kling to 

submit to evidentiary testing, the arresting officer had used an advisory form issued by the Idaho 

Transportation Department (ITD) to inform Kling of the information required by I.C. § 18-

8002(3), including the consequences of refusing an alcohol concentration test. A copy of the 

form was placed in evidence. 

Consistent with his prior rulings on the same issues dating back a number of years, the 

magistrate held that the ITD advisory form utilized by the officer did not conform to the statute 

with respect to the seizure and suspension of a nonresident driver‟s license and was ambiguous. 

The magistrate further held, as he had in prior cases, that although I.C. § 18-8002 does not 

express a time limit for an officer to file an affidavit attesting to the driver‟s refusal of an 

evidentiary test, due process principles require that the affidavit be filed within seven days of the 

refusal. The magistrate therefore refused to order suspension of Kling‟s license because the 

advisory she received did not conform to statutory requirements and because the officer‟s failure 

to file the affidavit of refusal within seven days deprived Kling of due process.

The State appealed to the district court, which affirmed. The State now further appeals.

II.

ANALYSIS

A. Officer’s Noncompliance with I.C. § 18-8002(3)

We first address the determination by the magistrate and the district court that Kling‟s 

driver‟s license should not be suspended because she was not properly advised of the 

consequences of refusal of evidentiary testing as required by I.C. § 18-8002(3). The pertinent 

provisions of I.C. § 18-8002, as in effect at the time in question, stated:
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(1) Any person who drives or is in actual physical control of a motor 

vehicle in this state shall be deemed to have given his consent to evidentiary 

testing for concentration of alcohol as defined in section 18-8004, Idaho Code, 

and to have given his consent to evidentiary testing for the presence of drugs or 

other intoxicating substances, provided that such testing is administered at the 

request of a peace officer having reasonable grounds to believe that person has 

been driving or in actual physical control of a motor vehicle in violation of the 

provisions of section 18-8004, Idaho Code, or section 18-8006, Idaho Code.

. . . .

(3) At the time evidentiary testing for concentration of alcohol, or for the 

presence of drugs or other intoxicating substances is requested, the person shall 

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

testing:

(a) He is subject to a civil penalty of two hundred fifty dollars ($250) for 

refusing to take the test;

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

permit will be issued . . . .

(c) 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;

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

court shall sustain the civil penalty and his driver‟s license will be suspended 

absolutely for one (1) year if this is his first refusal and two (2) years if this is his 

second refusal within ten (10) years; and

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

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

(4) If the motorist refuses to submit to or complete evidentiary testing after 

the information has been given in accordance with subsection (3) above:

(a) He shall be fined a civil penalty of two hundred fifty dollars ($250) and 

his driver’s license or permit shall be seized by the peace officer and forwarded to 

the court and a temporary permit shall be issued by the peace officer which 

allows him to operate a motor vehicle until the date of his hearing, if a hearing is 

requested, but in no event for more than thirty (30) days . . . ;

(b) A written request may be made within seven (7) calendar days for a 

hearing before the court . . . . The hearing shall be limited to the question of why 

the defendant did not submit to, or complete, evidentiary testing, and the burden 

of proof shall be upon the defendant; the court shall sustain a two hundred fifty 

dollar ($250) civil penalty immediately and suspend all the defendant‟s driving 

privileges immediately for one hundred eighty (180) days for a first refusal and 

one (1) year for a second refusal within five (5) years unless it finds that the peace 

officer did not have legal cause to stop and request him to take the test or that the 

request violated his civil rights;

(c) If a hearing is not requested by written notice to the court concerned 

within seven (7) calendar days, upon receipt of a sworn statement by the peace 

officer of the circumstances of the refusal, the court shall sustain a two hundred 

fifty dollar ($250) civil penalty and suspend the defendant’s driving privileges for 

one hundred eighty (180) days for a first refusal and one (1) year for a second 
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refusal within five (5) years, during which time he shall have absolutely no 

driving privileges of any kind; and

 

(Emphasis added.)

The advisory form used by the arresting officer here departed from the statutory language 

in the following way. Instead of informing Kling that if she refused or failed to complete 

evidentiary testing her driver‟s license “will be seized by the peace officer and a temporary 

permit will be issued,” as specified in I.C. § 18-8002(3)(b), the advisory form said:

Your Idaho driver‟s license or permit will be seized if you have it in your 

possession, and if it is current and valid you will be issued a temporary permit. 

Non-resident licenses will not be seized and will be valid in Idaho for thirty (30)

days from the service of this notice of suspension unless modified or restricted by 

the court, provided the license is valid in the issuing state.1

(Emphasis added.) Thus, the advisory form that was read to Kling differentiated between 

resident driver‟s licenses and nonresident licenses, while the statute does not.2 The magistrate 

and district court held that this departure from the notification required by the statute constituted 

a fatal noncompliance that precludes the suspension of Kling‟s Washington driver‟s license or 

Idaho driving privileges for her refusal of the breath test.

A similar version of I.C. § 18-8002 was considered by our Supreme Court in State v. 

Griffiths, 113 Idaho 364, 744 P.2d 92 (1987). Construing the statute as a whole, the Court held 

that a driver challenging a license suspension under this section may prevail by showing any of 

the following: 

(1) that the police officer stopping defendant did so without probable 

cause; 

 

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In the proceedings in the magistrate division and district court, and in briefing on this 

appeal, the State offered no explanation as to why the ITD form does not conform to the 

provisions of the statute. At oral argument to this Court, counsel for the State represented that 

the ITD views I.C. § 18-8002, when applied to nonresident licenses, to be inconsistent with other 

Idaho statutes concerning motor vehicle driver‟s licenses. However, because no issue of conflict 

between statutes was raised below or in briefing to this Court, this opinion should not be 

interpreted as implicitly resolving any such issues.

2 Notably, the officer also did not comply with I.C. § 18-8002(4)(a), which required him to 

seize Kling‟s driver‟s license, forward it to the court, and issue her a temporary driving permit.
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(2) that defendant was not requested by a police officer to submit to an 

evidentiary test; 

(3) that the requesting police officer did not have “reasonable grounds” or

“probable cause” to believe that defendant had been driving or in actual physical 

control of a motor vehicle while under the influence of alcohol, drugs or of any 

other intoxicating substances; 

(4) that the request violated defendant‟s civil rights; 

(5) that defendant was not advised of the information regarding refusal 

mandated by I.C. § 18-8002(3); 

(6) that defendant did not refuse to submit to the requested evidentiary 

test; or 

(7) that, although defendant refused the requested evidentiary test, he did 

so with sufficient cause.

Id. at 368, 744 P.2d at 96 (emphasis added). The holding in Griffith that a driver facing 

suspension will prevail at a hearing if the person “was not advised of the information regarding 

refusal mandated by I.C. § 18-8002(3),” was predicated on the provision in subsection (4) of the 

statute that authorizes a court to impose a civil penalty and suspend driving privileges only “[i]f 

the motorist refuses to submit to or complete evidentiary testing after the information has been 

given in accordance with subsection (3).” Later in the Griffith opinion, the Court reasoned that 

because the officer asking the driver to submit to a blood test had not informed the driver, as the 

statute mandates, that he could have additional tests conducted at his own expense, “the 

[driver‟s] failure to cooperate at this point in time was not technically a „refusal‟ within the 

meaning of the statute.” Id. at 370, 744 P.2d at 98.3 Thus, the Griffiths Court strictly applied the 

statutory language concerning the information that must be imparted to the motorist. 

Subsequent to Griffiths, this Court noted that the information required by I.C. § 18-

8002(3) is set forth “in no uncertain terms,” and that Griffiths “emphatically discountenanced 

interjection of judicial gloss upon the legislature‟s license suspension scheme.” In re Beem, 119 

Idaho 289, 291, 292, 805 P.2d 495, 497, 498 (Ct. App. 1991). In In re Virgil, 126 Idaho 946, 

947, 895 P.2d 182, 183 (Ct. App. 1995), we held that “Idaho law requires strict adherence to the 

statutory language of I.C. § 18-8002(3).” Thus it appears that I.C. § 18-8002 and the judicial 

decisions applying it preclude suspension of a driver‟s license if the officer did not closely 

 

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The Griffiths Court ultimately held that the motorist was not entitled to relief from 

suspension on this basis because the officer later “read the standard consent form to defendant 

which included all of the information required by section 18-8002(3)” and the motorist again 

refused to submit to an evidentiary test. Griffiths, 113 Idaho at 370, 744 P.2d at 98.
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comply with the statutory directive concerning the advisory information to be given to motorists 

when a BAC test is requested. The ITD advisory form used here did not comply with I.C. § 18-

8002 with respect to actions that would be taken vis-à-vis a nonresident driver‟s license if testing 

were refused.

Although neither party relies upon it, we recognize that a closely-related statute, I.C. 

§ 18-8002A, overlaps I.C. § 18-8002 in large degree, and contains somewhat different provisions 

concerning the information to be given to a motorist prior to the motorist‟s decision whether to 

submit to evidentiary testing. Before enumerating the information to be given to the motorist, 

I.C. § 18-8002A(2) specifies that the person “shall be informed substantially as follows (but need 

not be informed verbatim).” This provision calls into question whether the strict compliance 

seemingly required by I.C. § 18-8002 and interpretive case law has been legislatively overridden. 

However, in Halen v. State, 136 Idaho 829, 834, 41 P.3d 257, 262 (2002), while recognizing the 

overlap between the two statutes (but stating that the required information was “similar”), our 

Supreme Court held that “[m]otorists who refuse to submit to requested tests are entitled to have 

their licenses reinstated if they can establish at the refusal hearing that they were not completely 

advised according to these code sections.” (Emphasis added.) Moreover, even if “substantial 

compliance” with the statutorily prescribed advisory is all that is required of an officer, that 

standard was not satisfied here. The advisory form used in this case did not substantially comply 

with the provisions, found in both I.C. § 18-8002 and I.C. § 18-8002A, requiring that the 

motorist be advised that upon refusal to submit to a BAC test, the driver‟s license will be seized 

by the police officer and a temporary permit issued. The advisory given to Kling did not merely 

use different words to substantially convey the required information; it directly contradicted the 

statutory directive by affirmatively informing Kling that her nonresident driver‟s license would 

not be seized by the officer.

The State maintains, however, that even if the advisory information given to Kling did 

not comply with statutory requirements, her driver‟s license is nevertheless subject to suspension 

because Kling has not shown that she was misled by the deficient advisory. That is, she was told 

that her driver‟s license would not be seized by the officer, and it was not, so the information 

given to her accurately described what would happen if she refused testing. Implicit in the 

State‟s argument is an assertion that a person facing suspension must show prejudice arising 

from a deviation from the requirements of Section 18-8002(3) before relief from suspension 
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proceedings may result. The State suggests that a post-Griffiths decision of the Idaho Supreme 

Court, Head v. State, 137 Idaho 1, 4-5, 43 P.3d 760, 763-64 (2002), departed from Griffiths by 

imposing such a prejudice requirement. According to the State, Head stands for the proposition 

that “not all inaccuracies in the advisory are fatal to suspension.” 

We conclude, however, that Head is inapposite. In Head, the Court held that inaccurate 

information imparted to a driver concerning sanctions imposed for failure of an evidentiary test 

for alcohol concentration was not a ground for relief from suspension where the driver had 

refused to perform the requested test. The Court held:

Head concedes that his challenge to the suspension of his driving privileges does 

not fit within any of the grounds listed in Griffiths. Rather, he asks this Court to 

expand the grounds listed in Griffiths to include this situation. Because the 

grounds for challenging the suspension are statutory, we cannot do so.

Head, 137 Idaho at 5, 43 P.3d at 764. Thus, not only does Head not depart from Griffiths, it 

reaffirms it by stating that the Court was without authority to add to the grounds for relief 

authorized by I.C. § 18-8002 as recognized in Griffiths. We conclude that coordinate reasoning 

precludes a court from disregarding a ground for relief from suspension that is mandated by the 

statute, including an officer‟s failure to give the driver the statutorily required information on 

consequences for refusal of evidentiary testing. 

Accepting the State‟s position would allow officers to unilaterally modify the statutorily 

prescribed procedures so long as the modified procedures are accurately described to the 

motorist when testing is requested. The statute does not confer such authority upon law 

enforcement officers. Nor does the statute require that a driver show detrimental reliance or 

other form of prejudice from an officer‟s omission of a portion of the required terms of the 

advisory. While the State, essentially, argues that the procedures of (a) seizing the in-state 

license and issuing a thirty-day permit and (b) not seizing the out-of-state license but advising 

that it is only valid for another thirty days, are functionally equivalent, the second procedure is 

not described in and is inconsistent with the procedure described in the statute. In addition, they 

may not be functionally equivalent. The actual seizure of an individual‟s license is more 

detrimental than not doing so. Also, the out-of-state driver may well not understand what 

impact, if any, the limitation that the license is valid in Idaho for only thirty days has on its 

validity outside of Idaho, including in the issuing state. Under these circumstances, an out-of-
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state driver who does not plan to remain in this State may be substantially more likely than the 

in-state counterpart to refuse evidentiary testing.4

The information provided to Kling did not comport with that required by I.C. § 18-

8002(3). The magistrate was therefore correct in declining to suspend Kling‟s driver‟s license.

B. Timeliness of Officer’s Affidavit

The magistrate also held that Kling‟s driver‟s license should not be suspended because 

the officer deprived her of due process by failing to file an affidavit attesting to her refusal of 

evidentiary testing within seven days of the refusal. We conclude that the magistrate court, and 

the district court on intermediate appeal, were incorrect in this analysis. 

The Fourteenth Amendment prohibits the governmental action that deprives an individual 

of property without due process. The United States Supreme Court has held that licensure to 

operate a motor vehicle represents a property interest that may not be suspended without due 

process. Illinois v. Batchelder, 463 U.S. 1112, 1116-17 (1983); Mackey v. Montrym, 443 U.S. 1, 

20 (1979); Dixon v. Love, 431 U.S. 105, 112 (1977). Due process ordinarily requires, at a 

minimum, notice of the contemplated deprivation and a meaningful opportunity to be heard. 

McGloon v. Gwynn, 140 Idaho 727, 729, 100 P.3d 621, 623 (2004); Rudd v. Rudd, 105 Idaho 

112, 115, 666 P.2d 639, 642 (1983). Due process is “flexible and calls for such procedural 

protections as the particular situation demands.” Bowler v. Bd. of Trustees, of School Dist. No. 

392, Shoshone County, Mullan, 101 Idaho 537, 542, 617 P.2d 841, 846 (1980). 

We begin our analysis by noting that although I.C. § 18-8002(4)(b) requires that a driver 

request a court hearing in writing within seven days in order to show why a license should not be 

suspended, the statute does not state a deadline for an officer to file the affidavit of refusal. To 

the contrary, I.C. § 18-8002(4)(c), as in effect at the time of Kling‟s hearing, required the officer 

to file such an affidavit only if the driver had not timely requested a hearing:

 

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There may be good reasons, both practical and legal, for a procedure by which the state 

of Idaho does not seize a license issued by another state. While this has been alluded to, it was 

not raised below or properly in this appeal. Moreover, while ITD has, apparently, determined 

that the procedure actually described and employed by the officer in this case is the appropriate 

procedure for out-of-state licensees, it has not secured an amendment of the controlling statute to 

provide for the procedure. No authority has been cited, short of amendment, for modification of 

the statutory procedure and commensurate warnings. It is apparent that amendment of the statute 

is needed to address the out-of-state license issue.
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If a hearing is not requested by written notice to the court concerned 

within seven (7) calendar days, upon receipt of a sworn statement by the peace 

officer of the circumstances of the refusal, the court . . . shall suspend the 

defendant‟s driving privileges . . . .

The only purpose of the officer‟s affidavit of refusal is to obtain judicial suspension of the 

driver‟s license if no hearing has been requested. In re Hanson, 121 Idaho 507, 511-14, 826 P.2d 

468, 472-75 (1992). Contrary to Kling‟s argument, the filing of an affidavit of refusal is not 

necessary to enable a driver to challenge the officer‟s justification for the stop or justification for 

requesting evidentiary testing. Indeed, nothing in the statute requires that the officer‟s affidavit 

of refusal describe the reasons for the stop nor the reasons for the officer‟s request that the driver 

submit to tests; it need only set forth “the circumstances of the refusal.” I.C. § 18-8002(4)(c). A 

driver wishing to challenge the basis for the stop or the request for evidentiary testing may gain 

such information from the police report describing the incident or any probable cause affidavit 

that may be filed by the officer in related criminal proceedings or by subpoenaing the officer to 

the evidentiary hearing. The timing of the filing of the officer‟s affidavit here did not deprive 

Kling of a meaningful opportunity to oppose the suspension of her driver‟s license and present 

supporting evidence. 

The magistrate court and the district court on intermediate appeal were concerned that 

without a deadline for the officer‟s refusal affidavit, an officer could theoretically wait months or 

even years to file a refusal affidavit to initiate a license suspension and thereby deprive a driver 

of due process. We conclude, however, that such a hypothetical risk is not an appropriate basis 

for a finding of a due process violation in this case where no such delay occurred as the officer 

filed the affidavit ten days after the traffic stop and prior to the hearing that was conducted on 

Kling‟s motion.

C. Attorney Fees

Kling requested an award of attorney fees in the district court, which that court denied. 

On cross-appeal to this Court, she requests that we reverse the district court‟s denial and also 

award her attorney fees for the present appeal pursuant to I.C. § 12-117(1) and I.C. § 12-121. 

Kling asserts that the State has pursued both appeals frivolously, unreasonably and without 

foundation. We decline either to reverse the district court in this regard or to award attorney fees 

to Kling for this appeal because although the State did not prevail at either level, we cannot say 

that it has acted “without reasonable basis in fact or law” as required for an award under I.C. 
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§ 12-117 or that its appeals were taken “frivolously, unreasonably or without foundation” as 

required for an award under I.C. § 12-121. See Idaho Rule of Civil Procedure 54(e)(1). Indeed, 

the State correctly asserted on appeal that the magistrate and district court erred in imposing a 

seven-day time limit for filing of an officer‟s refusal affidavit under I.C. § 18-8002(4)(a), and its 

argument concerning the effect of an officer‟s departure from the advisory terms required by I.C. 

§ 18-8002(3), although not accepted by this Court, was not frivolous or unreasonable.5

III.

CONCLUSION

Because the officer who requested that Kling submit to evidentiary testing did not 

comply with the mandates of I.C. § 18-8002(3), Kling‟s driving privileges were not subject to 

suspension. The appellate decision of the district court affirming the magistrate‟s order 

dismissing license suspension proceedings is therefore affirmed. Costs on appeal, but not 

attorney fees, to respondent.

Judge GRATTON and Judge MELANSON CONCUR.

 

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In light of this determination we need not address the State‟s argument that I.C. § 12-117 

is inapplicable because no “state agency” is a party to this litigation.