US Laws, Codes, Statutes & Cases

                                  TITLE  18
                            CRIMES AND PUNISHMENTS
                                  CHAPTER 80
                                MOTOR VEHICLES
    18-8002A.  TESTS OF DRIVER FOR ALCOHOL CONCENTRATION, PRESENCE OF DRUGS
OR OTHER INTOXICATING SUBSTANCES -- SUSPENSION UPON FAILURE OF TESTS. (1)
Definitions. As used in this section:
    (a)  "Actual physical control" means being in the driver's position of a
    motor vehicle with the motor running or with the vehicle moving.
    (b)  "Administrative hearing" means a hearing conducted by a hearing
    officer to determine whether a suspension imposed by the provisions of
    this section should be vacated or sustained.
    (c)  "Department" means the Idaho transportation department and, as the
    context requires, shall be construed to include any agent of the
    department designated by rule as hereinafter provided.
    (d)  "Director" means the director of the Idaho transportation department.
    (e)  "Evidentiary testing" means a procedure or test or series of
    procedures or tests utilized to determine the concentration of alcohol or
    the presence of drugs or other intoxicating substances in a person,
    including additional testing authorized by subsection (6) of this section.
    An evidentiary test for alcohol concentration shall be based on a formula
    of grams of alcohol per one hundred (100) cubic centimeters of blood, per
    two hundred ten (210) liters of breath, or sixty-seven (67) milliliters of
    urine. Analysis of blood, breath or urine for the purpose of determining
    alcohol concentration shall be performed by a laboratory operated by the
    Idaho state police or by a laboratory approved by the Idaho state police
    under the provisions of approval and certification standards to be set by
    the Idaho state police, or by any other method approved by the Idaho state
    police. Notwithstanding any other provision of law or rule of court, the
    results of any test for alcohol concentration and records relating to
    calibration, approval, certification or quality control performed by a
    laboratory operated and approved by the Idaho state police or by any other
    method approved by the Idaho state police shall be admissible in any
    proceeding in this state without the necessity of producing a witness to
    establish the reliability of the testing procedure for examination.
    (f)  "Hearing officer" means a person designated by the department to
    conduct administrative hearings. The hearing officer shall have authority
    to administer oaths, examine witnesses and take testimony, receive
    relevant evidence, issue subpoenas, regulate the course and conduct of the
    hearing and make a final ruling on the issues before him.
    (g)  "Hearing request" means a request for an administrative hearing on
    the suspension imposed by the provisions of this section.
    (2)  Information to be given. At the time of 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 the person
refuses to submit to or fails to complete evidentiary testing, or if the
person submits to and completes evidentiary testing and the test results
indicate 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, the person shall be informed substantially as follows (but need
not be informed verbatim):
    If you refuse to submit to or if you fail to complete and pass evidentiary
testing for alcohol or other intoxicating substances:
    (a)  The peace officer will seize your driver's license and issue a notice
    of suspension and a temporary driving permit to you, but no peace officer
    will issue you a temporary  driving permit if your driver's license or
    permit has already been and is suspended or revoked. No peace officer
    shall issue a temporary driving permit to a driver of a commercial vehicle
    who refuses to submit to or fails to complete and pass an evidentiary
    test;
    (b)  You have the right to request a hearing within seven (7) days of the
    notice of suspension of your driver's license to show cause why you
    refused to submit to or to complete and pass evidentiary testing and why
    your driver's license should not be suspended;
    (c)  If you refused or failed to complete evidentiary testing and do not
    request a hearing before the court or do not prevail at the hearing, your
    driver's license will be suspended. The suspension will be for one year if
    this is your first refusal. The suspension will be for two (2) years if
    this is your second refusal within ten (10) years. You will not be able to
    obtain a temporary restricted license during that period; and
    (d)  If you complete evidentiary testing and fail the testing and do not
    request a hearing before the department or do not prevail at the hearing,
    your driver's license will be suspended. This suspension will be for
    ninety (90) days if this is your first failure of evidentiary testing, but
    you may request restricted noncommercial vehicle driving privileges after
    the first thirty (30) days. The suspension will be for one (1) year if
    this is your second failure of evidentiary testing within five (5) years.
    You will not be able to obtain a temporary restricted license during that
    period;
    (e)  After submitting to evidentiary testing you may, when practicable, at
    your own expense, have additional tests made by a person of your own
    choosing.
    (3)  Rulemaking authority of the Idaho state police. The Idaho state
police may, pursuant to chapter 52, title 67, Idaho Code, prescribe by rule:
    (a)  What testing is required to complete evidentiary testing under this
    section; and
    (b)  What calibration or checking of testing equipment must be performed
    to comply with the department's requirements. Any rules of the Idaho state
    police shall be in accordance with the following: a test for alcohol
    concentration in breath as defined in section 18-8004, Idaho Code, and
    subsection (1)(e) of this section will be valid for the purposes of this
    section if the breath alcohol testing instrument was approved for testing
    by the Idaho state police in accordance with section 18-8004, Idaho Code,
    at any time within ninety (90) days before the evidentiary testing. A test
    for alcohol concentration in blood or urine as defined in section 18-8004,
    Idaho Code, that is reported by the Idaho state police or by any
    laboratory approved by the Idaho state police to perform this test will be
    valid for the purposes of this section.
    (4)  Suspension.
    (a)  Upon receipt of the sworn statement of a peace officer that there
    existed legal cause to believe a person had been driving or was in actual
    physical control of a motor vehicle while under the influence of alcohol,
    drugs or other intoxicating substances and that the person submitted to a
    test and the test results indicated 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, the department shall suspend the
    person's driver's license, driver's permit, driving privileges or
    nonresident driving privileges:
         (i)   For a period of ninety (90) days for a first failure of
         evidentiary testing under the provisions of this section. The first
         thirty (30) days of the suspension shall  be absolute and the person
         shall have absolutely no driving privileges of any kind. Restricted
         noncommercial vehicle driving privileges applicable during the
         remaining sixty (60) days of the suspension may be requested as
         provided in subsection (9) of this section.
         (ii)  For a period of one (1) year for a second and any subsequent
         failure of evidentiary testing under the provisions of this section
         within the immediately preceding five (5) years. No driving
         privileges of any kind shall be granted during the suspension imposed
         pursuant to this subsection.
    The person may request an administrative hearing on the suspension as
    provided in subsection (7) of this section. Any right to contest the
    suspension shall be waived if a hearing is not requested as therein
    provided.
    (b)  The suspension shall become effective thirty (30) days after service
    upon the person of the notice of suspension. The notice shall be in a form
    provided by the department and shall state:
         (i)   The reason and statutory grounds for the suspension;
         (ii)  The effective date of the suspension;
         (iii) The suspension periods to which the person may be subject as
         provided in subsection (4)(a) of this section;
         (iv)  The procedures for obtaining restricted noncommercial vehicle
         driving privileges;
         (v)   The rights of the person to request an administrative hearing
         on the suspension and that if an administrative hearing is not
         requested within seven (7) days of service of the notice of
         suspension the right to contest the suspension shall be waived;
         (vi)  The procedures for obtaining an administrative hearing on the
         suspension;
         (vii) The right to judicial review of the hearing officer's decision
         on the suspension and the procedures for seeking such review.
    (5)  Service of suspension by peace officer or the department. If the
driver submits to evidentiary testing after the information in subsection (2)
of this section has been provided and the results of the test indicate an
alcohol concentration or the presence of drugs or other intoxicating
substances in violation of the provisions of section 18-8004, 18-8004C or
18-8006, Idaho Code:
    (a)  The peace officer shall take possession of the person's driver's
    license, shall issue a temporary permit which shall be valid for a period
    not to exceed thirty (30) days from the date of issuance, and, acting on
    behalf of the department, will serve the person with a notice of
    suspension in the form and containing the information required under
    subsection (4) of this section. The department may serve the person with a
    notice of suspension if the peace officer failed to issue the notice of
    suspension or failed to include the date of service as provided in
    subsection (4)(b) of this section.
    (b)  Within five (5) business days following service of a notice of
    suspension the peace officer shall forward to the department a copy of the
    completed notice of suspension form upon which the date of service upon
    the driver shall be clearly indicated, a copy of any completed temporary
    permit form along with any confiscated driver's license, a certified copy
    or duplicate original of the results of all tests for alcohol
    concentration, as shown by analysis of breath administered at the
    direction of the peace officer, and a sworn statement of the officer,
    which may incorporate any arrest or incident reports relevant to the
    arrest and evidentiary testing setting forth:
         (i)   The identity of the person;
         (ii)  Stating the officer's legal cause to stop the person;
         (iii) Stating the officer's legal cause to believe that the person
         had been driving or was in actual physical control of a motor vehicle
         while under the influence of alcohol, drugs or other intoxicating
         substances in violation of the provisions of section 18-8004,
         18-8004C or 18-8006, Idaho Code;
         (iv)  That the person was advised of the consequences of taking and
         failing the evidentiary test as provided in subsection (2) of this
         section;
         (v)   That the person was lawfully arrested;
         (vi)  That the person was tested for alcohol concentration, drugs or
         other intoxicating substances as provided in this chapter, and that
         the results of the test indicated an alcohol concentration or the
         presence of drugs or other intoxicating substances in violation of
         the provisions of section 18-8004, 18-8004C or 18-8006, Idaho Code.
    If an evidentiary test of blood or urine was administered rather than a
    breath test, the peace officer or the department shall serve the notice of
    suspension once the results are received. The sworn statement required in
    this subsection shall be made on forms in accordance with rules adopted by
    the department.
    (c)  The department may serve the person with a notice of suspension if
    the peace officer failed to issue the notice of suspension or failed to
    include the date of service as provided in subsection (4)(b) of this
    section.
    (6)  Additional tests. After submitting to evidentiary testing at the
request of the peace officer, the person may, when practicable, at his own
expense, have additional tests for alcohol concentration or for the presence
of drugs or other intoxicating substances made by a person of his own
choosing. The person's failure or inability to obtain additional tests shall
not preclude admission of the results of evidentiary tests administered at the
direction of the peace officer unless additional testing was denied by the
peace officer.
    (7)  Administrative hearing on suspension. A person who has been served
with a notice of suspension after submitting to an evidentiary test may
request an administrative hearing on the suspension before a hearing officer
designated by the department. The request for hearing shall be in writing and
must be received by the department within seven (7) calendar days of the date
of service upon the person of the notice of suspension, and shall include what
issue or issues shall be raised at the hearing. The date on which the hearing
request was received shall be noted on the face of the request.
    If a hearing is requested, the hearing shall be held within twenty (20)
days of the date the hearing request was received by the department unless
this period is, for good cause shown, extended by the hearing officer for one
ten (10) day period. Such extension shall not operate as a stay of the
suspension and any temporary permit shall expire thirty (30) days after
service of the notice of suspension, notwithstanding an extension of the
hearing date beyond such thirty (30) day period. Written notice of the date
and time of the hearing shall be sent to the party requesting the hearing at
least seven (7) days prior to the scheduled hearing date. The department may
conduct all hearings by telephone if each participant in the hearing has an
opportunity to participate in the entire proceeding while it is taking place.
    The hearing shall be recorded. The sworn statement of the arresting
officer, and the copy of the notice of suspension and any temporary permit
issued by the officer shall be admissible at the hearing without further
evidentiary foundation. The results of any tests for alcohol concentration or
the presence of drugs or other intoxicating substances by  analysis of blood,
urine or breath administered at the direction of the peace officer and the
records relating to calibration, certification, approval or quality control
pertaining to equipment utilized to perform the tests shall be admissible as
provided in section 18-8004(4), Idaho Code. The arresting officer shall not be
required to participate unless directed to do so by a subpoena issued by the
hearing officer.
    The burden of proof shall be on the person requesting the hearing. The
hearing officer shall not vacate the suspension unless he finds, by a
preponderance of the evidence, that:
    (a)  The peace officer did not have legal cause to stop the person; or
    (b)  The officer did not have legal cause to believe the person had been
    driving or was in actual physical control of a vehicle while under the
    influence of alcohol, drugs or other intoxicating substances in violation
    of the provisions of section 18-8004, 18-8004C or 18-8006, Idaho Code; or
    (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.
If the hearing officer finds that the person has not met his burden of proof,
he shall sustain the suspension. The hearing officer shall make findings of
fact and conclusions of law on each issue and shall enter an order vacating or
sustaining the suspension. If the suspension is vacated, the person's driver's
license, unless unavailable by reason of an existing suspension, revocation,
cancellation, disqualification or denial shall be returned to him. The
findings of fact, conclusions of law and order entered by the hearing officer
shall be considered a final order pursuant to the provisions of chapter 52,
title 67, Idaho Code, except that motions for reconsideration of such order
shall be allowed and new evidence can be submitted.
    The facts as found by the hearing officer shall be independent of the
determination of the same or similar facts in the adjudication of any criminal
charges arising out of the same occurrence. The disposition of those criminal
charges shall not affect the suspension required to be imposed under the
provisions of this section. If a license is suspended under this section and
the person is also convicted on criminal charges arising out of the same
occurrence for a violation of the provisions of section 18-8004, 18-8004C or
18-8006, Idaho Code, both the suspension under this section and the suspension
imposed pursuant to the provisions of section 18-8005 or 18-8006, Idaho Code,
shall be imposed, but the periods of suspension shall run concurrently, with
the total period of suspension not to exceed the longer of the applicable
suspension periods, unless the court ordering the suspension in the criminal
case orders to the contrary.
    (8)  Judicial review. A party aggrieved by the decision of the hearing
officer may seek judicial review of the decision in the manner provided for
judicial review of final agency action provided in chapter 52, title 67, Idaho
Code.
    (9)  Restricted noncommercial vehicle driving privileges. A person served
with a notice of suspension for ninety (90) days pursuant to this section may
apply to the department for restricted noncommercial vehicle driving
privileges, to become effective after  the thirty (30) day absolute suspension
has been completed. The request may be made at any time after service of the
notice of suspension. Restricted noncommercial vehicle driving privileges will
be issued for the person to travel to and from work and for work purposes not
involving operation of a commercial vehicle, to attend an alternative high
school, work on a GED, for postsecondary education, or to meet the medical
needs of the person or his family if the person is eligible for restricted
noncommercial vehicle driving privileges. Any person whose driving privileges
are suspended under the provisions of this chapter may be granted privileges
to drive a noncommercial vehicle but shall not be granted privileges to
operate a commercial motor vehicle.
    (10) Rules. The department may adopt rules under the provisions of chapter
52, title 67, Idaho Code, deemed necessary to implement the provisions of this
section.