Opinion
Docket No. 25633.
Filed: October 12, 2000.
Appeal from the District Court of the Second Judicial District, State of Idaho, Nez Perce County. Hon. Ron Schilling, District Judge. Hon. Gregory K. Kalbfleisch, Magistrate
Order of the district court affirming the magistrate's order suspending driving privileges, affirmed.
Clark Feeney, Lewiston, for appellant. Charles M. Stroschein argued.
Hon. Alan G. Lance, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for respondent. Kenneth K. Jorgensen argued.
Brian Halen appeals from the district court's affirmance of the magistrate's suspension of Halen's driving privileges for 180 days for refusing to submit to a blood test following his arrest for driving under the influence of alcohol (DUI).
I.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On October 28, 1998, at about 10:00 p.m., Lewiston Police Officer Mundell observed a vehicle at an intersection. As the vehicle drove off, the back tires spun on the pavement. Mundell activated his emergency lights and the suspect vehicle pulled over about ten blocks away. The driver was identified as Halen. From his observations and the odor of alcohol on Halen's breath, Mundell believed Halen was driving under the influence of alcohol. After Halen refused to submit to a field sobriety test, Mundell arrested him for DUI.
At the police station, Mundell asked Halen if he had been exposed to solvent fumes, the effects of which could invalidate a breath test on an Intoxilizer 3000 breathalyzer machine, but might be detected on the station's Intoxilizer 5000 machine. Halen, a mechanic, indicated that he was exposed to solvents every day. Mundell then read the driver's license suspension advisory form to Halen. Because of Halen's response to the "fumes" question, Mundell offered Halen a blood test to determine his blood alcohol content, rather than a breath test on the Intoxilizer 5000.
Ethyl alcohol or grain alcohol is the alcohol found in beer, wine and liquors. From the evidence adduced at the refusal hearing, the Intoxilizer 5000 machine is capable of detecting most interferents — chemicals that would interfere with the reliability of the assay for the percentage of ethyl alcohol in the motorist's blood — with the notable exception of methyl alcohol. Methyl alcohol (methanol), also known as wood alcohol, is commonly found in anti-freeze, varnish, paint remover and shellac.
Mundell initially denied Halen's request to talk to his attorney. When Halen expressed a concern about needles and AIDS and requested a breath test as an alternative to a blood draw, Mundell and another officer explained the process of taking a blood test, what a phlebotomist was, and the sanitary conditions under which the draw would be conducted. Although Halen indicated he had a fear of needles, he admitted he had received injections in the past. When asked if he had seen a psychologist about his fear of needles, he indicated he had not. Halen gave no indication that he would suffer psychological trauma from submitting to a blood test. Mundell then permitted Halen to consult with his attorney by telephone and left the interview room while he did so.
After consulting with his attorney, Halen persisted in refusing to take the blood test, requesting a breath test instead. Mundell concluded that Halen's insistence on a breath test amounted to a refusal of the proffered blood test. Halen requested a hearing on his alleged refusal to submit to evidentiary testing for blood alcohol concentration.
At the refusal hearing, criminalist Dave Laycock of the Department of Law Enforcement's Bureau of Forensics testified that the older Intoxilizer 3000's interferent detection system — a screening for chemicals in a person's breath that would interfere with the test results — was unreliable. Laycock then explained that the newer Intoxilizer 5000's interferent detection system would reliably detect interferents other than methyl alcohol. Thus, he explained, while the Department of Law Enforcement (DLE) had required police officers to ask about exposure to "fumes" from potential interferents before conducting a breath test with the Intoxilizer 3000, the DLE neither required nor prohibited a "fumes" question with the Intoxilizer 5000. Laycock testified that the Intoxilizer 5000 machine displayed a "have blood drawn" message when an interferent was detected. Laycock also testified that the DLE's training manual for the Intoxilizer 5000 instructs operators to obtain a blood test if there was any prolonged exposure to paint or solvent fumes.
Officer Mundell testified that he was trained in DUI detection through observation, field sobriety testing and operation of the Intoxilizer 5000 machine. Mundell stated that he was trained to ask the "fumes" question and if there was any exposure indicated, to offer a blood or urine test. When asked about the traffic stop and the circumstances leading to Halen's refusal, Mundell testified to the facts set forth above.
Jim Cain, the Lewiston Police Department shift supervisor who assisted Mundell in attempting to obtain a blood test from Halen, testified to the above facts regarding what occurred at the police station. When asked why a urine test was not offered, Cain testified that a blood test was the best evidence of blood alcohol concentration.
In summation, Halen argued: (1) that he should have been offered another test due to a fear of needles, that the "fumes" question was not required with the Intoxilizer 5000 machine and the officer's refusal to offer another test violated his civil rights; (2) that he was not adequately advised of the consequences of refusing a blood alcohol test; (3) that he had a state constitutional and statutory right to counsel before deciding to submit to a blood alcohol test; and (4) that his right to prehearing discovery had been violated.
Following an evidentiary hearing, the magistrate found that Halen had not shown that undergoing a blood draw would cause him psychological trauma and that Halen had in fact been provided with the opportunity to speak to counsel before deciding whether to submit to a blood test. The magistrate concluded that the fumes question, while not required, was not error and thus Mundell had acted reasonably in asking the question and that Halen's right to counsel claim was mooted by the fact that he had been allowed to speak with counsel before he decided to refuse Mundell's request for a blood test. Regarding the advisory form, the magistrate concluded that the form had not inaccurately or misleadingly informed Halen of the separate civil nature of a license suspension for refusal or failure of evidentiary testing as opposed to the criminal nature of a suspension imposed upon conviction for DUI. Finally, the magistrate ruled that Halen had failed to meet his burden of showing a psychological inability to provide a blood sample at the time Mundell requested such and that under Idaho law the officer's selection of a blood test was reasonable. Thereafter the magistrate suspended Halen's license for 180 days.
Halen appealed to the district court, arguing that the magistrate erred in making certain evidentiary rulings and also raising the same issues heard before the magistrate. Halen's request for a stay of the suspension of his driving privileges was granted. On appeal, the district court affirmed the magistrate's order suspending Halen's driving privileges. Halen appeals.
II.
STANDARD OF REVIEW
On review of a decision of the district court, rendered in its appellate capacity, we examine the record of the magistrate court independently of, but with due regard for, the district court's intermediate appellate decision. State v. Bitt, 118 Idaho 584, 585 n. 1, 798 P.2d 43, 44 n. 1 (1990); State v. Bowman, 124 Idaho 936, 939, 866 P.2d 193, 196 (Ct.App. 1993). This Court will uphold the findings of the magistrate court if the findings are supported by substantial and competent evidence. State v. Myers, 130 Idaho 440, 442, 942 P.2d 564, 566 (Ct.App. 1997). When a violation of a constitutional or statutory right is asserted, the proper appellate response is one of deference to the trial court's factual findings unless those findings are clearly erroneous. Id. However, we freely review the trial court's determination as to whether constitutional or statutory requirements have been satisfied in light of the facts found. Id.
III.
DISCUSSION
A. The Magistrate's Rejection Of Halen's Civil Rights Claim Regarding A Blood Draw
The administration of a blood alcohol test is a seizure of the person and a search for evidence within the purview of the Fourth Amendment to the United States Constitution. See Schmerber v. California, 384 U.S. 757 (1966); State v. Woolery, 116 Idaho 368, 370, 775 P.2d 1210, 1212 (1989); State v. Curtis, 106 Idaho 483, 680 P.2d 1383 (Ct.App. 1984). Warrantless searches or seizures are presumptively unreasonable unless they come within one of several judicially recognized exceptions to the warrant requirement. Coolidge v. New Hampshire, 403 U.S. 443, 454-55 (1971); Woolery, 116 Idaho at 370, 775 P.2d at 1212. Consent is a well-recognized exception. State v. Rodriguez, 128 Idaho 521, 523, 915 P.2d 1379, 1381 (Ct.App. 1996). By statute, a driver of a motor vehicle in Idaho is deemed to have consented to an evidentiary test for blood alcohol concentration. Idaho Code § 18-8002(1) provides:
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 cprovisions of section 18-8004, Idaho Code, or section 18-8006, Idaho Code.
As explained in Rodriguez:
By virtue of this statute, "anyone who accepts the privilege of operating a motor vehicle upon Idaho's highways has consented in advance to submit to a BAC test. . . ." Matter of McNeely, 119 Idaho 182, 187, 804 P.2d 911, 916 (Ct.App. 1990). See also Matter of Goerig, 121 Idaho 26, 29, 822 P.2d 545, 548 (Ct.App. 1991) (by implying consent, the statute removes the right of a licensed driver to refuse to take an evidentiary test); State v. Burris, 125 Idaho 289, 291, 869 P.2d 1384, 1386 (Ct.App. 1994) (regardless of whether the defendant is informed of his rights under I.C. § 18-8002(3), he has no legal right to refuse to submit to the evidentiary test).
128 Idaho at 523, 915 P.2d at 1381.
In Matter of Griffiths, 113 Idaho 364, 370, 744 P.2d 92, 98 (1987), the Idaho Supreme Court held that the choice of tests an officer may request from a DUI suspect pursuant to I.C. § 18-8002 is left to the discretion of the officer:
Idaho's [implied consent] statute states that it is the police officer who is the one requesting the test. This would indicate that it is also the police officer who will determine the type of test which will be requested. Therefore, we hold that the choice as to which type of evidentiary test for concentration of alcohol, drugs or other intoxicating substances will be requested rests with the police officer, not the defendant. . . . Defendant was requested to submit to a blood test. He refused. . . . The choice was not his to make, and therefore, his conduct was a refusal.
See State v. Cunningham, 116 Idaho 179, 181, 774 P.2d 349, 351 (Ct.App. 1989) ("[a] person arrested for DUI is not free to pick the type of alcohol test he will be given initially when requested to submit to a test by an officer. Rather, the choice of evidentiary tests for determining blood alcohol concentration is within the arresting officer's discretion").
Halen asserts that the Idaho Supreme Court, in Griffiths, failed to give full effect to the legislature's intent that all three tests; blood, breath and urine, should be treated as equals. Halen cites Nelson v. City of Irvine, 143 F.3d 1196 (9th Cir. 1998) for the proposition that if another equal test is available, the state does not have the right to request a blood draw. It should be noted that the analysis in Nelson was predicated on the Fourth Amendment, not implied consent, and the California statute under which the blood test was sought permitted the suspect driver to make the choice of tests he or she would submit to for purposes of assessing his or her BAC. Id. at 1206. Thus, Nelson is readily distinguishable. Even if Halen is correct in his critique of Griffiths, this court cannot overrule a decision of the Idaho Supreme Court. Therefore, we decline Halen's invitation to do so.
Halen argues that the "fumes" question was unnecessary as a result of the Intoxilizer 5000 machine's ability to detect interferents. From the evidence adduced at the refusal hearing, when the Intoxilizer 5000 is utilized, inquiry about exposure to fumes from paints and solvents is not essential to ensure a reliable test result. With the exception of methyl alcohol, the Intoxilizer 5000 will detect substances that would affect the validity of the breath test results. When an interferent is detected, the Intoxilizer 5000 machine displays a "have blood drawn" message. Mundell acted in conformity with his training and did not violate DLE policy in asking Halen about his exposure to fumes from interferents, the presence of which, if detected by the Intoxilizer 5000, would necessitate a blood test. We hold that the fumes question, if asked, is rationally related to a legitimate governmental purpose, avoiding the unnecessary duplication of testing and the concomitant delay in obtaining a result during which time the body is metabolizing the alcohol and absorbing the evidence of intoxication. Thus, we agree with the magistrate's conclusion that, while asking the fumes question is not required, neither was it error to do so. Accordingly, Halen is not entitled to reinstatement of his driving privileges on the ground that Mundell asked him about exposure to fumes from solvents.
Halen also argues that only an exigent circumstance can justify a blood draw for the purposes of assessing his blood alcohol content (BAC). In essence, we are asked to determine whether the Fourth Amendment mandates a preference for a breath test over a blood draw for determining BAC under Idaho's implied consent law, I.C. § 18-8002(1). While the choice of evidentiary tests is left to the discretion of the police officer, that discretion is not unbridled. On the other hand, the officer need not employ the least intrusive method of testing a motorist's blood alcohol level. See Municipality of Anchorage v. Ray, 854 P.2d 740, 750 (Alaska App. 1993). In Ray, the court rejected the argument that a blood test could not be requested unless a breath test had been offered and refused, noting that "[w]hen the blood sample is drawn `by a physician in a simple, medically acceptable manner in a hospital environment,' blood extraction from an arrestee is not so great an intrusion as to violate due process." Id. The court also rejected the motorist's argument that police must show a true need to conduct a blood test as opposed to a breath test. Instead, it ruled that even if it were to view a blood test as materially more intrusive, the question is whether a blood test is reasonable under the circumstances. Id.
For example, were an officer to force a DUI suspect to chose between the subcutaneous extraction of bodily fluid through a needle and a refusal for no other objective reason than spite or prejudice, we would be hard pressed to uphold the search as reasonable in light of the less intrusive alternatives of breath and urine testing.
We note that taking blood is justified under the exigent circumstance exception to the warrant requirement, since blood alcohol generally begins to dissipate due to the body's natural metabolism of alcohol shortly after a person stops drinking. Schmerber, 384 U.S. at 770-71. Under the circumstances faced by Mundell in selecting an evidentiary test — given Halen's admitted exposure to fumes from substances known to contain interferents, most of which the Intoxilizer 5000 machine will detect, but not compensate for, in assaying blood alcohol content — we hold that a request for a blood test was reasonable.
Accordingly, the magistrate correctly rejected Halen's civil rights claim regarding a blood draw. Halen's insistence on the choice of a breath test was not his to make and constituted a refusal to submit to evidentiary testing as provided for under Idaho's implied consent statutory scheme.
B. Halen Failed To Show Cause For His Refusal To Submit To Evidentiary Testing
Although he did not testify at the refusal hearing, Halen asserts that he refused to submit to the blood test for fear of needles and his concern for AIDS. Mundell testified that Halen said he "didn't like needles and didn't want to take the test." Mundell asked Halen if he had any diagnosed fear disorder of such magnitude that he would not be able to submit to a blood test. Halen responded that he had no specific diagnosis or anything that was going to cause him psychological trauma, only that he preferred to have a breath test rather than a blood test. Halen admitted he had received injections in the past.
The hearing conducted before the magistrate was a show cause hearing pursuant to I.C. § 18-8002(4). Halen had the burden of establishing that his rights were violated by the officer's insistence on a blood test to determine BAC in the face of his asserted fear of needles. To establish cause, Halen had to show a just reason sufficient for refusing the blood test. As explained by the Idaho Supreme Court:
a fear of needles may establish sufficient cause for refusing to submit to a blood test requested pursuant to I.C. § 18-8002 if the fear is of such a magnitude that as a practical matter the defendant is psychologically unable to submit to the test, and if the fear is sufficiently articulated to the police officer at the time of refusal so that the officer is given an opportunity to request a different test.
Griffiths, 113 Idaho at 372, 744 P.2d at 100; Matter of Cummings, 118 Idaho 800, 803, 800 P.2d 687, 690 (Ct.App. 1990) (to establish cause for refusal, the suspect driver must show a cause of sufficient magnitude, such as a demonstrated physical or psychological inability to perform the requested test, before a suspension of driving privileges for refusal would be unjust or inequitable).
In the present case the magistrate found, upon substantial and competent evidence, that Halen had not met his burden of establishing the requisite magnitude of fear creating a psychological inability to submit to a blood alcohol test. Rather, Halen's qualms about needles and AIDS amounted to no more than a preference for a breath test over a blood test. We cannot say that the magistrate erred in finding that Halen's reasons for refusing the offered blood test were not sufficient to meet his burden of showing a psychological inability to submit to a blood test.
C. Halen Was Adequately Advised Under I.C. §§ 18-8002 And 18-8002A
Idaho Code §§ 18-8002(3) and 18-8002A(2) require an officer to inform a driver of four consequences resulting from his or her refusal to submit to evidentiary testing. The license of a driver will be reinstated if he or she can establish that the suspension advisory form did not give complete advice as set forth in I.C. §§ 18-8002(3) and 18-8002A(2). Matter of Virgil, 126 Idaho 946, 947, 895 P.2d 182, 183 (Ct.App. 1995). The accuracy of the suspension advisory form is a question of law over which this Court exercises free review. Id.
Idaho Code § 18-8002(3) provides:
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) His driver's license will be seized by the peace officer and a temporary permit will be issued; provided, however, that no peace officer shall issue a temporary permit pursuant to this section to a driver whose driver's license or permit has already been and is suspended or revoked because of previous violations, and in no instance shall a temporary permit be issued to a driver of a commercial vehicle who refuses to submit to or fails to complete an evidentiary test;
(b) 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;
(c) If he does not request a hearing or does not prevail at the hearing, his driver's license will be suspended absolutely for one hundred eighty (180) days if this is his first refusal and one (1) year if this is his second refusal within five (5) years; and
(d) After submitting to evidentiary testing he may, when practicable, at his own expense, have additional tests made by a person of his own choosing. In similar language, the same warning is required by I.C. § 18-8002(A) — concerning failure of evidentiary testing — with the addition of subsection (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 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[.]
Halen argues that the magistrate's suspension of his license cannot be upheld because the advisory form stated that suspension for refusal to submit to or failure of evidentiary testing "is separate from any other suspension ordered by the court." He argues that this statement is insufficient notice because the form does not accurately reflect the language of I.C. §§ 18-8002(5) and 18-8002A(7). Idaho Code § 18-8002(5) — the refusal statute — states that:
The language of I.C. §§ 18-8002(5) and 18-8002A(7)(e) express what is essentially the same idea — that an administrative license suspension is a civil penalty separate and apart from any suspension imposed for a conviction of a DUI offense. Both statements under paragraph 4C and 5B of the advisory form used in this case are consistent with the language of I.C. §§ 18-8002(5) and 18-8002A(7)(e); that suspension for failure of or refusal to submit to evidentiary tests under Idaho's implied consent law are separate and apart from any suspension imposed for a conviction of a DUI offense. See Matter of Hanson, 121 Idaho 507, 512, 826 P.2d 468, 473 (1992).
Any suspension of driving privileges under this section or section 18-8002A, Idaho Code, shall be a civil penalty separate and apart from any other suspension imposed for a violation of other Idaho motor vehicle codes or for a conviction of an offense pursuant to this chapter.
Idaho Code § 18-8002A(7) — the failure of evidentiary testing statute — states in pertinent part that:
[I]f a license is suspended under this section and the person is also convicted [of a DUI offense] arising out of the same occurrence . . . both the suspension under this section and the suspension [imposed for the DUI offense] 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.
Halen's complaint is really about a perceived conflict between I.C. § 18-8002(5) and I.C. § 18-8002A(7), not the sufficiency of any advisement under I.C. § 18-8002(3). However, from our reading of I.C. §§ 18-8002 and 18-8002A, the advisory form was not required to notify Halen that the civil suspension was separate from any criminal suspension that might occur in a separate criminal proceeding. See I.C. § 18-8002(3). As stated in Virgil, "Idaho law requires strict adherence to the statutory language of I.C. § 18-8002(3) . . . and our Supreme Court has `emphatically discountenanced interjection of judicial gloss upon the legislature's license suspension scheme.'" 126 Idaho at 947, 895 P.2d at 183. The maxim expressio unius est exclusio alterius (the inclusion of one thing is the exclusion of the other) is applicable here. When a statute enumerates the areas that are to be encompassed in its enforcement, it is generally accepted that those areas not specifically mentioned are not to be included. See, e.g., State v. Michael, 111 Idaho 930, 933, 729 P.2d 405, 408 (1986). Thus, we will not engraft additional terms into the language of I.C. § 18-8002(3).
Halen argues that language of I.C. § 18-8002A(7)(e) should prevail over that of I.C. § 18-8002(5). However, the difference between these two statutes is accounted for by the different circumstances in which they apply. In the case of a failure of evidentiary testing, rather than a refusal, the legislature has chosen to provide that the separate civil and criminal suspensions shall run concurrently unless the criminal court states otherwise. No such preference for concurrent suspensions is afforded in the event of a refusal to submit to evidentiary testing. Halen refused to submit to a blood test and thus is not eligible for any benefit under I.C. § 18-8002A — the suspension for failure of evidentiary testing statute. Furthermore, whether a later imposed criminal penalty is run concurrently or consecutively to the civil license suspension is a matter collateral to the civil license suspension and within the trial court's discretion. The provisions of I.C. §§ 18-8002(5) and 18-8002A(7)(e) only come into play in the event of a later successful criminal prosecution for DUI.
Accordingly, we hold that Halen was properly advised of both the consequences of refusing and of failing the requested blood alcohol test.
D. Halen's Other Claimed Due Process Violations Are Without Merit
Halen claims that Idaho's implied consent statutory scheme violates his right to counsel under the Idaho Constitution. As we have previously explained, Idaho Supreme Court precedent constrains us to uphold the constitutionality of I.C. § 18-8002(2), which precludes any right to consult with counsel prior to submitting to BAC testing. See State v. Burris, 125 Idaho 289, 293, 869 P.2d 1384, 1388 (Ct.App. 1994) and Matter of McNeely, 119 Idaho 182, 187, 804 P.2d 911, 916 (Ct.App. 1990) (citing State v. Ankney, 109 Idaho 1, 704 P.2d 333 (1985). Further, we note that Halen was in fact permitted to consult with counsel before refusing to submit to a BAC test.
Halen further argues that the failure of Idaho's license suspension scheme to provide a period for prehearing discovery deprived him of a valuable right — his driver's license — in violation of his right to procedural due process. However, the record does not include a request for discovery filed by Halen in the magistrate court. Accordingly, we decline to address this issue.
IV.
CONCLUSION
For the reasons stated above, we affirm the district court's appellate decision affirming the magistrate's suspension of Halen's driving privileges for 180 days. The case is remanded for the enforcement of that suspension.
Chief Judge PERRY CONCURS
I concur in the Court's opinion but wish to write separately to clarify my view on several points because the majority has treated this case as being more complex than it seems to be under the circumstances presented in that Halen has presented no new or unique issues which have not already been addressed by established law in Idaho.
For example, the officer's inquiry regarding Halen's exposure to "fumes" is irrelevant and, therefore, amounts to a "red-herring." The officer may have erroneously believed that the Intoxilizer 5000 could not detect the chemicals because of his experience with the Intoxilizer 3000. On the other hand, the officer could have just been taking the "high road" in an attempt to avoid such factual issues as "fumes" in the subsequent court hearings in the case. Thus, whatever the reason for requiring the blood test is irrelevant unless, as the majority noted, it was requested for a completely improper reason. In large part, the situation presented by the circumstances of this case is no different than if Halen was hiccupping, or the breath machine was not working properly, or the only available officer was not certified to administer a breath test.
The presence of chemicals could still be made an issue that could be raised at a later date, whether or not the Intoxilizer 5000 detects their presence.
As for the preference for testing between urine, breath or blood, the requirement to submit to testing is a product of statute which authorizes the means by which the state can obtain its evidence. I.C. §§ 18-8002(1), -8004. As such, absent unusual circumstances, a defendant cannot contest which of the available tests is offered and administered. State v. Cunningham, 116 Idaho 179, 181, 774 P.2d 349, 351 (Ct.App. 1989). A defendant can request an independent test after taking whichever test the officer has requested, at his own expense. State v. Rountree, 129 Idaho 146, 922 P.2d 1072 (1996).
In regard to the issue of "fear of needles," in Matter of Griffiths, 113 Idaho 364, 744 P.2d 92 (1987), the Idaho Supreme Court held that fear of needles may be a sufficient cause for refusing to submit to a blood test. However the Supreme Court also indicated that this is a factual determination as to whether the fear of needles was of such a magnitude that the defendant had sufficient cause for refusal. Id. Thus, there is a factual determination reviewed under the clearly erroneous standard. In the instant case, Halen was quizzed by the requesting officer about Halen's concern about needles and AIDS, and although Halen indicated he had a fear of needles, he admitted to having received injections in the past. The officer also explained the process and sanitary conditions under which the test would be taken. In fact, Halen did not ultimately refuse the blood test until he spoke with his attorney, although he had previously expressed a preference for a breath test. There is no credible evidence that Halen would suffer psychological trauma from the blood test. Clearly this is not a magnitude of fear contemplated by the Court in Griffiths. In any event, the magistrate's findings are not clearly erroneous.
Therefore, I join in the majority's ultimate determination affirming the suspension of Halen's driving privileges for 180 days.