Today in Bennett v. Dep't of Trans., the Court of Appeals held "when specific, credible evidence demonstrates a violation of proper procedures, the [officer's probable cause] affidavit alone is insufficient to support a finding that proper procedures were followed." Docket No. 35150.
In Bennett, the Plaintiff testified that the officer left the room twice during the observation period. At the hearing, the Court of Appeals noted "the State presented only the officer's probable cause affidavit," containing "generalized statements regarding employment of proper procedures." Without finding that the Plaintiff's testimony lacked credibility, the hearing officer concluded she failed to meet her burden to demonstrate proper procedures and standards were employed by the officer.
In sum, the Court affirmed the District Court's order vacating the administrative license suspension by concluding the "hearing officer's finding that the breath test was conducted in compliance with procedureal standards is not supported by substantial evidence in the record as a whole." It will be interesting to see how this affects future ALS proceedings: Will arresting officer's actually pay attention and include detail, thought, and substance into their affidavits?; Will the hearing officers actually weigh evidence objectively?; Will the State begin participating to rebut testimony and evidence?...Just a few thoughts. Until then, I think this case provides a much needed glimmer of hope for those of us who have grown pessimistic with ALS proceedings.
On a parting note, the Court of Appeals did state that "coughing during the monitoring period does not implicate an invalid test or improper procedures." Thus, it looks like this argument is a dead end...
http://www.isc.idaho.gov/opinions/bennett%20opinion.pdf
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