If a motorist withdraws his consent to a blood test, a police officer may not take it by force under a ruling last week by the Idaho Court of Appeals. A divided three-judge panel decided that the blood evidence used against Brant Lee Eversole should have been suppressed.

Eversole was drunk when a local sheriff's deputy caught him sitting behind the wheel of a truck in front of a bar. Yet Eversole could not have driven the truck because it was high-sided on a brick berm with the drive wheels lifted off the pavement. Two other men were trying to use a jack to free the vehicle, but they had next to no chance of succeeding. The police officer at the scene called their effort "feeble." The truck had to be towed away.

The deputy smelled Eversole's breath and had him take a sobriety tests. He flunked several before refusing to take any more. Eversole was arrested and taken to Bingham Memorial Hospital where his blood was removed and the blood alcohol content measured at .27, or triple the legal limit.

Eversole was convicted, but he appealed on the grounds that he was not driving under the influence of alcohol (DUI) because his truck could not be driven. His argument failed.

"The district court correctly determined that the fact-finder could sensibly conclude that Eversole and his companions were capable of rendering the vehicle operational in a short period of time," Judge Karen L. Lansing wrote for the court. "A finder of fact could have credited the officer's testimony that the jack strategy could have worked if the jack was positioned 'a little bit differently.' Therefore, the issue should be decided by the trier of fact and the order denying dismissal was proper."

The appellate judges did have a problem with the trial judge's other assumption that the state's implied consent statute eliminated the need for the police officer to apply for a warrant before taking Eversole's blood. Idaho has recently been forced to reinterpret its laws in light of the US Supreme Court's McNeely decision (view case) scaling back forced blood draws.

"In this case, Eversole refused to participate in a breath test for alcohol concentration," Judge Lansing wrote. "He thereby withdrew any implied consent created by [the implied consent statute]... Because Eversole's implied consent already had been revoked, the consent exception to the warrant requirement was inapplicable unless the state proved some subsequent action or statement by Eversole renewing his consent. The state did not do so."

A copy of the decision is available in a 50k PDF file at the source link below.