State v. Black

IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 51663

STATE OF IDAHO, )
) Filed: December 17, 2025
Plaintiff-Respondent, )
) Melanie Gagnepain, Clerk
v. )
)
BETTY SUE BLACK, )
)
Defendant-Appellant. )
)

Appeal from the District Court of the Fifth Judicial District, State of Idaho, Twin
Falls County. Hon. Roger B. Harris, District Judge. Hon. Benjamin D. Harmer,
Magistrate.

Decision of the district court, on intermediate appeal from the magistrate court,
affirming the judgment of conviction for misdemeanor driving under the influence,
affirmed.

Erik R. Lehtinen, State Appellate Public Defender; Andrea W. Reynolds, Deputy
Appellate Public Defender, Boise, for appellant.

Hon. Raúl R. Labrador, Attorney General; Kenneth K. Jorgensen, Deputy Attorney
General, Boise, for respondent.
________________________________________________

GRATTON, Chief Judge
Betty Sue Black appeals from the district court’s decision, on intermediate appeal from the
magistrate court, affirming the judgment of conviction for misdemeanor driving under the
influence (DUI) and the denial of Black’s motion in limine and motion to dismiss. We affirm.
I.
FACTUAL AND PROCEDURAL BACKGROUND
In May 2023, Black drove herself to the probation office to meet her probation officer. The
probation officer smelled the odor of alcohol emitting from Black. After being questioned by the
probation officer, Black admitted she consumed alcohol the previous evening. The probation
officer, a certified breath-testing specialist, collected two breath samples from Black at 8:57 a.m.
utilizing standard testing procedures. Black’s breath alcohol concentration (BAC) was 0.091 and

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a 0.087, both over the legal limit for operating a motor vehicle. Due to the BAC results, Black’s
probation officer called law enforcement.
When law enforcement arrived, the police officer decided to collect two additional
samples. Those samples taken at 9:35 a.m. and 9:37 a.m., yielded BAC results of 0.081 and 0.075.
Black was cited for misdemeanor DUI in violation of Idaho Code § 18-8004. Black filed a motion
in limine and motion to dismiss, arguing that, because one of her breath samples was below the
legal limit of 0.08, dismissal was required under State v. Mills, 128 Idaho 426, 913 P.2d 1196 (Ct.
App. 1996). The magistrate court denied the motion in limine and motion to dismiss, finding the
State was relying on the probation officer’s testing rather than the samples provided to the police
officer as evidence to support the DUI charge.
At trial, a jury found Black guilty, and the magistrate court entered a judgment of
conviction for misdemeanor DUI. Black appealed to the district court. The district court affirmed
the magistrate court’s judgment of conviction and denial of Black’s motion in limine and motion
to dismiss. Black again appeals.
II.
STANDARD OF REVIEW
For an appeal from the district court, sitting in its appellate capacity over a case from the
magistrate court, we review the record to determine whether there is substantial and competent
evidence to support the magistrate court’s findings of fact and whether the magistrate court’s
conclusions of law follow from those findings. State v. Korn, 148 Idaho 413, 415, 224 P.3d 480,
482 (2009). However, as a matter of appellate procedure, our disposition of the appeal will affirm
or reverse the decision of the district court. State v. Trusdall, 155 Idaho 965, 968, 318 P.3d 955,
958 (Ct. App. 2014). Thus, we review the magistrate court’s findings and conclusions, whether
the district court affirmed or reversed the magistrate court and the basis therefore, and either affirm
or reverse the district court.
This Court exercises free review over the application and construction of statutes. State v.
Reyes, 139 Idaho 502, 505, 80 P.3d 1103, 1106 (Ct. App. 2003).
III.
ANALYSIS
Black claims the district court erred in its intermediate appellate decision affirming the
judgment of conviction and the denial of Black’s motion in limine and motion to dismiss. Relying

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on Mills, Black argues that, although two sets of breath samples, each including two breath tests,
were taken, because one of the breath tests was below the legal limit for operating a motor vehicle,
prosecution under I.C. § 18-8004(2) was precluded. Idaho Code § 18-8004(1) provides that it is
unlawful for any person who has an alcohol concentration of 0.08 or more to operate a motor
vehicle. However, I.C. § 18-8004(2) provides that any person having an alcohol concentration of
less than 0.08 as shown by a breath analysis test requested by a police officer, shall not be
prosecuted for driving under the influence of alcohol.
In Mills, this Court defined a “test” to be any breath sample, including if more than one
sample is collected. Mills, 128 Idaho at 429, 913 P.2d at 1199. We held:
that one sample constitutes “a test,” as that term is used in I.C. § 18-8004(2), and if
that sample shows a BAC level below 0.10, the accused cannot be prosecuted for
DUI under this statute. Furthermore, if more than one sample is taken, each valid
sample constitutes a test. If any of those samples fall below 0.10 then, again, the
accused cannot be prosecuted for DUI under I.C. § 18-8004.
Id. In Mills, two breath samples were taken, one above the legal limit and one below.1 We
recognized the policy of taking two samples for quality control purposes but concluded that if one
sample was below the legal limit, the existence of that sample invoked the protection in I.C. § 18-
8004(2). Id.
The magistrate court concluded Mills was distinguishable because it involved only two
breath samples, while Black provided two sets of two samples, with the two earlier samples
exceeding the legal limit. The magistrate court held:
So this is a different scenario than Mills. If the state were trying to rely on
just the second set of tests, then under Mills this case would need to be dismissed,
but where the first set was taken closer to the time the defendant was driving, I
think everybody understands the idea that alcohol dissipates from the body steadily
over time.
And where the first set is higher and is closer in time the defendant was
driving and there are two valid samples taken within that measured time limit, and
the state believes they can prove the case on those two samples, then the court
won’t dismiss this case based on there being, 40 minutes later, one sample out of
the four that’s below because that one seems to be related to a different point in
time than the one that’s closer to when the defendant was driving. So the Court
will deny the motion on that basis.

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At the time Mills was decided, the BAC limit was 0.10. Subsequently, the BAC limit was
reduced to 0.08. Idaho Code § 18-8004.
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Thus, the magistrate court acknowledged that reliance only on the second set of samples, where
one fell below the legal limit, would require dismissal of the charge under I.C. § 18-8004(2).
However, the BAC samples obtained from Black by the probation officer could be the basis for
the DUI charge. The magistrate court held that neither I.C. § 18-8004(2) nor Mills required
dismissal as the two sets of samples were separate and the samples taken by the probation officer
were closer to the time Black was driving.
On appeal to the district court, Black argued the magistrate court incorrectly interpreted
Mills because the samples taken by the police officer also constituted “tests” for purposes of the
statute and could not be separated from the tests taken by the probation officer. Black again argued
that I.C. § 18-8004(2) does not make a distinction based on time between samples collected, such
that Mills would be inapplicable. The district court agreed with the magistrate court in finding the
factual circumstances of this case distinguishable from Mills. The district court determined:
The first two breath samples Black provided to [the probation officer] (the first
BAC test), were valid, admissible, and obtained much closer in time to when Black
drove to [the probation officer’s] office than those obtained by [the officer]. As
such, the Magistrate found that the test administered by [the probation officer]
provided a more accurate indication of Black’s blood alcohol content at the time
she drove to [the probation office] . . . than the test administered by [the officer]
obtained 35-40 minutes later. In sum, when considering the Mills holding and the
facts of this case, this Court agrees with the Magistrate’s reasoning.
We agree that neither I.C. § 18-8004(2) nor Mills compel a holding that a test in the second
set of samples below the legal limit affects the ability to prosecute under the first set of samples.
The probation officer sampling was distinct in time from the later police officer sampling. A
second set of tests, distinct in time from the first, does not negate the validity of the first set of
samples. Black stipulated that the probation officer is a certified breath-testing specialist and the
testing done by the probation officer was valid. Because the samples taken by the probation officer
were both valid and admissible, the jury was properly allowed to consider the probation officer’s
test results when determining whether Black was guilty of driving under the influence.
Black has failed to demonstrate error by the magistrate court, or the district court on
intermediate appeal, in distinguishing Mills. Idaho Code § 18-8004(2) was not intended to
preclude prosecution of an individual where testing conducted at a later time showed a lower BAC
than a previous, valid sample. Thus, there was no error in the denial of Black’s motion in limine
and motion to dismiss.

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IV.
CONCLUSION
The district court’s decision, on intermediate appeal, affirming the magistrate court’s
judgment of conviction and the denial of Black’s motion in limine and motion to dismiss, is
affirmed.
Judge LORELLO and Judge TRIBE CONCUR.

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