*1
(3rd Ed.1970).
As this Court stated in
letter he had sent
to the title insurance
Andrews,
215, 218,
Blinzler v.
94 Idaho
stating
objections
company
to those ex-
957,
(1971),
485 P.2d
rescission is
ceptions
asking
they
that
be removed.
equitable remedy
totally abrogates
17,
responded May
by formally
on
Barnard
granted only
contract
should be
where
objecting
excep-
to the above-mentioned
party
one
has committed a breach so mate-
exception
in
tions
addition to one other
destroys
rial that
it
or vitiates the entire
excep-
contained in the commitment. The
purpose
entering
into the contract.
subsequently
tions were
removed and on
There
no
of such a breach in
was
1979,
August
policy providing
present
judge specifi-
The
case.
trial
required title insurance was issued.
that,
cally
considering
found
the conduct of
question
The
of whether the title insur-
parties
and the condition of the title
policy
ance
within a “reason-
commitment,
preliminary
disclosed
contract,
required by the
able time” as
failing
the Akins were
default
to
and,
such,
question
of fact
was a
provide title insurance within a reasonable
question for the trial court. The trial court
period of time.
the Akins were not in default in
found that
Powlus,
on Fajen
majority
relies
failing
provide
title insurance within a
(1977),
showing good marketable title when $4,000:00 purchaser paid had
purchase price. It was uncontroverted building purchased on the
that a located piece of property encroached onto another title insurance could not property and that Idaho, Plaintiff-Respondent, STATE of Thus, to cover such a defect. be obtained encroachment was we held that until the cured, pieces until to the two title TIERNEY, Jr., A. Richard buyers could not property merged, Defendant-Appellant. purchase property. compelled to No. 15449. clearly distinguish- present case is on the Akins’ title. There is no cloud able. Idaho. Supreme Court of 13, 1979, April Notice Barnard’s Neither Sept. 1985. 15,1979, Default, letter to the the June nor payment holder which conditioned escrow installment, listed absence first evi- default. The insurance as a
of title the Akins furnished indicates that
dence Policy on with a Title Commitment
Barnard accompanying In letter
May commitment, attorney in- the Akins’ two of his belief that Barnard of
formed in the commitment exceptions listed copy of a He enclosed
were incorrect. *2 Aherin, Lewiston,
Darrel W. for defend- ant-appellant. Jones, Gen., Atty. Lynn Thomas,
Jim E. Gen., Myrna Stahman, Sol. Deputy and A.I. Gen., Boise, Atty. for plaintiff-respondent. BAKES, Justice. Tierney appeals
Richard A. from a dis trict affirming suspension court order of his driver’s license. driver’s suspended license Tierney after re fused to take the alcohol concentration test required by I.C. 49-352.1 The version of § al, 1. 49-352. Test of driver for blood suspend driving privi- alcohol. the court shall —(1) Any person (120) leges who drives or is in twenty days; actual one hundred and physical (c) control right request hearing of motor vehicle in this state That he has the given shall be deemed to have why his consent to an before the court to show cause he did not evidentiary successfully complete test for alcohol evidentiary concentration as de- take or 49-1102, Code, concentration; fined in section Idaho requested, test for alcohol if hearing that such test is thirty administered at the of a must be scheduled within police having (30) days request; hearing reasonable to be- shall person lieve question why has been or in actual be limited the defend- physical control of a motor vehicle while under ant did not take the and that the burden alcohol, defendant; drugs proof the influence of or of of (d) shall be substances, intoxicating right in accordance with He does not have the to consult with regulations by the rules and attorney submitting established the Ida- an ry before to an evidentia- Department concentration; ho of law enforcement. test for alcohol (e) submitting After to the test at the At the time an test for alcohol officer, police may, practica- of the ble, when requested, person concentration is shall be by person have additional tests made informed that: choosing, expense his own and at no (a) refused, permit the test is his license or If state, county city. inability The failure or by will be seized for- by per- court; additional or tests obtain an test warded to the (b) preclude son shall not the admission of an Upon receipt a sworn statement evidentiary test for alcohol tak- concentration circumstances officer of refus- in repealed Tierney at Most issues I.C. 49-352 issue here was in raised appeal Ank this were addressed State v. (1985). In ney, 109 early morning September In the hours of opinion, upheld we I.C. 49-352 the 8,1983, Tierney stopped by a Lewiston challenge procedural process face of a due failing after for a police officer is not and determined an individual alcohol, sign. Because smelled of *3 constitutionally prior entitled to counsel to sobriety tests, given he a set of was field submitting test intoxi evidentiary to an for complete satisfactorily. which he failed to cation. also held that I.C. 49-352 We § Tierney then and taken to the was arrested the of version Idaho Misdemeanor station, Tierney re- police the station. At Rule 9.2 at the time of Criminal effective evidentiary test fused to submit to the for authority Tierney’s seize arrest concentration, required alcohol under I.C. suspend a driver’s license. 49-352, given being explanation after an § that, Tierney argues post-sei- at the also consequences his Be- of refusal. cause, hearing, was show as zure he able to Tierney refused to submit to the cause 49-352, required by for his I.C. refusal test, Tierney’s evidentiary driver’s license evidentiary Tierney the con- take test. suspended. subsequently seized evidentiary he refused the test tends that charged Tierney was also with he was not intoxicated and because because pursuant to I.C. while under the influence might he was on medication felt which 49-1102. Tierney points affect the test’s outcome. magistrate’s suspending corroborating testimony order of toward the After acquaintance support- as girlfriend sub- and an for refusal to Tierney’s driver’s license magistrate ing position his erred test mit concentration to the alcohol evidentiary finding refusal to take the issued, Tierney requested a show cause test to be without cause. hearing Tierney At this testified hearing. that not the test because he he did take findings of of of fact the trier and because he was on
was not intoxicated
appeal
they
if
fact will not be disturbed
might
he felt
affect the
which
medication
competent, al
supported by
are
substantial
A
Tier-
videotape
the
of
outcome of
test.
52(a);
though conflicting
I.R.C.P.
evidence.
ney’s
police station was
interview at the
77;
74,
State,
103
644
Idaho
Rueth
by Tierney, but was
offered into evidence
1333,
(1982).
appel
standard of
This
find-
not
court. An order
admitted
that
view
deference
late review reflects the
sus-
ing
Tierney’s
properly
license
spe
judge’s
to the trial
must be accorded
4,
filed
pended
weigh
October
opportunity to assess and
cial
appear.
who
the witnesses
credibility of
from
order to
Tierney
appealed
then
this
Bledsoe,
State,
supra;
Jensen
Rueth
court af-
court. The district
the district
(1979).
Tierney’s driver’s li-
suspension of
firmed
record,
suspen-
Having fully reviewed the
appeal
This
followed.
cense.
findings
magistrate’s
has been
Tierney’s
license
we conclude
driver’s
sion of
Tierney
Both
clearly erroneous.
are
appeal.
stayed pending this
assault, battery
or false im-
police
based
unless
action
direction
en at the
subject
prosecution under
police
prisonment, or be
by the
was denied
additional test
Code,
any act
chapter
for
or
title
officer.
arising
administering
test
of
driving privileges
out
under this
Suspension of
request of a
concentration at
any
for alcohol
separate
apart
be
shall
section
from
by this
described
in the manner
imposed
other
suspension
violation
codes,
appealed
section.
Idaho motor vehicle
(5)"Actual
section,
in this
physical
used
control”
to
(4)
district court.
being in
officer,
the driver’s
be defined as
agent,
shall
hospital
or em-
hospital,
No
with
motor
position
motor
vehicle
professional licensed
ployee,
care
or health
moving.
running
vehicle
motor
in dam-
be held liable
of Idaho shall
the state
added.)
(Emphasis
proceeding
a cause of
ages
civil
girlfriend
and his
hearing
testified at the
videotape
evidence the
taken at the
Tierney
drinking prior
had been
Tierney’s
station after
arrest. A trial
stop. Tierney also testified that at the
court has broad discretion in the admission
time of the
“I probably smelled like a
trial,
judgment
of evidence at
and its
will
...,”
bar
and that he had admitted to the
only be
when there
reversed
has been
drinking.
officer that he had been
Terry,
clear abuse of discretion. State v.
further admitted that he had been unable
(1977). We
satisfactorily complete
sobriety
the field
find no abuse of discretion here. The vid-
test. While it is true that two witnesses
only
proven Tierney’s
eotape could
have
behalf,
testified on
magis-
sobriety,
was not at issue
which
at this
trate,
fact,
as the trier
responsi-
had the
hearing.
show cause
bility
weigh
credibility
to assess and
The order of the district court
is af-
now,
these witnesses. We will not
from a
respondent.
firmed. Costs to
*4
record, attempt
cold
to reassess the credi-
bility
testimony
of these witnesses—whose
DONALDSON, C.J.,
HUNTLEY, J.,
clearly may
so
in Tierney’s
biased
favor.
concur.
event,
Tierney’s
In
own evidence es-
SHEPARD, Justice, specially concurring.
tablished
he
drinking
had been
opinion
I concur
disposi-
with the
and the
evidence,
that he smelled of alcohol. That
case,
again
tion of the instant
but
reiterate
together with the observations of the offi-
my
concerning
reservations
I.C.
49-352
conduct,
of
including
cer
the fail-
expressed in
Ankney,
State v.
stop
ure to
sign, provided
at the
the
(1985).
Finally, Tierney argues that the
of intoxication at
near the
magistrate
refusing
erred in
to admit into
arrest. The defendant testified—and
majority
not contradicted1—that he acted
problem
and felt
finds no
with the
decision, however,
same,
exactly
performed
magistrate’s
stating that
the sobri
a trial court has “broad discretion in the
ety tests in
a similar manner at the
Ante, p.
admission of evidence at trial.”
during
taping,
station
as when was
I
disagree
cannot
strongly
more
pulled
interrogated by
first
over
with such a statement.
If evidence is rele-
Thus,
arresting
tape
officer.
if the
re
vant,
admissible, subject to several
it is
vealed that the defendant was not intoxi
exceptions now embodied in Idaho’s Rules
cated,
certainly
then he
would have had the
Evidence,
inapplicable
but which are
requisite
49-352
cause which I.C.
re
Evidence,
here.
Idaho Rules of
art.
See
quires
refusing
to submit to the
While
IV.
a trial court
have discre-
tape
because the
would have disclosed that
determining
relevancy
tion
of evi-
arresting
did
not have reason
dence,
Vehlow, 105
n.
Marks v.
Idaho 560
able
that he take the
(1983),
671 P.2d
482 n. 9
it does not
requires.
test as that section
in admitting
have such discretion
magistrate judge
refused to admit
that is relevant. Rule 402 now states as
however,
tape,
ruling
Kreie,
much.
also Matter
Estate
See
evidence had convinced him that
introduced
(1984);
235 Kan.
hour, the fact that he had run the ber, arresting had no then the fact, admission, sign, his own grounds by request which to that the de- him, odor of alcohol was about there- the blood alcohol test. If the fendant take admission, after, by his own he did not grounds officer had not complete successfully all the field sobrie- test, corollary then the defendant take Therefore, I ty tests. feel the officer has be true: the defendant to this must also further cause to him to take the test. Had the had cause not take the intoximeter test. defendant, tape been adverse to the magistrate would not have hesitated one reasoning circuitous cannot be the This moment to admit on the state’s offer. As excluding potentially exculpa- know, appar- practicing attorneys but all poten- tory To refuse to admit evidence. picture worth a thou- ently judges, not is exculpatory because one has tially words. sand mind the matter already up made of the worst form of unfairness Today’s opinion smacks is unfair to the defend- It in a criminal trial to and bias. is akin It denies him his chance to show ant. convicting prosecu- taking after the the blood-alcohol the defendant cause for not arresting police not presented its case but before tion has which rebut, request. The tortu- opportunity to have been entitled to defense has had an to reach the path majority takes explain view of the evi- ous impeach, and its in this case muddies result dence. uncontradicted, inherently incredible authority Gray’s ant’s Auto 1. Under Pierstorff 438, 447-48, being point true. Shop, (1937), evidence on this required accept defend- this Court is definitions, thought I had rules which always
had “been the rule [in Idaho]
implication case law.” Comment to
Rule Idaho Rules of Evidence. ALL, Plaintiff-Appellant,
Stella
SMITH’S MANAGEMENT CORPORA Inc., King #
TION Smith’s Food corporation, Shelby’s
a Utah Park Inc.,
Center, corporation, an Idaho De
fendants-Respondents.
No. 15723.
Supreme Idaho. Court of
Sept. 1985.
Rehearing Withdrawn Nov. *6 Falls, Walker,
Lloyd plaintiff- Twin J. appellant. Boise, B. Brady,
Michael and Thomas G. Sinclair, Benoit, High, of Alexander & Twin Falls, defendants-respondents.