The NewspaperIf 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withdrew any implied consent created by [the implied consent statute]… Because Eversole’s implied consent already had been revoked, the consent exception to the warrant requirement was inapplicable unless the state proved some subsequent action or statement by Eversole renewing his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.
Source: 
Idaho v. Eversole (Court of Appeals, State of Idaho, 4/8/2015)
with the way these cops are today,, it will go from a refusal of a blood draw,, to a cop shooting you and obtaining your blood that way
The statism is so ingrained in these judges and oinkers I can hardly stand it anymore. . .
“…the fact-finder could sensibly conclude that Eversole and his companions were capable of rendering the vehicle operational in a short period of time…”
So the criteria for drunk “driving” now includes not only actually operating a motor vehicle while intoxicated, but also NOT operating the vehicle, as long as you MIGHT be able to operate it at some point in the future? Can you say “theory of Pre-Crime”? Obviously, sleeping in a parked vehicle while intoxicated is not “operating” the vehicle in any fashion – the presumption being that some level of conscious interaction must be taking place with the vehicle in order for it to be considered “operating” it.
Under this novel approach to interpreting legal reality in a new way, someone in possession of any sort of weapon could be legally assaulted or killed because they MIGHT be able to kill someone with it in the future. Brings up all sorts of mischievous possibilities for the thugs and barristers, doesn’t it?
I expect if this type of stretch of the legal imagination was to be found commonplace, We the People might find justification for using this legal maneuver in some of our dealings with certain characters. Be careful what dog you let in the house, it may not be satisfied with the scraps of your dinner, it might decide YOU are it’s dinner.
Just sayin’
“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.”
Either his defense lawyer was asleep
Or the Judge hearing the case is sleeping with the prosecutor….
So . . . he was convicted of something he had not actually done, because he might have done it in the future?
Insane.