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IN THE COURT OF APPEALS OF THE STATE OF IDAHO Docket No. 37322 IN THE MATTER OF THE DRIVER'S LICENSE SUSPENSION OF MATILDA K. KLING. STATE OF IDAHO, Plaintiff-AppellantCross-Respondent, v. MATILDA K. KLING, Defendant-RespondentCross-Appellant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

2010 Opinion No. 83S Filed: December 14, 2010 Stephen W. Kenyon, Clerk SUBSTITUTE OPINION THE COURT'S PRIOR OPINION DATED DECEMBER 10, 2010 IS HEREBY WITHDRAWN

Appeal from the District Court of the Fifth Judicial District, State of Idaho, Blaine County. Hon. Robert J. Elgee, District Judge; Hon. R. Ted Israel, Magistrate. District courts order affirming magistrates order denying drivers license suspension, affirmed. Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for appellant. Kenneth K. Jorgensen argued. Brian E. Elkins, Ketchum, for respondent. ________________________________________________ LANSING, Chief Judge The State appeals from the district courts appellate decision affirming the magistrates order declining to suspend the nonresident drivers license of Matilda K. Kling for Klings refusal to submit to an alcohol concentration test. I. FACTS AND PROCEDURE Kling, who held a Washington state drivers license, was arrested for driving under the influence of alcohol in Blaine County. When asked by the officer to perform a breath test for alcohol concentration, Kling refused. The officer did not seize Klings drivers license at that 1

time as he was directed to do by Idaho Code

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