970 N.W.2d 814
S.D.2022Background
- 911 caller reported Carl Nelson driving while intoxicated with his six-week-old infant in the backseat; caller said she saw him drinking earlier and swerving.
- Officers located Nelson at the house, detained and arrested him; he refused field sobriety tests, a preliminary breath test, and initially refused a blood draw.
- A warrant-authorized blood draw about 70 minutes after the officer observed the vehicle showed BAC .114% and presence of Carboxy-THC; State’s chemist extrapolated an approximate .132% BAC while driving assuming post-absorptive phase.
- Officers observed possible speeding (officer estimated ~70 mph in a 35 zone), smelled alcohol, noted bloodshot eyes/slurred speech, and found marijuana/paraphernalia in the car; officer testified infant’s car seat was improperly secured.
- Nelson was indicted on counts including abuse/cruelty to a minor, two DUI counts (per se and under-the-influence), reckless driving, and related offenses; jury convicted on all counts and Nelson appealed on sufficiency, mistrial, and jury-instruction grounds.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for DUI, reckless driving, and child-abuse convictions | State: blood test + expert extrapolation, 911 report, officers’ observations, and arrest videos sufficed for jury to infer intoxication, recklessness, and exposure risk | Nelson: expert extrapolation was speculative (relied on assumptions); speed estimate was unsupported; no evidence of abuse absent DUI/reckless driving | Affirmed. Expert may assume facts for extrapolation (State v. Fode); evidence viewed favorably to verdict supports BAC ≥ .08 while driving, reckless driving, and exposing infant to needless risk |
| Motion for mistrial based on prosecutor’s comment and alleged vouching | State: comment was a mistaken statement of a fact it believed in evidence; subsequently posed hypotheticals grounded in evidence and expert expertise; curative instruction provided | Nelson: prosecutor vouched and introduced facts not in evidence (time he drank), causing incurable prejudice | Denied. Not improper vouching; court’s curative instruction, counsel’s acquiescence to hypotheticals, cross-examination, and other record evidence cured prejudice; no abuse of discretion |
| Jury instruction on refusal to submit to blood test (pattern instruction chosen over defendant’s) | State: SDCL permits admission of refusal; pattern instruction 3-10-7 accurately allows juror consideration of refusal among other evidence | Nelson: instruction should have stated right to refuse and not allow jury to consider refusal (claimed Fourth/Fifth Amendment protections) | Affirmed. Instruction correctly stated law; Supreme Court precedent permits evidentiary use of refusals (Neville, Birchfield); jury told refusal alone is insufficient and to weigh it with other evidence |
Key Cases Cited
- State v. Fode, 452 N.W.2d 779 (S.D. 1990) (expert extrapolation may rest on assumed facts and is admissible if founded)
- Missouri v. McNeely, 569 U.S. 141 (2013) (warrant requirement for nonconsensual blood draws unless exception applies)
- South Dakota v. Neville, 459 U.S. 553 (1983) (refusal to submit to test is not protected by Fifth Amendment and may be used as evidence)
- Birchfield v. North Dakota, 579 U.S. 438 (2016) (approves states imposing evidentiary consequences for refusal in DUI context)
- State v. Stanley, 896 N.W.2d 669 (S.D. 2017) (distinguishes search/seizure issues for bodily samples and informed instruction practice)
- State v. Herrmann, 652 N.W.2d 725 (S.D. 2002) (within constitutional limits, persons can be compelled to submit bodily-fluid tests)