952 N.W.2d 113
S.D.2020Background
- Early-morning multi-vehicle crash on I-90 caused two fatalities and an injured 11-year-old; Vortherms was found injured at a nearby hotel and smelled of alcohol.
- Trooper Bumann arrived at the hotel, questioned Vortherms, observed signs of intoxication, and learned Vortherms would be transported for surgery.
- A preliminary breath test shortly before ambulance transport showed .097; ambulance transported Vortherms to the hospital where he was admitted for surgery.
- Bumann, concerned that imminent surgery and medical treatment would dissipate or alter blood-alcohol evidence, ordered a warrantless blood draw at the hospital (3:17 a.m.) that produced .159; later telephonic warrants secured two additional draws.
- Vortherms moved to suppress the warrantless blood draw as lacking exigent circumstances; the circuit court denied suppression, concluding exigency existed.
- Jury convicted Vortherms of two counts of vehicular homicide, vehicular battery, and DWI; he appeals the suppression ruling and asks this Court to review an ineffective-assistance claim on direct appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether warrantless blood draw was justified by exigent circumstances | State: imminent surgery and medical treatment could destroy or alter BAC; officers reasonably believed delay would risk evidence | Vortherms: officers had time (20–35 minutes) and multiple officers could have obtained a telephonic warrant | Court: exigent circumstances existed; warrantless draw reasonable under totality of circumstances |
| Whether officers unreasonably failed to obtain a warrant at the scene | State: officers were engaged in investigating crash and searching for possible additional victims; they could not spare resources to seek a warrant | Vortherms: other officers could have begun warrant process while Bumann attended to defendant | Court: reasonable to prioritize investigation and search; logistical and timing issues made warrant impracticable |
| Whether remote/telephonic warrant availability defeats exigency | State: telephonic warrants not guaranteed immediately; preparing probable-cause narrative and serving warrant could delay evidence preservation | Vortherms: telephonic warrant possible in ~15 minutes in Sioux Falls area | Court: availability of remote warrants is a factor but does not eliminate exigency when judges may be unavailable and practical delays exist |
| Whether ineffective-assistance claim is reviewable on direct appeal | — | Vortherms: trial counsel failed to move to exclude key evidence and failed to call a witness, producing cumulative prejudice | Court: IAC claims generally not addressed on direct appeal absent exceptional record showing manifestly deficient performance; record here inadequate, so decline direct review |
Key Cases Cited
- Missouri v. McNeely, 569 U.S. 141 (2013) (warrant generally required for blood draw; exigent-circumstances exception when delay would significantly undermine search efficacy)
- State v. Fischer, 875 N.W.2d 40 (S.D. 2016) (exigent circumstances for warrantless blood draw where ongoing fatal-accident investigation and medical transfer threatened loss of BAC evidence)
- State v. Hess, 680 N.W.2d 314 (S.D. 2004) (reasonableness inquiry asks what officers knew at the time and whether delay would gravely endanger life or risk destruction of evidence)
- State v. Bowker, 754 N.W.2d 56 (S.D. 2008) (issues not raised or evidence not introduced at suppression hearing are generally waived on appeal)
- State v. Hauge, 932 N.W.2d 165 (S.D. 2019) (ineffective-assistance claims are typically reserved for habeas corpus; direct appeal review only for exceptional circumstances)
- State v. Golliher-Weyer, 875 N.W.2d 28 (S.D. 2016) (court may depart from general rule and consider IAC on direct appeal only when counsel’s performance is manifestly deficient)