Holland v. Parker

ORDER JUDGMENT appearing, it above

For reasons

hereby plaintiff shall Ordered against judgment summary

partial resulting from for its losses

defendant concern- of Purvis false certification plaintiff by ing financed automobiles (exclusive Company Motor

Hamlin encompassed state the losses judgment First in favor Bank) Huntington National inasmuch Judge, Bright, concurred Circuit losses that these determined been opinion. filed coverage of the Bankers within were defendant Blanket Bond and plaintiff the extent liable the in- losses. view such development record,

adequate Huntington

cerning losses respect particularly with bank binding question effect of defendant, judgment on the state court summary partial

plaintiff’s motion for losses,

judgment, respect to such with

must denied. Plaintiff, HOLLAND,

William J. PARKER,

Albert M. Mo- Commissioner Vehicles, Dakota, tor Defendant.

No. CIV70-76C. Court,

United States District Dakota, D. South C. D.

Feb.

Shortly midnight August 3, on plaintiff was in a involved Britton, two-car accident South Dako- Approximately ta. one-half hour later a police local officer arrived at the scene requested parties that both accom- pany police There, to the him station. Holland issued was a traffic summons driving wrong for on the side of the road, a misdemeanor. SDCL Secs. 32-14-10 and Based 32-26-1. provisions implied South statute, consent Holland was asked to According submit to a blood test. to the officer, request. he refused plaintiff permitted was to leave sta- but, August 30, 1968, tion on a com- Austin, Austin, L. of Hinderaker Alan plaint was filed and a warrant for his Watertown, D., plain- Hackett, & S. for driving arrest was issued for on the tiff. wrong side of the road. Gen., Shuster, Atty. A. H. Asst. The Commissioner of Motor Vehicles Pierre, D., for defendant. S. license, ordered revocation of Holland’s August 14, failing on to sub Judge, BRIGHT, Before Circuit mit to the test. blood Revocation was NICHOL, Judge, District Chief investigating based official’s Judge. BOGUE, District report. Subsequent ‍​​​​​‌​‌‌​​‌‌​‌‌​‌‌​‌‌​‌‌​​​‌‌​​‌​‌‌‌​‌‌​‌​‌‌​​​‍written to revoca tion, brought Holland suit Circuit THE OPINION OF COURT County contesting of Marshall revocation. Relief denied. The was Su Judge. NICHOL, District Chief preme of South Dakota affirmed. three-judge Parker, This court was convened N. Holland Eighth (1970). the direction of the Circuit W.2d 54 Parker, Appeals. Holland v. Court of Holland initiated suit United States 1972). Upon (8th 469 F.2d 1013 Cir. District Court for the Central Division appeal of from the District Court seeking injunctive of South Dakota Dakota, Appeals of ruled the Court pursuant lief to 28 U.S.C.A. Seсs. Holland, plaintiff, had raised a substan- 1343(3) Ad- Sec. 1983. U.S.C.A. question tial constitutional ditionally, three-judge he asked statute, implied South Dakota’s consent constitutionality decide SDCL See. 32-23-10 implied law, Dakota’s consent amended, therefore, and, remanded 1967, as Secs. 32-23-10 the case for further consideration of two The District Court ruled 32-23-17. (I) issues: Does due jurisdiction it had consider process require pre- arrest as a lawful injunctive relief, request but requisite invoking the South Dakota three-judge court would be denied implied (II) consent statute? Is failing ques- a substantial South Dakota consent statute constitutionality. Holland v. tion pro- unconstitutional because it fails to (D.S.D.1971). Parker, F.Supp. hearing prior vide for a to revocation of appeal subsequent Holland’s a driver’s license ? Appeals Eighth Circuit Court three-judge continuity to this in the remand Fоr the cluded sake facts Parker, F.2d sepa- litigation, Holland v. forth court. set three 1972). courts, (8th rate be combined. will Cir. majority enacted states have A I most statutes REQUIRE A PROCESS DUE DOES York’s statute followed New them PREREQUI- AS A ARREST LAWFUL precondition requiring an arrest as THE SOUTH INVOKING SITE TO Note, Re application. Arrest See CONSENT IMPLIED DAKOTA Administering Blood quirement LAW? 605; 601, Tests, for the Duke 1971 L.J. 1967, as contends that SDCL Plaintiff 92- Pub.L. of see Columbia’s District 32-23-17, 32-23-10 Secs. 21, 1972); (Oct. 519, 86 1016-18 Stat. because, as unconstitutional are 35, Tоwry, Conn.Sup. 210 A. 26 v. State Supreme by the South Dakota strued Cruz, 21 (Conn.1965); v. State 2d 455 “charged” statutory Court, word the 406, (1968); Peo 446 307 Utah 2d P.2d implied inter- consent law has been the County, ple Superior of Kern 6 v. arrest, de- preted to include an unlawful 757, Cal.Rptr. 281, 493 P.2d 100 Cal.3d nying plaintiff See due of law. MacDuff, (1972); v. 205 1145 Schutt 691, Parker, N. 176 v. 84 Holland S.D. (1954). 43, 116 Misc. 127 N.Y.S.2d Batterman, (1970); 79 54 State v. W.2d MacDuff, supra, provides the v. Schutt (1961); 139 State 110 N.W.2d 191, S.D. for the court’s foundation later decisions 282, Werlinger, 84 N.W.2d S.D. 170 recognizing place a need to limita “charged” “‘(T)he (1969). word 470 police ability on to re tions officer’s charge or comprehends either a formal quest blood test of licensed motorists. a charge arresting offi- the informal of an “(C)onferring upon police officers the it does not to be a valid cer’ and guise right request the to make a under Parker, 691, Holland v. arrest.” 84 S.D. authority of one’s plain- 54, (1970). 56 176 N.W.2d specific process and without Da- tiff insists that order clearly un arrest to an lawful amounts implied an free kota to have consent law infringement liberty.” upon lawful one’s only challenges, of constitutional possibility Id. 127 N.Y.S.2d 127. The requirement must there be part of abuse the arbitrariness invocation, ar- to its but that sought the officer to be dimin was rest must lawful. be by requirements ished lawful and process. general rule, As a an arrest upon a a misdemеanor must be made As noted earlier South Dakota Su- warrant, pres preme committed in the unless Court has ruled the South Dakota arresting constitutionally 5 ence of the officer. Am. consent statute (1962). sufficient, requiring Arrest 28 Since the or infor- Jur.2d Sec. a formal alleged charge prior request misdemeanor with which mal a charged plaintiff not committed the statu- was was blood test. We conclude from arresting prеsence arrest, tory of 1967, definition within the SDCL by 1967, ficer, required 23-22-1, and as Secs. the continued refer- SDCL Sec. 32-2-8, plaintiff “arresting 23-22-7(1), was and ence to the officer” August 3, pertain on not arrested warrant South Dakota decisions 23-21, g., pursuant 1967, Chapter law, see e. to SDCL unlawfully Batterman, on he was arrested 110 N.W.2d he claims S.D. Smith, night (1960), also Bur accident. See Chmelka lington Josephson, Transportation (1964), Co. v. 130 N.W.2d 423 (8th 1946); Anderson to the arrest 153 F.2d 372 Cir. Dakota conforms 1949). (8th Sager, also, L.J., quirement. See Duke 173 F.2d Cir. unreasonable, argument supra, This even n. 32. significant opin though contemplated by there is a collection an “arrest” plaintiff’s position. to buttress that section Sec. ions arrest, p. 1015, nor Parker, Holland v. F.2d n. 3 not insist a does lawful (8th 1972). interpreted such. to demand Cir. been California, 33-2, gives arresting In Schmerber U.S. officer authori ty 757, 86 16 L.Ed.2d 908 for an arrest for a oc misdemeanor curring (1966), presence. Amendmеnt the Fourth was outside his We inter There, establishing applicable pret pro found to blood that statute tests. completing context of a within warrantless cedure for the arrest a apprehended in search the indicated that driver the violation of contemplates if taken test is to be incident the motor vehicle code. It blood legal probable previous statutory arrest, there must be аrrest.' Absent lawful, provisions empowering cause, the arrest must be enforcement emergency: there must to effect officers a lawful arrest misdemeanor committed outside their dignity The interests human example presence, Combes v. privacy which the Fourth Amendment Kelly, 2 Misc.2d 152 N.Y.S.2d 934 protects any forbid such intrusions (1956), proceed upon officers must surface) (beyond body’s on see, complaint and warrant. But State mere chance that desired evidence * * * N.J.Super. 71, Gillespie, v. 241 A.2d might be obtained. Search Colling (1968); Hjelle, 125 N. ordinarily required warrants are (N.D.1964). W.2d 453 dwellings, and, searches of absent an emergency, required no less could be upon preceding the rea Based body intrusions into the human where sons concludes' that the are concerned. requires Fourth Amendment a lawful 769-770, Id. at at 1835. 86 S.Ct. request prior to a arrest submission languagе The of the li to test. To that a a blood demand emergen- provides statute for neither an subjected choice driver to a censed cy arrest, nor nor circumstance a lawful involving important interests, possi and interpreted it been contain such. to bly body, an intrusion into his without safeguard police procedural seem that if a of- of a ar

Thus would lawful ficer, implementing search and seizure rest wоuld be inconsistent with procedures teachings California, in accordance with constitu- of Schmerber supra. proscriptions, require tional cannot South Dakota’s statute does provide to take test a blood without for a lawful arrest warrant there unless lawful that is unconstitutional. basis emergency circumstances, then nei- judges panel The of this not un- are ther could the officer demand that a li- necessity pub- of the absolute aware test, censee submit to the blood without police lic desire for strict control ‍​​​​​‌​‌‌​​‌‌​‌‌​‌‌​‌‌​‌‌​​​‌‌​​‌​‌‌‌​‌‌​‌​‌‌​​​‍over prerequisites, these same constitutional highways. the drivers our These when refusal result would automatic taking rules a blood any loss of his license. If it were other necessity test born of and must be were way, protections the Fourth Amendment substantially However, they retained. would be rendеred since valueless assert- legally must be retained at ing penalty po- them would result rights expense of the constitutional tentially more severe than conviction for respectfully urged public. It is that alleged public offense. as South Dakota is one of the inasmuch

Holland is correct states, only state, his assertion few if not the lawfully prior that he pro- was not arrested States to which has failed Unitеd request for his submission prior to vide for a to the re- valid authority blood test. quest The of an test, provide, officer could a blood so arrest, warrant, desires, by taking without a promptly steps for a mis- if it narrowly proscribed by remedy demeanor the constitutional weakness of limitation that the violation must be South Dakota’s presence. committed in his any lapse The defend- without of time which would ant . highway contends that unprotected. 32- 1967, Sec. our leave users reading Parker, deprive of Holland Our determination individual manding licenses, three-judge may not, to this his con- case court, is- due process, directs that both of Holland’s sistent with eliminate though Thus, considered. sideration factor sues be even constitutionally hearing.” Id. first we find the issue applied deficient, present ease, feel directed consider we two othеr the second issue. conclusions are particularly First, relevant. the Court II may held licenses not be confiscated procedural without due : THE SOUTH DAKOTA IMPLIED IS CONSENT STATUTE UNCONSTITU- issued, petition Once licenses are inas TIONAL BECAUSE IT PAILS TO case, possession er’s their continued A PROVIDE FOR HEARING PRIOR pursuit become essential TO REVOCATION OF A DRIVER’S Suspension a livelihood. li issued LICENSE? censes thus involves state action adjudicates important interests prerevocation status of a In licеnsees. such cases licenses under the South Dakota away are not be taken succinctly expressed consent statute is procedural by process required the South Dakota Fourteenth Amendment. Sniadach Parker, Holland N. Family Corp., Finance 395 U.S. (1970): W.2d 1820, S.Ct. 23 [89 349] L.Ed.2d Implied In accordance with the Con- (1969) ; Goldberg Kelly, v. 397 U.S. sent Law the is Commissioner autho- 254, 1011, S.Ct. 25 [90 287] L.Ed.2d summarily person’s rized to revoke (1970) application . This is but an permit year upon drive one an general proposition that relevant report unverified oral or written that state restraints limit person, request, refused to power terminate an entitlement analysis to a submit chemical of his whether entitlement is denominat Any person blood. whose license is “right” “privilege.” ed a or a Sher summarily suspended, canceled, thus Verner, 398, bert 374 U.S. S.Ct. [83 petition or revoked file a within 1790, (dis (1963) L.Ed.2d 10 965] thirty days hearing for a in the mat- qualification unemployment com During ter circuit court. the inter- pensation) ; Slochower v. Board permit im to drive remains can- Education, 551, 350 U.S. S.Ct. [76 celed, suspended, or The Im- revoked. 637, (1956) (discharge L.Ed. 100 692] plied provides Consent Law no means employment); public Speiser from arresting revocation of license 513, Randall, 2 357 U.S. 1332, S.Ct. [78 pending de novo in the trial circuit (1958) (denial a tax L.Ed.2d 1460] remedy Consequently court. such Goldberg supra exemption); Kelly, equally beneficial, convenient, benefits). (withdrawal of welfare prohibition. effective Clark v. Denver, Londoner v. 210 U.S. See also Mosley, 466, 71 25 N.W.2d 713-714, 385-386, 373, 708, S.Ct. [28 The United States (1908); 52 L.Ed. 1103] Goldsmith has had rule on the occasion to 117, Appeals, Board Tax 270 U.S. summary revocation of its cit a state 215, (1926); 70 L.Ed. S.Ct. [46 494] Burson, izen’s license. In drivers Bell v. Administrator, Opp Mills v. Cotton 535, L.Ed.2d 402 91 29 U.S. S.Ct. L.Ed. 524, 312 U.S. S.Ct. [61 (1970), the Court considered Geor (1941). 624] gia’s Responsibili Safety Motоr Vehicle at 91 S.Ct. at 1589. U.S. ty unconstitutional, Act and found it provid- statutory Secondly, Court held liabil that “since scheme makes ing process ity important procedural due the revoca- an factor State’s prior kept to the the State tion must occur sus- strict control over legitimate monopoly pension. force: person initiating the seizure has been Finally, reject Georgia’s argument we government resрonsible official that if it licensee must afford the determining, under standards of a inquiry question liability into the narrowly statute, drawn that it was determination, unlike the deter necessary justified particu- presently mination of the matters con Thus, lar instance. the Court has al- hearing, sidered at the administrative summary property lowed seizure of prior suspen need not be made collect the internal revenue of the “(m)any sion of the licenses. While States, United meet the needs of a raged controversies about effort, against protect national war Clause,” Process Due the economic disaster of a bank fail- ibid., except it is fundamental ure, protect public and to from emergency (and this is not situations drugs misbranded and contaminated one) requires process due that when a food, (footnotes omitted). seeks to terminate interest involved, 90-92, such as that here must af U.S. 92 S.Ct. 1999-2000. appears opportunity “important Thus it ford “notice and hear if an ing interest”, appropriate licenses, nature of the such as driver’s as it Burson, had been characterized in case” the termination becomes Bell v. before .to,, then, Opp licensee, be Ibid. Mills v. taken effective. Cotton from U.S., 152-156, except extraordinary circumstancеs, Administrator, procedural 536-538, L.Ed. S.Ct. necessitates [61 624]; Family jeopardy Sniadach v. Finance whose interest inis Goldberg Corp., supra,; Kelly, opportunity su afforded an to be heard pra; Constantineau, taking. to that Wisconsin v. 27 L.Ed.2d [91

U.S. The Bell v. Burson decision has been (1971). 515] motivating litiga instrumental recent concerning summary 542, tion pro at 91 402 U.S. S.Ct. at revocation firmed “emergency dural due Ct. must be lowed tions” ‍​​​​​‌​‌‌​​‌‌​‌‌​‌‌​‌‌​‌‌​​​‌‌​​‌​‌‌‌​‌‌​‌​‌‌​​​‍that tunity each limited and Fuentes v. 113]. die There opportunity further [91 case, these outright Connecticut, 32 L.Ed.2d 556 situations These truly are situations” the seizure Shevin, holdings. justify explained unusual. seizure “extraordinary had situations, for- has hearing. 407 U.S. not postponing a has been direct in which In hearing. this its U.S., been Only (1972), Fuentes concept Court al 67, required. however, First, ^[371] L.Ed.2d oppor proce- notice situa a 92 S. reaf- Bod few the one permitting constitutional under Bell. On the other cеdures trary, holding vided hearing, N.W.2d 218 hand, accumulation of eleven tomatic system” statute, court held that Stauffer v. 1971), Kasab, state court has procedural the Nebraska a among suspension, three-judge 334 suspension Weedlun, the (1972), that several states. the operator’s F.Supp. which its Pennsylvania “point found without a further ruled to the con process. point system pro despite provided without a federal district рoints 744 Neb. their statute license (W.D.Pa. In Reese the Bell was un At least for au prior necessary important ly Broughton Warren, to secure doctrine. 281 A. governmental general public inter (Del.Ch.1971); see also 2d Carter Second, special Department Safety, est. has been a there A.2d Public Third, very prompt (Del.1972). need for action. why cohol, Burson, no the application su- then there is reason

The Bell v. oрportunity should be afforded same pra, to the facts case the driver refuses the test. Dako- who in the conclusion that South sults statute could sur- ta’s consent justi has failed to challenge South Dakota only it if vive constitutional fy summary procedures case its “emergency requirements met the situation”, of an test. a driver who refuses the summary take justifying revoca- statutory re The scheme South Dakota upon operator’s refusal tion of license it not consider removal that does veals At first to submit to the blood test. highways potentially from the the glance appear the it would enough important to re drunk driver emergency meets those Dakota statute’ summary quire the state action since requirements enunciated Fuentes only refusal measures important takes such Shevin, supra. There is an pre test, the nоt on evidence general to take governmental public interest indicating sumptively alcoholic influence. keeping drunk driver off the in road, emergency Thus, doc therefore, under the even if one can assume trine, justify failed party test that a who refuses blood hearing for revocation without a suspected who is is drunk and that caught individual driver who has refused likely repeat- drunk once will be when, if test driver tоok the certainly legitimate that same inter- er, there is test, permitted person he would be his keeping retain from future est provided highway. Secondly, license and be forum his use of could principles argued special set forth defense. Under there need is a ” Burson, “very action; finally in Bell v. the court concludes prompt initiating South Dakota’s the seizure ais statute, “government (a Sees. official” enforce- officer). unconstitu 32-23-10 ment affording for not a motorist a tional argument in this fault lies in the hearing prior of an to the revocation summary fact that state initiates interest”, “important li his driver’s potentially action to remove the cense. highways from drunk driver but foregoing opinion only suspect if the Based submit to refuses plaintiff, Holland, test, which is itself an irrelevant rules grants enjoining injunction his question. Thus .under South Dakota law, frоm suspect of Motor Vehicles if a Commissioner takes the test and is driving revoking plaintiff’s pur- permit presumptively found to be under the in- amended, alcohol, suant to Secs. SDCL fluence 23-7, See. 32- SDCL impo- possible summarily, 32-23-17, or not his license is auto- 32-23-10 provided matically imprisonment fine sition of revoked and not will in Sec. 32-12-68. until voked he is convicted of driv- ing-while-intoxicated charge. Sees. to 32- 32-23-2 (concurring). BRIGHT, Judge Circuit 23-4, and 32-12-52. South Dakota can- Judge opinion. I Nichol’s concur argue not there is a need sum- pointed I think it should be mary recalcitrant, remove action to opin- I of Part of the out that the result potentially drunk driver since basis validity of Holland's ion for revocation without a is largely Dakota’s arrest South intoxication, to take the but refusal requirements which arrest anachronistic prerevo- permit If time to test. there is dаy vio- traffic modern are ill-suited adjudication for the driver found many cation effec- and which cases lations tively

presumptively enforce- under tie the hands law the influence al- As we read on the ment officer scene. language Dakota plain of South BROTHER’S DISTRIBUTING COM- 32-2-8, offi- an 23-22-7 Statutes §§ PANY, corpo- INC., a Florida may misde- arrest for a ration, Plaintiff, not make an cer presence in his it occurs unless meanor аcquires Thus a warrant. he or unless HEIDTMAN, William R. Sheriff Palm arriving on the scene an officer County, Beach Defendant. lawfully occurred cannot accident No. 72-1491-Civ-CF. charge anyone on a misdemeanor arrest Court, United States District occurred conduct the unlawful unless S. D. Florida. first presence or unless he secures his Jan. magistrate, no matter from a warrant consuming that and time difficult how argues Defendant be. legislature, by enact- that traffic intended ment of § separate considered as a violations be category misdemeanors distinct procedure special to be accorded problem with officers.

enforcement nothing argument there is is that permits offi- which

the cited statute

cer make a warrantless proba- on the basis traffic ‍​​​​​‌​‌‌​​‌‌​‌‌​‌‌​‌‌​‌‌​​​‌‌​​‌​‌‌‌​‌‌​‌​‌‌​​​‍violations oc- a violation has to believe

ble cause occurred violation

curred unless the presence. officer’s Some states through enact-

remedied this situation legislation. See, appropriate e. ment of (Supp.

g., 13-1403 Ariz.Rev.Stat.Ann. §

1972-73); 29-06-15 N.D.Cent.Code §

(Supp.1971).1 goes no further

Our decision Part I a con-

than to hold that a valid prerequisite compelling a

stitutional blood test under

driver submit Compiled Ann. 32-23-10 Laws § Dakota, course,

(Supp.1972). to its ar-

need be wedded

rest-for-misdemeanor statutes.

1. Arizona’s statute believe that has been involved believe dent. immediately following and violated rant, ^[*] A (4) (3) peace such When When he has a misdemeanor ^[*] violation occurred officer any he person: provides has section person ^[*] may, in a traffic accident probable probable such without : ^[*] title traffic acci- be arrested ‍​​​​​‌​‌‌​​‌‌​‌‌​‌‌​‌‌​‌‌​​​‌‌​​‌​‌‌‌​‌‌​‌​‌‌​​​‍been com- cause cause to war- ^[*] or North der physical able shall be released mitted person the offense. provisions ^[*] 6. On A the influence cause, Dakota’s statute peace to be arrested control of a ^[*] §of probable officer, charge, driving 13-1422. of alcoholic ^[*] conformity made person : cause provides: vehicle being has committed to believe sk so arrested beverages. while un- in actual warrant, with «reason- ^[*]

Case Details

Case Name: Holland v. Parker

Court Name: District Court, D. South Dakota

Date Published: Feb 15, 1973

Citation: 354 F. Supp. 196

Docket Number: CIV70-76C

Court Abbreviation: D.S.D.