In Re the Revocation of the Driver's License of Olien
378 N.W.2d 262
S.D.
1985
Check Treatment

*1 Dist.1983), the court (Tex.App. 8th said: phrase “chemi- argues that the

Appellant in Article breath” analysis of ...

cal a test of one’s breath

6701/-5 means opposed to a test

chemicals find the in the breath. We chemicals purpose The insignificant.

distinction the chemical con- is to ascertain

the test scientifically cor- breath and

tent of the anticipated chemi- the results to an

relate intoxilyzer

cal content the blood. despite

procedure achieves light in lieu of reactive

its use of infrared chemicals, original)

(emphasis in

Accord, Moore, 307 A.2d 548 (Del. State, Husk v.

Super.1973); 476 N.E.2d Dist.1985); McConnell

(Ind.App. 1st

Commonwealth, (Ky.Ct. Dorsey, Or.App.

App.1983); Accordingly, we intoxilyzer deter-

hold that because the by measuring

mines blood alcohol content breath, person’s content of a alcohol

accomplishes a chemical

to SDCL 32-23-7. Judge, acting as a

preme Court of the REVOCATION OF the Matter Greg LICENSE OF

the DRIVER’S

R. OLIEN.

No. 14662. Dakota. Court of South 11, 1985. on Briefs Jan.

Considered 11, 1985.

Decided Dec. *2 trooper.

card carried The card read test, that if Olien refused a blood the De- partment Safety of Public “can” revoke his driver’s license. Olien was informed and the card contained no advice that a take the blood could be test used Bradsky, Rapid City, appel- Walter J. for any in manner as evidence lant Olien. test, Because Olien refused the blood Hallem, Gen., Jeffrey Atty. P. Asst. revoked his following brief, Meierhenry, Gen., Atty. Mark V. on hearing. Pierre, appellee State. The criminal proceeding against Olien for driving while under the influence was even- FOSHEIM, Chief Justice. tually dismissed. (Olien) Greg R. Olien’s Olien first contends that his arrest Depart- was revoked the South Dakota and, was made without (now Safety ment of the Department Public hence, driver’s license could npt Regulation). of Commerce and After a revoked the prerequisite of a law novo, trial de the circuit court also ordered ful had not occurred as SDCL 32- Olien’s license revoked. We affirm. Kirby Dept. requires.1 23-10 midnight 21, Shortly January after on Safety, 1984, patrol trooper, using a highway Probably cause for arrest exists where radar, going seventy clocked a vehicle facts and police circumstances within a fifty miles-per-hour mile-per-hour in a zone knowledge officer’s of which he had rea in Rapid City, South Dakota. overtak- sonably trustworthy information “are the vehicle the estimated its sufficient themselves to warrant a be speed per eighty troop- miles hour. The lief man of reasonable caution that stopped er out. got vehicle a crime has been ... committed.” Klin difficulty producing had no driv- States, gler v. United 299, 409 F.2d 303 feet, unsteady er’s license was on but denied, (8th Cir.1969), cert. 859, U.S. alcohol, speech smelled of and his was 127, 90 S.Ct. L.Ed.2d 110 As slurred. Hermandson, State v. we stated When perform asked to a number field 255, sobriety un- tests Olien walked heel to toe (1969): steadily. He also unable on to balance required are not Officers know one foot than for more two seconds. Olien prove guilt, facts sufficient to but breath test. See preliminary failed a knowledge of facts sufficient show 32-23-1.2. probable cause for an arrest or search. When arrested con- are implied practical These factual and consid- to him everyday sent law was read verbatim from a erations life on which rea- provides: person requested by 1. SDCL 32-23-10 shall be analysis to submit to the and shall Any person operates any who vehicle in this by the officer that: to have state is considered his consent the chemical blood, to a or breath may given; none bodily substance to determine the (2) refuses If he to submit to the chemical blood, provided in his amount of alcohol analysis, license shall 32-23-7, presence §' and to determine the § for one unless 32-23-11.1 marijuana any drug or controlled sub- pleads guilty he prior of § to a violation stance, provided that the test is administered issued; being to a revocation order at the a law direction of enforcement (3) analy- He has to have a chemical having lawfully arrested the for vio- performed by sis choosing a technician of his own added) (emphasis lation of 32-23-1. § expense, in at his own addition to test officer. men, er’s license was not substantial prudent sonable technicians, contra act. implied (8th Dept. Decker Sager, See Anderson 173 F.2d Cir.1949). (1972) P.2d driving privileges to driver Fonder, 132-33 insufficient.). suspended was Oyen, “could” quoting *3 argues Finally, Olien that the fail Gates, Safety v. N.W.2d 59 of him his Campbell, 250 N.W.2d ure to that refusal could In re (S.D.1984); advise ample proba- (S.D.1977). against In this case him used as evidence violated Hence, ble existed to Olien. cause right right process to due not to be of SDCL 32-23-10 were provisions compelled against give to evidence himself. support of his to revocation available v. on State primarily He relies supra. Kirby, license. See N.W.2d 425 which was over crimi- employs the dismissal of the Olien Hoenscheid, v. State ruled 374 N.W.2d support argument nal prosecution Even before it was over probable no cause for that there was Neville ruled not could decline consideration of arrest. We support argument that Olien’s he had to be dismissal, however, because effect of this refusal could be evi informed his used as of this the record reveals source Neville against dence him.2 In both vague testimony was Olien’s information Hoenscheid give the court was asked to say “someone” there that he overheard effect to the defendants’ constitutional stop Important was no reason against right give evidence not to them questions must be on more of law decided proceedings. selves in criminal This case Moreover, specific evidence. a valid and however, appeal a is an from civil adminis prosecutor’s prob- determination of lack of trative revoke Olien’s driv controlling able is not on this issue. cause v. license. See Nieman Pub er’s also claims that his license lic (S.D.1983); Safety, 339 N.W.2d could not be Mehrer, re 273 N.W.2d 194 him erroneously advised the conse Hence, protected by right was not quences by stating of his refusal give against not to evidence himself and li Department “can” revoke his driver’s Camp did not be so advised. have to advising De cense instead him that the bell, supra. Nor was Olien’s to due partment “shall” revoke his license. We process pro in this civil violated revocation substantially hold the officer’s advice com ceeding trooper clearly since followed 32-23-10(2), which, plied among SDCL with SDCL and advised him that his things, requires that ad a driver be could to take the test result in the vised of the of his refusal. his license. We Braunesreither, revocation of hold that the State 276 N.W.2d trooper’s (Advice to advise (S.D.1979) failure Olien that his license driver’s substantially complied “will refusal could be used as evidence be revoked” Com prior implied prevent him did from Tuemler, monwealth v. revoking Olien’s driver’s in the civil (Ky.1975) that “chances proceeding. would lose li [were he] apprised substantially him of conse cense” refusal); compare MORGAN, J., WUEST, Circuit Bunnell, (S.D.1982) (Fail Justice, Judge, acting as a Court plea subsequent ure to advise that a prevent concur. guilty would revocation of a driv- Additionally,

2. Neville was in March two months after arrested. decided J., HENDERSON, dissents. his refusal to submit to a test.” Chmelka Smith, Judge, acting as (1964). my writing: Accord with Deck preme Court 'tDep er v. HENDERSON, (dissenting). Justice 495 P.2d 101 Cal.Rptr. 387 We have another affirmance for majority’s pivotal rationale is moored though State even there a fla- has been compliance.” to the officer’s “substantial grant patrolman error in advis- The of the warning, expressed heart Therefore, rights. a citizen of his is that the “shall be dissent. the officer” that he refuses “[i]f his driv- speed- was stopped Once defendant er’s license shall be revoked for one ing, all other facts flowed which estab- year_” 32-23-10(2). This Court Hence, probable lished cause for arrest. deeply analyzed this compli- “substantial accept argu- cannot Olien’s Bunnell, ance rule” ment. *4 We stated that pith warning of the compliance substantial statute must be that the driver’s license shall compliance respect “means actual to the “may year, revoked for one not that it substance essential every reasonable ob- “might revoked” revoked” or “can be jective statute.” Id. 420. We nothing is ambiguous revoked.” There Davidson, then cited Coe v. 43 Cal.App.3d about statute. Read it. SDCL 32-23- We further plainly part: states Stanmire, cited Kasner v. 195 Okla. shall (1944), holds which that sub- officer to submit stantial is not shown unless it is shall be advised the officer that: appear made to of the ****** statute shown to is have been served. by every authority in this state, requirements the absolute year.... shall one majority opinion grievously (Emphasis supplied.) analysis. erred in its Thus, improper this motorist ad- As this was a civil revocation patrolman, vice for the motor involving the loss of a driver’s license for patrolman read from a verbatim card which one proceeding per and not criminal stated that the of Public Safe- se, unnecessary it find to address the ty “can” revoke his driver’s This license. issues addressed fully driver was not informed of the conse- his refusal. Our state said law was entitled know of the conse- absolutely quences. beyond So it is me as opinion how majority can rationalize

the clear intent of this statute into some-

thing what unequivocally other than it, our requires

mandates. “Since statute arresting obligated is to inform the event of