*1 copy of copy ordinance nor a the careless Neither a record; nevertheless, per- appears the D.W.I. or, carelessly still not be intoxicated while son could drive intoxicating might liquor, influence able drive under the road, speed obey limit other rules of the a car under the all yet if intoxicated the D.W.I. ordinance. violate including made, insufficiency
Other claims the contention of evidence, have been examined and disclose no error. Affirmed.
DOYLE, J., concurs. J.,
WOLLMAN, specially. concurs HANSON, J., WINANS, J., P. dissent. See Parham v. Municipal Falls, City and for of Sioux 86 S.D. N.W.2d 501.
WOLLMAN, Judge (concurring specially).
I would affirm the conviction on the basis of our
decision
Thomsen,
PARHAM, Appellant COURT, v. MUNICIPAL FALLS, al., CITY OF SIOUX Respondents et (199 501) (File Opinion July No. 1972) 10982. filed *2 Pruitt, Jorgensen, Willy, Jorgensen, Steve Sioux Matthews & Falls, petitioner appellant. Mundt,
Roger Schiager, City Atty., City Atty., Paul E. Asst. Falls, respondents. Sioux defendants HANSON, Presiding Judge.
Petitioner, Roger Parham, charged with the of driv- offense ing intoxicating liquor while the influence of in violation of Municipal plea Sioux Falls Ordinance a 13.160. He entered of guilty Municipal requested by jury. Court and His request application was denied. His for the allowance of an inter- appeal by mediate from such order was denied this court. Like- wise, petitioner's for a Writ of Prohibition to restrain Municipal proceeding jury the Court from to trial without a was by appeals denied the Circuit Court. Petitioner now from order the application. denying his presents important question the of whether or not charged Driving person
a with a Motor Vehicle While Under the Intoxicating Liquor Influence of municipal in violation aof ordin- ance is entitled to trial. a driving statutory offense of a vehicle while under the in- intoxicating liquor proscribed
fluence of is defined in and SD- CL 32-23. In addition expressly our has authorized every municipality prohibit operation the state “to the or the attempt operate a motor vehicle within the limits of the munic- ipality ence of while liquor in an ** intoxicated and to condition, provide or while under for violation thereof the influ- penalties of, exceed, similar to and of the character but not to the penalties prescribed by Chapter 32-23, provided penalty against driving a motor only prohibit vehicle shall extend streets, driving upon public vehicle a motor defendant which, municipality highways within alleys, avenues authority City Pursuant such committed." was offense closely parallels 13.160 which Ordinance Falls enacted of Sioux intoxicated set forth in statutory while offense Chapter 32-23. felony. offense constitutes the state conviction third
A punishment there Except this enhanced is no 32-23-4. SDCL between the state offense consequential difference substantial pro- Both are all the municipal violation. ordinance 32-23-9, Law, Implied SDCL and a Consent conviction of the visions municipal offense or a results in the the state of either person's mandatory of the convicted drivers revocation license Department Vehicles. SDCL of Motor See 32-12-54 and the State 32-12-52. ordinances continue to create con-
Violations uncertainty inconsistency, respect fusion, to the exact rights parties proceedings and the involved. nature civil, quasi-civil, hybrids, They characterized been crimi- have varying nal, criminal in form with quasi-criminal, results to- exigencies generis" particular case. of a The term "sui meet recently Thomsen, in the case of added was prosecution which involved *4 Driving." prohibiting "Exhibition a ordinance of violation "civil or prosecutions does maximum $100 and criminal have punishment for violations days constitutional or a in hybrid jail. provided The court concluded municipal form of either right by the ordinance was a ordinances, jury [*] * whether or not for be considered a violation defendant fine of' municipal charged." ordinance under which he was arriving at in In its conclusion case the recognized validity treating necessity and court some vio municipal ordinances "civil" in nature lations of and others as- form, depending upon particular in "criminal" offense in quoted respect approval court In volved. from Whart Procedure, Law and Vol. on on Criminal 12 as follows: "IF
_535 law, general by the such violations not made crimes are are ordinances proceedings such to enforce or for a violation or misde- crimes in made civil their If such offenses are nature. proceedings must be by meanors law of the state the appears distinction as criminal in their nature. considered correct, punishable under many which are to be for of the offenses state, against municipal either offenses ordinances are not law, only by the ord- are made so the common or the statute and they particular question, for this reason inance in the case in " 'quasi-criminal.' have been termed Hoben, comparable Minn. In the case of State v. charged person with driv- the Minnesota held a ing municipal of a an automobile while intoxicated in violation doing right. jury was a matter of ordinance entitled trial as right prior so it conceded in numerous decisions it had denied the prosecutions municipal to trial ordinance violations guilt expediency; beyond proof for reasons of a reasonable necessary prosecutions; doubt was not in such and a defendant could convicted both under a statute and an cover- ing subject offending prohibi- the same without the constitutional against jeopardy. tion double The court then said it had "little foregoing difficulty applying prosecutions authorities licensing, zoning, regulatory, violation of and other ordinances However, which relate to matters of local concern. when ordin- carry sanctions, adequate protection ances more serious for the significant accused must become a concern of the court. Accord- ingly, problem a more difficult arises where ordinances denounce punish acts which are the of state law and which beyond purely reach problems. the limits of local From an exami- authorities, decisional, statutory nation of our both it apparent satisfactory that we have not achieved a accommodation prosecutions between ordinances and state prosecutions so as uniformity to assure to a defendant of treat- protection penalties ment procedures terms of subsequent punishment for the same offense." The Court con- cluded; *5 strange "It anomaly would be a for the to crime, specify punishment therefor,
define a provide that 536 throughout state,
its the shall be uniform permit municipality prosecute then crime as that rights civil offense. would Basic civil of the defendant depend upon arbitrary prosecutive then the the choice of against as to him authorities the court in which action municipality would be undertakes instituted. When a must, therefore, prosecution, uniformity such it to insure treatment, prosecution do so in a criminal which affords protection procedure the defendant the all of criminal including right by jury immunity of trial punishment." double arriving gave at its con decision the Minnesota Court driving
sideration to their statute which indicated
offense of
beverage
motor vehicle while under
the influence of alcoholic
throughout
uniformly applied
political
should be
and its
state
legislative
implicit
subdivisions.
The same
intent
in the statutes
recognition
driving
of our state. This is in
fact
while
grave
requiring
intoxicated
is a matter of
concern
statewide
application.
serious sanctions and uniform statewide
sovereignty"
theory
As the "dual
is an anachronism
relationship
political
reference
of a
and its
sub
state
divisions,
cities,
jeopardy
such as counties and
bar of double
applies
prosecutions
prohibited
successive
for the same offense
by municipal
Florida,
v.
ordinance
and state statute. Waller
397
387,
1184,
Consequently,
U.S.
90 S.Ct.
The United States in Duncan states, imposed upon U.S. L.Ed.2d S.Ct. through Amendment, right the Fourteenth the Sixth Amendment except "petty Petty in all criminal cases offenses". of-
537 by punishable no more by those fenses are defined federal law as of the prison $500 The boundaries than six months in and a fine. petty category the defini- fixed and offense were not otherwise doing reference tional left for court decision task so was "objective criteria". York, 26 L.Ed.
In Baldwin
399
90 S.Ct.
v. New
U.S.
"petty" and
2d
line between
the court refused to draw the
felonies be
"serious" crimes to coincide with misdemeanors and
"
cause
"serious" offenses
'the
some misdemeanors are also
punishment
deprivation of
of which involves or
involve the
liberty
citizen,'
Wilson,
8
Callan v.
U.S.
S.Ct.
following objec-
1301, 1303,
1. The seriousness with which offense, regard and the most relevant factor in this is the severity punishment; of the maximum authorized consequences
2. The collateral attached to a con- viction of the offense. Colts,
In District of Columbia v. 282 U.S. S.Ct. charged L.Ed. Court held a defendant Police Court of the District of Columbia with a motor in a vehicle reckless manner in violation of the District of Colum- by jury. bia Traffic Act explanation was entitled to trial Court said: given crime,
"Whether a offense to be classed as a trial, require offense, so as to petty or as a triable summarily jury, depends primarily upon without a charged nature offense. The offense here is not merely prohibitum, malum very but in its nature is malum in se. It was an indictable offense at common law ¥ * * is, dangerous
An
potentially,
automobile
in-
strumentality,
appalling
as the
number of fatalities
distress-
brought
operation
every day
bear
its
about
through
instrumentality
ing
such an
witness. To drive
endanger pro-
recklessly 'as to
public
of a
so
streets
depravity
obvious
perty
is an act of such
and individuals'
*7
to shock
petty
would be
offense
to characterize
it as a
respondent
of the
If the act
moral
sense.
the
death
in the
had culminated
in the information
described
being,
respondent
have been
would
of
human
a
degree
homicide.
of felonious
to indictment
for some
meaning
otherwise
[*]
[*]
than as a
Such an act
third article of the Constitution
grave
properly
offense
cannot
—
a crime
be
within the
—
described
as
guarantee
by jury."
trial
of
such within the constitutional
death,
major
drinking
of
Today
cause
driver
is a
the
limb,
highway.
property
Be
on the
loss
the destruction
driving
consequences
motor vehicle
a
the
the offense of
cause of
and cannot
mala
in se
while intoxicated must be considered
trivial,
minor,
Society
petty.
reasonably
or
be characterized
as
regards
the im
A
authorizes
the offense as serious.
conviction
"grave
petty
comparable
position
sanctions
criminal
summarily", Rothweiler
at common law which were tried
crimes
County,
Superior
Accordingly, a Writ of Prohibition shall issue this Court as prayed by petitioner. DOYLE,JJ.,
WINANS and concur. WOLLMAN,JJ., BIEGELMEIER part concur in and dissent part. BIEGELMEIER,Judge (concurring part dissenting part).
I. With propriety reference to the of the issuance of a writ of prohibition by Judge appears circuit court it to me Burns was denying 16-6-15, correct in gives it. SDCL power statute that courts, provides: to circuit power issue writs certiorari, to has the court circuit "The warranto, mandamus, quo corpus,
habeas judgments, carry its into effect necessary all other writs involved), give (none and to decrees, here orders officers,boards, courts, inferior control over it a to tribunals, (emphasis sup- persons." corporations, and plied) directly only be taken
Appeals
municipal courts
from
Supreme
Court.
"procedure
*
[*]
shall be
same
proced-
taking appeals
court to the
circuit
ure for
15-32-36.
Court." SDCL
court, therefore,
municipal
court to
is not
"inferior"
jurisdiction
circuit
no
over
circuit court. The
court has
Codington County,
County
Yankton
courts. See
In Farnham (N.S.) Am.St.Rep. said court Ann.Cas. from the circuit court will never lie reverse "mandamus (a sitting judicial such action of officers" of the Peace Justice committing magistrate punish for dis- who refused a witness obeying subpoena). supervisory had sum the circuit court no power even over a reverse action Peace to his Justice mandamus, counterpart prohibition. SD- which is a writ of only "plain, writs issued CL 21-30-1.These speedy, are when there is no adequate ordinary remedy, of law." course *9 Therefore, agreement Judge I am in with SDCL 21-29-2. Hanson's opinion that issue. on
II. grave power I have doubts of this court or of the advis- transferring ability duly an from a circuit court order by it to read or entered treated as be an in court this original permission for ap- to commence an action in it no where plication required by made as was 15-25-2. SDCL It will set a encourage precedent may request which others to similar actions brought determined they properly be when should here becoming is especially workload when our This is so trial courts. larger. party has when increasingly we Nor should do so 21-29-2, supra. has remedy The answer adequate at law. SDCL Clough given times, instance, many in State ex rel. been Taylor, when the court wrote as to S.D. N.W. against Judge original proceeding Taylor: interesting, presented question are "The merits of the court, prior of this but order to conform to decisions orderly disposal before and to make an of the business giving preference, precluded this without we are court considering the merits. apparent petitioner adequate "It is has an remedy by appeal lawat court. Petitioner fact using merely applied writ for as a method of here appeal. permitted." This will not be regular proceed Defendant here should course law extraordinary remedy. not be afforded this Generally Supreme granted permission has Court commence suit writs of prohibition original here, mandamus may actions nor authortty court do so. Our is limited the Constitution V, statutes. Art. provides: of our Constitution Supreme judges "The Court and the thereof shall power have corpus. to issue Supreme writs of habeas power Court also mandamus, shall have to issue writs of warranto, quo certiorari, injunction original and other writs, authority remedial to hear and determine the regulations same in such cases and under such prescribed by law". Pursuant thereto the enacted SDCL 15-25-1 which provides: jurisdiction original granted "The exercise of the sections 2 and article V of the Consti- tution, is reserved for the pre- consideration matters rogative, extraordinary, concern." *10 en- of these consistently limitation to the adhered The court has 1890, Commissioners, County v. Board See actments. Everitt County 296, Stanley 365, followed Jackson 47 N.W. S.D. 1964, Wiedenman, 806; 350, Overpeck v. County, S.D. 154N.W. V, under Art. cited cases and other 132 N.W.2d 21-29-2, applies this supra, also SDCL of our Constitution. § inter- from similar Permission SDCL 15-24-1. court. past, claim even has been denied mediate orders subjected expense harassment party to the that a made of a trial.
III. have not appeal, courts of other states of this As to merits rule, any nor this those courts neither at arrived it, satisfactory Judge has, phrases "achieved Hanson court municipal ordin prosecutions under between accommodation (criminal) opinions prosecutions". ances and state problem they with this court while were concerned Minnesota leading Hoben, up 256 Minn. 98 N.W. cases to State v. D.W.I. But, Hoben, problem. I court 2d indicate the read rested — its decision on a statute 169.03. There the solely specifically provisions chapter directed the of that shall be " 'applicable throughout this state and in all uniform therein,
political and no municipalities subdivisions regula- authority any local shall or enact enforce rule provisions chapter tion in conflict unless expressly authorized herein.' and that when penalty * [*] any local ordinance covers the same shall be identical with the penalty' " " 'then pro- Florida, the state statute.
vided in Since Waller v. 397 U.S. 435, person may prosecuted 25 L.Ed.2d S.Ct. not be state, municipal corporation the same offense and the longer contrary our cited cases to appear earlier no to be con- trolling. drinking major
Statistics show that driver is a cause of death, property loss limb and destruction of to such extent that the United States has Safety initiated the Alcohol Action Pro-
543 (ASAP) great problem. gram or cure expense diminish at to making reason for be the conclusion that situation should The by requiring a prevent such conduct it to control or more difficult deprivation jury the added trial for the first conviction-—-even with — escapes privilege me. are not a car Juries hearings driving permits, required so on the revocation of allowing questionable jury cannot be a reason for trials. It offense, though society whether or the courts deem it a serious resulting damage great. general public not The does seem to regard drinking intoxicating person under the influence of or immoral, liquor as bad or rather some now hold it to be a disease it, to be treated as such. Nor do the courts so deem even as to violations; at D.W.I. least the sentences do not indicate that con- cern. #10942, Bohner, pictures of Sioux Falls v. 86 S.D.
527,
499,
date,
199 N.W.2d
decided this
show defendant drove off
danger
yard
porch
persons
the road into the
of a home with
there, yet
lawfully
only
$150
the court fined defendant
with
a 7-
jail
day
against
prohibition
actual
sentence
be served. The
driv-
ing
days by
on the
streets was fixed at 30
the court. Do the
day-to-day
jail sentences,
$100
sentences
$150
fines and
imposed
suspended,
either not
reflect that concern?
majority
I am not
opinion's
clear as to
jury
basis of
requirement.
(City
It is not a constitutional one
v.
Thomsen, 1970,
651,
46;
Am.Jur.2d,
176
Jury,
47
53),
very
opinions
recent
of the United States
Court, our national
require
Constitution does not
it. That court
lately
jury
required
held a
offenses,
is not
for criminal
said to be
petty
exceeding
and defined as those
$500
fine and a 6-
imprisonment.
Louisiana,
month
1968,
145,
Duncan v.
391 U.S.
1444,
Cf.,
88 S.Ct.
20
York,
L.Ed.2d 491.
Baldwin v. New
399 U.S.
66,
1886,
90 S.Ct.
Florida,
L.Ed.2d
1970,
437. Williams v.
78,
1893,
U.S.
90 S.Ct.
26 L.Ed.2d
held that states are free
under the United
fry
States Constitution to
felony
defendants in
juries
(6
cases with
of less than 12
case).
men
in the Williams
recently
May
More
on
approved
that court
non-
guilty
unanimous
verdicts of
votes of
felony
10-2and 9-3in
cases,
permitting
and a state statute
juries
a unanimous verdict of
Florida,
supra.
v.
accord
Williams
five in
Johnson
(12-man Jury,
Louisiana,
32 L.Ed.2d
92 S.Ct.
406 U.S.
Oregon,
upheld),
Apodaca
406 U.S.
guilty
9-3
verdict
(one
guilty
11-1
verdicts
10-2 and two
provide
It has done
for a
its
etc.
*12
proof
other courts
it there as
in 1966. SDCL 16-11-55. I would leave
*
have,
'states
which
in the footnote. What
some of
are cited
requirement
municipal
jury
is
of
in this
concerns me
our extension
Supreme
is contra.
ordinance case when the trend of the U.S.
Court
encompass
may
penalty
a fine net
it
all cases
be
Does
where
exceeding
both,
30-days imprisonment,
municipali
$100 or
or
as
functioning
jury
ties without
Is this
courts are limited?
5, 6,
Jury",
10
12?
Rev. 285.
be
or
See "The Six-Man
17 S.D.Law
Must
the verdict be unanimous?
If it is above
3/4ths?
5/6ths?
standards,
fixing higher
then
these
the court
is
standards
and re
quirements
city
for enforcement
of
ordinance violations
than the
requires
provide
felony prosecu
U. S.
states to
in
persuaded
may
I
tions.
am not
to concur
in a decision which
hamper
problem.
rather
than aid in the solution of the
It should
legislature,
Brookings
Thomsen,
City
supra,
rest with the
as
of
v.
recognized
legislature
granted
in 1970
when it wrote the
had "not
right by
Denver, 1969,
City
County
statute". Austin v.
of
448,
600,
Louisiana,
170 Colo.
462 P.2d.
which considers Duncan v.
supra,
opinion
is a well written
opin
in
with
accord
our
pause
ion. We
qualify
should
before we so soon overturn or
those
pronouncements.
I therefore dissent.
P.2d
ute.
that
the time of the
it
United
public expense
and is a
exist,
jury
Juries §
ant
[125]
being
Proceedings
No
In a
N.W.2d 695,
could have
following
trial even
State
even
juty
States
right
Nev.
prosecution
no
legislative
petty
v.
though
page
trial
jury,
Amick,
briefly
of trial
677,
though
had a
adoption
for violation of an ordinance
offense,
South
DrW.I.
modified in
indigents.
required
matter.
states
defendant
and 47
[173]
shall
his
P.2d 245.
Dakota
of the constitution.
where license
D.W.I.
Neb.
license to
the decisions of courts:
remain inviolate
Am.Jur.2d,
even
right
Application
[176]
770,
might
under
Constitutions
if a
Acc:
Neb.
where state
[114]
drive
jury
have the
state
415,
N.W.2d
a
Jury,
City
trial
may
W'OLLMAN, Judge part part). jurisdiction agree in this case court had no
I that the circuit agree Biegelmeier Judge prohibition. I issue a writ of original address- we should not treat this ed to this court. governed merits,
On I would hold that this case is our Brookings Thomsen, decision in 176 N.W.2d 46. J.D.H.,
In the Matter et al. (199 411) (File Opinion July 1972) Nos. 11020. filed