Raymond A. PETERSEN, Petitioner and Appellee, v. DEPARTMENT OF PUBLIC SAFETY, Appellant.
No. 14268.
Supreme Court of South Dakota.
Decided Aug. 14, 1985.
Considered on Briefs February 17, 1985.
The deposition of the expert was not presented to the jury. However, at trial, by stipulation of the parties, the deposition was made part of the record. Considering the nature of the total contents of the deposition, it is not difficult to ascertain why appellee did not present it to the jury, even though he later claimed that he merely forgot. When offered the chance to reopen his case to include the deposition, he declined.
For all of the reasons stated above, I would reverse.
I am authorized to state that Justice WOLLMAN joins in this concurrence in part, dissent in part.
David L. Braun of Gors and Braun, Pierre, for petitioner and appellee.
Jeffrey P. Hallem, Asst. Atty. Gen., Pierre, for appellant; Mark V. Meierhenry, Atty. Gen., Pierre, on the brief.
FOSHEIM, Chief Justice.
The Department of Public Safety appeals from a circuit cоurt order vacating the Department‘s order to revoke Raymond A. Petersen‘s driver‘s license for one year because of his refusal to take a blood test. We reverse.
At 9:00 p.m. on December 18, 1982, Highway Patrolman Farnsworth investigated a
One man, Raymond A. Petersen, was asleep in the front seat. The upper portion of his body was leaning against the driver‘s door; his legs and feet were extended across the front seat. Farnsworth woke Petersen up, and noticed Petersen‘s incoherence and the odor of alcohol. After administering a portable breath test and field sobriety tests, Farnsworth placed Petersen under arrest. Petersen was advised of his rights under the implied consent statute. He refused to submit to a blood test. Petersen did admit that he drank “half a pint” and that he had driven the car to the gravel approach.
The only issue on appeal is whether the arresting officer had probable cause to arrest Petersen for being in “actual physical control” of a motor vehicle while under the influence of alcohol.
In Kirby v. Dept. of Public Safety, 262 N.W.2d 49 (S.D.1978), this court found actual physical control of a vehicle where the defendant was dozing behind the wheel; the defendant was alone in the car; and, the motor was running. “In short, respondent was in a position in his vehicle undеr circumstances that would have supported a finding by a jury that he had driven the vehicle to the point where it was parked. [Citations omitted]. Perforce, there was probable cause to believe that respondent was in actual physical control of his vehicle.” Id. at 52. Similarly, this court found a defendant in actual physical control of a vehicle where the defendant was alone and asleep on the driver‘s side of the vehicle with no one else present who could have driven the vehicle. State v. DuBray, 298 N.W.2d 811 (S.D.1980). Most recently, in State v. Hall, 353 N.W.2d 37 (S.D.1984), this court noted that “Hall was sitting in the driver‘s seat and although he was slumped over, the vеhicle controls were within his reach; Hall completely dominated the Buick, the key was in the ignition, the doors were locked, he could have sat up and driven off at any time and no one else could have controlled the vehicle unless Hall relinquished his control.” Id. at 42.
It is apparent from this line оf decisions and the facts of this case that Petersen, too, was in actual physical control of his vehicle. Consequently, the arresting officer had probable cause to arrest Petersen for violating
The trial court erred as a matter of law when it concluded that the arresting officer did not have probable cause to arrest Petersen for being in “actual physical control.” The order appealed from is reversed and the case is remanded for proceedings consistent with this opinion.
WOLLMAN, J., and DUNN, Retired Justice, concur.
MORGAN and HENDERSON, JJ., dissent.
WUEST, Acting Justice, not participating.
MORGAN, Justice (dissenting).
I also dissent.
The facts in this case indicate to me that Petersen, realizing that he was in no condition to drive further, carefully pulled off the road completely out of the way of traffic and proceeded to sleep it off. I find this to be a most commendable aсt. It is unfortunate that the Highway Patrol and the state‘s attorney did not likewise appreciate it. We should be encouraging drivers to get off the road, not penalizing them for doing so. Hopefully, other state‘s attorneys will use better prosecutorial discretion.
HENDERSON, Justice (dissenting).
Apparently, Petersen was not arrеsted for driving while intoxicated; rather, he was arrested for being in actual physical
The facts and circumstances of the case at bar are highly distinguishable from the cases cited in the majority opinion. In Kirby, the driver was slumped over and asleep behind the steering wheel; the car was рarked halfway on the road; the parking lights were on and the engine was running. In DuBray, the driver was asleep on the driver‘s side of the truck; the truck had run off the road and struck a fence; the motor was running and it was still in drive. In Hall, the driver was asleep behind the steering wheel; the car was parked in the middle of a main street intersection; and when awakened by police, the driver grabbed the shift lever and moments later turned the ignition switch on so as to roll down the electric window.
The facts and circumstances here are radically different. Here, the car was completely off the traveled portion of the highway and was on a gravel entrance to a farm. The engine was not running and the lights were off. The ignition was in the off position, the car was in park, and Petersen was lying asleep on the front seat. He was not sitting behind the steering wheel and his feet were not on the floorboard underneath it. His hands werе not on the steering wheel or other control devices.2 There was no sign of an accident, the car did not move, the officer did not see it move, nor did Petersen manipulate any of the vehicle‘s controls or attempt to operate it. As it is vital to the distinction that this dissent makes, it must be understood that the majority‘s reliance on the fact that Petersen admitted that he had driven the car to the gravel approach is 100% ungermane to the criminal charge at hand. It would be 100% germane were he charged with driving while under the influence of intoxicating liquor. But he is not. Please note in Hall, 353 N.W.2d at 41-42 n. 2, wherein this Cоurt unanimously approved of an instruction on “actual physical control.” It is manifest in this Court‘s approval of said instruction that a person, to be in “actual physical control” requires that (1) the vehicle is operable, (2) the person is in a position to manipulate one or more of the controls which would cause the vehicle to move, and (3) the person is exercising bodily restraint, directing influence, domination, or regulation of the vehicle. True, though the vehicle remains motionless, a person can be in actual physical control but it is mandatory under Hall that these elements first be established.
The effect оf the majority opinion is to create a new crime: Parked While Intoxicated. No such crime exists in South Dakota and under these facts and circumstances I would hold, as did Judge Talbott, that Officer Farnsworth lacked probable cause and I would therefore vacate the Department‘s rеvocation order.
Respectable authorities supporting this viewpoint are: State v. Zavala, 136 Ariz. 356, 666 P.2d 456 (1983); and State v. Bugger, 25 Utah 2d 404, 483 P.2d 442 (1971). The facts in both of these cases are analogous to the present facts. In Bugger, the driver was asleep, the car was completely off the road, and the motor was not running. In reversing a conviction for being in actual physical control of a vehicle while intoxicated, the Supreme Court of Utah held that under those facts, the driver “was not controlling the vehicle, nor was
Absolutism is an absolute standard or principle. No deviation. It is a marriage to unreasoned rigidity. An adherence to legal absolutism is an adherence to a principle from which there can be no sensible return. It is not sensible to hypothecate that every individual found in a motor vehiclе, under the influence of intoxicants, is, ipso facto, exercising actual physical control of that motor vehicle.3 Based on the circumstances of Petersen‘s arrest, I would affirm Judge Talbott‘s reversal of the Department of Public Safety.
Dissents, besides being an inordinate amount of hard work, are often a valley of tears. Given to unorthodox thought, sometimes, they can light a candle that can become the orthodox or the conventional thinking. I have not pioneered the controlling thesis of this writing. It has been, as demonstrated by the authorities I have cited, addressed before. If one reviews
In Matter of Weisensee, 296 N.W.2d 717, 722 (S.D.1980); Matter of Walker, 254 N.W.2d 452, 455 (S.D.1977); and Matter of Rude, 88 S.D. 416, 424, 221 N.W.2d 43, 48 (1974), this Court noted that it was this state‘s policy not to subject intoxicated persons to criminal prosecution because of thеir consumption of alcoholic beverages, citing
In all due respect, I must dissent, for this decision violates legislatively declared public policy and the intent of the “actual physical control” statute.