*1 STATE, Respondent BOSANCO, Appellant
(213 345) (File 13, 1973) No. 11106. Opinion filed December *2 Pierre, and appellant. B. for defendant Looby, Robert Gen., Hoseck, Atty. Asst. Sande, Camron Atty. A. Kermit for Kemnitz, Gen., Pierre, Philip, plaintiff A. State’s Atty., Ralph and respondent.
DUNN, Justice. a Haakon by County Jury was convicted of DWI
Appellant cites appellant 1971. In his to this appeal November on failing the trial court of error assignments various test. of a blood alcohol evidence suppress on in an direction easterly his pickup Appellant in the late afternoon six west of Midland 14 about miles Highway accident was never The exact time of this July of did indicate it happened the evidence clearly established As the p.m. appellant 3:30 and 4:00 between somewhere a into ranch, couple veered pickup the Konst approached side of the highway, and a mailbox on the north guard posts side on the south the road and into the ditch then crossed immediately saw the accident occur Konst highway. John eventually the appellant and after checking went to the scene at a station to stop filling into After a short took him Midland. notified, Konst took had been determine if the authorities bloody had a home. Konst testified that appellant his appellant nose, that he walked seemed normal and but otherwise home, and arrival assistance. After his house without a couple he drank testimony only, according appellant’s a heart suspected Everclear alcohol for ounces of 190 proof into an unconscious lapsed thereafter Shortly appellant condition. alarmed and called His wife became state on the floor. Kadoka In hospital. to a ambulance which transferred from the sheriff of Haakon call telephone to a radio and response to the Pearson, County, went Mr. Sheriff of County, Jackson to interview the hospital After appellant. himself the introducing Sheriff read the Miranda from a card warning and also the implied consent law. After a choice given under the consent law to either consent to the test or have his drivers license taken away for one year, consented to blood test which was taken by Dr. Swisher at at hospital about 6:30 p.m. This blood which analysis tested .25 blood, alcoholic content was introduced into evidence at the trial over the strenuous objection the appellant.
A reading careful would indicate that transcript was never arrested charged offense *3 before to the blood test. The best that Sheriff consenting Pearson could say was that he advised appellant “that he would be DWI”, charged and that “I considered him be to under I arrest when read him I the consent law. didn’t him implied tell arrest”, he was under and at the in preliminary answer hearing, to question the “He “No, was never arrested?” answered I have do nothing to with that”. In addition to this the was never in placed and was jail released by Sheriff of Haakon County without any appearance before a magistrate without any bond after leaving hospital on the evening of July 23rd. We know that there could not have been a valid arrest by Sheriff of County because the alleged misdemeanor was Jackson 32-2-8, committed in his presence. SDCL 23-22-7(1).
This Court
in several cases has held that an arrest or a
informal,
either formal
charge,
or
aby
officer
police
to
previous
a
having
defendant make a choice under the
consent law
implied
sufficient,
was
even though it later appeared that
there was no
valid
Batterman,
arrest.
v.
191,
State
139;
79 S.D.
110 N.W.2d
282,
State Werlinger,
84 S.D.
170 N.W.2d
Holland v.
Parker,
691,
84 S.D.
Since those cases were
and on February
a
three-judge
Court has ruled the
Dakota
South
Federal\District
consent
law
unconstitutional and one of
(SDCL 32-23-10)
for
grounds
ruling
this
the statute’s failure to definitely
a
provide for
legal
previous
arrest
to the choice
made
a
by
In
case the
blood
that
whether to take the
test.*
defendant on
contemplated
is
“However, even
‘arrest’
though
stated:
a
32-23-10,
not insist
1967,
that section does
Sec.
SDCL
arrest, nor has it been
to demand such.” State
interpreted
lawful
al.,
v. Batterman et
This court had occasion to consider
supra.
318,
87 S.D.
Spry,
Federal decision in State
the effect of the
In that case the
decided on
May
after a
under SDCL 32-23-10 was upheld
evidence of a blood test
arrest,
legal
prior making
that there had been a
determination
consent law.
a choice under the implied
and with considerable
a
arrest in this case
Lacking
legal
invalid,
arrest valid or
or
any
there was ever
as whether
doubt
informal,
making
charge,
prior
formal
hesitancy
has no
this Court
choice of
taking
case
have
evidence of blood test
this
should
ruling
is
here
for
suspect
blood test
suppressed. Actually
been
in this
charge
The
which resulted
another
reason.
between 4:00 and
4:00
the interval
During
occurred around
p.m.
taken,
stated that
the blood test was
6:30
when
p.m.,
of Everclear alcohol
for
consumed a
of ounces
couple
he
this
subject
medicinal
The record is not clear on
purposes.
this
certainly the state did not
to refute
attempt
as
point except
did not even cross-examine
Konst that
Further,
evidence of
to the amount.
we have the
*4
John
accident,
and
he delivered
to his home after
incident. Some 30
walked
his home without
he
consumed
minutes later
after
states
(and
the evidence that
we know from
quantity
alcohol)
an
condition.
on
floor of his home in
unconscious
collapsed
and the
actual
incident
driving
The
of time between the
length
test,
an additional
not
to the
does place
blood
while
fatal
occurred
insure that nothing
burden
the State to
228,
Guthrie, 85 S.D.
180
test.
interim influence the
State v.
885;
Hamer,
1129,
223 Iowa
274 N.W.
State v.
State,
584,
Blevins v.
38
Respondent’s * Parker, (D.S.D.1973) F.Supp. 354 Holland consent, an implied instead of is not The actual persuasive. he had given consent after been read the alternative to consent under the consent law of drivers losing permit year. Carolina, for one As stated in v. State of North Bumper 543, 1788, U.S. 88 S.Ct. 20 L.Ed.2d “The is -situation instinct with coercion—albeit lawful colorably coercion. Where consent”, there is coercion there cannot he (emphasis supplied). Parker, see Also Holland v. supra. also Respondents contend that there was sufficient evidence while under the influence of intoxicants in this case without the use of the blood test. This true, or may may not be this court cannot doubt of a prejudicial effect .25 blood test on the minds of jury. we are Accordingly, of the view that the court erred defendant’s prejudice evidence of admitting sample it, and the analysis thus permitting the consider the jury statutory presumption.
The judgment the trial is reversed.
WINANS DOYLE, concur. JJ., BIEGELMEIER, WOLLMAN, C. J., dissent. J., WOLLMAN, (dissenting). Justice in my Because opinion the did defendant raise properly the question court, in the trial we need not consider whether the Parker, D.S.D., in Holland holding 354 F.Supp. would bar the admission of the results of the blood test in this case.
After the state witness, had called one defense counsel made motion, oral completely any unsubstantiated affidavit other supporting for the papers, suppression evidence with reference to the results of analysis taken sample from defendant. Defense counsel’s motion stated in part that:
* * * Further, I believe the that evidence will show that the defendant was taken by the Sheriff Mid- land and at that time no arrest was made the of defend- 610 extracted
ant, Bosanco, that no blood test was Mr. and and the blood test at that time that from the defendant and that therefore thereafter immediately was not taken substantiate remoteness of the blood test would not the influence was under the the defendant whether vehicle, it would the that the time of the at be remote.” so suppress motion to denied this judge quite properly
The trial determina- make he was unable to that the observation time, it might very that adding at that admissibility toas the tion would be inadmissible. blood test turn out that the well Thereafter, testimony regarding to objected defense counsel to the introduction of sample analysis the blood the results of had been foundation that no proper on the sample ground the from was too remote the blood taking sample the laid that vehicle. As I his defendant was observed driving the the time that his motion to record, did not renew defense counsel read had not been placed that defendant upon ground suppress was taken. sample that the blood prior under arrest to time the oral denying correct quite Because the trial court more than defense nothing that was based on motion to suppress show, any the evidence would of what counsel’s assertions is without merit. I ruling of error based assignment include did not that because defendant specifically would hold grounds objection lack arrest as one of prior the results of the testimony regarding the introduction of the itself, heard he cannot now be sample and of blood test Olesen, first See State raise it for the time appeal. Halverson, S.D. 196 N.W.2d State 87 S.D. N.W.2d 421. its that
Also, showing met burden of I think that the state medical with proper was taken accordance sample to contaminate the occurred later nothing procedures case, the effect question That sample. of, testimony, his own one consumption according defendant’s of the blood test was Everclear alcohol on the results shot of of the in view of the especially left to the properly jury, *6 State Chemist of alcohol into concerning absorption stream after a has had his last drink. I would it person hold that was for the to determine the jury significance of the results of the in the light test all the circumstances case.
I would affirm the conviction. I am say authorized to that Chief BIEGELMEIER Justice concurs in this dissent.
STATE, WALTON, Respondent Appellant 467)
(213 (File 19, 1973) No. Opinion filed December Walker, Herman B. Sturgis, for appellant. Sande,
Kermit A. General, Attorney Vickerman, Thomas R. General, Pierre, Assistant Attorney Coacher, William H. State’s Attorney, Meade County, Sturgis, for respondent.