STATE of South Dakota, Plaintiff and Appellant, v. Catherine Julia EIDAHL, Defendant and Appellee.
No. 17986.
Supreme Court of South Dakota.
Decided Jan. 20, 1993.
495 N.W.2d 91
Considered on Briefs Nov. 19, 1992.
On December 14, 1992, as I was in the process of writing this dissent, our Supreme Court Library received a decision captioned United States of America v. Roy Bruno One Star, 979 F.2d 1319 (8th Cir. 1992). A federal trial court refused to instruct a jury on a lesser included offense (One Star requested same). Conviction was reversed. On page 1320 of 979 F.2d, the Eighth Circuit Court of Appeals held:
It is well settled that a defendant is entitled to an instruction on any lesser included offense if the evidence would permit a jury rationally to find him guilty of the lesser offense and to aquit him of the greater offense. (Emphasis supplied).
Finding that both the factual and legal tests have been met, the instruction on simple assault should have been given.
I, therefore, respectfully dissent.
Mark Barnett, Atty. Gen., Jeffrey P. Hallem, Asst. Atty. Gen., Pierre, for plaintiff and appellant.
Douglas G. Fosheim of Fosheim and Haberstick, Huron, for defendant and appellee.
AMUNDSON, Justice.
State appeals an order dismissing an information charging Catherine Eidahl (Eidahl) with one count of driving or control of a vehicle while having 0.10 percent or more of alcohol in her blood (DUI). We affirm.
FACTS
This case is once again before us after our remand in State v. Eidahl, 486 N.W.2d 257 (S.D.1992). The pertinent facts have not changed. At approximately 2:45 a.m.
The police officer made a traffic stop because of Eidahl‘s failure to use a turn signal. The officer asked Eidahl if she had been drinking and Eidahl said she “had a couple.” The officer then administered a series of field sobriety tests and, based upon her observations and the results of the tests, placed Eidahl under arrest for DUI.
State later filed a complaint charging Eidahl with one count of DUI. A preliminary hearing was held on June 24, 1991, and Eidahl was bound over to circuit court for trial. At a motion hearing on July 29, 1991, Eidahl made an oral motion to dismiss because the arresting officer unlawfully stopped her and interrogated her without administering the Miranda warnings. On August 7, 1991, the circuit court entered its order dismissing “the complaint and information” on the unlawful stop issue. However, no information had been filed in the case. State attempted to appeal the August 7 order of dismissal to this court. Observing that this court only has jurisdiction of appeals taken by the state when an indictment or information has been dismissed and that no information existed to be dismissed in the case, we found state‘s purported appeal a nullity noting, “the case remains in magistrate court waiting the filing of an information or indictment by grand jury.” Eidahl, 486 N.W.2d at 259. We directed that the circuit court orders dismissing the prosecution be vacated and remanded the matter to the magistrate court for further proceedings.
On July 2, 1992, state filed an information charging Eidahl with one count of DUI in violation of
ISSUE
WHETHER THE CIRCUIT COURT ERRED IN DISMISSING THE INFORMATION FILED AGAINST EIDAHL?
The driver of any vehicle upon a highway1 before starting, stopping, or turning from a direct line shall first see that such movement can be made in safety and if any pedestrian may be affected by such movement shall give a clearly audible signal by sounding the horn, and whenever the operation of any other vehicle may be affected by such movement shall give a signal as required in § 32-26-23 plainly visible to the driver of such other vehicle of the intention to make such movement. A violation of this section is a Class 2 misdemeanor. (emphasis and footnote added).
In holding that the stop of Eidahl was unlawful, the circuit court reasoned:
SDCL 32-14-3 provides that a municipality may not enact or enforce any rule or regulation contrary to the provision of Chapter 32-26. The municipal ordinance of the City of Huron is contrary toSDCL 32-26-22 and therefore I find the City has no legitimate right to have such an ordinance. I must decide this case in accordance withSDCL 32-26-22 which requires a turn signal be given whenever any other vehicle may be affected by such movement. In this case, I believe there were insufficient facts showing that the Defendant should have utilized a turn signal in the operation of her vehicle.Under the case of State v. Kissner, 390 N.W.2d 58 (S.D.1986) a police officer must have a specific and articuable suspicion of a violation before the stop of a vehicle will be justified. Under these facts and circumstances I do not believe the officer had the proper basis to stop the Defendant and therefore the Defendant‘s Motion to Dismiss will be granted. No probable cause existed.
In short, the circuit court found the Huron ordinance on turn signals invalid as contrary to state law. Under the applicable state statute, the court ruled Eidahl‘s stop was unlawful because the statute did not require her to use a turn signal under the circumstances of this case. On appeal, state contends the circuit court erred in its determination that the ordinance was contrary to state law.
This court has twice addressed the issue of whether a municipal ordinance is contrary to state law. In City of Sioux Falls v. Peterson, 71 S.D. 446, 25 N.W.2d 556 (1946), we reviewed the validity of an ordinance on reporting traffic accidents in light of a state statute containing an identical provision. We observed:
The ordering of a dangerous traffic so as to safeguard persons and property while expediting commerce is the obvious purpose in view. The function of determining the measures to be adopted to accomplish that end is delegated to the governing body of the municipality. In such circumstances the courts will not interfere until convinced that an adopted measure is inappropriate and unreasonable. If the adopted regulation contributes substantially to the object sought to be accomplished by the grant of power, it cannot be set aside by a court as unreasonable.
City of Sioux Falls, 71 S.D. at 448-49, 25 N.W.2d at 557 (citations omitted). We went on to hold that the reporting requirement in the ordinance was appropriate and reasonable and, therefore, within the limits of the power delegated to the city. As for the relationship between the ordinance and the identical state statute, we concluded, “[o]bviously, this ordinance which adopts the phrasing of the statute is not in conflict therewith.” City of Sioux Falls, 71 S.D. at 451, 25 N.W.2d at 558.
In City of Aberdeen v. Forkel, 72 S.D. 536, 37 N.W.2d 407 (1949), we reviewed the validity of an ordinance prohibiting operation of a motor vehicle on city streets within one year after a DUI conviction in light of state statutes containing a similar prohibition. Relying substantially on our decision in City of Sioux Falls, supra, we held:
Our conclusions are that the Aberdeen ordinance relates to a subject upon which the legislature has empowered municipalities to act ... and the Uniform Motor Vehicle Act, SDC 44.03, has not destroyed this power to act because the ordinance is not contrary to the provisions of the statute.
City of Aberdeen, 72 S.D. at 540-41, 37 N.W.2d at 409 (emphasis added).
As state submits, neither of the above cases provides any particular test or guidelines for determining when an ordinance is contrary to a statute. Nevertheless, it appears to be a well settled rule that, “[a] direct conflict exists when the ordinance permits what the statute prohibits or the
The test cited above was used by the Court of Appeals of Kentucky in determining that an ordinance prohibiting passing through an intersection in the center lane conflicted with a statute authorizing it. Habich v. Humbert, 446 S.W.2d 567 (Ky. 1969). The Kentucky high court observed:
Both the ordinance and the statute pertain to what might be termed the “flow” of traffic on a three-lane highway. By limiting the use of the center lane by making it “unlawful to pass through an intersection in said center lane” the ordinance conflicts directly with the statute which has no such limitation, but rather states in pertinent part that a vehicle shall not be driven in the center lane except when passing on a clear highway or preparing to turn left or where a center lane is at the time allocated exclusively to traffic moving in the direction in which the vehicle is proceeding and is signposted to give notice of the allocation.
Employing a similar analysis in the instant case yields a like conclusion. Both the Huron Ordinance and
State next asserts that invalidity of the Huron ordinance does not vitiate the police officer‘s “reasonable suspicion” to stop Eidahl‘s vehicle.2 See, Matter of Herrera, 393 N.W.2d 793 (S.D.1986); Kissner, supra; State v. Anderson, 359 N.W.2d 887 (S.D.1984); State v. Anderson, 331 N.W.2d 568 (S.D.1983). State urges application of a “good faith exception” to the reasonable suspicion requirement in this case. See, United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984); State v. Saiz, 427 N.W.2d 825 (S.D.1988).
We find nothing in the settled record reflecting that this issue was advanced before the circuit court by way of argument or in the form of proposed findings of fact and conclusions of law. “We have repeatedly held that the trial court must be given an opportunity to correct any claimed error before this court will review it.” State v. Mouttet, 372 N.W.2d 121, 122 (S.D.1985). ”
Based upon the foregoing analysis, we find no error in the circuit court‘s dismissal of the information filed against Eidahl.
Affirmed.
HENDERSON and SABERS, JJ., concur.
MILLER, C.J., concurs specially.
WUEST, J., deeming himself disqualified, did not participate.
MILLER, Chief Justice (concurring specially).
I would like to hold that a “good faith exception” applies in this case. Obviously, at the time of the arrest there was no way for Officer Kludt to anticipate or know that this Court would ultimately hold the ordinance invalid. However, as the majority notes, this issue was not properly presented by the state‘s attorney to the trial court, and it has not been preserved for appeal.