*1
SPRY,
STATE, Respondent v.
Appellant
(
David for Atty. plaintiff Asst. Gen., Pierre, S.D., on the Mydland, Atty. Gordon respondent; brief.
WINANS, Justice. defendant, before Spry, jury Steven was tried a From found of second guilty degree manslaughter. judgment entered We affirm. appeals. thereon The record discloses that on at about 2:00 June A.M., was in the defendant enroute his automobile from Lead Deadwood whén he in head-on was involved collision another car. Defendant was alone his automobile the time. at automobile, There other of whom people were three two died as result of the accident. About an hour and a half after incident, police two officers visited the defendant at he was where treated. The defendant was hospital being placed while intoxicated after one of officers driving arrest for A detected alcohol on breath. of his blood was taken sample at that time. It was discovered that the blood subsequently between and .21 alcohol sample percent by weight, contained .20 statutory which was more than sufficient to raise the presumption of defendant had been while under the influence alcohol. trial,
At the the stаte relied heavily on the results of the McCue, blood alcohol test as well as the of testimony Clyde highway patrolman who had the accident. McCue investigated testified as what he observed at the scene of the accident. After being duly qualified as an he was also expert, permitted express as to where the opinion place had been impact the collision between the two automobiles. His was that place was the lane impact across the center line from where the automobile had the Spry to travel. right
On the defendant appeal, contends that the trial court committed reversible error in: McCue as (1) permitting to testify to his opinion concerning place impact between the two automobiles; (2) the defendant’s denying suppress motion to rеsults of the blood test when defendant was not informed of the death of Don Smith which fact was known to the officers at the time the blood was sample requested; (3) instructing the on intoxication; presumption (4) refusing to instruct the jury that the burden of proof the state to establish that nothing added to the blood in its sample taking which would affect the content; accuracy test for alcohol and (5) denying defendant’s mоtion to suppress the results of the blood alcohol test when the blood withdrawn for the test was not withdrawn incident to a lawful arrest. *4 respect contention,
With
to the first
the defendant does not
dispute
qualifications
the
of the witness to
as an
testify
expert.
Rather, the defendant argues that the expert
evidence
opinion
should not have been permitted for the reason that the subject
matter did not require an expert opinion and that the opinion
invaded the province of the jury. Whether or not an expert
opinion should be permitted is a question to be determined by the
trial court in the exercise of sound discretion. Kleinsasser v.
Gross, 1964,
631,
80 S.D.
As general a a duly qualified expert witness be should permitted to an express opinion upon a subject whenever the a correct to the in jury reaching will be of assistance
opinion
481,
Huebner, 1960,
104 N.W.2d
conclusion. Wentzel
8411;
Gunderson, 1971,
695;
190 N.W.2d
S.D.
Smith v.
Dohner,
In it would have been difficult exceedingly the present place impact as to the of jury for the to make determination The testimony of expert opinion testimony. without the benefit of car from other left surviving passenger the defendant Likewise, concerning present to desired. evidence factors much Thus, scene meant little to the jury. at the accident this case the trial court in justified the circumstances of be beneficial to jury that McCue’s would concluding opinion the correct conclusion. reaching Furthermore, objectionable McCue’s was not as opinion merely of the because it embraced “usurping province jury” an issue fact.2 This is the modern and view. logical ultimate Evidence, See 31 Expert Opinion p. Am.Jur.2d, § The writer at and 521 pages 520 states: to be no wrongful there would
“Logically,
appear
invasion of the
province
jury
permitting
an ultimate fact in
expert
express
opinion upon
case where
is
assist
necessary
jury
expert
casе,
In such
as in
reaching
right determination.
faqt,
if
the case of an
decisive
eyewitness
evidence,
are
satisfied of the trustworthiness of the
It is also
cited
this issue.
underlying rule
all the cases
for
1. This
For the U.S. District
Proposed Rules
Evidence
rule.
the federal
See
*5
Jur.2d, Expert
31
See also
Am.
Magistrates, Rule 702.
Courts and
(1962).
Cir.,
Evidence,
18-20;
8
In our reaching conclusion that evidence was expert opinion admissible concerning the place impact, we have carefully Gross, reviewed our decision in Kleinsasser v. In supra. Klein- sasser, we held that it was error permit tо as testimony point However, of impact. our determination was predicated peculiar circumstances of that case. The basis for our decision was that the expert opinion did not aid the jury reaching correct result since the capable determining from the point impact of three testimony eyewitnesses Moreover, to the collision. expert testimony that casе lacked foundation and contradicted the testimony of Thus, eyewitnesses.3 Kleinsasser is not controlling the present case. above,
As indicated the defendant’s second and fifth contentions are that the trial court erred in denying motion suppress the results of the blood They test. will be discussed together. It that appears after the defendant was placed arrest for intoxicated, while the аrresting officer asked permission of him to have the blood sample withdrawn. The defendant was advised that he had the to refuse to submit right to the test and that he could lose his driver’s license for a if year he so refused. The defendant was not advised that the driver of accident, other car had died as a result of the although it is undisputed the police officer was aware of that fact. The defendаnt did ask whether any the other victims was seriously injured and the police officer “I’m afraid responded, so.” After this receiving information and warning, the defendant declined to exercise his right refuse to submit to the test and the blood sample withdrawn.
The defendant argues that the failure of the police officer to
inform him
died
person
as a result of the accident
Weber,
(1970);
Koenig
See
invalidated his thereto, the test were results of consent the without his find no merit to this argument. evidence. inadmissible as We SDCL upon defendant relies argument, In this support a when police in substance that provides That section 32-23-10. a has been person believe that grounds has reasonable to officer been with charged of alcohol and has under the influencе violation, submit person officer can that such request traffic that consent provides of his It also blood.4 analysis to chemical It driving. from fact of his is implied to submit to test further states: by be said officer to requested
“Such
shall
person
be
said
and shall
advised
analysis
submit
to such
analysis
his
to such
to refuse
submit
right
officer
in the
32-23-11 and 32-23-12
provisions
and the
of §§
such
to the revocation of
respect
event of
refusal
person’s driving permit.”
such
case,
is
described
to the
it
present
above
statute
Applying
despite
clear
the results of the blood test were admissible
that
officer
inform the defendant
that
police
failure of the
The
driver of the other car had died as
result of
accident.
any
makes no
that the
be informed of
requirement
subject
statute
he has
refuse and that his license will
right
more than that
Batterman, 1961,
if he does. State v.
suspended
lawful arrest.
This contention
based
Parker,
the federal
holding
court’s
case of Holland
D.C., S.D.,
The Holland case is not case dispositive of our because *7 factual is considerably situation and different. Hol- importantly test, land had refused to the take blood and maintained that no lawful of arrest himself had been made officer the by the because and, him charge against secondly, was misdemeanor the consent statute failed to him a implied provide hearing to prior hand, revocation of his driver’s license. not Spry, on the other consent, did not refuse his only give to but a fair of the reading shows that he claimed transcript to know all about the consent statute, and upon the request willingly gave taking consent to of the blood The issue before the federal court in Holland sample. was the to revоke right Holland’s license under the circumstances. contended, is This not the issue in our case. Holland and him, federal court held with “that in order for South Dakota to have an consent law free of not implied constitutional challenges, invocation, must there be only an arrest its requirement prior to but that that arrest must be lawful”. We are with not concerned question consent”. “implied actual consеnt. Spry gave 282, State v. 170 Werlinger, N.W.2d 470. that, however,
Aside all from we hold that a defendant’s or consent refusal is irrelevant to the admission the results of the blood test if the test taken a valid Cf. pursuant to arrest. California, Schmerber v. 16 U.S. 86 S.Ct. 384 Parker, L.Ed.2d 908.5 Holland v. supra.
Among
officers who made the
of the
investigation
McCue,
accident were Clyde
a South Dakota
Patrolman
Highway
approximately
years’ experienсe,
Crotty,
and Charles
Sheriff
Deputy
of Lawrence County.
arrived
They
at the scene
occurred,
accident
after
shortly
it
investiga-
made their
5. Note 12
gives
in Schmerber
applicable
law as follows:
law
“California
peace
(w)henever
authorizes a
officer to arrest ‘without a
. . .
warrant
has reasonable cause to
person
believe that
to
arrested has com-
felony,
mitted а
felony
whether or not has in fact been committed.’
Cal.Penal
Although petitioner
Code #836.3.
ultimately prosecuted
for
subject
misdemeanor he
prosecution
felony
for the
since a com-
panion
accident,
injured
his car was
apparently
which
was the
result of traffic law violations. Cal.Vehicle Code #23101. California’s test
probable
Cockrell,
cause follows the federal
Peоple
standard.
(1965).”
47 Cal.Rptr.
Cal.2d
tion of the scene by taking showing position pictures highway, Also, a part etc. as highway, cars and the condition of to interview Mr. went to the investigation they hospital of their the driver being and his reference his intoxication With Spry. collision, Mr. McCue in the of one of the automobiles involved as testified follows: did Mr. finding Spry What do
“Q you hospital room? him, him for asked over and talked Well, I went
A if he was him and further asked license his driver’s accident, and if time of the car at the alone *8 was it. driving what? And then Q he was. He yes, were both Well, his answer to these
A the car that driver of he was the was alone and involved. de- further conversation have you
DidQ fendant at this time? breath from his on liquor smelled the Well, I yes,
A there was I felt that standing I was where while driving he was that to believe reason liquor. intoxicating the influence did do? you What then Q he was under arrest for
A Then I informed him intoxicating while under the influence of his to explain and further liquor, explained—started law. under the consent rights implied those him in regard And did you explain what Q rights? of his blood Well, if he’d a sample
A I asked him give it, and further of alcohol in to determine amount him advised he did not have to do this but if refused you his driver’s licеnse and driving privileges would be revoked for a of a period year by Commissioner of Motor Vehicles.
Q And what was reply to this request? said, A He all know about You can some that. have blood’.”
Spry was charged with convicted of a He felony. not tried any misdemeanor court instructed charge. the essential elements of the offense charged information, each of which the state had to рrove beyond a doubt, reasonable were the following: “1. The defendant at time and place alleged
information drove a motor vehicle while under the influence of intoxicating liquor.
2. The defendant drove motor vehicle negligently. 3. Such negligent driving proximate was the cause death(s) the deceaseds effected without a
design effect the deaths by the defendant.” had on The officer cause to arrest the defendant probable if he in charge degree manslaughter of second even felony fact defendant under arrest for while intoxicated. placed driving rule, The a latter offense is a misdemeanor. “As arrest general warrant, unless for a misdemeanor must made upon of the officer.” Holland v. presence arresting committed in Parker, was not driving offense while intoxiсated supra. However, presence arresting committed officer. SDCL may officer without a arrest a peace person, warrant 23-22-7:
“* * * When has committed a person arrested (2) in his although presence; not felony, committed, When has in he felony fact been and (3) has reasonable cause for arrested to believing person * * *” it; have committed Also, SDCL 23-22-8: warrant,
“A officer also at without a peace may night, arrest any whom he has reasonable cause for person to have committed a and is believing felony, justified the arrest it afterward making though appear that the felony had not been committed.” hold peace We that the officer had cause to arrest probable the defendant on the and felony charge that the following the arrest was lawful authority notwithstanding defendant was told arrested for while intoxicated being which was an unsuitable for the ground arrest. See Klingler States, Cir., 299; United 409 F.2d State v. 84 S.D. Klingler, 275; Horse, 76, 173 N.W.2d State v. Thunder 19; California, and Schmerber N.W.2d 384 U.S. footnote 12 especially page on 86 S.Ct. 16 L.Ed.2d contention, With to the third respect defendant argues testimony by the witnesses who observed the defendant both before and after accident was more than sufficient to оvercome of intoxication created presumption such, SDCL 32-23-7. As the defendant asserts that the trial court committed error by on the prejudicial instructing them presumption thereby to treat the permitting presump tion as evidence. We find no error.
It
is
true that a
generally
“presumption”
merely a
rule
procedural
of law intended
solely
determine which party
must
forward and
go
produce evidеnce as to a particular point.
Thus, the
itself is not evidence and
“presumption”
it disappears
introduction
evidence sufficient to raise an
opposing
*10
Lohr, 1910,
605,
issue
853;
of fact. Peters v.
24 S.D.
124 N.W.
Ristvedt, 1968,
221,
Wibeto v.
In .of his final the relies support defendant Guthrie, 1970, State 143. In upon S.D. N.W.2d Guthrie, we held of a that before the results blood alcohol test evidence, be admitted may into the state has the burden of added to the blоod proving nothing sample its taking which would affect the of the We accuracy recognized test. also that the use of alcohol anas to cleanse the skin before antiseptic taking sample accuracy could affect the of the test. case,
In present who doctor withdrew the blood However, from sample Spry used alcohol as an antiseptic. state chemist tеstified that after conducting initial test to determine the blood alcohol content of the sample, conducted a second test to if determine any of the alcohol used as an had antiseptic contaminated the Based the results of sample. test, the second he concluded that all of the alcohol present was of the sample type found alcoholic and nonе beverages it was type used as test, an In antiseptic. light second the trial court found that the blood apparently not sample contaminated and the results of the blood alcohol test were admitted into evidence.
The defendant contends that the court trial erred in refusing to instruct the jury that the state had burden of proving the blood sample was not is our contaminated. It that the trial cоurt was correct to so instruct the refusing Such jury. instruction would have been to the redundant basic instruction given court that the state had burden each of proving element offense a reasonable doubt. beyond affirmed.
Judgment
WOLLMAN, J., concurs.
BIEGELMEIER, C. J., concurs specially.
HANSON, concurs result. J., DOYLE, J., not participating.
BIEGELMEIER, concurring). Chief (specially Justice with the above agreement opinion, I find I am in general reference to the but it will to add a note with clarify my position marks on the of officer McCue. Based on the testimony physical in which lane of travel all the significant he was asked highway, located; were without associated with this accident markings he testified all were in the north lane. Then objection markings as to the lane of traffic in followed of question opinion occurred; which the that it occurred in the responded collision lane. north The witness was at the scene of accident soon involved, after it at a time when the cars the debris happened, and the had been disturbed. The trial on road not markings court did abuse its discretion in testimony. not this admitting evidence in of question
This court has considered in the many of time and long period various circumstances over the opinion points referred to in Winans’ appeals opinion; Justice Gross, S.D. Kleinsasser v. out differences from 717, and, therefore, the law announced modify N.W.2d does not in that decision. made here as statements view the general do I
Neither
481,