State v. Tho Ngoc Nguyen
563 N.W.2d 120
S.D.
1997
Check Treatment

*1 Department position Insurers. found the hearing Insurers to be more credible after testimony, and it is noted that the same hearing Department officer for tried both the

underlying cause of action and the cause of appeal.

action addressed on this As we have times, Depart-

stated numerous we defer to

ment for a credibility determination of the Hinky

each Dinky, witness. Petersen v. not a

[¶ 14.] This is case where Insurers employee benefits,

claim the is entitled to no dispute is a case where the revolves

around the paid amount of benefits to be lump-sum

whether there should pay-

ment. To hold that an insurer acted in bad vexatiously exercising

faith or its

hearing dispute on a such as is involved in certainly

this case would have a chilling ef- person’s right

fect on a decision Department legitimate disputes over Further,

amounts due. Insurers were mak-

ing payments to Howie while the contested being litigated.

issues were Having found substantial evidence support the trial court’s conclusion that

Insurers were not vexatious or unreasonable having hearing in this we affirm. MILLER, C.J., SABERS, GILBERTSON, JJ.,

KONENKAMP and

concur.

1997 SD 47 Dakota,

STATE Plaintiff Appellee, Ngoc NGUYEN,

Tho

No. 19684.

Supreme Court of South Dakota.

Argued March April

Decided *2 Barnett, General, Attorney Timothy

Mark General, Pierre, Bartlett, Attorney Assistant Appellee. Plaintiff and County Minnehaha Carper, Ann Nichole Defender, Falls, for Sioux Public GILBERTSON, Justice. (Nguyen) appeals judg- Tho from his sentencing conviction

ment and affirm. vehicular homicide. We AND PROCEDURE FACTS 12, 1995, approxi- [¶ On December 2.] a.m., mately hit head-on 5:30 two vehicles edge of Sioux near an intersection Metz, car, driver one Laurence Falls. The pronounced dead on arrival at local vehicle, hospital. driver of the other hospital for treat- Nguyen, was taken to injuries. ment of and road conditions were [¶ Weather clear, and the collision occurred generally just well-lit of Rice Street east area traveling were Interstate 229. Both cars headlights Eyewitness and on. with their Nguyen’s testimony expert established line into abruptly the center crossed vehicle, causing the path of colli- Metz’s in a 24- unopened cans of beer sion. Sixteen found in the container were can “suitcase” vehicle, one of the Nguyen’s back seat half its damaged, spilling had been cans empty cans No beer inside car. contents or at the crash in the vehicle were found beverage of an alcoholic odor scene. car and on was detected breath. officer was instructed

[¶4.] Nguyen’s ambulance follow collecting a blood purpose of for the city’s analysis. The crime for blood alcohol crash site response van arrived at the scene a.m., all the ambu- 6:30 after approximately left. The scene fire trucks had lances and while investi- for several hours was secured gators collected evidence. immi- is a Vietnamese Nguyen, who English lan- with the had difficulties

grant, his communication which limited guage police. personnel emergency medical Approximately one hour ar- after was not read to the Defendant treatment, hospital for taking sample? rived at the nurse sample Nguyen’s blood. It is withdrew a 2. Whether the blood was taken undisputed request- draw was pursuant to a lawful arrest as defined ed taken for the officer 32-23-10? *3 purposes, enforcement not medical treat- Whether, in 3. the absence of the blood undisputed ment. It that at the also time results, alcohol there was sufficient evi- drawn, Nguyen his blood was was not ad- the dence for conviction of Defendant vised of his to refuse the blood draw of vehicular homicide? (implied warning), consent was asked for blood, his consent to withdraw his and was AND ANALYSIS DECISION interpreter told he was under arrest. No 1. [¶ 8.] Whether the blood alcohol test present emergency was room or at the properly results were admitted where interpreter time of the draw. An was the was Defendant’s consent not ob- present morning police ques- later when prior tained to the test the im- Nguyen tioned in his room about the plied was not read to accident and informed him he was under taking the of arrest.1 sample? [¶ 6.] Two tests were conducted We review the trial court’s yielded sample. One a blood alcohol ruling suppress on motion under an percent, level of .1314 other a read- abuse of discretion standard. State v. ing of percent. suppress .1262 motion to McGarrett, 765, (S.D.1995); 767 trial, during the blood evidence was made Almond, 572, 574 N.W.2d presence jury. and heard outside the Johnson, 1994); 681, v. The trial court denied motion to (S.D.1993). An abuse of discretion occurs results, suppress the blood alcohol test only judicial mind, if no view the law prohibited prosecution mentioning ease, particular and the circumstances of the statutory presumptions contained reasonably could reached same con SDCL 32-23-7.2 convicted of was Millar, clusion. v. Schuldies SD homicide, and was sentenced to 15 ¶ 8, Evidentiary rulings years prison. presumed made court are cor conviction, Nguyen appeals [¶7.] rais- Oster, rect. State ing the followingissues: 1.Whether test alcohol results were It admitted where the De- is well that a settled state limits, pri- may, fendant’s was not obtained within constitutional force an bodily fluids, or to test and individual to submit test interpreter percent by weight also an dredths alcohol in the blood, trial. give defendant's such fact shall not any presumption rise to defendant prosecution In criminal violation of was not under or the influence of in- § relating 32-23-1 while liquor, toxicating may but such fact be con- intoxicating liquor, under the or competent sidered with other evidence in 22-16-41, § violation of the amount alcohol in determining guilt or innocence of the alleged blood at defendant's the time defendant; analysis shown of the defendant's (3)If was at that ten time hundredths blood, breath, or other shall substance percent by weight or more of alcohol in the give following presumptions: rise to the blood, presumed defendant’s it shall be (1) If there was that time five hundredths was under the influence defendant percent by weight less alcohol in the intoxicating liquor. presumed defendant's weight Percent of alcohol in the blood shall be the defendant was not influence of upon milligrams per based of alcohol 1.0 cubic liquor; intoxicating whole If centimeters of blood or cubic cen- there was at that time excess of five percent lung deep than ten hundredths but less hun- timeters of breath. 1) (1) If refuses to submit to the with- incident to a he taken is long so 2) analysis, or chemical no with- by a drawal- taken reliable lawful 3) method, or chemical accepted medically approved, in a drawal 4) manner, required he has arrested probable unless been reasonable third, subsequent fourth or viola- sought, exists. cause to believe evidence 32-23-1, constituting a felo- California, tion of 384 U.S. Schmerber (1966); ny or 32-23- offense under 32-23-4 16 L.Ed.2d 908 see also S.Ct. 4.6; Neville, Dakota U.S. (1983). 916, 74 L.Ed.2d 748 S.Ct. (2) If to the with- he refuses to submit analysis, his driv- drawal or chemical Legislature has an extended shall be revoked for one er’s license opera- protection to motor vehicle additional §to year, unless 32-23-11.1 *4 through tors consent pleads guilty of 32- he to a violation right a qualified with to providing drivers being revocation order 23-1 the withdrawal their blood refuse issued; of alcohol content. State determination (S.D.1977). Hartman, 256 N.W.2d right He has the to have chemical is right consent a crea- Because the by a analysis performed technician of statute, subject is to the rules of it ture of expense, choosing his at his own own statutory interpretation. requested by in the test addition the officer. statutory Matters of con [¶ 12.] the sanc [¶ 14.] We have considered questions of law which we present struction provide Karp, 527 N.W.2d tions for failure de novo. State review previous passed warnings in cases. When “A sent statute driving on a is tried parts or sections and is defendant a whole and not influence, that where under the we have held general purpose and in animated one given, in Sutherland, has not been 2A Statutes and Statuto tent.” (5th Construction, statutory presumptions con ed struction ry 46.05 statute, error.3 in SDCL 32-23-10 is reversible intent of tained we determine the When (S.D. Parker, whole, 444 N.W.2d as State v. at the as a well we look 1989); subject. at 135 see also relating to the same enactments Comm’n, However, there are homi n. 12. when Kayser v. Elec. S.D. State (citation omitted). (S.D.1994) charges opera involving alcohol and the cide vehicle, we have held that it is tion of a motor SDCL The [¶ 13.] police misconduct to deterrent sufficient 32-23-10, provides: deny to revoke driver’s the State its any Any person operates who forfeit to make it license and given his to have state is considered presumptions SDCL 32-23-7. of blood or other to the withdrawal (vehicular (S.D.1995) Tucker, 533 N.W.2d analysis of bodily substance and Head, homicide); Big 363 N.W.2d bodily substance breath or other (vehicular homicide); (S.D.1985) Hart of alcohol the amount determine man, (second-degree man 256 N.W.2d 131 presence of determine slaughter). drug or sub- marijuana or controlled stance. argues loss that the [¶ 15.] as a statutory presumptions did not work requested in his case. He against the State sanction of blood submit to withdrawal officer to taking into presumptions, argues that for chemical substance or other results of .1314 blood alcohol breath account his analysis of his analysis or chemical error fac- percent and the percent and .1262 that: by the officer be advised and shall weight percent alcohol charges 0.10 more than dismissed the State In the instant (SDCL 32-23-1(1)) prior an alcoholic driving the influence of trial. under 32-23-1(2)) (SDCL beverage plus percent, tor of or minus 10 would Whether the blood was favor, against in his worked rather than him. taken ato lawful arrest as trial, however, Despite opportunities three defined SDCL 32-23-10? object pre- did not to loss of the Nguyen alleges the blood evidence sumptions jury instruction on it not inadmissible because was seized appears argue them. He to now that while Nguyen argues incident to a lawful arrest. statutory presumption being was unlawful because at arrest 32-23-7(3) per SDCL time officer the nurse instructed kept jury, presumption from the sample, take a had he made no decision influence, 32-23-7(1) being under the SDCL Nguyen. to arrest 32-23-7(2) presumption, and no should have jury been specific trial court made guidance in Ngu- its deliberations. Because findings that the officer made the decision to yen failed raise this issue before a.m., Nguyen at 7:04 and the blood court, here; we will it not address later, draw was 7:14 taken minutes a.m. Bale, deemed waived. State v. findings A trial court’s of fact will (S.D.1994) (Wuest, J., concurring 167-68 they clearly disturbed unless are erroneous. result). such, As we continue to adhere to Smith, Jasper v. *5 Hartman, holdings Big the of and Head standard, Under this we will not dis Tucker, implied that the unless, findings turb the trial court’s in light apply arrests, does to vehicular homicide evidence, and of all the firmly we are and defi that applied proper the court the nitely reme- convinced has mistake been made. dy substantially for the Codington State’s failure to County, Cordell v. comply 115,116 with the statute.4 ample There is evidence in testimony support the trial the trial statutes, applicable [¶ Based on the 16.] we findings. court’s suppression have never held of that the blood proper evidence was the sanction for failure give [¶ 20.] We the trial court’s comply implied with the consent statute. law conclusions of no deference under the de eases, prior felony In we have determined Nguyen argues novo standard of review. Id. 1) penalties prohibiting of the State from requires consent statute that 2) driver, revoking the license and the decision to arrest be made before the refusing permit the use of the requested. Nguyen draw blood is cites State trial, presumptions sufficiently at Assman, deter (S.D.1986), seizing blood evidence without im- authority proposition. for this This reliance Tucker, plied warning. misplaced. Our is in decision Assman ad properly applied 155-56. The trial court dressed the consent statute as it those appeared sanctions in the case at bar. at that time5 and in the context of argues analysis that consent stat- of his breath or other ute homicide, does to felonies like substance to determine the amount of basis, upon independent and 32-23-7, provided § in alcohol in is no reason to overturn the defendant’s convic- marijuana presence and determine or (Port- tion. See N.W.2d at 137-38 substance, any drug controlled or er, J., concurring specially). was not This raised the test is administered at direction a law court, upon before the trial nor was it the basis having lawfully arrested the enforcement officer Nguyen's the trial which court denied motion to person § for a of 32-23-1. violation suppress. The State has not filed a notice requested by officer concerning argument review it is thus shall submit be advised properly appellate before us for As review. that: officer such, it, express opinion we no and this (1) If he refuses to submit to the chemical question properly waits future ad- case analysis, given; none dress it. (2) If he refuses to submit to the chemical provided: analysis, SDCL32-23-10 his driver’s license shall be revoked Any person operates year, any for one who vehicle in this unless 32-23- given pleads guilty state is considered to have consent to a 11.1 he to a violation 32- defining officer” We hold that the [¶ 23.] the term “law enforcement in statute. In taken incident to a lawful arrest.6 appeared as it then event, nothing in our current statute there is requires our which that the deci- case law Whether, in the absence [¶ 24.] to arrest be made before the blood

sion results, there was suffi- alcohol requested. of the cient evidence for conviction of vehicular Defendant on reflects, and The record [¶ 21.] homicide? finding, trial court made a decision draw was administered after the light holdings In on issues 1 25.] our [¶ addition, Nguyen. In made unnecessary it is to reach this issue. trial court concluded there was on its find

probable cause based SABERS, AMUNDSON ings the nature that the officer was aware of KONENKAMP, JJ., concur. collision, presence of the of beer cans MILLER, C.J., concurs in result. vehicle, of an alcoholic the odor beverage, death of the driver. and the other MILLER, (concurring re- Chief Justice Schmerber, 789-71, U.S. at See S.Ct. sult). 1834-36,16 L.Ed.2d at 918-20. specially I concur result but write in- [¶ 22.] The fact that was not majority’s application to disavow the of the formed he was under arrest until two hours extra-statutory protections improper, of no after his arrival 32-23-10) (SDCL formally failure to inform “[T]he moment. charge of vehicular homicide. suspect he is under arrest does not vitiate terms, By legal of a its own effect defacto ai'rest where *6 specifically exempts felony conduct suspect physical into sent law officer takes 32- custody protections. scene.” State v. from the SDCL and control (S.D.1992) 23-10(1). Davidson, 513, felony A DUI 516 driver arrested 198, 240 is not to enforce (citing Buckingham, 90 S.D. violation entitled refuse law (1976) (reversed request sample. a blood Id.7 The on other ment’s for N.W.2d 84 right refuse is reserved for misdemeanor grounds)). Nguyen was arrested in the hos- to -3. The 32-23-2 and hours of his admission to the offenses. See SDCL pital within two however, the statuto majority, contends that emergency A review of the record— room. ry by pre- protections provided that the crash site was which shows outset, available to a driver a sent statute are also served as crime scene from homicide, felony.8 a the hos- arrested for vehicular the ambulance to an officer followed draw, ab interpretation creates an get a blood Such a strained pital with instructions It denial of the an surd result. results preparing and that the officer commenced sample right refuse a a blood prior to the report ten minutes arrest a third of po- to a driver who has committed objectively demonstrates test — (Class injury felony) 6 without place Nguyen into immediate fense DUI lice intended persons property, at the same time custody. (search preceding qualifies being arrest as inci- is- formal a revocation order 23-1 sued; probable existed for arrest where cause dent to search); Chapel, v. 55 F.3d analy- United States (3) a to have He has (an (9th Cir.1995) a performed a technician of own sis prerequisite for the nonconsensual constitutional expense, choosing in addition at his own warrant). a taking of an accused's blood without requested by the the test officer. * original). (emphasis n. Id. at 493 a Class 6 conviction is A third-offense DUI subsequent felony. offense is SDCL 32-23-4. A interpreting 6.Subsequent Schmerber cases felony. 32-23-4.6. SDCL a Class equate with to" does not that "incident held See Rawl obtaining after an arrest. the evidence 98, 110-11, felony. a SDCL homicide is Class Kentucky, 100 S.Ct. Vehicular ings v. 448 U.S. (1980) 2556, 2564-65, 645-46 22-16-41. L.Ed.2d 757, 770-71, 1826, 1835-36, a driver arrested for affords vehicular homi 384 U.S. 86 S.Ct. (Class (1966). felony), cide which has resulted L.Ed.2d 919-20 Under these being, factors, of another human all require death law enforcement protections (1) sample long and benefits of the con so is taken (2) State sent statute. See 256 incident to lawful a reliable (S.D.1977) (Porter, J., accepted con for obtaining method such a (3) curring specially). reasonable, sample, medically in a ap- manner, proved proba- and where legislature surely 30.] The [¶ did not intend ble sought cause believe the evidence ex- statutory protections to extend the samples ists. Id. Blood pursuant collected consent law to a more severe subject to these factors are not to the exclu- specifically than exempted those from the sionary Id. rule. Washington, See statute. (S.D.1995) (quoting In this blood draw from “[I]n construing together presumed statutes it is Nyugen requested law enforcement legislature an did intend absurd arrest; lawful drawn (citation omitted)). or unreasonable result.” medically nurse in a appropriate plain, reading commonsense manner; knowledge and with the that a ap- reveals 32-23-10 SDCL collision, death resulted the defen- plies only to misdemeanor dant’s breath and smelled of alcohol offenses, not felonies. See Delano scene, at the alcohol was found (S.D.1994) Petteys, defendant’s vehicle. The Sehmerber factors (noting statutes to be are accorded their were met. Based on law enforcement’s com- effect). plain meaning and pliance requirements, constitutional subject was not found exclusionary rule and was 32-23, admitted applies ch SDCL to the offense of into evidence. driving under the influence. Vehicular homi- governed by cide is defined and SDCL ch legislature Chap-

22-16. When the intended

ter 32-23 to crime other than influence, expressly

driving under the in- statutory language. crime in the cluded the 1997 SD 46 (expressly including See 32-23-7 *7 (vehicular homicide) Dakota, STATE South Plaintiff SDCL 22-16-41 stat- intoxication). Appellee, listing presumptions ute for The statute not implied consent does refer- ence crime other than Danny GOODROAD, Dale legislature This influence.9 omission apply intent to evidences its clear the statu- No. 19414. tory only rights consent law offenses, driving under the influence not ve- Supreme Court Dakota. hicular homicide. Considered on Briefs Feb. proper reviewing April Decided challenges obtaining to law enforcement’s charged driver from a with a vehicular is under the well-established California, forth in

factors set Sehmerber v. Legislative history supports interpretation subject.” Meyerink the same v. Northwestern Co., legislature not did intend Public Seivice apply legislature consent statute to to vehicular homicide. When enacted the statute, contemplated statute was established in could not have 264, § application yet ch 1959. 1959 SDSessL 1. The vehicular its However, in existence. legislature homicide statute was not enacted until 1983. when the enacted the vehic 1. "[W]e SDSessL ch must assume ular homicide it was aware of 32- legislature, enacting provision, had 23-10 and chose to it to previously relating in mind enacted statutes homicide.