State v. Zoss
360 N.W.2d 523
S.D.
1985
Check Treatment

*1 put its hand on him. It cannot of review the sentence reader will re-read If the court, majority discretionary decision forth in the nor overrule as set the trial Question from parole once obvious In re opinion, it will at become board. Accord: specifi- court Review, that the trial Concerning last sentence State Judicial defendant-appellant under cally placed 610 P.2d 1340 Colo. control of the Office supervision and “the Accordingly, I the trial would reverse Department of under the

of Corrections Revoking Suspended Sen- court’s Order the sentence Paroles.” With Pardons and And, thereby, Mr. Adams tence. would be so stating, and the statutes specifically so free. my ken beyond it is expressing, specifically at an opinion can arrive majority that the diametrically opposed thereto.

opinion rea- the aforesaid

Finally, only not reason,

sons, for this additional to revoke jurisdiction had no

trial court July parole: On

defendant-appellant’s parole by the discharged from he was He was Services. of Correctional Office Dakota, Plaintiff of South STATE informed, Dakota so of South and Appellee, and obliga- further that he had “no stipulated, separation Department.” tion to in Article II of is found powers clause ZOSS, Defendant Barbara Jo State Constitution.

the South Dakota Appellant. in this state are government powers of 14485. No. divided, says, into three dis- exactly as it exec- legislative, departments, tinct Dakota. South powers and utive, judicial; and the on Briefs Oct. 1984. Considered departments are each of those duties of constitution. by the state prescribed 9, 1985. Decided Jan. Therefore, has ruled that it is a this Court separation powers clause violation to rule on matters which

for the Court constitutionally placed one of

been v. Brown departments. Dunker

other two Educ., 80 S.D.

County Bd. The Governor and

N.W.2d Corrections, Board of Charities Paroles, Pardons and

through the Board of grant pardons jurisdiction have exclusive Const, § IV, art. 3 and paroles. S.D. §§ XIV, upon his 1 and 2. Based

art. by the

record, officially told he had been society, es-

sovereign that his debt

sence, paid. The one and branch Depart- Executive government —the “custody supervi- his ment—who had statutorily encharged with the

sion” enforcing the conditions

“responsibility for sentencing judge,” as well

imposed defendant, had taken its rehabilitating

as defendant-appellant.

sovereign off of hand could not then suffer Branch

The Judicial

warnings, appellant indicated she under- rights her but did not re- stood Miranda spond the consent law. was She subsequently Codington taken to the Coun- Watertown, ty Detention where Center again she was read the consent law was asked take a chemical breath explained The im- test. officer further her her plied consent law to and advised requested being that she was to a submit ap- also breath The officer informed she her pellant could have own test at expense requested after was own test Thereafter, appellant administered. made questioning the accuracy statements test asked and when de- would submit to its administration she requested Initially, a blood clined officer hos- obtained directions to a local pital appellant where could receive a test; however, conferring alcohol after with officer, appel- another informed that she entitled lant was not test because she refused to take re- quested breath test.

Appellant was convicted of DWI in viola- 32-23-1, having tion SDCL two with Moreno, Gen., Mark Atty. A. Asst. prior pre- convictions for DWI within the Pierre, plaintiff appellee; for Mark V. ceding years, four in violation of SDCL Gen., Pierre, Meierhenry, Atty. Asst. on Appellant 32-23-4 and 32-23-4.1. con- brief. tends that she was denied constitution- Turbak, Nancy Watertown, J. for defend- al to due and a fair trial appellant. ant and when she was not allowed to test of her choice Oth- administered. WUEST, Acting Justice. Cada, er states have so held. See Smith v. 115 Ariz. 562 P.2d 390 appeal judgment This is an from a court, however, held that under South driving conviction for while under the influ- Dakota law the choice of tests (DWI), to determine ence violation the blood person alcohol content ar- We affirm. rested DWI is for the law enforcement April On A South Dakota State that, authorities appellant inasmuch as Trooper automobile, an observed driven requested declined the (appellant), Barbara traveling Jo Zoss involved, officers not entitled to twenty-five m.p.h. in fifty-five m.p.h. zone another test. agree. We approximately four miles west of Water- town, arrest, appellant’s At time of SDCL South Dakota. The vehicle was drift- 32-23-15 ing stated: back and forth from the left-hand lane person shoulder permit- road. The ... shall tested stopped appellant and, physician, after ted to have a tech- laboratory she failed six tests, nician, field sobriety nurse, registered physician’s arrested her as- DWI. technologist After the officer sistant or medical own advised his of the implied choosing analy- consent law and the administer chemical Miranda sis in addition one administered Ed 2d 102 S Ct 3440 [3446] together, group the law enforcement Taken at the direction of of constitu added.) (Emphasis privileges officer. exculpatory delivers evi accused, dence into the hands of the statute, the officer Under thereby protecting the innocent from er initially adminis type of test chooses roneous ensuring conviction and the in content, alcohol to determine blood tered tegrity *3 justice system. of our criminal Birney, 85 not the arrestee. v. State — (1970). 1, 176 N.W.2d 475 S.D. Trombetta, -, v. U.S. California -, 2528, 2532, 413, 104 S.Ct. 81 L.Ed.2d factually analo- cases We have dealt with (1984). 419-20 involving drivers’ gous to the instant action proceedings. See license revocation There was no assurance the blood test Etc., Dakota, 318 v. exculpatory. may Schlenker South It would be have been to (S.D.1982); Blow v. Commis- N.W.2d 351 contrary. may The same be said of the 628, Vehicles, 83 164 Motor S.D. sioner requested If she had wanted Smith, (1969); 82 Beare v. N.W.2d 351 evidence, possible exculpatory she could (1966); 20, 140 N.W.2d 603 Stensland S.D. have consented to the breath test which 651, Smith, N.W.2d 653 79 116 v. S.D. may exculpatory have been and still had a However, enforce- law getting possible exculpatory chance of a constitu- appellant’s ment officials violated nothing fundamentally blood test. There is process and a fair trial rights to due procedure, deny unfair in this nor did a test denying by “meaningful opportunity present to requested breath test after she refused the fact, complete defense.” In she would impression in our state. are issues of first getting possible have had two chances at exculpatory evidence. that the offi Appellant contends principle test set violated the cers’ conduct Wilde, held in We have 306 by the United States Court out (1981), comply N.W.2d 645 that to with the 83, 373 U.S. 83 S.Ct. Brady Maryland, v. rule, the evidence must not Brady be 1194, 215 Under the 10 L.Ed.2d withheld, exculpatory. material and rule, required is Brady Here, any ex- the State did not withhold the United States process clause of due culptory evidence. The withheld 14, Constitution, Amendment and South breath) (her the evidence under the § Constitution, VI, 2; Article Dakota law, not the State. consent defendant, upon that defendant’s give judgment The of the trial court is af- any material evidence request, access to firmed. possession that is favorable the State’s discussing Brady, In the accused. C.J., FOSHEIM, and WOLLMAN cases, process due United similar MORGAN, JJ., concur. recently Supreme Court stated: States HENDERSON, J., the Due Process Clause of dissents. Under Amendment, prose criminal Fourteenth HENDERSON, (dissenting). Justice no comport prevailing must with cutions majority opinion’s ulti- I dissent. of fundamental fairness. We tions patrol- the motor mate conclusion is that interpreted standard of fairness long appellant’s consti- man did not violate require that criminal defendants to due and a fair tutional meaningful opportunity afforded a denying opportu- her a To safe complete defense. present adopt I these nity to have a blood right, has devel guard that the Court authorities, majority contrary to the all might loosely be called oped “what stance, given an inde- that the arrestee be constitutionally guaranteed ac area of request and pendent test at his or her v. States Val cess to evidence.” United (1961); Annot., 858, 867, A.L.R.2d 905 enzuela-Bernal, expense: L 78 73 458 US 526 hol, Municipal Angeles violating Brown v. Los She District, 357, Cal.App.3d custody

Judicial 86 150 taken transported into Cal.Rptr. (1978); Newbern, 216 In re 175 Codington County Detention Center 862, (1959); Cal.App.2d Cal.Rptr. 1 80 While at the Watertown. Detention Cen- 198, Me. 79 Munsey, v. 152 127 A.2d State ter, the asked trooper Ms. Zoss to take a (1956); Alano, v. Commonwealth 388 read breath test and her the con- 871, 1122, (1983); Mass. 448 N.E.2d 1126 sent advisory. expressed Ms. Zoss con- Burton, People Mich.App. 13 163 v. accuracy cern about the of a State, (1969); Scarborough N.W.2d 823 v. requested blood test. When (Miss.1972), denied, 261 So.2d cert. trooper if she asked wanted to submit to 613; U.S. 93 S.Ct. L.Ed.2d answered, the breath “No.” (Mo.1972), Snipes, v. 478 S.W.2d 299 if he asked should consider denied, cert. 93 S.Ct. U.S. refusal, began that a which a discussion 242; Baker, City Kettering L.Ed.2d implications between them about the *4 354, 42 Ohio St.2d 328 N.E.2d 805 she declined the breath test. (1975); Lewis, 45, 48-49, 266 S.C. Trooper McManus said that if she re- (1976); City 221 S.E.2d 524 Blaine v. test, fused the he would take Suess, 93 Wash.2d P.2d 789 test, hospital to the for a blood that and (1980); Heater, 67 City Tacoma v. difference would be that Wash.2d 409 P.2d could drivers have her license revoked impression This is a case of first in this trooper she refused the breath test. The parties and both so concede in state their said, why you’d “I to can’t see want take Thus, in past precedent this briefs. Court your own test and refuse one. blood does not exist for the set of facts before it, If way you that’s the want to do fine. then, not, us. Let us be married to cases up We can write a refusal and submit Schlenker, as cited in the majority such state, you and take over opinion. uniquely a This is different case. test_” hospital for Ms. Zoss hearing agency This is not a civil before an responded again by requesting a blood license; to revoke a it is a criminal driver’s trooper appeared test. ready to take appellant may impris- case for which be hospital her to the for such when a a test our oned. We must raise vision and minds police officer interrupted Watertown n past implied cases upward consent to trooper. left the with the Upon room Then, reasoning our the Constitution. return, trooper’s he refused Ms. to take peak. shall test, Zoss for in- a blood and she was Unfortunately, majority opinion right fails formed that she had no such a to set processed to forth the true facts of this placed case test. She in our jail cell, which are critical in decision to the where from she renewed her issue before us. the issue request And before us is for a blood test a time short or not this Again was denied later. told she could not have opportunity to have jail a blood such a Ms. Zoss in remained until discharged custody she was from later. several hours

This was a court at Watertown. “Stipulation There was a Facts” During trial, the course of this ar- facts, parties stipulated and without those resting trooper acknowledged that he had reader cannot understand the true refused Ms. to allow Zoss to take a blood meaning background of this case and transcript, test. Per the a blood test would Thus, holding. set its I forth in extenso reasonably have been available. The tran- stipulated facts: those script vividly reveals that re- Ms. Zoss 24, 1983, April Trooper peatedly requested

On State a blood test. There can McManus arrested Barbara Jo Zoss for be no doubt that this told Zoss Ms. driving hospital while under influence that he her to a nearby of alco- would take opportunity arrangements timely able blood test. test and initiated for a blood least, Later, say illogical To it is propound to accomplish the to right that a citizen’s acting constitutional will be apparently on refused to do so respected only if the citizen first waives a jail. at the police of a advice statutory right. Having no authorities to warning given at the consent contention, its unsound submit contained, alia, inter time Zoss’ arrest holding asks this buttress its on following: old consent law cases such as driving or you I arrested 1. Birney, Schlenker 85 S.D. physical control of a being actual 176 N.W.2d 475 This I refuse to do under the influence of vehicle while putting for it would tantamount on a alcohol, any controlled marijuana or set of constitutional blinders. substance, drug or a violation of hereby I vote reverse this conviction lady as I that believe was denied her you I that submit to a chemi- 2. produce constitutional evidence on your to determine cal test of Ms. own behalf. Zoss was held alcohol, marijuana or the amount of custody beyond the time when could any drug controlled or substance arrangements timely have made to have a your blood. sample discharged taken. She was right to a chemical test 3. You have a custody from several hours after her ar person your choosing, own timely A rest. blood test would have been expense, own in addition to your at irrespective per effective evidence *5 requested. (Em- just the test I have centage in of alcohol the blood. Ultimate mine.) phasis supplied (after ly, the law enforcement officer first apparently position the The State takes test) telling her that she could a have blood test, for- if Ms. Zoss refused the she that absolutely that had told Ms. Zoss no right independent an feited her have right opportunity to exercise a reasonable way can test. There is no that blatantly contrary for a test. This is blood wiggle out of its of facts. The stipulation holdings in contained the authorities patrolman Ms. Zoss that motor advised whichl set forth above. What makes have the take she refused would constitutionally this case so offensive is hospital for a test and that her to the blood arresting promised that the Ms. only that she could the difference would be test, he Zoss that if she refused the breath if she her driver’s license revoked have hospital take her to the for a blood would refused the breath test. One of the shock- Zoss, having Ms. received that assur in ing developments of fact this case was ance, the test and the law declined patrolman’s admission on the the motor forgot promise the of enforcement officer recognized importance stand that he the ago, years the the test. Some 25 blood gath- means of tests in the scientific blood Supreme that United States Court observed evidence; end, he testified ering to that sanction 23 states had enacted state laws every one of the over 200 that in D.W.I. ing the use of tests to determine blood made, attempted to Abram, he had he had arrests Breithaupt v. 352 intoxication. alcohol content. obtain a blood 448 77 S.Ct. L.Ed.2d U.S. rationale, the Stripped down to its naked brought language opinion in that Critical contending supremacy the prove is here could not out that a blood test Dakota over consti- statutory prove law South innocence. guilt it could also know, And, Legis as we all such an Historically, tutional law. Dakota State the South given great not hold water. The State of consid argument does lature has amount statutory contending Ms. Zoss’ alcohol tests. that eration and attention to blood is (with seem its These statutes See not to take a breath test SDCL ch. 32-23. choice sanction) procedures and sanctions license-losing cry vitia- out for accompanying gathering of evidence via pertaining to the right to her reason- her constitutional ted How, testing procedures. dy jail being, alcohol cell her blood whole includ then, can veins, our courts of law in state be ing coursing in her was in disregard legislative possession so callous as to and control lawof enforce past intent and United States penned ment. Abraham Lincoln once right phrase Court decisions? A constitutional immortalized that was a Very dimension has been violated here. people, by people, nation of the and for required then, little effort would have been people. government Should lady hospital to take this people, people, withhold from one of its sample to have a taken from her might prove which evidence her innocent of opportunity body. procure evidence crime allegedly perpetrated against — readily In Brady Mary Indeed, was available. people? all this is what has land, 1194,10 373 U.S. S.Ct. L.Ed.2d transpired opportuni when she is denied an (1963), highest Court of this land to have ty her blood for its examined alco prosecution’s held suppression that way content. holic was no she could There material evidence favorable to an accused gather might prove evidence which favor upon process. due In violates away to her. take able To her license to Bryant, United States v. 439 F.2d 642 drive because of refusal ais sanction (D.C.Cir.1971), Brady held statute, that also provided by but to refuse her the applies to situations where it cannot be opportunity pay reasonable take determined whether the evidence would her own blood test is a constitutional trans Thus, favorable. alco been gression of due vitiates Zoss, percentage hol of Ms. whether favor criminal conviction. unfavorable, able or is to her immaterial Helmer, right.

constitutional Cf. (S.D.1979). 278 N.W.2d The constitu right opportu is one of

nity to have a blood test taken this was upon

refused based unconstitutional strata

gem. South lady Dakota had this custo