State v. Herrmann

SABERS, Justice

(concurring in part and dissenting in part).

[¶ 26.] I concur on Issue One but dissent on Issue Two. I would hold that the trial court erred in denying Herrmann’s motion to suppress his blood test result as evidence because of the violation of the implied consent law and Herrmann’s statutory right to refuse the test. See SDCL 32-23-10(1) which provides:

If the person refuses to submit to the withdrawal or chemical analysis, no withdrawal or chemical analysis may be required unless the person has been arrested for a third, fourth, or subsequent violation of § 32-23-1, constituting a felony offense under § 32-23^1 or 32-23-4.6 or has been arrested for vehicular homicide under § 22-16-41 or vehicular battery under § 225 — 16—42[.]

[¶ 27.] The statement from Nguyen, quoted in the majority opinion, that this Court has never held suppression of blood evidence to be the proper sanction for failure to comply with the implied consent law does not completely or accurately represent the history of the implied consent law. In fact, this Court held at one time that suppression of evidence was the proper sanction for noncompliance with the implied consent law. In Buckingham, 90 S.D. at 204-205, 240 N.W.2d at 87 this Court made the following observations in this regard:

[T]he failure of the arresting officer to comply with the requirements of SDCL 32-23-10 [i.e., the implied consent law] rendered the test results inadmissible at defendant’s trial.... In reaching this result, we look ... to the letter of the law. It is difficult to see how the legislature could have been more specific in setting forth the procedure that arresting officers must follow when they seek to utilize the powerful evidence-gathering mechanism conferred upon them by SDCL 32-23-10, the implied consent statute. True, our statute does not expressly state that the failure of the officer to comply with the procedural steps will render the test results inadmissible, as do some implied consent statutes. Implicit in our implied consent statute, however, is the right to refuse to submit to a test and, a fortiori, the requirement that a choice be made between submitting to the test or suffering the consequences of such refusal. Also implicit in the implied consent law is the assumption that the choice to be made is of considerable importance to the arrested driver. Although it may be true that to some drivers the loss of their license for a period of one year would be a penalty more severe than being convicted of the offense of driving while intoxicated, there no doubt are some who would rather suffer the loss of their license for one year than to suffer the ignominy of a conviction for driving while intoxicated, together with the adverse economic consequences such a conviction entails. If the offense of driving while intoxicated is considered serious enough to warrant the constitutional guarantee of a jury trial, then surely it is serious enough to require law enforcement officers to comply with the statutorily mandated procedural steps as a prerequisite to the admissibility of the results of a chemical test conducted pursuant to the implied consent law. (some citations omitted).

[¶ 28.] Only a year after Buckingham, this Court reconsidered its holding as to the suppression of evidence with the following analysis:

[E]vidence obtained in violation of statutory rights is not inadmissible per se unless the statutory rights are of constitutional proportions or there exists no other method of deterring future violations of the rights which the legislature has granted to its citizens.

* * *

Our implied consent law does not provide that the bodily substance sample or test results are inadmissible at a subsequent prosecution where the sample is obtained without compliance with the implied consent statutes, as some states have done. However, it appears that the implied consent statutes within themselves provide a sufficient deterrent to violation of the implied consent statutes by police officers without excluding this highly probative evidence.

If there is not substantial compliance with the implied consent statutes, the department of public safety cannot revoke or suspend the operator’s driving privileges for refusing to submit to such tests. Furthermore, noncompliance with the implied consent statutes, although not making the test sample and test results inadmissible, results in a forfeiture of the statutory presumptions of SDCL 32-23-7. Therefore, the physiological effects of the blood alcohol content upon the defendant must be proven by the testimony of a properly qualified expert, not by statutory presumptions. As expressed in State v. Spry, 87 S.D. 318, 207 N.W.2d 504 (1973) the jury should only be instructed concerning the presumption of intoxication where properly administered test results are available. Proper administration requires substantial compliance with the implied consent statutes. In this case, there was no compliance with the implied consent statutes; however, all of the Fourth Amendment requirements of Schmerber were met, i.e., a lawful arrest, probable cause, a reliable method, and a reasonable, medically accepted removal of defendant’s blood. The blood sample and the test results were therefore admissible but not the subject of the statutory presumptions of physiological effects of blood alcohol content.

Hartman, 256 N.W.2d at 135-36.

[¶ 29.] This Court is now at a juncture where its analysis in Buckingham has proven to be more accurate than that in Hartman. Subsequent cases before this Court establish that inability to revoke driving privileges and forfeiture of statutory presumptions of intoxication are inadequate means of consistently deterring law enforcement violation of the implied consent law. In Hartman itself, this Court noted that a DUI prosecution under SDCL 32-23-l(l)(driving with 0.10 percent or more by weight of alcohol in the blood) would not be subject to the same deterrent effect as a DUI prosecution under SDCL 32-23-l(2)(driving under the influence) and that the exclusionary rule might be needed in a prosecution under subsection (1) if the implied consent statutes were not complied with. See Hartman, 256 N.W.2d at 135, n. 12. That was exactly the case in Parker, supra at n. 6 where the arresting officer failed to read the implied consent warnings, a blood test was taken and the defendant was later charged with a violation of SDCL 32-23-1(1). On these facts, this Court held that it was reversible error for the trial court to admit the defendant’s blood test result into evidence.

[¶ 30.] More disturbing than Parker; was Jacobson, supra where a blood test was administered pursuant to the arresting officer’s instruction that the test was mandatory. However, the record failed to reflect any steps taken by the officer to confirm that the arrest was for the defendant’s third DUI:⁷ Moreover, the officer’s testimony was inconsistent and incredible as to whether or not he knew the arrest was for a third DUI when the test was administered. Nevertheless, the blood test result was admitted into evidence and a jury instruction on the statutory presumptions of intoxication was given over the defendant’s objection. On these facts, this Court reversed the defendant’s conviction for third offense DUI and remanded the matter to the trial court with instructions to determine whether the arresting officer had information prior to administration of the test that the arrest was for a third DUI. If it was determined that he did not have such information, this Court directed that a new trial be held and that the State be penalized for its noncompliance with the implied consent law with the loss of its right to revoke the defendant’s driving privileges and with the forfeiture of the statutory presumptions of intoxication under SDCL 32-23-7.

[¶ 31.] The law enforcement failures represented in the above cases and the breakdown in law enforcement procedure in the instant case establish that the time has come for reconsideration of our holding in Hartman and for the imposition of a more severe sanction for noncompliance with the implied consent law.

[¶ 32.] Notwithstanding elimination of the right to refuse a chemical test in arrests for vehicular homicide and third offense DUI,⁸ the implied consent law remains an important feature of South Dakota law extending to South Dakota motorists a right not guaranteed by the Constitution, “i.e., the right to refuse to submit to a chemical test of their bodily substances for a determination of blood alcohol content.” Hartman, 256 N.W.2d at 135. Through the implied consent law, the South Dakota Legislature has enunciated a public policy that continues to grant this right of refusal to individuals who have a prior DUI conviction. See SDCL 32-23-10(1). Today’s majority rewrites that policy by denying Herr-mann his right of refusal and by permitting law enforcement to bypass that right whenever officers have a so called “good faith” belief that a person has more than one prior DUI conviction. Such a significant amendment of a clearly defined public policy should be left to the legislature that adopted the policy and should not be dictated by this Court.

[¶ 33.] A proper ruling in this case would not unfairly hamper DUI prosecutions in cases of this nature, but would place them on a proper footing. The implied consent law imposes special demands on law enforcement. As noted in Buckingham, 90 S.D. at 208-209, 240 N.W.2d at 89, the implied consent law imposes requirements on law enforcement “beyond those mandated by the Schmerber case. To hold otherwise would be to permit law enforcement officers to render [the implied consent law] nugatory at their whim.”

[¶ 34.] What this Court wisely foresaw in Buckingham is the precise scenario that has unfolded. In the present case, upholding admissibility of the blood test result once again permits law enforcement to render the implied consent law nugatory by acts of negligence and carelessness if not purposeful noncompliance. Contrary contentions that forfeiture of the statutory presumptions of intoxication adequately penalizes the State for its violation of the implied consent law are meritless in light of the body of common knowledge that education and public debate have engendered on the meaning of a 0.10 or 0.08 percent blood-alcohol test result. Therefore, to the extent that Hartman and its progeny hold that suppression of blood test results is not required for violation of the implied consent law, they should be overruled. If such a , conclusion were reached, the following observation from Buckingham would again become relevant:

If .the legislature desires that a motorist arrested on a charge of driving while intoxicated shall no longer have the right to choose between consenting to a test and losing his license, then presumably the legislature will say so in terms as clear as it used in spelling out a motorist’s rights under [the implied consent law].

Buckingham, 90 S.D. at 209, 240 N.W.2d at 89.

[¶ 35.] The Court’s decision is rewarding law enforcement for acts of negligence and carelessness in violation of the driver’s statutory right to refuse the blood test. Why should law enforcement reap the benefits of its own acts of negligence and carelessness in violation of the law? The answer is obvious: they should not be able to do so. The Court’s decision should enforce the law as it is until the legislature changes it.

[¶ 36.] Based upon the foregoing, I dissent from the Court’s decision on Issue Two and would hold that the trial court erred in denying Herrmann’s motion to suppress his blood test result as evidence and that a fair trial is required.

[¶ 37.] AMUNDSON, Justice, joins this special writing.

7 . By the lime of Jacobson, a blood test was mandatory on an arrest for third offense DUI.

8 . See SDCL 32-23-10(1).