Beare v. Smith
| Decision Date | 25 February 1966 |
| Docket Number | No. 10242,10242 |
| Citation | 82 S.D. 20,140 N.W.2d 603 |
| Parties | Warren George BEARE, Plaintiff and Respondent, v. Milo H. SMITH, Commissioner of Motor Vehicles, State of South Dakota, Defendant and Appellant. |
| Court | South Dakota Supreme Court |
Frank L. Farrar, Atty. Gen., Alfred E. Dirks, Fred A. Winans, Asst. Attys. Gen., Pierre, for defendant and appellant.
Robert L. Jones, Sioux Falls, for plaintiff and respondent.
This appeal involves another facet of our implied consent law. 1 SDC 1960 Supp 44.0302-2. The Commissioner of Motor Vehicles revoked the driver's license of Warren George Beare for refusing to submit to a blood test. Beare petitioned the circuit court for a de novo hearing on the matter, and after hearing, the court determined Beare's license was not subject to revocation and vacated the Order of Revocation. The Commissioner appeals.
Beare was slightly injured in an automobile accident in Sioux Falls on December 29, 1964, and was taken by ambulance to McKennan hospital where he received outpatient emergency treatment. At the hospital he was arrested for the offense of operating a motor vehicle while under the influence of liquor or drugs. The arresting officer read to him a printed form entitled 'Advice to Person Arrested Given Pursuant to SDC 1960 Supplement Section 44.0302-2 Entitled Implied Consent to Blood Test by Motor Vehicle Operators'. 2 This document contained substantially all of the provisions of the statute and informed Beare of the consquences on refusal to submit to the test.
After the form was read, the evidence in substance shows Beare first said he would submit to a blood test; that a hospital technician was then called; when she arrived he refused to submit to the test and said he wanted his own doctor, Dr. Brzica, to take the test. Beare's cross-examination was concluded in the following manner:
The trial court found:
4. 'At such time the plaintiff did consent to a blood test, but that thereafter made a statement to the effect that he wanted his own doctor to take the blood test.'
5. 'Plaintiff did not fully understand that he could have a blood test administered by his own doctor in addition to the one administered at the direction of the police officers, and therefore, refused to take the test offered by the police officers.'
and concluded, as a matter of law:
2. 'The evidence presented does not establish by a preponderance of the evidence that the plaintiff did refuse to take a blood test, and further does not indicate that the plaintiff was given an opportunity to within a reasonable time have his own doctor or other person of his own choosing administer a test.'
3. 'Under the provisions of SDC 1960 Supp. 44.0302-2, the plaintiff's license is not subject to cancellation, suspension or revocation.'
By two assignments of error, the Commissioner challenges the conclusions of law made by the trial court under the facts as above found. Error may be so assigned, and it raises the sufficiency of the findings to support the conclusions, although it does not raise the sufficiency of the evidence to support the findings. McHenry v. Lintecum, 42 S.D. 228, 173 N.W. 835; Garrey v. Schnider, 78 S.D. 596, 105 N.W.2d 860.
The right to operate a motor vehicle upon a public street or highway is not a natural or unrestricted right but a privilege which is subject to reasonable regulation under the police power of the state in the interest of public safety and welfare. Chmelka v. Smith, S.D., 130 N.W.2d 423. The proceeding to determine or review the propriety of the cancellation, suspension, or revocation of a driver's license is separate and distinct from a criminal trial on a charge of driving while under the influence of intoxicating liquor or drugs, and the efficacy of the revocation by the Commissioner does not hinge on whether there is a conviction or acquittal on a criminal charge related to the test. Prucha v. Department of Motor Vehicles, 172 Neb. 415, 110 N.W.2d 75, 88 A.L.R.2d 1055. In Chmelka in a proceeding by the Commissioner we said: 'Since our statute requires it, an arresting officer is obligated to inform a driver of the consequences in the event of his refusal to submit to a test.' Contrariwise, in State v. Batterman, 79 S.D. 191, 110 N.W.2d 139, the results of a blood test were held admissible in a criminal prosecution, although the officer did not explain the penalty attached to a refusal to submit.
Implied consent statutes, such as we have, are designed to combat the increasing menace and danger caused by drunken drivers using the public highways and their elimination or control presents a most perplexing problem to law enforcement officers and to the courts. The legislative purpose behind such statutes is clear. The right to drive being a privilege granted by the state it has, for the protection of the public, imposed conditions on that privilege; one being that a person consent to a chemical analysis under the conditions specified in the statutes. Once the conditions of the statute are met, refusal to submit to the test results in mandatory loss of license. Chmelka v. Smith, supra; 7 Am.Jur., 2d, Automobiles and Highway Traffic, Sec. 259.
In our opinion petitioner's license was properly revoked. He was asked to take a blood test to determine the amount of alcohol in his blood under the provisions and conditions of the statute and was advised of the effect of refusal with respect to revocation of his driver's permit. He had a choice of taking a chance that an unfavorable test result might aid in his conviction or by refusing, lose his license for a period of one year under the statute. He refused the test directed to be taken by the officer, and in effect imposed the condition that it be performed by his own doctor. The statute does not allow him this right; neither does it permit a qualified refusal. See Stensland v. Smith, 79 S.D. 651, 116 N.W.2d 653. By refusing the test directed by the officer he loses his license. This may appear severe and in some cases cause hardship, but we believe the legislature deemed it necessary for the protection of the public. The threat to person and property from drunken drivers using the public highways is not an area for timid or tolerant application of traffic laws.
The statute permitted Beare to have a doctor of his own choosing administer an additional...
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