Chmelka v. Smith
| Decision Date | 25 September 1964 |
| Docket Number | No. 10093,10093 |
| Citation | 130 N.W.2d 423,81 S.D. 40 |
| Parties | Donald Joseph CHMELKA, Plaintiff and Appellant, v. Milo H. SMITH, Commissioner of Motor Vehicles of the State of South Dakota, Defendant and Respondent. |
| Court | South Dakota Supreme Court |
Mundt & Weisensee, Sioux Falls, for plaintiff and appellant.
Frank L. Farrar, Atty. Gen., Alfred E. Dirks, Asst. Atty. Gen., Pierre, for defendant and respondent.
On April 19, 1963, Donald Joseph Chmelka filed a petition in the Circuit Court of Minnehaha County alleging that the Department of Motor Vehicles had revoked his permit to operate a motor vehicle for a period of one year for the alleged refusal of the petitioner to submit to a chemical test and requesting that he be granted a trial de novo to determine whether his permit was subject to suspension or revocation. The court set the matter for hearing and the Commissioner of Motor Vehicles was notified accordingly. A stay of the order of revocation pending determination was upon application of the petitioner granted. On May 24, 1963, after a hearing de novo, findings and judgment were rendered against the petitioner affirming the order of the Commissioner. Petitioner has appealed to this court.
Petitioner's permit to operate a motor vehicle was revoked by virtue of authority vested in the Commissioner of Motor Vehicles by the provisions of SDC 1960 Supp. 44.0302-2, commonly referred to as the 'Implied Consent Law'. This statute declares in effect that the operation of a motor vehicle shall be deemed to constitute consent by the operator to the taking of a chemical analysis of his blood as therein provided when requested by a police officer having reasonable grounds to suspect him of driving while intoxicated. The provisions of this statute here pertinent read as follows:
(Emphasis supplied.)
Appellant contends that he was not sufficiently advised of the consequences or effect of a refusal to comply with the statute to justify a revocation of his driver's permit.
A hearing in circuit court is available to a person whose driver's permit has been revoked for refusing to submit to a sobriety test and the statute requires the court to hear the matter do novo and not merely review the action of the Commissioner. Hanlon v. Commissioner of Motor Vehicles, S.D., 123 N.W.2d 136. The legislature had determined as to when and under what circumstances a permit shall be suspended or revoked. When the conditions imposed by the statute appear, the duty of the Commissioner to revoke a driver's permit for one year is purely ministerial and mandatory. The exercise of such authority by the Commissioner is without a prior...
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State v. Neville
...of a refusal to submit to a blood-alcohol test. See, e.g., People v. Thomas, supra; State v. Buckingham, supra; Chmelka v. Smith, 81 S.D. 40, 130 N.W.2d 423 (1964). Below, the arresting officer informed Neville of the Miranda warnings 4 but then only partially informed him of the consequenc......
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Holland v. Parker
...that pertain to the implied consent law, see e. g., State v. Batterman, 79 S.D. 191, 110 N.W.2d 139 (1960), and Chmelka v. Smith, 81 S.D. 40, 130 N.W.2d 423 (1964), that South Dakota conforms to the arrest requirement. See also, 1971 Duke L.J., supra, at 606, n. 32. However, even though an ......
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State v. Buckingham
...officer is obligated to inform a driver of the consequences in the event of his refusal to submit to a test.' Chmelka v. Smith, 81 S.D. 40, 44, 130 N.W.2d 423, 425. In the case of Beare v. Smith, 82 S.D. 20, 140 N.W.2d 603, wherein the evidence revealed that the defendant driver had been fu......
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Heer v. Department of Motor Vehicles
...Schutt v. Macduff, 205 Misc. 43, 127 N.Y.S.2d 116 (Sup.Ct.1954); Timm v. State, 110 N.W.2d 359 (N.D.1961); Chmelka v. Smith, 81 S.D. 40, 130 N.W.2d 423 (1964); State v. Muzzy, 124 Vt. 222, 202 A.2d 267 (1964); Walton v. City of Roanoke, 204 Va. 678, 133 S.E.2d 315 (1963). These and other ca......