Holland v. Parker

• Decision Date: 07 April 1970
• Docket Number: No. 10712,10712
• Citation: 176 N.W.2d 54,84 S.D. 691
• Parties: Wm. J. HOLLAND, Plaintiff and Appellant, v. Albert M. PARKER, Commissioner of Motor Vehicles, State of South Dakota, Defendant and Respondent.
• Court: South Dakota Supreme Court

Page 54

176 N.W.2d 54

84 S.D. 691

Wm. J. HOLLAND, Plaintiff and Appellant, v. Albert M. PARKER, Commissioner of Motor Vehicles, State of

South Dakota, Defendant and Respondent.

No. 10712.

Supreme Court of South Dakota.

April 7, 1970.

Rehearing Denied May 5, 1970.

Holland & Brantseg, Sisseton, for plaintiff and appellant.

Gordon Mydland, Atty. Gen., A. H. Shuster, Asst. Atty. Gen., Pierre, for defendant and respondent.

PER CURIAM.

Shortly after midnight on August 3, 1968 appellant was involved in a two car accident on State Highway 10 in Britton, South Dakota. The accident was investigated by a police officer in Britton. Based upon the officer's report that appellant refused to submit to a chemical analysis of his blood the Commissioner of Motor Vehicles on August 14, 1968 entered an order revoking his drivers license for one year in accordance with the provisions of the Implied Consent Law, SDC 1960 Supp. 44.0302--2.

On September 3, 1968 appellant applied for and was granted an Alternative Writ of Prohibition. The writ prohibited the Commissioner of Motor Vehicles, or any employee in his office, including the State Motor Patrol from taking any further proceedings in connection with the revocation of appellant's Drivers License. The Commissioner was required to show cause, if any, in the courtroom of the Circuit Court in Britton, South Dakota on September 20, 1968, why the Alternative Writ should not become permanent and the Order of Revocation canceled. Copies of the pleadings were personally served on the Commissioner. No answer, return, or other responsive motion or pleading was made.

The adjourned trial of the matter came on for hearing on November 13, 1968, at which time appellant presented an Affidavit of Default and application for a Peremptory Writ of Prohibition. The court denied the motion for summary relief and treated the proceedings as an application for trial de novo under the provisions of the Implied Consent Law. Judgment affirming revocation of appellant's license to drive was entered.

Appellant contends (1) he was entitled to a Peremptory Writ of Prohibition upon default and (2) the State failed to sustain the burden of showing compliance with all conditions precedent to a revocation of his drivers license.

A writ of prohibition may be issued 'in all cases where there is not a plain, speedy, and adequate remedy in the ordinary course of law', SDCL 21--30--2. Contrary to the Commissioner's contention the procedure provided by the Implied Consent Law does not preclude issuance of a writ of prohibition in cases of this nature.

In accordance with the Implied Consent Law the Commissioner is authorized to summarily revoke a person's permit to drive for one year upon an unverified oral or written report that the person, after request, refused to submit to a chemical analysis of his blood. Any person whose license is thus summarily canceled, suspended, or revoked may file a petition within thirty days for a hearing in the matter in circuit court. During the interim the permit to drive remains canceled, suspended, or revoked. The Implied Consent Law provides no means of arresting revocation of a license pending trial de novo in the circuit court. Consequently such...