Holland v. Parker

• Citation: 354 F. Supp. 196
• Decision Date: 15 February 1973
• Docket Number: No. CIV70-76C.,CIV70-76C.
• Parties: William J. HOLLAND, Plaintiff, v. Albert M. PARKER, Commissioner of Motor Vehicles, State of South Dakota, Defendant.
• Court: U.S. District Court — District of South Dakota

354 F. Supp. 196

William J. HOLLAND, Plaintiff, v. Albert M. PARKER, Commissioner of Motor Vehicles, State of South Dakota, Defendant.

No. CIV70-76C.

United States District Court, D. South Dakota, C. D.

February 15, 1973.

Alan L. Austin, of Austin, Hinderaker & Hackett, Watertown, S. D., for plaintiff.

A. H. Shuster, Asst. Atty. Gen., Pierre, S. D., for defendant.

Before BRIGHT, Circuit Judge, NICHOL, Chief District Judge, and BOGUE, District Judge.

OPINION OF THE COURT

NICHOL, Chief District Judge.

This three-judge court was convened at the direction of the Eighth Circuit Court of Appeals. Holland v. Parker, 469 F.2d 1013 (8th Cir. 1972). Upon appeal from the District Court of South Dakota, the Court of Appeals ruled that plaintiff, Holland, had raised a substantial constitutional question concerning South Dakota's implied consent statute, SDCL 1967, Sec. 32-23-10 to 32-23-17, as amended, and, therefore, remanded the case for further consideration of two constitutional issues: (I) Does due process require a lawful arrest as a prerequisite to invoking the South Dakota implied consent statute? (II) Is the South Dakota implied consent statute unconstitutional because it fails to provide for a hearing prior to revocation of a driver's license?

For the sake of continuity the facts of this litigation, as set forth by three separate courts, will be combined.

Shortly after midnight on August 3, 1968, the plaintiff was involved in a two-car accident in Britton, South Dakota. Approximately one-half hour later a local police officer arrived at the scene and requested that both parties accompany him to the police station. There, Holland was issued a traffic summons for driving on the wrong side of the road, a misdemeanor. SDCL 1967, Secs. 32-14-10 and 32-26-1. Based upon the provisions of the South Dakota implied consent statute, Holland was asked to submit to a blood test. According to the officer, he refused the request. The plaintiff was permitted to leave the station but, on August 30, 1968, a complaint was filed and a warrant for his arrest was issued for driving on the wrong side of the road.

The Commissioner of Motor Vehicles ordered revocation of Holland's license, on August 14, 1968, for failing to submit to the blood test. Revocation was based upon the investigating official's written report. Subsequent to revocation, Holland brought suit in the Circuit Court of Marshall County contesting revocation. Relief was denied. The Supreme Court of South Dakota affirmed. Holland v. Parker, 84 S.D. 691, 176 N. W.2d 54 (1970).

Holland initiated suit in United States District Court for the Central Division of South Dakota seeking injunctive relief pursuant to 28 U.S.C.A. Secs. 2281, 1343(3) and 42 U.S.C.A. Sec. 1983. Additionally, he asked that a three-judge court decide the constitutionality of South Dakota's implied consent law, SDCL 1967, as amended, Secs. 32-23-10 to 32-23-17. The District Court ruled that it had jurisdiction to consider the injunctive relief, but that the request for a three-judge court would be denied for failing to present a substantial question of constitutionality. Holland v. Parker, 332 F.Supp. 341 (D.S.D.1971). Holland's subsequent appeal to the Eighth Circuit Court of Appeals concluded in the remand to this three-judge court. Holland v. Parker, 469 F.2d 1013 (8th Cir. 1972).

I DOES DUE PROCESS REQUIRE A LAWFUL ARREST AS A PREREQUISITE TO INVOKING THE SOUTH DAKOTA IMPLIED CONSENT LAW?

Plaintiff contends that SDCL 1967, as amended, Secs. 32-23-10 to 32-23-17, are unconstitutional because, as construed by the South Dakota Supreme Court, the statutory word "charged" in the implied consent law has been interpreted to include an unlawful arrest, denying plaintiff due process of law. See Holland v. Parker, 84 S.D. 691, 176 N. W.2d 54 (1970); State v. Batterman, 79 S.D. 191, 110 N.W.2d 139 (1961); State v. Werlinger, 84 S.D. 282, 170 N.W.2d 470 (1969). "`(T)he word "charged" comprehends either a formal charge or the informal charge of an arresting officer' and it does not have to be a valid arrest." Holland v. Parker, 84 S.D. 691, 176 N.W.2d 54, 56 (1970). The plaintiff insists that in order for South Dakota to have an implied consent law free of constitutional challenges, not only must there be an arrest requirement prior to its invocation, but that that arrest must be lawful.

As a general rule, an arrest for a misdemeanor must be made upon a warrant, unless committed in the presence of the arresting officer. 5 Am. Jur.2d Arrest Sec. 28 (1962). Since the alleged misdemeanor with which the plaintiff was charged was not committed within the presence of the arresting officer, as required by SDCL 1967, Secs. 32-2-8, 23-22-7(1), and plaintiff was not arrested by warrant on August 3, pursuant to SDCL 1967, Chapter 23-21, he claims he was unlawfully arrested on the night of the accident. See also Burlington Transportation Co. v. Josephson, 153 F.2d 372 (8th Cir. 1946); Anderson v. Sager, 173 F.2d 794 (8th Cir. 1949). This argument is not unreasonable, and there is a significant collection of opinions to buttress the plaintiff's position. Holland v. Parker, 469 F.2d p. 1015, n. 3 (8th Cir. 1972).

A majority of the states have enacted implied consent statutes and most of them have followed New York's statute in requiring an arrest as a precondition to its application. See Note, Arrest Requirement for Administering Blood Tests, 1971 Duke L.J. 601, 605; for the District of Columbia's see Pub.L. 92-519, 86 Stat. 1016-18 (Oct. 21, 1972); State v. Towry, 26 Conn.Sup. 35, 210 A. 2d 455 (Conn.1965); State v. Cruz, 21 Utah 2d 406, 446 P.2d 307 (1968); People v. Superior Court of Kern County, 6 Cal.3d 757, 100 Cal.Rptr. 281, 493 P.2d 1145 (1972); Schutt v. MacDuff, 205 Misc. 43, 127 N.Y.S.2d 116 (1954). Schutt v. MacDuff, supra, provides the foundation for the later court's decisions in recognizing a need to place limitations on police officer's ability to request a blood test of licensed motorists. "(C)onferring upon police officers the right to make a request under the guise of authority concerning one's person without specific process and without lawful arrest clearly amounts to an unlawful infringement upon one's liberty." Id. at 127 N.Y.S.2d 127. The possibility of abuse or arbitrariness upon the part of the officer was sought to be diminished by lawful arrest requirements and constitutional due process.

As noted earlier the South Dakota Supreme Court has ruled the South Dakota implied consent statute constitutionally sufficient, requiring a formal or informal charge prior to the request for a blood test. We conclude from the statutory definition of arrest, SDCL 1967, Sec. 23-22-1, and the continued reference to the "arresting officer" in the South Dakota decisions 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 "arrest" is contemplated by SDCL 1967, Sec. 32-23-10, that section does not insist upon a lawful arrest, nor has it been interpreted to demand such.

In Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), the Fourth Amendment was found applicable to blood tests. There, within the context of a warrantless search the Supreme Court indicated that if a blood test is to be taken incident to a legal arrest, there must be probable cause, the arrest must be lawful, and there must be an emergency:

The interests in human dignity and privacy which the Fourth Amendment protects forbid any such intrusions (beyond the body's surface) on the mere chance that desired evidence might be obtained. * * * Search warrants are ordinarily required for searches of dwellings, and, absent an emergency, no less could be required where intrusions into the human body are concerned.

Id. at 769-770, 86 S.Ct. at 1835.

The language of the South Dakota statute provides for neither an emergency circumstance nor a lawful arrest, nor has it been interpreted to contain such.

Thus it would seem that if a police officer, implementing search and seizure procedures in accordance with constitutional proscriptions, cannot require a person to take a blood test without a warrant unless there is a lawful arrest and emergency circumstances, then neither could the officer demand that a licensee submit to the blood test, without these same constitutional prerequisites, when refusal would result in automatic loss of his license. If it were any other way, the Fourth Amendment protections would be rendered valueless since asserting them would result in a penalty potentially more severe than conviction for the alleged public offense.

Holland is correct in his assertion that he was not lawfully arrested prior to the request for his submission to a blood test. The authority of an officer to arrest, without a warrant, for a misdemeanor is narrowly proscribed by the limitation that the violation must be committed in his presence. The defendant contends that SDCL 1967, Sec. 32-33-2, gives the arresting officer authority for an arrest for a misdemeanor occurring outside his presence. We interpret that statute as establishing the procedure for completing the arrest of a driver apprehended in the violation of the motor vehicle code. It contemplates a previous arrest. Absent statutory provisions empowering law enforcement officers to effect a lawful arrest of a misdemeanor committed outside their presence, as for example in Combes v. Kelly, 2 Misc.2d 491, 152 N.Y.S.2d 934 (1956), the officers must proceed upon a complaint and warrant. But see, State v. Gillespie, 100 N.J.Super. 71, 241 A.2d 239 (1968); Colling v. Hjelle, 125 N. W.2d 453 (N.D.1964).

Based upon the preceding reasons this court concludes that the Fourth Amendment requires a lawful arrest prior to a request for...