Kirby v. State, Dept. of Public Safety, 12138

• Citation: 262 N.W.2d 49
• Decision Date: 25 January 1978
• Docket Number: No. 12138,12138
• Parties: Charles W. KIRBY, Plaintiff and Respondent, v. STATE of South Dakota, DEPARTMENT OF PUBLIC SAFETY, Defendant and Appellant.
• Court: Supreme Court of South Dakota

Page 49

262 N.W.2d 49

Charles W. KIRBY, Plaintiff and Respondent, v. STATE of South Dakota, DEPARTMENT OF PUBLIC SAFETY Defendant and Appellant.

No. 12138.

Supreme Court of South Dakota.

Jan. 25, 1978.

Thomas G. Fritz, of Lynn, Jackson, Shultz, Ireland & Lebrun, Rapid City, for plaintiff and respondent.

Judith A. Atkinson, Asst. Atty. Gen., Pierre, for defendant and appellant; William J. Janklow, Atty. Gen., Pierre, on the brief.

WOLLMAN, Justice.

The state appeals from a judgment of the circuit court that set aside an order entered by the Department of Public Safety revoking respondent's driver's license. We reverse and remand.

On the evening of March 28, 1976, two officers of the Rapid City Police Department observed respondent slumped over asleep behind the steering wheel of his vehicle, which was parked with the left wheels on the traveled roadway portion of a street near a warehouse in the city. The parking lights were on and the engine was running. In the process of checking respondent's driver's license, one of the officers noticed the odor of alcohol on respondent. Respondent did not perform satisfactorily on three field sobriety tests administered by the officer, and after some delay, during which the officers offered respondent the opportunity of returning to his home with his wife, whom the officers had called at respondent's request, respondent was informed that he was under arrest for driving while intoxicated. After being fully informed of his rights under the implied consent statute, SDCL 32-23-10, respondent refused to submit to a breathalyzer test.

The driving while intoxicated charge was dismissed by the magistrate court on the ground that the officers had no probable cause to arrest respondent on that charge. The state proceeded with the revocation proceedings, however, and respondent's driver's license was ultimately revoked for a period of one year. ^*

SDCL 32-23-1 provides in part:

"A person shall not drive or be in actual physical control of any vehicle while:

(2) Under the influence of an alcoholic beverage."

SDCL 32-23-10 provides in part "Any person who operates any vehicle in this state shall be deemed to have given his consent to a chemical analysis of his blood, urine, breath, or other bodily substance for the purpose of determining the amount of alcohol in his blood, as provided in § 32-23-7, provided that such test is administered at the direction of a law enforcement officer having lawfully arrested such person for a violation of § 32-23-1."

SDCL 32-23-11 provides:

"If any person described in § 32-23-10, after request and explanation as therein provided, shall refuse to submit to such chemical analysis, then such test shall not be given. In such event after opportunity for hearing pursuant to chapter 1-26 if hearing is demanded, if the department shall find that the law enforcement officer complied therewith and the refusal was made by that person then it may revoke for one year his license to drive and any nonresident operating privileges he may have in his possession or may allow such driver to drive under restrictions which may be imposed by the department."

The circuit court concluded that no probable cause existed for respondent's arrest and that therefore the provisions of SDCL 32-23-10 were not available to support the revocation of respondent's license. We do not agree. Even though the officers may not have had authority under SDCL 32-23-1.1 to arrest respondent for driving while intoxicated in view of the fact that they did not observe respondent driving and because he was not involved in a traffic accident, the officers could have arrested him for being in actual physical control of a vehicle while under the influence of alcoholic beverage, SDCL 32-23-1(2), supra, for that violation clearly occurred in their presence.

In State v. Webb, 78 Ariz. 8, 274 P.2d 338, a driver was found asleep with his hands and head resting on the steering wheel of his idling truck, which was found in the traffic lane of a street. In holding that these facts justified a finding that defendant was in actual physical control of his vehicle, the Arizona Supreme Court stated:

"An intoxicated person seated behind the steering wheel of a motor vehicle is a threat to the safety and welfare of the public. The danger is less than that involved when the vehicle is actually moving, but it does exist. While at the precise moment defendant was apprehended he may have been exercising no conscious volition with regard to the vehicle, still there is a legitimate inference to be drawn that defendant had of his own choice placed himself behind the wheel thereof, and had either started the motor or permitted it to run. He therefore had the 'actual physical control' of that vehicle, even though the manner in which such control was exercised resulted in the vehicle's remaining motionless at the time of his apprehension." 274 P.2d at 340.

In Hughes v. State, Okl.Cr., 535 P.2d 1023, the defendant driver was found seated asleep in the front seat of his automobile, which was parked at a ninety degree angle on a highway with the keys in the ignition. In affirming defendant's conviction, the Oklahoma Court of Criminal Appeals stated:

"It is our opinion that the legislature, in making it a crime to be in 'actual physical control of a motor vehicle while under the influence of intoxicating liquor,' intended to enable the drunken driver to be apprehended before he strikes. . . .

We believe that an intoxicated person seated...