McKillop, Matter of, 12397
| Decision Date | 28 December 1978 |
| Docket Number | No. 12397,12397 |
| Parties | In the Matter of the Revocation of the Driver's License of Donald McKILLOP. |
| Court | South Dakota Supreme Court |
Judy A. Atkinson, Asst. Atty. Gen., Pierre, for appellant State of South Dakota, Dept. of Public Safety; William J. Janklow, Atty. Gen., Pierre, on the brief.
Patrick J. Kirby, Mitchell, for respondent Donald McKillop.
This case involves the revocation of the driver's license of Donald McKillop by the Department of Public Safety (department) after an administrative hearing before a department examiner regarding McKillop's refusal to submit to a chemical breath test. McKillop petitioned the circuit court for a trial de novo pursuant to SDCL 32-23-12 and the circuit court reversed the order of the department which revoked McKillop's license for a period of one year. We reverse and remand.
On December 12, 1975, McKillop was involved in a minor automobile accident in Mitchell, South Dakota. The investigating police officer observed that McKillop's walk appeared to be unstable and further ascertained that McKillop had a strong odor of alcohol on his breath. Upon inquiry by the officer, McKillop admitted that he had been drinking. The officer then placed McKillop under arrest for driving while intoxicated, informed him of the provisions of the implied consent law, and requested that he consent to a breath test. McKillop consented to the test. Upon arrival at the police station, McKillop requested and was granted permission to make some phone calls. He then proceeded to make at least eight phone calls. Three of these calls were to a cousin who is a doctor in Minnesota, two were to another cousin who is a lawyer in Texas, and several others were to friends. After making some of these calls, McKillop decided that he would take the test but that he would do so "under protest" and he wished to have two friends present. He then ignored repeated requests by the officer to take the test and continued making phone calls to line up these "witnesses." After about forty minutes had elapsed, twice the normal waiting period, McKillop still had not taken the test and continued making "arrangements." The officer then made a determination that McKillop had refused the test and proceeded accordingly.
At McKillop's request, a hearing was conducted before a department examiner on March 5, 1976, to determine whether McKillop's driver's license should be revoked for one year...
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Department of Public Safety v. Frankman
...at the time of arrest. Matter of Knust, 288 N.W.2d 776 (S.D.1980). Anything less than a consent is regarded as a refusal. Matter of McKillop, 273 N.W.2d 126 (S.D.1978). Appellant also contends that the arresting officer was required to first administer a breath test before requesting a bloo......
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State v. Fischer
...v. Smith, 82 S.D. 20, 140 N.W.2d 603 (1966); any actions which delay, qualify or condition consent constitute a refusal, Matter of McKillop, 273 N.W.2d 126 (S.D.1978); and belligerent and uncooperative actions constitute a refusal, Dep't of Public Safety v. Weinrich, 263 N.W.2d 690 (S.D.197......
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State v. Braunesreither, 12380
...places great emphasis on the officer's "permission." This factor, however, is irrelevant. In the Matter of the Revocation of the Driver's License of McKillop, S.D., 273 N.W.2d 126 (1978); Peterson v. State, S.D., 261 N.W.2d 405 (1977). In the case at Bar, Braunesreither repeatedly would not......