Mehrer, In re, 12382

• Decision Date: 05 January 1979
• Docket Number: No. 12382,12382
• Citation: 273 N.W.2d 194
• Parties: In re Michael Richard MEHRER.
• Court: South Dakota Supreme Court

Page 194

273 N.W.2d 194

In re Michael Richard MEHRER.

No. 12382.

Supreme Court of South Dakota.

Argued Sept. 15, 1978.

Decided Jan. 5, 1979.

Judith A. Atkinson, Asst. Atty. Gen., Pierre, for plaintiff and appellant, State of South Dakota; William J. Janklow, Atty. Gen., Pierre, on the brief.

Harold H. Deering, Jr., of May, Adam, Gerdes & Thompson, Pierre, for defendant and respondent, Michael Richard Mehrer.

RAMYNKE, Circuit Judge.

On June 1, 1975, Officer Tom Taylor of the Pierre Police Department received an order from the Pierre desk sergeant to proceed to the City of Fort Pierre, South Dakota, to investigate an accident involving a personal injury. There was no law enforcement officer on call at that time in the City of Fort Pierre. Upon arriving in Fort Pierre, Officer Taylor observed a gray Ford automobile in front of the Chateau Liquor Store. He observed damage to the grill and left fender and skid marks extending from the car to a light pole about ten feet away. Fluid was running out of the radiator and the car appeared to have been in an accident. The only person in the car was respondent, who was seated behind the steering wheel in the driver's seat. The officer approached respondent and detected a strong odor of alcoholic beverage. Respondent had a bump on his forehead and was bleeding from his lower lip.

Respondent was placed in an ambulance and taken to the hospital in Pierre. He was not placed under arrest at the scene of the accident. In the emergency room of St. Mary's Hospital in Pierre, Officer Taylor formally arrested respondent on a charge of driving while under the influence of alcoholic liquor. The officer then read respondent the implied consent warning and rights and requested respondent to submit to a blood alcohol test. Respondent refused to submit to the test. Notice of this refusal was later forwarded to the Department of Public Safety, which notified respondent that his driver's license would be revoked for failure to comply with the implied consent law. Respondent thereupon requested an administrative hearing. This hearing was held on July 10, 1975, and on July 16 respondent was notified that his driving privileges would be withdrawn for failure to comply with the implied consent law.

Respondent filed a petition in circuit court requesting a trial de novo under SDCL 32-23-12. Judgment was entered in favor of respondent on a motion for summary judgment on January 13, 1976. This judgment was appealed to this court, and we remanded the matter to the trial court for trial. In re Mehrer, S.D., 252 N.W.2d 22. A trial de novo was held on June 30, 1977. This is an appeal from the resulting judgment finding that the arrest made by Officer Taylor was not a legal arrest because he was outside his jurisdiction when he investigated the accident in Fort Pierre.

We held in State v. MacDonald, S.D., 260 N.W.2d 626, that a municipal policeman may make a valid citizen's arrest outside the limits of his jurisdiction. Respondent concedes that had Officer Taylor made the arrest at the scene of the accident in Fort Pierre, it would have been a valid citizen's arrest under the MacDonald rule. The issue raised here is whether such an arrest is invalid if the officer makes the arrest after bringing the subject of the arrest in to a hospital which happens to be within the legal jurisdiction of the officer. We hold such an arrest to be valid. Officer Taylor investigated the accident, and he had probable cause to believe that respondent was the driver of the vehicle and that he was under the influence of alcoholic liquor at the time. Under SDCL 32-23-1.1 a warrantless arrest under such circumstances is authorized. State v. Townsend, S.D., 231 N.W.2d 367.

A second issue has been raised in this case. A criminal charge was brought against the respondent for driving while under the influence of alcoholic liquor. That charge was dismissed by the trial court on the grounds that there had been an illegal arrest. No appeal was taken by the state from that dismissal. Respondent now contends that the principle of collateral estoppel should prevent any further adjudication of the issue of the legality of the arrest in a license revocation proceeding.

In the case of Beare v. Smith, 82 S.D. 20, 25, 140 N.W.2d 603, 606, this court said:

The proceeding to determine or review the propriety of the cancellation, suspension, or revocation of a driver's license is separate and distinct from a criminal trial on a charge of driving while under the influence of intoxicating liquor or drugs, and the efficacy of the revocation by the Commissioner does not hinge on whether there is a conviction or acquittal on a criminal charge related to the test.

In the case of Kirby v. State, Dept. of Public Safety, S.D., 262 N.W.2d 49, the defendant was arrested for driving while under the influence of intoxicating liquor, was informed of his rights under the implied consent statute, and refused to submit to a breathalyzer test. The DWI charge was dismissed in magistrate court on the ground that the officer had no probable cause for arrest. The state proceeded with the revocation proceeding, however, and the defendant's driver's license was revoked for one year. On trial de novo, the circuit court concluded that no probable cause existed for the defendant's arrest and therefore the provisions of SDCL 32-23-10 were not available to support the revocation of his driver's license. This court reversed that decision on appeal, saying:

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. 262 N.W.2d at 51.

The court thereupon held that the fact that the officer had told the defendant he had been arrested for DWI did not preclude the officer from requiring him to submit to a chemical test, where, although the officer did not have basis to arrest for DWI, he did have probable cause to arrest the motorist for being in actual physical control of a vehicle while under the influence. In a footnote the court stated: "The dismissal of the criminal charge was, of course, irrelevant to the disposition of the revocation proceedings. Beare v. Smith, 82 S.D. 20, 140 N.W.2d 603; Blow v. Commissioner, 83 S.D. 628, 164 N.W.2d 351." 262 N.W.2d at 50.

In order to apply the principle of collateral estoppel the court must find that the parties and the issues were identical. In the present case we find the following differences:

(1) The DWI charge is criminal, the driver's license revocation is civil.

(2) The standard of proof in the DWI is beyond a reasonable doubt. In the implied consent proceedings it is preponderance of the evidence.

(3) The DWI charge is prosecuted by the state's attorney of the county where it occurs. License revocation is prosecuted by the Attorney General.

(4) The DWI charge is brought in the name of the State. License revocation is brought in the name of the Department of Public Safety.

The Department of Public Safety not only has no control over the actions taken in any criminal DWI case by the state's attorney, it does not receive notice of any decisions reached by the circuit court or local magistrate in dealing with dismissals of the criminal charges.

In State v. Pickering, 88 S.D. 548, 225 N.W.2d 98, this court held that double jeopardy would apply if the "same evidence test" could be applied. The court said:

We believe it to be the rule generally recognized that the plea of double jeopardy is available only when the separate offenses are in substance the same, so that the evidence which proves the one would prove the other and if an essential element of one is not necessarily present in the other there is no former jeopardy. 88 S.D. at 553, 225 N.W.2d at 101.

Different elements must be proven to establish guilt of DWI than to establish a violation of the implied consent law. A conviction under the DWI statute would not be sufficient to prove a violation of the implied consent law, which requires the additional proof that the person was informed of his rights under the law and that he thereafter refused to take the test. There could be a dismissal of the implied consent revocation proceeding and a conviction for DWI. What happens at the revocation hearing is not affected by what happens to the DWI charges. Beare v. Smith, supra.

We conclude, therefore, that the principle of collateral estoppel is inapplicable to the issues in this case.

The judgment appealed from is reversed and the case is remanded with directions to reinstate the order revoking respondent's driver's license.

WOLLMAN, C. J., and DUNN, J., concur.

ZASTROW and MORGAN, JJ., concur specially.

RAMYNKE, Circuit Judge, sitting for PORTER, J., disqualified.

ZASTROW, Justice (concurring specially).

Although I agree...