Peterson v. State, 12092

Citation261 N.W.2d 405
Decision Date30 December 1977
Docket NumberNo. 12092,12092
PartiesKenneth Owen PETERSON, Respondent, v. STATE of South Dakota, Appellant.
CourtSupreme Court of South Dakota

Dale L. Morman, Sturgis, for respondent.

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

PORTER, Justice.

This case involves the South Dakota Implied Consent Law. 1 The issue presented is

whether the driver's later offer to take the chemical test nullified his earlier refusal to take the test when requested to do so by the arresting officer. If his conduct did not constitute a refusal of the test, his license to drive may not be revoked.


Respondent Peterson was arrested for DWI, in violation of SDCL 32-23-1, in Sturgis, on February 2, 1976, at 7:35 p.m. The arresting officer asked him to submit to a chemical analysis of his breath, and advised him of his rights in connection with the requested test. In response, Peterson told the officer that he "didn't know what to answer." He also told the officer that he (Peterson) had to "talk to somebody" before submitting to the test. The arresting officer then took Peterson to the Meade County Courthouse in Sturgis and there, at about 7:50 p.m., again requested that he submit to the breath test and again explained his rights under the Implied Consent Law. Peterson gave essentially the same response as before. Thereupon the officer asked Peterson to submit to a chemical analysis of his blood, and again explained the implied consent rights to him. Peterson again gave the same response. The arresting officer then went to the Sturgis Police Station, leaving Peterson at the county jail in custody of the jailer. Peterson told the jailer that he wanted to make a telephone call and was permitted to call a friend, who came to the jail. After talking with Peterson at the jail, the friend telephoned an attorney, and then told Peterson to take the test. At Peterson's request, the friend telephoned the arresting officer at the Sturgis Police Station to say that Peterson would Peterson testified that he had consumed six glasses of beer in the approximately two hours before his arrest. The circuit court found as a fact that "it would take twenty minutes to prepare for the (breathalyzer) test which would leave one hour from the first time the request was made for the test until the petitioner (Peterson) himself requested to take the test."

take the test. The arresting officer replied that it was too late. No test was given.

The circuit court reviewed the written transcript of testimony given before the administrative hearing officer and then entered findings and conclusions that Peterson's conduct did not constitute a test refusal and that his license was, therefore, not subject to revocation.

The facts in this case are essentially undisputed, save only Peterson's claim that it was an hour, and the State's claim that it was an hour and twenty-three minutes, between the initial test request by the arresting officer and the time the officer was advised Peterson would take the test. Our decision would be the same regardless of which version is accepted.

Peterson does not question that (1) there was probable cause for his arrest for DWI under SDCL 32-23-1; (2) that after his lawful arrest the arresting officer requested that he submit to a chemical analysis of the type authorized under SDCL 32-23-10; and (3) that the officer properly advised him of his rights in connection with the requested test and of the consequences of his failure to take the test.

Under this record we regard the issue before us as solely one of law. Upon the State's appeal from the judgment of the circuit court we hold that Peterson's admitted conduct constituted, in law, a refusal of the test, and we reverse the judgment for the reasons which follow.


Our implied consent statute was enacted in 1959. 1959 S.D. Sess. Laws, Chapter 264. In 1966 we said:

Implied consent statutes, such as we have, are designed to combat the increasing menace and danger caused by drunken drivers using the public highways and their elimination or control presents a most perplexing problem to law enforcement officers and to the courts. The legislative purpose behind such statutes is clear. The right to drive being a privilege granted by the state it has, for the protection of the public, imposed conditions on that privilege; one being that a person consent to a chemical analysis under the conditions specified in the statutes. Once the conditions of the statute are met, refusal to submit to the test results in mandatory loss of license. (citations omitted) Beare v. Smith, 82 S.D. 20, 25, 140 N.W.2d 603, 606 (1966).

In applying our Implied Consent Law to the issue here, we should adopt that construction most likely to achieve the objective sought, which is "a fair, efficient and accurate system of detection and prevention of drunken driving. . . . The immediate purpose of . . . the implied consent (law) is to obtain the best evidence of blood alcohol content at the time of the arrest of a person reasonably believed to be driving while intoxicated." Zidell v. Bright, 264 Cal.App.2d 867, 869, 71 Cal.Rptr. 111, 112-13 (1968).

The "best evidence of blood alcohol content" is furnished by a chemical test of the type provided for in our law. However, it is a "well-established rule that the probative value of a chemical test for intoxication diminishes with the passage of time." Ent v. State, Department of Motor Vehicles, 265 Cal.App.2d 936, 940, 71 Cal.Rptr. 726, 729 (1968). "We are told the percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system." Blow v. Comm. of Motor Vehicles, 83 S.D. 628, 634, 164 N.W.2d 351, 354 (1969), quoting from Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). "Such being true, the longer the test (is) delayed the more favorable the situation would become for the subject."

Toms v. State,95 Okl.Cr. 60, 68, 239 P.2d 812, 820 (1952). Therefore, "(c)learly implied in the statute is the requirement that one of its described tests be submitted to and completed expeditiously; otherwise the purpose of the law would be frustrated." Smith v. Cozens, 25 Cal.App.3d 300, 302, 101 Cal.Rptr. 787, 788 (1972). "There is no sound reason to give the driver the opportunity to delay the test to his benefit contrary to the purpose of the test and the statute to obtain as accurate an indication of his condition as possible. See Donigan, Chemical Tests and the Law 45 (2d ed. 1966); Erwin, Defense of Drunk Driving Cases § 15.03 (3rd ed. 1972); . . ." Harlan v. State, N.H., 308 A.2d 856, 858 (1973).


In the case before us Peterson argues that he did not delay the test for an unreasonable length of time. To support his contention he cites Lund v. Hjelle, 224 N.W.2d 552 (N.D.1974). In the Lund case counsel for commissioner Hjelle had conceded that "a chemical test two hours after the arrest could have been extrapolated and would be accurate." Id. at 557. 2

We note the process of extrapolation involves expert testimony in which the witness uses the known rate of average elimination of blood alcohol in the average person, plus the test result in the particular case, and reaches "a fairly reasonable estimate" of the percentage of blood alcohol in the average person at the time of the event, if the average person had the blood alcohol concentration shown by the particular test involved. If, because of a delay caused by the driver, the chemical test ultimately taken does not show at least a 0.10% Blood alcohol, the State suffers prejudice because resort to extrapolation introduces the problem of proving that the defendant on trial is an "average person." One purpose behind the presumption statute, SDCL 32-23-7(3), 3 is to reduce the number of DWI cases in which DWI must be proven by resort to extrapolation testimony. 4 We decline to follow the reasoning of the majority in Hjelle, supra. Essentially the same contention Peterson advances here, for which he cites Hjelle, has been rejected in California, Zidell v. Bright, 264 Cal.App.2d 867, 869, 71 Cal.Rptr. 111, 112 (1968), and in New Hampshire, Harlan v. State, N.H. 308 A.2d 856, 858 (1973).


The chemical testing system provided under implied consent laws is reasonable for both the driver and the State. A chemical test, properly conducted, is the best available method of determining the blood alcohol content of the driver, which, in turn, is accepted as the most reliable method of determining whether the driver is or is not under the influence of intoxicating liquor.

"( T)he need of a scientific means of determining with certainty the degree of intoxication resulting from the amount of alcohol in the blood, in order to eliminate guesswork and speculation, particularly in so-called 'borderline cases' " was recognized before 1951. People v. Bobczyk, 343 Ill.App. 504, 509, 99 N.E.2d 567, 570 (1951). In 1957, a California court stated: "The value of such objective scientific data of intoxication to supplement the fallible observations by humans of behavior seemingly symptomatic of intoxication cannot be disputed." People v. Sudduth, 65 Cal.2d 543, 546, 55

Cal.Rptr. 393, 395, 421 P.2d 401, 403 (1967). This was particularly true since "(m)edical science recognizes sixty pathological conditions which produce symptoms similar to those produced by alcohol, . . ." People v. Bobczyk, 343 Ill.App. 504, 510, 99 N.E.2d 567, 570 (1951). " 'Chemical tests eliminate mistakes from objective observation alone, and they disclose the truth when a driver claims that he has drunk only a little and could not be intoxicated. They protect the person who has not been drinking to excess but has an accident and has the odor of alcohol on his breath. They save a person from (a) drunken driving charge when his...

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