Rans v. State, Dept. of Commerce and Regulation, 14876

• Decision Date: 25 October 1985
• Docket Number: No. 14876,14876
• Citation: 390 N.W.2d 64
• Parties: In the Matter of Dewey S. RANS, Petitioner and Appellee, v. STATE of South Dakota, DEPARTMENT of COMMERCE and REGULATION, Respondent and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 64

390 N.W.2d 64

In the Matter of Dewey S. RANS, Petitioner and Appellee, v. STATE of South Dakota, DEPARTMENT of COMMERCE and REGULATION, Respondent and Appellant.

No. 14876.

Supreme Court of South Dakota.

Considered on Briefs Oct. 25, 1985.

Decided July 16, 1986.

Richard Sommers of Robert G. Fite Law Office, Brookings, for petitioner and appellee.

Sherri L. Sundem, Asst. Atty. Gen., Pierre, for respondent and appellant; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.

MORGAN, Justice.

Appellant, State of South Dakota (State), appeals from a decision of the trial court which reversed the revocation of the driver's license of appellee Dewey S. Rans (Rans). We affirm the decision of the trial court.

On June 30, 1984, Rans was riding his motorcycle from Aberdeen, South Dakota, to Britton, South Dakota, to attend the centennial celebration in Britton. While en route, Rans encountered mechanical problems with his motorcycle and was forced to attempt repairs along the roadside. His difficulty was reported by a passerby to the officials at the Marshall County Courthouse in Britton.

Trooper Liknes and a deputy sheriff were dispatched to Rans' location. As the law enforcement personnel neared the reported location, they noticed a weaving motorcycle approaching. Trooper Liknes activated the red lights on his patrol car, whereby the motorcycle driver, Rans, immediately pulled his vehicle to the side of the road and stopped. Trooper Liknes approached Rans and noticed that he was unsteady on his feet and that he had an odor of alcohol about him. At that time, the trooper asked Rans to perform the heel-to-toe walking test. Rans did not touch his heel to toe as directed and he was unsteady on his feet according to the trooper. Trooper Liknes sensed increasing frustration on the part of Rans and in order to avoid a confrontation on the highway he asked Rans to place himself in the patrol car. While Rans was in the patrol car, Trooper Liknes administered the preliminary breath test (PBT). The indicating light on the PBT turned red, which indicated that Rans had over .10 percent alcohol in his blood. At this point, Trooper Liknes made the decision to arrest Rans and began reading him the implied consent advisory. Before he could finish, however, Rans exited the vehicle.

Rans was brought back to the car with the assistance of several law enforcement personnel and transported to the Marshall County Jail. After several scuffles, Rans was placed in a jail cell. There is no dispute that he was very uncooperative and hostile while being transported to the jail and while at the jail. He settled down somewhat and was allowed to make a requested telephone call. Yet another scuffle ensued and Rans was once again placed in the jail cell. Trooper Liknes then left the jail to attend to other business. It is undisputed that Rans was never read the entire implied consent warning by Trooper Liknes or any other law enforcement officer. Trooper Liknes, however, later filed a form which indicated that Rans had refused the chemical analysis after being read his implied consent warning.

Following an administrative hearing, the Department hearing officer entered an order revoking Rans' driver's license. Upon appeal and trial de novo pursuant to SDCL 32-23-12, the trial court reversed the Department's decision, holding that the trooper had not substantially complied with the implied consent advisory. State thereupon instituted this appeal.

It is State's major contention that Rans' belligerent and uncooperative actions upon his arrest for DWI constituted a refusal to submit to a chemical analysis under SDCL 32-23-11 and justified the revocation of his driver's license. Although we certainly do not condone the actions of Rans upon his arrest, the record is clear that no law enforcement personnel ever read Rans the implied consent advisory. This failure constitutes a violation of SDCL 32-23-10, which reads in pertinent part:

The person shall be requested by the officer to submit to the analysis and shall be advised by the officer that:

(1) If he refuses to submit to the chemical analysis, none may be given;

(2) If he refuses to submit to the chemical analysis, his driver's license shall be revoked for one year, unless pursuant to Sec. 32-23-11.1 he pleads guilty to a violation of Sec. 32-23-1 prior to a revocation order being issued; and

(3) He has the right to have a chemical analysis performed by a technician of his own choosing at his own expense, in addition to the test requested by the officer.

(Emphasis added.)

State claims that Rans' belligerent and uncooperative actions constituted a refusal to take the test. This claim falls wide of the mark. In support of this position, State cites Department of Public Safety v. Weinrich, 263 N.W.2d 690 (S.D.1978). In Weinrich, the defendant was belligerent and uncooperative and interrupted the officer while he was giving him the implied consent advisory. The crucial distinguishing point between Weinrich and the case at hand is that upon interruption the officer in Weinrich again began to read the implied consent advisory and completed the reading. In this case, Trooper Liknes unilaterally decided that Rans would not listen to the implied consent advisory. He also filled out the refusal form. Apparently Trooper Liknes...