Siers v. Weber, 26823.

Citation851 N.W.2d 731,2014 S.D. 51
Decision Date23 July 2014
Docket NumberNo. 26823.,26823.
CourtSupreme Court of South Dakota
PartiesDonovan Craig SIERS, Plaintiff and Appellant, v. Douglas WEBER, Warden of the South Dakota State Penitentiary, Respondent and Appellee.

OPINION TEXT STARTS HERE

Mark Kadi, Minnehaha County Office of the Public Advocate, Sioux Falls, South Dakota, Attorneys for plaintiff and appellant.

Marty J. Jackley, Attorney General, Jeffrey P. Hallem, Kelly Marnette, Assistant Attorneys General, Pierre, South Dakota, Attorneys for respondent and appellee.

GILBERTSON, Chief Justice.

[¶ 1.] Petitioner and Appellant Donovan Siers filed a petition for habeas corpus alleging ineffective assistance of counsel. The petition asserted that counsel in Siers's driving under the influence conviction failed to properly advise Siers of the constitutionality of blood evidence taken incident to lawful arrest but without Siers's consent. The State moved to dismiss the petition for failure to state a claim upon which relief could be granted. The habeas court granted the motion, but issued a certificate of probable cause regarding whether Missouri v. McNeely, ––– U.S. ––––, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013), should be given retroactive effect in South Dakota. We affirm the habeas court's ruling and hold that McNeely is not given retroactive effect.

FACTS

[¶ 2.] Appellant Donovan Siers filed an amended petition for habeas corpus in May 2013. Siers's petition alleged the following: 1

[¶ 3.] Siers was arrested in Minnehaha County for driving under the influence of alcohol in May 2008. Siers refused to give a blood sample to police. He was subsequently placed in restraints and his blood was drawn without his consent and without police attempting to obtain a warrant. The blood sample was analyzed and showed Siers to have had .22 percent by weight of alcohol in his blood. The blood sample was the primary evidence supporting Siers's conviction for driving under the influence. Siers pleaded guilty to the offense, and was later convicted and incarcerated for felony failure to appear arising from the driving under the influence conviction. Siers was represented by two attorneys from the Minnehaha County Public Defender's Office. Siers asserted in his habeas petition that the attorneys failed to fully and correctly advise Siers regarding the constitutionality of the seizure of blood evidence. Siers's petition further alleged that failure of counsel to properly advise Siers was a violation of his due process rights and that the evidence would have been suppressed and the charges against him dropped had his attorneys challenged the introduction of the blood test evidence.

[¶ 4.] At the time of Siers's arrest, South Dakota case law indicated that the destruction of blood alcohol evidence by natural dissipation in the body constituted an exigent circumstance in a driving under the influence arrest, allowing for a blood draw without a warrant. However, the United States Supreme Court subsequently held in Missouri v. McNeely that the natural dissipation of alcohol in the bloodstream does not present a per se exigent circumstance justifying nonconsensual blood testing in all driving under the influence arrests. ––– U.S. at ––––, 133 S.Ct. at 1563. Siers cited McNeely before the habeas court to support his petition.

[¶ 5.] The State filed a motion to dismiss for failure to state a claim upon which relief could be granted. A hearing on the motion was held in August 2013. At the hearing, Siers argued that counsel in his driving under the influence conviction should have advised him of the constitutionality of blood evidence taken incident to arrest but without his consent, and that McNeely should be given retroactive effect. Siers also presented statistical evidence that retroactive application would not be disruptive to the judicial system. The habeas court held that McNeely should not be applied retroactively to his habeas petition, and therefore granted the State's motion to dismiss. However, the habeas court issued a certificate of probable cause to allow Siers to appeal two McNeely-related issues to this Court. On appeal, this Court is asked to determine whether McNeely created a new rule of constitutional law and whether McNeely should be given retroactive application to final convictions in South Dakota.2

STANDARD OF REVIEW

[¶ 6.] “A habeas corpus applicant has the initial burden of proof to establish a colorable claim for relief.” Steiner v. Weber, 2011 S.D. 40, ¶ 4, 815 N.W.2d 549, 551 (quoting Jenner v. Dooley, 1999 S.D. 20, ¶ 11, 590 N.W.2d 463, 468). “Habeas corpus can only be used to review (1) whether the court had jurisdiction of the crime and the person of the defendant; (2) whether the sentence was authorized by law; and (3) in certain cases whether an incarcerated defendant has been deprived of basic constitutional rights.” Id. (citation omitted). “Although we ordinarily review a habeas court's fact findings under the clearly erroneous standard, when, as here, the circuit court receives no evidence but grants the State's motion to dismiss as a matter of law, our review is de novo and we give no deference to the circuit court's legal conclusions.” Id. (citation omitted).

ANALYSIS AND DECISION

[¶ 7.] 1. Whether Missouri v. McNeely announced a new rule of constitutional law.

[¶ 8.] Our analysis of whether the decision in a particular case is given retroactive effect begins with a determination of whether the decision issues a “new rule” of constitutional law, or whether the case simply restates an “old rule.” If the decision simply restates an old rule, the rule should be applied retroactively. See Cowell v. Leapley, 458 N.W.2d 514, 518 (S.D.1990). [B]y definition, without a new rule, there is no change in the law and the question of retroactivity is immaterial.” Larsen v. Sioux Falls Sch. Dist. No. 49–5, 509 N.W.2d 703, 706 (S.D.1993) (quoting United States v. Bowen, 500 F.2d 960, 975 (9th Cir.1974)). In this case, Siers argues that the habeas court erred in determining that McNeely constituted a new rule of constitutional law. Siers asserts that McNeely merely restated the rule laid down in Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). Accordingly, Siers asks this Court to remand to the habeas court to allow Siers to argue that his trial counsel was ineffective by failing to argue that Schmerber prohibited the introduction of the blood evidence used in this case.

[¶ 9.] In Schmerber, the defendant was at a hospital receiving treatment for injuries suffered in an automobile accident when police arrested the defendant for driving under the influence. Id. at 758, 86 S.Ct. at 1829. At the direction of a police officer, the defendant's blood was drawn without a warrant or the defendant's consent and analysis of the blood was used in the State's case against him. Id. at 758–59, 86 S.Ct. at 1829. The Supreme Court upheld the warrantless blood test because the officer “might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened the destruction of evidence[.] Id. at 770, 86 S.Ct. at 1835 (citations and internal quotation marks omitted).

[¶ 10.] In 1977 this Court adopted a rule, based on Schmerber. We stated:

Schmerber held that bodily substance samples were not subject to the exclusionary rule under the Fourth Amendment if they are taken (1) incident to a lawful arrest, (2) by a reliable and accepted method of obtaining such sample, (3) in a reasonable, medically approved manner, and (4) where there is probable cause to believe that the evidence sought exists. It also held that the elimination of alcohol by natural bodily functions presents exigent circumstances which obviate the necessity of obtaining a search warrant.

State v. Hartman, 256 N.W.2d 131, 134 (S.D.1977) (footnotes omitted) (citing Schmerber, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908). This rule was regularly applied by this Court and guided the practice of law enforcement officers for decades. See, e.g., State v. Mattson, 2005 S.D. 71, ¶ 44, 698 N.W.2d 538, 552; State v. Hanson, 1999 S.D. 9, ¶ 28, 588 N.W.2d 885, 891; State v. Tucker, 533 N.W.2d 152, 154 (S.D.1995); State v. Lanier, 452 N.W.2d 144, 145 (S.D.1990); State v. Parker, 444 N.W.2d 42, 44 (S.D.1989).

[¶ 11.] In McNeely, the United States Supreme Court “granted certiorari to resolve a split of authority on the question whether the natural dissipation of alcohol in the bloodstream establishes a per se exigency that suffices on its own to justify an exception to the warrant requirement for nonconsensual blood testing in drunk-driving investigations.” –– U.S. ––––, 133 S.Ct. at 1558. The defendant in McNeely was arrested for driving under the influence and refused to provide a breath sample or blood sample. Id. at ––––, 133 S.Ct. at 1556–57. Without attempting to obtain a warrant, the police officer took the defendant to the hospital and directed a lab technician to draw the defendant's blood. Id. at ––––, 133 S.Ct. at 1557.

[¶ 12.] The defendant moved to suppress the results of the blood test, alleging a violation of his Fourth Amendment rights. Id. The trial court granted the suppression motion, concluding that the exigency exception to the warrant requirement did not apply because there were no circumstances suggesting an emergency other than the destruction of alcohol evidence in the defendant's body through natural metabolic processes. Id. The Missouri Supreme Court affirmed. The United States Supreme Court affirmed the Missouri Supreme Court in a split decision, holding that “the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant.” Id. at ––––, 133 S.Ct. at 1568.

[¶ 13.] This Court has generally relied on the United States Supreme Court's own pronouncements to determine...

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  • State v. Edwards
    • United States
    • South Dakota Supreme Court
    • August 20, 2014
    ...133 S.Ct. at 1568. The Supreme Court's holding in McNeely was a shift from this Court's previous interpretation of Schmerber. See Siers v. Weber, 2014 S.D. 51, ¶ 15, 851 N.W.2d 731, 736–37 (discussing South Dakota's pre-McNeely interpretation and application of Schmerber ). [¶ 19.] Here, Of......
  • State v. Fierro
    • United States
    • South Dakota Supreme Court
    • August 20, 2014
    ...133 S.Ct. at 1568. The Supreme Court's holding in McNeely was a shift from this Court's previous interpretation of Schmerber. See Siers v. Weber, 2014 S.D. 51, ¶ 15, 851 N.W.2d 731 (discussing South Dakota's pre-McNeely interpretation and application of Schmerber ). [¶ 29.] Here, Trooper Ka......
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    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • February 27, 2015
    ...court has held that McNeely announced a new rule of law for purposes of state habeas petitions because it “broke new ground,” Siers v. Weber, 2014 S.D. 51, ¶ 17, 851 N.W.2d 731 (S.D.2014), and for this reason Westlaw has Schmerber flagged as abrogated by McNeely as recognized in Siers. Howe......
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    • October 27, 2021
    ...the question of whether a decision in a civil case may be applied only prospectively. See Siers v. Weber, 2014 S.D. 51, ¶ 26, 851 N.W.2d 731, 739-40 (rejecting argument to apply "the civil retroactivity standard from Hohm to the criminal and habeas context"). --------- ...
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