State v. Batterman

Decision Date17 July 1961
Docket NumberNo. 9882,9882
Citation79 S.D. 191,110 N.W.2d 139
PartiesSTATE of South Dakota, Plaintiff and Respondent, v. Helmuth BATTERMAN, Defendant and Appellant.
CourtSouth Dakota Supreme Court

George W. Wuest of Danforth, Bleeker & Carlson, Mitchell, for defendant and appellant.

A. C. Miller, Atty. Gen., Gerald L. Reade, Asst. Atty. Gen., for plaintiff and respondent.

SMITH, Presiding Judge.

Defendant stands convicted of the offense of operating a motor vehicle under the influence of alcoholic liquor proscribed by SDC 1960 Supp. 44.9922. His appeal presents two propositions which will receive separate statement and consideration.

The first contention of defendant deals with a motion to suppress all evidence of a chemical test of the alcoholic content of his blood. Such a chemical test of the blood of defendant, withdrawn by a qualified doctor shortly after his arrest, revealed an alcoholic content indicating defendant unquestionably was then under the influence of alcoholic liquor. Other testimony bearing on the issue was in conflict. Prior to the trial the defendant made a motion for an order suppressing all evidence of this chemical test on the ground that the same was made in violation of SDC 1960 Supp. 44.0302-2, commonly known as the implied consent statute. It is urged that the court erred in overruling defendant's motion to suppress.

The pertinent provisions of SDC 1960 Supp. 44.0302-2 read as follows:

'Any person who operates any vehicle in this state shall be deemed to have given his consent to a chemical analysis of his blood, urine, breath or other bodily substance for the purpose of determining the amount of alcohol in his blood, as provided in SDC 1960 Supp. 44.0302-1, provided that such test is administered at the direction of a police officer having reasonable grounds to believe such person to have been driving under the influence of alcoholic liquor and that such person has been charged with a traffic violation. Such person shall be requested by said officer to submit to such analysis and shall be advised by said officer of his right to refuse to submit to such analysis and the applicable provisions of this section in the event of such refusal with respect to the revocation of such person's driving permit. If such person, after request and explanation as hereinbefore provided, shall refuse to submit to such chemical analysis, then such test shall not be given. In such event, the Commissioner of Motor Vehicles shall revoke for one year his permit to drive and any nonresident operating privilege. * * *' Emphasis supplied.

The facts are not in dispute. At the time of his arrest defendant was informed of the nature of the charged against him. Thereafter and before a formal charge was made or filed, request was made by the officer who had him in charge that he submit to a chemical test of his blood. He was then advised he could refuse to submit. Although reluctantly, he consented to submit. His consent was not coerced. However, the officer making the request did not explain the provisions of the act which would be applicable in the event defendant refused to submit to the requested test.

Predicated upon the words of the implied consent statute we have emphasized supra, defendant urges that consent to the test of his blood was illegally obtained for the reason a full explanation of the provisions of the act was not made to him by the officer at the time he requested defendant to submit to such a test, and that the request and test was made before a formal charge had been filed, and hence the test was illegal and void. Whether such a legislative intention should be implied from either or both of the provisions to which defendant points is the problem for solution.

In prosecutions for driving while under the influence of intoxicating liquor, the admissibility in evidence of testimony as to the concentration of alcohol in the blood of defendant, as revealed by chemical analysis, has rested on a statutory foundation in this jurisdiction since the enactment of Ch. 42, Laws 1949, codified as SDC 1960 Supp. 44.0302-1. The implied consent statute, here under consideration, was not enacted until 1959 as Ch. 264, Laws 1959.

The emphasized words that 'such person has been charged with a traffic violation' appear in the first sentence of the act which deals with the circumstances giving rise to an 'implied consent' to the analysis of the bodily substances of a suspected driver. If it be assumed, however, that the legislature intended those words to have some relation to an express voluntary consent to such a test, very practical reasons persuade us that defendant's contention is not sound. To hold that the legislature intended a request and test could not be made until a formal charge had been filed, would to hold that it intended to incorporate a requirement which, in a considerable volume of instances, would defeat its purpose. In those instances, the lapse of time involved before a formal charge could be lodged would permit elimination from the system of the suspect of all or a portion of its alcoholic content. For this reason we are of the opinion that the word 'charged' comprehends either a formal charge or the informal charge of an arresting officer.

The emphasized words 'Such person shall be requested by said officer to submit to such analysis and shall be advised by said officer of his right to refuse to submit to such analysis and the applicable provisions of this section in the event of such refusal with respect to the revocation of such person's driving permit' are more directly related to a voluntary consent, because they describe advice the officer is directed to give in requesting such a consent. It might be contended with some show of reason that this direction for advice as to the right to refuse to submit and of the sanction such a refusal would entail was incorporated in the act as a directory means of inducing the desired voluntary consents and without any intention of affecting the validity of voluntary consents received in the absence of the directed explanation. Cf. People v. Ward, 307 N.Y. 73, 120 N.E.2d 211. We are not confronted with so comprehensive a question. The defendant was informed that he had a right to refuse to submit. Hence, whether the legislature intended an express consent to be invalid, if received in the absence of an explanation of the penalty attached to a refusal to submit, is the narrow question before us.

From a cursory consideration of this act it seems obvious the lawmakers did not intend one to be subject to the penalty of a revocation of his driver's privilege unless he be advised that a refusal of the request to submit to the test will subject him to that penalty. However, nothing but the letter of the act offers any support for the contention that the consent of one who had been advised of his right to refuse to submit to the test was intended to be invalidated because he had not been told that had he refused to submit he would have had his privilege to drive revoked. Because we can conceive of no reason for believing the legislature intended such a result, we are of the view that such an intention cannot soundly be implied from the mere letter of the quoted language. Therefore, we hold the contention untenable.

The second contention is that the court erred in its instruction to the jury that if there is more than .15 per cent by weight of alcohol in the defendant's blood, it shall be presumed that he was under the influence of intoxicating liquor. This position of defendant is founded upon the contention that the statutory presumption to which the instruction makes reference does not obtain in a prosecution brought under Ch. 246, Laws 1953, codified as SDC 1960 Supp. 44.9922 under which this prosecution was brought.

It is the wording of Ch. 42, Laws 1949, codified as SDC 1960 Supp. 44.0302-1, which supplies the principal predicate for this contention of defendant. We elect to quote the title and the body of this chapter. It reads:

'An Act Entitled, An Act Relating to the Driving of Any Motor Vehicle in This State By a Person in an Intoxicated Condition and Providing a Method for Determining the Existence or Nonexistence of Such Intoxicated Condition.'

'Section 1. Persons under the influence of intoxicating liquor or of drugs. It is unlawful and punishable for any person who is under the...

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18 cases
  • State v. Hanusiak
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    ...912, 82 S.Ct. 1259, 8 L.Ed.2d 405; Prucha v. Dept. of Motor Vehicles, 172 Neb. 415, 110 N.W.2d 75, 88 A.L.R.2d 1055; State v. Batterman, 79 S.D. 191, 110 N.W.2d 139; Timm v. State, 110 N.W.2d 359 (N.D.); State v. Hedding, 122 Vt. 379, 172 A.2d 599; note, 88 A.L.R.2d 1064. The objective of s......
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    ...technician, registered nurse, or medical technician or medical technologist to administer such test * * *.' In State v. Batterman, 79 S.D. 191, 110 N.W.2d 139, the defendant driver, who had consented to submit to a blood test after being advised by the arresting officer that he had the righ......
  • State v. Spry, 11053
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    ...be informed of any more than that he has the right to refuse and that his license will be suspended if he does. State v. Batterman, 1961, 79 S.D. 191, 110 N.W.2d 139. The defendant, however, makes the further contention that his motion to suppress should have been sustained because the bloo......
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