State v. Buckingham

Decision Date25 March 1976
Docket NumberNo. 11586,11586
Citation90 S.D. 198,240 N.W.2d 84
PartiesSTATE of South Dakota, Plaintiff and Respondent, v. Bruce F. BUCKINGHAM, Defendant and Appellant.
CourtSouth Dakota Supreme Court

Harry W. Christianson, Asst. Atty. Gen., Pierre, for plaintiff and respondent. William J. Janklow, Atty. Gen., Max A. Gors, Asst. Atty. Gen., Pierre, on the brief.

Walter J. Bradsky, of Bangs, McCullen, Butler, Foye & Simmons, Rapid City, for defendant and appellant.

WOLLMAN, Justice.

Defendant was found guilty by a jury on a charge of driving while intoxicated. He appeals from the judgment of conviction, contending that the trial court should not have admitted the results of a breathalyzer test because the investigating officer had failed to place him under formal arrest, had failed to request that he submit to such a test, and had failed to advise him of his right to refuse to submit to such test and of the consequences of such refusal. We reverse.

At approximately 12:45 a.m., July 28, 1974, Officer M. R. Collins of the South Dakota Highway Patrol received a call to investigate an accident on South Dakota Highway 34 near St. Onge, Lawrence County, South Dakota. Upon arriving at the scene, Officer Collins observed defendant standing outside his damaged pickup truck. In response to the officer's questions, defendant stated that he had struck a bridge abutment after he had swerved to the right side of the road to avoid an oncoming vehicle in his lane of travel. Officer Collins observed that defendant was confused in his directions, smelled of intoxicants, and was unsteady on his feet. Based upon these observations, Officer Collins told defendant that in his opinion defendant had had too much to drink to be driving and advised defendant that he and the officer would go to Deadwood for a breathalyzer test. Officer Collins then took defendant from the scene of the accident to Deadwood, where the breathalyzer test was administered. Although Officer Collins testified that he advised defendant of his Miranda rights at the police station in Deadwood before the test was administered, the record is clear that he did not request that defendant submit to the breathalyzer test, and he did not advise him that he had the right to refuse to submit to such test, nor of the consequences of such refusal. In fact, Officer Collins testified that:

'The only time that we advise them of the implied consent law is if they refuse to take a blood test or Breathalyzer test, then the implied consent law is read to them.'

We pass quickly over defendant's contention that because he was never placed under arrest he should not have been required to submit to the breathalyzer test. SDCL 23--22--1 provides that, 'Arrest is the taking of a person into custody that he may be held to answer for a public offense.' SDCL 23--22--9 provides that:

'When arresting a person without a warrant, a peace officer must inform him of his authority and the cause of the arrest, except when he is in the actual commission of a public offense, or is pursued immediately after an escape.'

Although it is true that Officer Collins may not have told defendant in so many words that he was placing him under arrest at the scene of the accident on a charge of driving while intoxicated, it is clear from the evidence that Officer Collins had probable cause to arrest defendant on such a charge and that he in fact took the defendant into custody at the scene and transported him to the Deadwood police station. Although law enforcement officers should comply closely with the requirements of the statutes, SDCL 23--22--9, and clearly inform a criminal suspect that he is being placed under arrest and on what charge, the failure to make such a statement did not vitiate the legal effect of the de facto arrest here where the officer in fact took defendant into his physical custody and control at the scene of the accident and made it clear to defendant that he was being taken to Deadwood for a breathalyzer test. State v. Thunder Horse, 85 S.D. 76, 177 N.W.2d 19; Application of Kiser, 83 S.D. 272, 158 N.W.2d 596.

Defendant contends that because Officer Collins failed to advise him of his right to refuse the breathalyzer test and of the consequences of such refusal as set forth in SDCL 32--23--11 and 32--23--12, the results of the breathalyzer test should not have been admitted in evidence.

SDCL 32--23--10 provides that:

'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 § 32--23--7, provided that such test is administered at the direction of a law enforcement officer having lawfully arrested such person for a violation of § 32--23--1.

'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 provisions of §§ 32--23--11 and 32--23--12 in the event of such refusal with respect to the revocation of such person's driving license.'

SDCL 32--23--11 provides that 'If any person described in § 32--23--10, after request and explanation as therein provided, shall refuse to submit to such chemical analysis, then such test shall not be given. In such event, the department of public safety shall revoke for one year his license to drive and any nonresident operating privilege he may have in his possession after opportunity for hearing pursuant to chapter 1--26 if hearing is demanded, it shall find that the law enforcement officer complied therewith and the refusal was made by that person.' SDCL 32--23--12 provides that:

'Any person whose license has been canceled, suspended, or revoked by the commissioner under the provisions of § 32--23--11 shall have the right to file a petition within thirty days thereafter for a hearing in the matter in circuit court in the county wherein such person was charged with the violation, and such court is hereby vested with jurisdiction and it shall be its duty to set the matter for trial de novo upon ten days' written notice to the department, and thereupon to take testimony and examine into the facts of the case and to determine whether the petitioner's license is subject to cancellation, suspension, or revocation under the provisions of § 32--23--11.' SDCL 32--23--13 provides in part that:

'If any operator of a motor vehicle in this state who has been requested to submit to such chemical test fails to invoke the provision in § 32--23--11 which permits him to refuse to submit to such test; then the failure to invoke such provision permitting a refusal to submit to such test shall constitute consent and authority for any authorized physician, laboratory 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 right to refuse to submit to the test, contended that because the arresting officer had failed to advise him of the consequences of such refusal the results of the test should not have been admitted at his trial. The pertinent part of the implied consent law as then in existence was substantially similar to the last paragraph of SDCL 32--23--10, supra. In rejecting defendant's contention, this court stated that:

'From a cursory consideration of this act (now SDCL 32--23--10) 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.' 79 S.D. at 195, 110 N.W.2d at 141.

Some three years later, however, without citing the Batterman case this court stated that:

'Since our statute requires it, an arresting officer is obligated to inform a driver of the consequences in the event of his refusal to submit to a test.' Chmelka v. Smith, 81 S.D. 40, 44, 130 N.W.2d 423, 425.

In the case of Beare v. Smith, 82 S.D. 20, 140 N.W.2d 603, wherein the evidence revealed that the defendant driver had been fully informed of the consequences of a refusal to submit to a blood test, this court recognized the apparent conflict in the above cited statements in the Batterman and Chmelka cases and went on to say that:

'Once the conditions of the statute are met, refusal to submit to the test results in mandatory loss of license. Chmelka v. Smith * * *.' 82 S.D. at 25, 140 N.W.2d at 606.

In State v. Spry, 87 S.D. 318, 207 N.W.2d 504, we cited the Batterman case for the proposition that:

'The statute (SDCL 32--23--10) makes no requirement that the subject be informed of any more than that he has the right to refuse and that his license will be suspended if he does.' 87 S.D. at 324, 207 N.W.2d at 507. 1

We conclude that the failure of the arresting officer to comply with the requirements of SDCL 32--23--10 rendered the test results inadmissible at defendant's trial. To the extent that the holding in State v. Batterman, supra, is to the contrary, that decision is overruled. In reaching this result, we look, as did the court in Batterman, to the letter of the law. It is difficult to see how the legislature could have been more specific...

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19 cases
  • Dudley v. State
    • United States
    • Texas Court of Criminal Appeals
    • 23 March 1977
    ...that a choice be made between submitting to the test or suffering the consequences of such refusal. See and cf. State v. Buckingham, 240 N.W.2d 84 (S.D.1976). Recently the South Dakota Supreme Court wrote: "Certainly it is unfair to create by statute a right not to submit to a chemical test......
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    ...State v. Buckingham, 90 S.D. 198, 204-5, 240 N.W.2d 84, 87 (1976) (citations omitted). See State v. Oswald, 90 S.D. 342, 241 N.W.2d 566 (1976). The fact that the option of refusing the blood-alcohol test now has an additional penalty for making that choice does not make that additional pena......
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