State v. Bunnell, No. 13346

CourtSupreme Court of South Dakota
Writing for the CourtHENDERSON; FOSHEIM; WOLLMAN; WOLLMAN
Citation324 N.W.2d 418
PartiesSTATE of South Dakota, Plaintiff and Appellee, v. Derald D. BUNNELL, Defendant and Appellant. . Considered on Briefs
Decision Date09 December 1981
Docket NumberNo. 13346

Page 418

324 N.W.2d 418
STATE of South Dakota, Plaintiff and Appellee,
v.
Derald D. BUNNELL, Defendant and Appellant.
No. 13346.
Supreme Court of South Dakota.
Considered on Briefs Dec. 9, 1981.
Decided Sept. 22, 1982.

Page 419

Mikal Hanson, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.

Albert Steven Fox of Larson, Sundall, Larson & Schaub, Chamberlain, for defendant and appellant.

HENDERSON, Justice.

Appellant was tried before a jury and found guilty of driving while intoxicated in violation of SDCL 32-23-1. He appeals from his conviction. We reverse and remand.

On August 9, 1980, a police officer arrested appellant for driving while intoxicated. The officer requested appellant to submit to a blood test and advised him of the implied consent law as it had been in effect prior to July 1, 1980. The officer failed to advise appellant that if appellant refused to submit to the test he would not face a driver's license revocation hearing if he later pleaded guilty to an offense in which the results of a chemical test would have been admissible in evidence provided the plea was entered before any revocation hearing occurred. After appellant consented, he was given a blood test. The result of appellant's blood test, demonstrating a blood alcohol of .14, was admitted at trial over his objection. The jury was instructed on the statutory presumptions that arise from the test results. See SDCL 32-23-7.

Appellant argues that the blood test results were inadmissible because the officer failed to advise him that if he refused to submit to a chemical test but later pleaded guilty he could avoid a revocation hearing. 1 "Proper administration [of the implied consent

Page 420

statutes] requires substantial compliance with the implied consent statutes." State v. Hartman, 256 N.W.2d 131, 135-136 (S.D.1977). In Smith v. State, 364 So.2d 1, 9 (Ala.Cr.App., 1978), the court stated,

"Substantial compliance" with a statute means actual compliance in respect to the substance essential to every reasonable objective of the statute. Coe v. Davidson, 43 Cal.App.3d 170, 117 Cal.Rptr. 630, 633 (1974). It means that a court should determine whether the statute has been followed sufficiently so as to carry out the intent for which it was adopted. In re Rudd's Estate, 140 Mont. 170, 369 P.2d 526, 530 (1962). Substantial compliance with a statute is not shown unless it is made to appear that the purpose of the statute is shown to have been served. Kasner v. Stanmire, 195 Okl. 80, 155 P.2d 230, 232 (1945). What constitutes substantial compliance with a statute is a matter depending on the facts of each particular case. Trussell v. Fish, 202 Ark. 956, 154 S.W.2d 587, 590 (1941).

See Dunker v. Brown County Board of Education, 80 S.D. 193, 121 N.W.2d 10 (1963); Application of Megan, 69 S.D. 1, 5 N.W.2d 729 (1942). When the legislature amended SDCL 32-23-11 in 1980 it clearly intended to encourage drivers to plead guilty and accept the consequences of their driving and drinking while preserving their right to refuse to submit to a chemical test. See State v. Buckingham, 90 S.D. 198, 240 N.W.2d 84 (1976). Unless an officer substantially complies with SDCL 32-23-11 and advises a driver of his right to refuse and of the benefit of later pleading guilty, the intent of the legislature to preserve the driver's right to refuse would be ignored. Moreover, SDCL 32-23-10 plainly states that any driver shall be advised by the arresting officer of the provisions of SDCL 32-23-11. 2 The officer clearly failed to meet this requirement when he did not advise appellant of the amended provision regarding the effect of a refusal and a subsequent guilty plea. Because the legislature intended this requirement to be so much a part of...

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26 practice notes
  • State v. Horse, No. 21558.
    • United States
    • Supreme Court of South Dakota
    • April 24, 2002
    ...family, the more likely that parental, guardian or custodian notification will advance from the difficult to the impossible. Lohnes, 324 N.W.2d at 418. The officers are faced with the difficult task of identifying these parties and then the even more difficult task of effectuating their tim......
  • Marshall v. Warwick, No. 97-4022
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • December 4, 1998
    ...is a matter depending on the facts of each particular case. Wagner, 1998 SD 9, at * 7, 574 N.W.2d at 629 (quoting State v. Bunnell, 324 N.W.2d 418, 420 (S.D.1982)). In Wagner, the court determined that the process server substantially complied with South Dakota's personal service statute wh......
  • Peterson v. Hohm, No. 20975.
    • United States
    • Supreme Court of South Dakota
    • February 23, 2000
    ...to statutes of limitation. In our recent case of Wagner v. Truesdell, 1998 SD 9, ¶ 7, 574 N.W.2d 627, 629 (quoting State v. Bunnell, 324 N.W.2d 418, 420 (S.D.1982) (internal citations and quotations omitted)), we defined substantial compliance "`Substantial compliance' with a statute means ......
  • State v. Koenig, No. 13856
    • United States
    • Supreme Court of South Dakota
    • April 27, 1983
    ...The rule has been given recognition by this court in the cases of State v. Brammer, 304 N.W.2d 111 (S.D.1981), and State v. Bunnell, 324 N.W.2d 418 (S.D.1982). Yet, while this rule has now been recognized it "is not to say that every error that occurs at trial rises to the level of plain er......
  • Request a trial to view additional results
26 cases
  • State v. Horse, No. 21558.
    • United States
    • Supreme Court of South Dakota
    • April 24, 2002
    ...family, the more likely that parental, guardian or custodian notification will advance from the difficult to the impossible. Lohnes, 324 N.W.2d at 418. The officers are faced with the difficult task of identifying these parties and then the even more difficult task of effectuating their tim......
  • Marshall v. Warwick, No. 97-4022
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • December 4, 1998
    ...is a matter depending on the facts of each particular case. Wagner, 1998 SD 9, at * 7, 574 N.W.2d at 629 (quoting State v. Bunnell, 324 N.W.2d 418, 420 (S.D.1982)). In Wagner, the court determined that the process server substantially complied with South Dakota's personal service statute wh......
  • Peterson v. Hohm, No. 20975.
    • United States
    • Supreme Court of South Dakota
    • February 23, 2000
    ...to statutes of limitation. In our recent case of Wagner v. Truesdell, 1998 SD 9, ¶ 7, 574 N.W.2d 627, 629 (quoting State v. Bunnell, 324 N.W.2d 418, 420 (S.D.1982) (internal citations and quotations omitted)), we defined substantial compliance "`Substantial compliance' with a statute means ......
  • State v. Koenig, No. 13856
    • United States
    • Supreme Court of South Dakota
    • April 27, 1983
    ...The rule has been given recognition by this court in the cases of State v. Brammer, 304 N.W.2d 111 (S.D.1981), and State v. Bunnell, 324 N.W.2d 418 (S.D.1982). Yet, while this rule has now been recognized it "is not to say that every error that occurs at trial rises to the level of plain er......
  • Request a trial to view additional results

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