State v. Hartman

• Decision Date: 07 July 1977
• Docket Number: No. 11902,11902
• Citation: 256 N.W.2d 131
• Parties: STATE of South Dakota, Plaintiff and Respondent, v. Bruce HARTMAN, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 131

256 N.W.2d 131

STATE of South Dakota, Plaintiff and Respondent, v. Bruce HARTMAN, Defendant and Appellant.

No. 11902.

Supreme Court of South Dakota.

July 7, 1977.

John P. Guhin, Asst. Atty. Gen., Pierre, for plaintiff and respondent; William J. Janklow, Atty. Gen., Pierre, on the brief.

T. R. Pardy of Mumford, Protsch, Sage & Pardy, Howard, for defendant and appellant.

ZASTROW, Justice.

The defendant, Bruce Hartman, appeals from his conviction of second degree manslaughter under SDCL 22-16-21 (hereinafter referred to as "DWI manslaughter") for the death of Beverly Schulte in a traffic accident.

On September 11, 1975, the decedent was a passenger in an automobile owned and operated by the defendant. The one-car accident occurred on Highway 37 as the defendant drove north from Mitchell, South Dakota, and crossed a bridge near the Lake Mitchell spillway. The defendant testified that as he crossed the bridge his speed was 45 miles per hour, the posted speed limit. Just beyond the bridge, a curved concrete median separates the traffic lanes. The defendant's car struck the median curb, skidding along the curb over 140 feet when the left wheels apparently jumped the curb and onto the median for another 140 feet. The car then returned to and across the traffic lane, leaving skid marks for a distance of over 200 feet until it left the highway, and was airborne for a distance of more than 30 feet. The car slid sideways into the ditch some 126 feet, then traveling another 60 feet before hitting a board fence along the highway right-of-way. After striking the fence, the car then spun and continued backwards some 70 feet until it struck a large wooden utility pole.

Officer Reinesch of the Mitchell Police Department was advised of the accident at 12:53 a. m. When he arrived at the accident scene, he found Beverly Schulte and Marjean Strand, a second passenger in the defendant's car, lying on the ground some 70 feet from the defendant's car. Both girls were quickly removed by ambulance to the hospital.

Officer Reinesch took the defendant to the police station. Based upon his observations of the defendant, Officer Reinesch placed him under arrest for driving while under the influence of an alcoholic beverage (SDCL 32-23-1, hereinafter referred to as DWI). The arrest occurred at the police station at 1:15 a. m. He advised defendant of his constitutional rights and inquired whether the defendant would consent to a blood test. The defendant agreed to do so. The defendant and Officer Reinesch proceeded to the hospital where a blood sample was taken at 2:05 a. m. by a nurse at the direction of Officer Reinesch. The blood sample was mailed shortly thereafter to the State Chemical Laboratory in Vermillion, South Dakota. (The chemical analysis conducted at the state laboratory revealed a blood alcohol level of .12%.)

Although the record is unclear, it appears that the defendant was returned to the police station. At that time, Officer Reinesch was advised that Beverly Schulte had died as a result of her injuries received in the accident. He advised defendant that he was being further arrested for second degree manslaughter.

Prior to the trial, the defendant moved to suppress the blood sample and the test results and any evidence relating thereto. At the trial, these objections were again presented to the court. Although several grounds for the inadmissibility were presented to the trial court, the defendant argues only one on appeal. Defendant contends that the failure of Officer Reinesch to advise the defendant of his right to refuse to give a blood sample under SDCL 32-23-10, ¹ 32-23-11, ² and 32-23-12 ³ (hereinafter referred to as "implied consent statutes") ⁴ renders the sample and results of such test inadmissible.

The defendant relies exclusively upon this court's decision in State v. Buckingham, 1976, S.D., 240 N.W.2d 84, which held that breath and blood test results were inadmissible in a DWI prosecution where it is shown that the arresting officer has failed to comply with the implied consent statutes. The defendant contends that because SDCL 32-23-10 refers to SDCL 32-23-7 ⁵ which in turn refers to the DWI-manslaughter statute (SDCL 22-16-21), ⁶ noncompliance with the implied consent statutes renders the blood sample and test results inadmissible in this prosecution for DWI-manslaughter.

The Buckingham decision was without the benefit of argument from the state on the question of whether use of the "exclusionary rule" was necessary where there is a violation of the implied consent statutes. Upon further consideration, this court feels that it is necessary to modify the Buckingham decision which approved the application of the exclusionary rule to bodily substances samples and test results taken in violation of the implied consent laws.

Our consideration of the implied consent statutes must be prefaced upon the United States Supreme Court's decision in Schmerber v. California, 1966, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908. 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, ⁷ (2) by a reliable and accepted method of obtaining such sample, ⁸ (3) in a reasonable, medically approved manner, ⁹ 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.

The exclusionary rule is a judicially created means of protecting the rights of the citizens under the Fourth Amendment ¹⁰ and Art. VI, § 11 of the South Dakota Constitution ¹¹ as a deterrent to unlawful police conduct. However, evidence obtained in violation of statutory rights is not inadmissible per se unless the statutory rights are of constitutional proportions or there exists no other method of deterring future violations of the rights which the legislature has granted to its citizens. People v. Brannon, 1973, 32 Cal.App.3d 971, 108 Cal.Rptr. 620; State v. Valdez, 1977, 277 Or. 621, 561 P.2d 1006.

A review of our implied consent statutes reveals the intent of the legislature to extend to the operators of motor vehicles a right beyond those embodied within the Fourth Amendment or Art. VI, § 11, South Dakota Constitution, i. e., the right to refuse to submit to a chemical test of their bodily substances for a determination of blood alcohol content. In return for that statutory right, the state is provided with several benefits in its efforts to identify, prosecute and remove intoxicated drivers from our highways. (1) Any person operating a motor vehicle is deemed to have impliedly consented to a withdrawal of bodily substances for a chemical test. (2) In DWI and DWI-manslaughter prosecutions, test results of samples withdrawn in compliance with the implied consent law give rise to certain presumptions of intoxication based upon the blood alcohol content. (3) If the operator withdraws his implied consent, his driving privileges may be revoked or suspended for a period up to one year.

Our implied consent law does not provide that the bodily substance sample or test results are inadmissible at a subsequent prosecution where the sample is obtained without compliance with the implied consent statutes, as some states have done. See People v. Todd, 1975, 59 Ill.2d 534, 322 N.E.2d 447. However, it appears that the implied consent statutes within themselves provide a sufficient deterrent to violation of the implied consent statutes by police officers without excluding this highly probative evidence. ¹²

If there is not substantial compliance with the implied consent statutes, the department of public safety cannot revoke or suspend the operator's driving privileges for refusing to submit to such tests. Furthermore, noncompliance with the implied consent statutes, although not making the test sample and test results inadmissible, results in a forfeiture of the statutory presumptions of SDCL 32-23-7. Therefore, the physiological effects of the blood alcohol content upon the defendant must be proven by the testimony of a properly qualified expert, ¹³ not by statutory presumptions. As expressed in State v. Spry, 1973, 87 S.D. 318, 207 N.W.2d 504, the jury should only be instructed concerning the presumption of intoxication where properly administered test results are available. Proper administration requires substantial compliance with the implied consent statutes. In this case, there was no compliance with the implied consent statutes; however, all of the Fourth Amendment requirements of Schmerber were met, i. e., a lawful arrest, probable cause, a reliable method, and a reasonable, medically accepted removal of defendant's blood. The blood sample and the test results were therefore admissible but not the subject of the statutory presumptions of physiological effects of blood alcohol content.

Here, the defendant not only did not object to the court's instruction as to the statutory presumptions but conceded that if the blood sample and the test results were admissible, the instruction had to be given. The failure of the defendant to object to such instruction waived any error in its submission. SDCL 15-6-51(b); SDCL 23-42-6(5); State v. Barr, 1975, S.D., 232 N.W.2d 257.

The defendant argues that the evidence was insufficient and that the trial court erred in not granting his motions for dismissal, for directed verdict, or for a new trial.

"In determining the sufficiency of the evidence on appeal the only question presented to this court is whether or not there is evidence in the record which, if believed by the jury, is sufficient to sustain a finding of guilty beyond a reasonable doubt." State v. Shank, 1975, S.D., 226 N.W.2d 384.

The evidence was sufficient to sustain the verdict. The evidence shows that the defendant drove his car against the concrete...