State v. Lanier, 16592

• Decision Date: 16 October 1989
• Docket Number: No. 16592,16592
• Citation: 452 N.W.2d 144
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Christopher LANIER, Defendant and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 144

452 N.W.2d 144

STATE of South Dakota, Plaintiff and Appellee, v. Christopher LANIER, Defendant and Appellant.

No. 16592.

Supreme Court of South Dakota.

Considered on Briefs Oct. 16, 1989.

Decided Feb. 28, 1990.

Frank Geaghan, Asst. Atty. Gen., for plaintiff and appellee, Roger A. Tellinghuisen, Atty. Gen., Pierre, on the brief.

Craig M. Johnson, Pennington County Public Defender's Office, Rapid City, for defendant and appellant.

MILLER, Justice.

In this appeal we affirm the trial court and hold that it is permissible for law enforcement officers to require, and to use reasonable force to obtain, a blood sample from a person arrested for third-offense driving while under the influence of alcohol or drugs.

FACTS

On July 1, 1988, defendant/appellant Christopher Lanier was stopped in Rapid City, South Dakota, by State Trooper Jorgenson and his Training Officer Trooper Nelson. The troopers had probable cause to stop Lanier's vehicle. The troopers made the following observations: (1) Lanier had difficulty locating his driver's license; (2) there was an odor of alcohol; (3) his eyes were bloodshot; (4) his face was flushed; (5) his speech was slurred; and (6) he had a "slow, staggered walk."

Lanier was asked to perform field sobriety tests, but was unable to perform any of the tests to the satisfaction of the arresting officers. He was therefore placed under arrest for driving under the influence of an alcoholic beverage (DUI), a violation of SDCL 32-23-1. After making the arrest, Trooper Jorgenson contacted State Radio requesting a driver's history and learned Lanier had two prior DUI convictions.

Subsequent to arrest, Lanier was read the Implied Consent warning and then taken to the Pennington County Jail. At the jail, he was informed that blood would be drawn for testing purposes. Initially he did not respond, but when introduced to the medical technologist who would be drawing the blood, he became argumentative and questioned the technologist's ability. The medical technologist showed Lanier his certification card. Lanier threw the card on the floor stating that he could get one of those in any bar and that he was not going to allow him to draw the blood. When the medical technologist attempted to draw the blood, Lanier resisted. It eventually took five or six officers to restrain Lanier while the blood was being drawn. ¹ Analysis of the sample indicated that Lanier's blood alcohol content had been 0.14 percent.

ISSUE

WHETHER THE TRIAL COURT ERRED IN DENYING LANIER'S MOTION TO

SUPPRESS THE BLOOD TEST RESULTS.

DECISION

The leading case which addressed the issue concerning nonconsensual blood tests is Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). In State v. Hartman, 256 N.W.2d 131 (S.D.1977), we adopted the Schmerber holding that bodily substance samples are 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. We also noted and held that the elimination of alcohol by natural bodily functions presents exigent circumstances which obviate the necessity of obtaining a search warrant. Hartman, supra (citing Schmerber, supra ).

We have not had the opportunity to address this issue since the amendment of SDCL 32-23-10 ² which now reads, in salient part:

Any person who operates any vehicle in this state is considered to have given his consent to the withdrawal of blood or other bodily substance and chemical analysis of his blood, breath or other bodily substance to determine the amount of alcohol in his blood, and to determine the presence of marijuana or any controlled drug or substance.

The person shall be requested by the officer to submit to the withdrawal of blood or other bodily substance for chemical analysis or chemical analysis of his breath and shall be advised by the officer that:

(1) If he refuses to submit to the withdrawal or chemical analysis, no withdrawal or chemical analysis may be required, unless he has been arrested for a third violation of Sec. 32-23-1, constituting a felony offense under Sec. 32-23-4 [.] (Emphasis added.)

We have, however, recently upheld the amendment to the statute against a constitutional attack in State v. Heinrich, 449 N.W.2d 25 (S.D.1989).

The only applicable prong of the Schmerber analysis Lanier raises here is whether the withdrawal of the blood was obtained in a reasonable, medically approved manner, i.e., whether (1) it is appropriate to take the blood sample in jail rather than a hospital; and (2) the force used by the officers was reasonable under the circumstances.

Lanier attempts to distinguish this case from Schmerber because in Schmerber, the blood test had taken place in a hospital and in the present case in a jail. We find this distinction to be without merit. We interpret Schmerber and its progeny to hold that blood tests are not required to take place in a hospital but rather under conditions which provide a medically approved manner for the specific purpose of drawing blood. "Such tests are a commonplace in these days of periodic physical examinations and experience with them teaches that the quantity of blood extracted is minimal, and that for most people the procedure involves virtually no risk, trauma, or pain." Schmerber, 384 U.S. at 771, 86 S.Ct. at 1836; Winston v. Lee, 470 U.S. 753, 105 S.Ct. 1611, 84 L.Ed.2d 662 (1985). A crucial factor in analyzing the magnitude of the intrusion is the extent to which the procedure may threaten the safety or health of the individual. Winston, supra.

The blood withdrawal here was performed by a certified medical technologist who has been drawing blood for twenty-one years at a rate of 10-20 every five weeks of every year. We conclude that the manner in which the blood was drawn did not threaten the health, safety or life of Lanier. This was a simple, almost painless procedure which could be performed practically anywhere without danger to the patient. ³ Requiring the officers to go one step further by having the blood drawn in the hospital would serve no useful purpose but rather would increase the risk of loss of evidence of the alcohol content in the blood and further could endanger the safety of law enforcement officers by requiring additional, unnecessary contact with a prisoner. Under these facts, we conclude that the blood withdrawal was performed in a medically approved manner. ⁴

We next address whether the force used by the law enforcement officers was within the contemplation of Schmerber and, if so, whether it was reasonable under the facts and circumstances of this case.

In South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983), the Court noted that Schmerber clearly allows a state to "force" a person suspected of driving while under the influence to submit to a blood alcohol test by virtue of the Implied Consent laws. As previously mentioned, and as indicated by statute, South Dakota grants a person the right to refuse a blood test on the first and second arrests; however, third offenders lose that right. The issue becomes, by virtue of the state's power to force someone to take a blood test, whether "force" was meant to include "physical force." Few states have enacted laws which specifically allow law enforcement to use reasonable force in the removal of evidence in felony drunk driving cases. ⁵

In Hammer v. Gross, 884 F.2d 1200, 1208 (9th Cir.1989), decided September 6, 1989, the Ninth Circuit, in a factual situation quite similar to that here, found no constitutional violations in the use of physical force in the removal of a blood sample, stating:

We think that jurisprudence also validates the particular application of force to effectuate the search and seizure which occurred in this case.

... Although we, like the California Supreme Court, recognize that the forcible removal of a blood sample from a DUI suspect will virtually always be 'unpleasant, undignified and undesirable' People v. Superior Court (Hawkins) 6 Cal.3rd at 764, 100 Cal.Rptr. at 286, 493 P.2d at 1150, it will not always be--and was not in this case--unconstitutional.

Because the amount of force applied was minimal, and did not exceed the amount necessary to effect the otherwise lawful search for and seizure of blood alcohol evidence which occurred in the circumstances of this case, we hold as a matter of law that (the officers') conduct was not 'unreasonable' within the meaning of the Fourth Amendment.

See also Carlton v. Superior Court, 170 Cal.App.3rd 1182, 216 Cal.Rptr. 890 (1985), and People v. Ryan, 116 Cal.App.3rd 168, 171 Cal.Rptr. 854, 14 A.L.R.4th 702 (1981).

Following what we believe to be the majority position, we hold that by virtue of the fact that the legislature has classified a third offense DUI as a felony, the exigent circumstances created by the elimination of alcohol by natural bodily functions and the compelling interests stated earlier, that the use of physical force is permissible to obtain virtually the only direct evidence available of proof of alcohol consumption; however, we do not depart from the general rule that such force must be reasonable under the facts and circumstances of the individual case. Schmerber, supra; Hartman, supra; Hammer, supra. We conclude that the force used here was not unreasonable.

Affirmed.

WUEST, C.J., and MORGAN and SABERS, JJ., concur.

HENDERSON, J., dissents.

HENDERSON, Justice (dissenting).

I would countermand the order of the trial court, which denied Lanier's motion to suppress the results of his blood test, for the reasons set forth in this dissent and further believing that the far reaching effect of this decision is opposed to the principles upon which this Republic was founded, namely by expression in the United States...