State v. McDonald, 15781

• Citation: 421 N.W.2d 492
• Decision Date: 16 March 1988
• Docket Number: No. 15781,15781
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Lisa Ann McDONALD, Defendant and Appellant.
• Court: Supreme Court of South Dakota

Page 492

421 N.W.2d 492

STATE of South Dakota, Plaintiff and Appellee, v. Lisa Ann McDONALD, Defendant and Appellant.

No. 15781.

Supreme Court of South Dakota.

Argued Nov. 17, 1987.

Decided March 16, 1988.

Mark Smith, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Roger A. Tellinghuisen, Atty. Gen., Pierre, on brief.

James E. McCulloch of Minick, Nelson and McCulloch, Vermillion, for defendant and appellant.

SABERS, Justice.

Lisa Ann McDonald (McDonald) appeals a conviction for driving while under the influence of an alcoholic beverage (SDCL 32-23-1(2)).

Facts

Vermillion Police Officer Troy Lubbers (Lubbers) stopped McDonald on August 25, 1986 at approximately 9:27 p.m. because McDonald's car had a broken headlight. Lubbers approached McDonald's window and detected an odor of alcohol. McDonald went back with Lubbers to his patrol car so Lubbers could issue a repair ticket. Once in the car, Lubbers noticed that the odor of alcohol was stronger. He asked McDonald if she had been drinking and she responded affirmatively. The officer administered eight dexterity tests to McDonald. Although McDonald made some minor mistakes, the results of the field tests did not conclusively indicate intoxication. After some hesitation, Lubbers arrested McDonald. Blood was drawn for a blood test at 10:04 p.m. After her arrest a search of McDonald's vehicle revealed two empty low-point beer cans and a large wet spot that smelled of beer on the floor of the driver's side.

McDonald was charged alternatively with a violation of SDCL 32-23-1(1) (driving with a blood alcohol content of .10 percent or more), or SDCL 32-23-1(2) (driving under the influence of an alcoholic beverage).

At trial, the state chemist was unable to state with reasonable scientific certainty that McDonald had 0.10 or more percent alcohol in her blood at the time she was driving. Although the blood test had revealed a 0.140 (first testing) and 0.133 (second testing) percent blood alcohol content, the chemist had not been asked by the State to extrapolate the results to the time of driving (thirty-seven minutes prior to the taking of the blood sample) to determine blood alcohol content. Thereafter, the trial court dismissed the charge which was based on SDCL 32-23-1(1).

McDonald was convicted of driving under the influence in violation of SDCL 32-23-1(2). She appealed the jury verdict of the law-trained magistrate court (the trial court) to the circuit court which affirmed. She appeals again and we reverse and remand.

1. MUST BLOOD TEST RESULTS BE EXTRAPOLATED TO TIME OF DRIVING IN UNDER THE INFLUENCE CHARGE?

During the trial, the State called Roger Mathison, state chemist, to testify as to the results of blood alcohol testing conducted by Mathison. McDonald's counsel objected to the admission of the test results on the grounds of relevancy, but was overruled. Mathison testified that the first test, on August 27th, showed 0.140 percent alcohol in the blood. The second test, conducted on November 21st, showed 0.133 percent alcohol in the blood. Mathison testified that it was normal to see a loss of 0.005 to 0.01 percent of alcohol in the blood during the time period between testings. Mathison later testified as to the information necessary to attempt an extrapolation of the test results back to the time of driving. He stated "[a]n average individual will lose alcohol at about 0.015 percent per hour[ ]," but that the peak alcohol level is reached about thirty to forty-five minutes after the last ingestion of alcohol. In response to a hypothetical question by the prosecutor, Mathison testified that for a female of McDonald's height and weight to reach 0.140, she would have to consume four to four and one-third twelve ounce, low-point beers within forty-five minutes prior to the blood being drawn. ¹ Mathison testified that without further information he could not determine what the blood alcohol level would have been at the time of driving.

On cross-examination, Mathison stated that there was a 5% possible deviation between the blood alcohol level and the test results, so that the alcohol level could have been as high as .147 or as low as .133.

McDonald contends that caselaw from other jurisdictions and dicta in State v. Helmer, 278 N.W.2d 808 (S.D.1979), support the proposition that the State must provide an extrapolation back to the time of the offense for blood test results to be admissible. In Helmer, supra, we did not address the issue of the admissibility of blood test results absent extrapolation because the issue was not preserved. However, we stated:

The results were admissible for the purpose of being used to extrapolate the blood alcohol level back to the time of arrest.... [T]he results were never used for the limited purpose for which they can be admitted.

Id. at 813. Although dicta, we do not disagree with this statement. Helmer was charged with "driving while there was 0.10% or more by weight of alcohol in his blood." A similar charge against McDonald was dismissed when extrapolation efforts resulted in the State being unable to prove, beyond a reasonable doubt, that her blood alcohol level was 0.10% or more at the time of the offense. ² The claimed error must relate to the admissibility of blood test results in a violation of SDCL 32-23-1(2)--driving under the influence of an alcoholic beverage.

SDCL 19-12-1 defines relevant evidence as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." The blood test results are relevant evidence of consumption of alcoholic beverages. McDonald's blood alcohol level approximately thirty-seven minutes after she was stopped is evidence of a fact that is of consequence to the determination of the action and affects the probability of the existence of the fact of intoxication. "The lapse of time prior to the extraction of [blood] samples goes to the weight to be afforded the test results and not to their admissibility." State v. Sutliff, 97 Idaho 523, 547 P.2d 1128, 1129 (1976).

2. WAS INSTRUCTION CONCERNING SDCL 32-23-7 PRESUMPTIONS PROPER?

McDonald contends that the trial court's Instruction No. 6 was improper in that it shifted the burden to her to rebut a presumed fact in violation of SDCL 19-11-4.

Jury Instruction No. 6 ³ is patterned on the 1978 version of South Dakota Pattern Jury Instruction 3-7-400d. The only portion of the instruction which is challenged is the last paragraph. McDonald proposed an instruction which differs from the court's only in respect to this last paragraph. ⁴

The statutory scheme for instructing on presumptions such as are contained in SDCL 32-23-7, is set out in SDCL 19-11-1, -2, -3, and -4.

SDCL 19-11-3 provides:

The court is not authorized to direct the jury to find a presumed fact against the accused. If a presumed fact establishes guilt or is an element of the offense or negatives a defense, the court may submit the question of guilt or of the existence of the presumed fact to the jury, but only if a reasonable juror on the evidence as a whole, including the evidence of the basic facts, could find guilt or the presumed fact beyond a reasonable doubt. If the presumed fact has a lesser effect, the question of its existence may be submitted to the jury provided the basic facts are supported by substantial evidence or are otherwise established, unless the court determines that a reasonable juror on the evidence as a whole could not find the existence of the presumed fact.

SDCL 19-11-4 provides:

Whenever the existence of a presumed fact against the accused is submitted to the jury, the court shall instruct the jury that it may regard the basic facts as sufficient evidence of the presumed fact but is not required to do so. In addition, if the presumed fact establishes guilt or is an element of the offense or negatives a defense, the court shall instruct the jury that its existence, on all the evidence, must be proved beyond a reasonable doubt.

The source of SDCL 19-11-2, -3, and -4 is Uniform Rules of Evidence 303(a), (b), and (c). ⁵ The Rule was not intended to apply to statutory presumptions which "make evidence admissible or carry the case to the jury in the absence of contrary proof or some other lesser effect." 21 Wright & Graham, Federal Practice and Procedure: Evidence Sec. 5143 (1977). Rather, the Rule was intended to apply to those statutes which provide that certain evidence is "prima facie" and which fall outside of the above exception. Id.

In applying the Rule, it first must be determined what facts must be established by the State in order to give rise to the presumption. Id. at Sec. 5145. SDCL 32-23-7 contains three subdivisions, only two of which give rise to presumptions. If the evidence shows the basic fact of a blood alcohol content of 0.05 percent or less "at that time," then this basic fact gives rise to a presumed fact that the defendant was not under the influence. Alternatively, if the State shows the basic fact of a blood alcohol content of 0.10 percent or more, "at the time," then the presumed fact is that the defendant was under the influence.

In a charge of "driving under the influence," this presumed fact is also an element of the offense; it is an "ultimate issue presumption." Id. at Sec. 5145. When faced with an "ultimate issue presumption," the Rule "should be read as requiring that the evidence of the basic fact be such that the jury could find that fact beyond a reasonable doubt." Id. The jury must be able to find the basic fact proven beyond a reasonable doubt before they may be instructed "that they can infer the presumed fact from the basic fact alone." Id. If the basic fact has not been proven beyond a reasonable doubt, it may still be considered along with other evidence, but no instruction can be given to aid in proving the presumed fact. Id.

SDCL 19-11-3 is addressed to the...