State v. Nelson, #29410

CourtSupreme Court of South Dakota
Writing for the CourtMYREN, Justice
Citation970 N.W.2d 814
Docket Number#29410
Decision Date16 February 2022
Parties STATE of South Dakota, Plaintiff and Appellee, v. Carl Leroy NELSON, Defendant and Appellant.

970 N.W.2d 814

STATE of South Dakota, Plaintiff and Appellee,
Carl Leroy NELSON, Defendant and Appellant.


Supreme Court of South Dakota.

OPINION FILED February 16, 2022

JASON R. RAVNSBORG, Attorney General, JOHN STROHMAN, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.

MARK KADI of Minnehaha County Office of the Public Advocate, Sioux Falls, South Dakota, Attorneys for defendant and appellant.

MYREN, Justice

970 N.W.2d 818

[¶1.] A jury convicted Carl Nelson of driving under the influence (DUI), abuse of or cruelty to a minor, reckless driving, and other offenses. He appeals his convictions, arguing that the circuit court erroneously denied his motions for judgment of acquittal on all counts, erroneously denied his motion for a mistrial, and erroneously instructed the jury on his right to refuse a blood draw. We affirm.

Facts and Procedural History

¶2.] At 8:05 p.m. on October 28, 2019, a woman called 911. She reported that Carl Nelson, the father of her six-week-old child, was driving a black Acura under the influence of alcohol with the infant in the backseat. The woman claimed Nelson was en route to his father's house and requested that officers meet Nelson at the house and remove the infant from his care. She informed dispatch that she witnessed Nelson drinking earlier that evening, that he had been in his vehicle earlier, and that she saw him swerving while driving.

[¶3.] Officer Jason Meyer responded to the dispatch call. Within ten to fifteen seconds of arriving at a possible intercept point, he observed the vehicle approaching. He testified that "the vehicle was traveling at an extremely high rate of speed." Based on his experience and training, he estimated the vehicle was traveling at 70-miles-per-hour in a 35-mile-per-hour speed zone. Officer Meyer radioed that he saw the vehicle speeding in the direction of the house. Due to the angle of his patrol car and the suspect vehicle's speed, he could not initiate a traffic stop.

[¶4.] Officer Paul Frerichs and Officer Carlos Puente had also responded to the dispatch call and were waiting, in their respective patrol cars, for Nelson to arrive at the house. While waiting, Officer Frerichs heard Officer Meyer's message over the radio and witnessed Nelson's vehicle pull into the driveway within approximately thirty seconds of the message. Officer Frerichs testified that the distance from Officer Meyer's location to the house was about ten to fifteen blocks and that he did not observe Nelson commit any traffic violations as he approached the house and stopped. After parking in the driveway, Nelson turned off the engine and exited the car. He quickly moved toward the house despite Officer Frerichs's requests to stop. Officer Frerichs grabbed Nelson's arm before he could enter the house, to which Nelson protested that he had not done anything.

[¶5.] The officers pulled Nelson toward their patrol cars and handcuffed him. Nelson continued to exclaim that he did nothing wrong. He informed the officers that there was a baby in his vehicle and asked the officers to get his father from the house. Officer Meyer asked Nelson if he had been drinking. Nelson responded that he had drunk a little bit earlier that evening. The officers requested that he perform field-sobriety tests. Nelson refused, saying he wanted his father to take the infant before the officers did anything with him. Nelson also refused a preliminary breath test. During the interaction, Nelson repeatedly denied driving 70-miles-per-hour in the 35-mile-per-hour speed zone.

[970 N.W.2d 819

[¶6.] After Nelson requested an attorney, the officers placed him under arrest. During the search incident to arrest, an officer found the Acura's keys in Nelson's pocket. Officer Meyer then provided Nelson with the DUI advisement and requested a sample of Nelson's blood. Nelson refused to provide a sample. The officers testified that they smelled an odor of alcohol on Nelson, and Officer Frerichs testified that Nelson had bloodshot eyes and slurred speech.

¶7.] While two officers placed Nelson in the patrol car, a third officer removed the infant from the vehicle and brought the infant inside the house. The temperature outside was 32 degrees. After the infant was removed, Officer Meyer searched Nelson's car and observed a glass pipe containing burnt residue smelling like marijuana in the center console; a case containing another glass pipe and a bag containing marijuana on the front seat floorboard; and a can of malt liquor outside the vehicle.

[¶8.] After the officers placed Nelson in the patrol car, he asked an officer if his baby was inside the house with his father. When the officer confirmed that the infant was inside, Nelson responded that all he cared about was his baby's safety. During Nelson's transport to the police station, he repeatedly asked if the officers had proof that he was speeding and intoxicated.

[¶9.] A magistrate judge authorized a search warrant for the withdrawal of Nelson's blood. The blood draw occurred at 9:44 p.m., approximately one hour and ten minutes after Officer Meyer witnessed Nelson driving. The blood sample revealed a .114 percent blood-alcohol content (BAC) and was positive for Carboxy THC.1

[¶10.] Based on the incident, the State charged Nelson by complaint. He was subsequently indicted by a grand jury for: (1) abuse of or cruelty to a minor ( SDCL 26-10-1 ); (2) DUI with a BAC of .08 percent or higher ( SDCL 32-23-1(1) ); (3) DUI for driving under the influence of an alcoholic beverage, marijuana, or any controlled drug or substance ( SDCL 32-23-1(2) ); (4) possession of a revoked or canceled driver's license ( SDCL 32-12-67 ); (5) possession of marijuana ( SDCL 22-42-6 ); (6) reckless driving ( SDCL 32-24-1 ); (7) driving while license is revoked ( SDCL 32-12-65(1) ); and (8) use or possession of drug paraphernalia ( SDCL 22-42A-3 ).2 Nelson pleaded not guilty to all counts. The State later filed a part II habitual offender information, alleging Nelson had committed three prior felony offenses: third-degree burglary in 2003, possession of a controlled substance in 2006, and possession of a controlled substance in 2011.

[¶11.] Nelson's jury trial began on June 22, 2020. At trial, the State played the 911 call that was the impetus for the investigation and presented three arrest videos. The State also called as witnesses the officers present at the scene and various forensic scientists. To support the State's contention that Nelson was speeding, Officer Meyer testified that he had been a radar-lidar instructor since 20163 and that vehicle-speed estimation was a part of his training. He said that before officers stop a vehicle, they first observe it, estimate a

[970 N.W.2d 820

speed, and then activate their equipment to confirm the speed. He claimed that he could not use his radar or lidar to obtain Nelson's speed because Nelson arrived before he had set up his equipment and his patrol car was at an angle that was not conducive for the equipment. Officer Meyer also testified that the infant was in the vehicle's backseat in an improperly secured car seat. He claimed the car seat was improperly secured based on the manufacturer's instructions and the seat belt being "strung over the top of both the car seat and the base." During cross-examination, he acknowledged that he had not read the car seat manufacturer's directions. On redirect examination, he clarified that the car seats that he had experience with were secured by running the seat belt through the car seat's base.

¶12.] The State called Cody Geffre, a forensic chemist at the State Health Lab, who the court qualified as an expert in the analysis of blood-alcohol content. Geffre testified that his testing of Nelson's blood sample revealed a BAC of .114 percent. He explained that the body absorbs alcohol over time and that individuals’ absorption rates could be affected by when they had their last drink and the type of alcohol they consumed. He noted that in a social-drinking situation, a person's BAC reaches its peak about thirty minutes after their last drink. He described that in situations where a person is drinking large amounts of alcohol in a short period of time, a bolus-drinking situation, the person's BAC peaks around forty-five minutes to an hour after the person's last drink. He testified that alcohol is eliminated from the body for a person of Nelson's stature at a rate of .015 percent per hour on average. Based upon Nelson's stature, Geffre testified that it would take "approximately five standard drinks" to reach a .114 percent BAC at the time of his blood draw. The State then asked if Geffre could arrive at Nelson's BAC when he was driving based upon the known information. Geffre responded, "Yes." He testified that Nelson's BAC would have been approximately .132 percent while driving, assuming Nelson was in the post-absorptive phase. To assume Nelson was in this phase would give Nelson the benefit of the doubt. However, Geffre testified that even with the benefit of this assumption, if Nelson drank an entire can of malt liquor right before the officers arrested him, his body would have absorbed the alcohol by the time of the blood draw.

[¶13.] During cross-examination, Geffre admitted that he did not know if Nelson was involved in a social-drinking or...

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