State v. Oyen, 12635

• Decision Date: 19 December 1979
• Docket Number: No. 12635,12635
• Parties: STATE of South Dakota, Plaintiff and Respondent, v. Raymond Charles OYEN, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 317

286 N.W.2d 317

STATE of South Dakota, Plaintiff and Respondent, v. Raymond Charles OYEN, Defendant and Appellant.

No. 12635.

Supreme Court of South Dakota.

Submitted on Briefs Sept. 19, 1979.

Decided Dec. 19, 1979.

Kevin F. Manson, Asst. Atty. Gen., Pierre, for plaintiff and respondent; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.

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

FOSHEIM, Justice.

The defendant was convicted of driving a motor vehicle while there was 0.10% Or more by weight of alcohol in his blood. A motion for arrest of judgment and acquittal was denied. The judgment and sentence were stayed pending appeal. We reverse.

On the night of November 27, 1976, defendant and Donald Sabers were involved in an accident in a pickup truck owned by the defendant. Highway Patrolman James Walton arrived at the scene of the accident and found defendant lying unconscious on the ground about thirty feet from the pickup. Sabers was then seated in another pickup that had arrived after the accident occurred. The investigating officer called for an ambulance and requested that a trooper be sent to meet the ambulance at the hospital in Madison for the purpose of obtaining a blood test. Trooper Kirkpatrick of the South Dakota Highway Patrol met the ambulance at the hospital where he arrested defendant for driving while intoxicated. He also caused a blood sample to be drawn from defendant which he forwarded to the State Chemistry Laboratory. The blood test revealed .18% Alcohol by weight.

Assignments of Error One and Two claim the warrantless arrest was illegal because neither the investigating officer nor the arresting officer had probable cause to find that the defendant was driving the vehicle involved in the accident. SDCL 32-23-1 provides, in part:

A person shall not drive or be in actual physical control of any vehicle while:

(1) There is 0.10 per cent or more by weight of alcohol in his blood . . . .

Under SDCL 32-23-1.1, ^* a law enforcement officer may arrest a person without a warrant for violating SDCL 32-23-1 even though the officer did not witness the violation, provided he has probable cause to believe (1) that the person was involved in a traffic accident, and (2) that he was driving a vehicle in violation of SDCL 32-23-1 prior to, or immediately following, the accident.

Upon arriving at the scene of the accident, Trooper Walton found that the pickup truck had been involved in a serious accident. He found numerous beer cans strewn about the pickup and was told by Sabers that defendant had been operating the vehicle. On the basis of these facts, Trooper Walton concluded there was probable cause to believe that defendant was driving the vehicle at the time of the accident in violation of SDCL 32-23-1. He advised Trooper Kirkpatrick of this over the State Radio. Acting upon this information and his own observation that defendant's breath smelled strongly of alcohol, Officer Kirkpatrick arrested defendant and caused a blood sample to be taken.

Probable cause for arrest exists where facts and circumstances within a police officer's knowledge of which he has reasonably trustworthy information "are sufficient in themselves to warrant a belief by a man of reasonable caution that a crime has been . . . committed." Klingler v. United States, 409 F.2d 299, 303 (8th Cir. 1969), Cert. denied, 396 U.S. 859, 90 S.Ct. 127, 24 L.Ed.2d 110 (1969). As we stated in State v. Hermandson,84 S.D. 208, 213, 169 N.W.2d 255, 258 (1969):

Officers are not required to know facts sufficient to prove guilt, but only knowledge of facts sufficient to show probable cause for an arrest or search. These are factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.

See Anderson v. Sager, 173 F.2d 794 (8th Cir. 1949). We conclude that the officer did have probable cause to make the warrantless arrest.

Defendant also contends that the evidence was insufficient to support the verdict because it was circumstantial and was as consistent with innocence as with guilt. Circumstantial evidence in this type of case which tends to prove that a defendant did in fact drive the vehicle will support a finding of guilt, provided it excludes every reasonable hypothesis of innocence. State v. Williamson, 86 S.D. 485, 198 N.W.2d 518 (1972); State v. Rober, 86 S.D. 442, 197 N.W.2d 707 (1972); State v. Scott, 84 S.D. 511, 173 N.W.2d 287 (1969), Cert. denied, 400 U.S. 821, 91 S.Ct. 39, 27 L.Ed.2d 49 (1970); State v. Guffy, 50 S.D. 548, 210 N.W. 980 (1926).

The fact that defendant was the owner of the vehicle involved in the accident does not mean that he...