State v. Vortherms, 120220 SDSC, 29070-a-SRJ

Docket Nº:29070-a-SRJ
Party Name:STATE OF SOUTH DAKOTA, Plaintiff and Appellee, v. JOSHUA DAVID VORTHERMS, Defendant and Appellant.
Attorney:JASON R. RAVNSBORG Attorney General BRIGID C. HOFFMAN Assistant Attorney General Pierre, South Dakota Attorneys for plaintiff and appellee. NICHOLE A. CARPER of Burd & Carper Law Office Sioux Falls, South Dakota Attorneys for defendant and appellant.
Judge Panel:GILBERTSON, Chief Justice, and, KERN, SALTER, and DEVANEY, Justices, concur.
Case Date:December 02, 2020
Court:Supreme Court of South Dakota

2020 S.D. 67

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,


JOSHUA DAVID VORTHERMS, Defendant and Appellant.

No. 29070-a-SRJ

Supreme Court of South Dakota

December 2, 2020



JASON R. RAVNSBORG Attorney General BRIGID C. HOFFMAN Assistant Attorney General Pierre, South Dakota Attorneys for plaintiff and appellee.

NICHOLE A. CARPER of Burd & Carper Law Office Sioux Falls, South Dakota Attorneys for defendant and appellant.


[¶1.] A jury convicted Joshua Vortherms of two counts of vehicular homicide, one count of vehicular battery, and driving while under the influence of alcohol. Vortherms appeals contending that the circuit court erred in denying his motion to suppress a blood draw obtained without a search warrant. Vortherms also requests that this Court review his ineffective assistance of counsel claim on direct appeal. We affirm.

Facts and Procedural History

[¶2.] At approximately 2:15 a.m. on Saturday, July 1, 2017, Christopher Schoepf and his family were driving west on I-90 towards Sioux Falls after spending the evening at the Luverne, Minnesota drive-in theater. Schoepf, an off-duty detective with the Sioux Falls Police Department, saw skid marks on the road and a cloud of dust in the ditch off the interstate near the Brandon exit. He also observed a shirtless man, later identified as Vortherms, standing and waving on the side of the road. Schoepf turned his vehicle around to assist. Schoepf's girlfriend called 911 to report the accident at 2:18 a.m.

[¶3.] When Schoepf got out of his car, he could not locate the man who had been on the side of the road. Using his flashlight, Schoepf observed a white pickup and a black Subaru lying on its passenger side in the ditch. Both vehicles were heavily damaged. Schoepf heard a girl's voice crying out for help from the ditch. He found the girl trapped in the backseat of the Subaru. Schoepf did not see anyone else in the Subaru, but he observed a man who appeared to be deceased lying on the ground nearby.

[¶4.] The girl, S.F., was eleven years old. She had also been travelling home from the Luverne drive-in theater with her family and had fallen asleep before the crash. S.F. testified that she saw Vortherms exit the white pickup after the accident. S.F. cried for help, and Vortherms walked over to her. He told S.F. that barbed wire prevented him from getting her out of the Subaru, but he would get help. Schoepf arrived minutes after Vortherms left. An ambulance arrived and took S.F. to the hospital where she had surgery for a broken leg.

[¶5.] Meanwhile, Vortherms had walked to a hotel located approximately 1/4 mile from the crash site. The front desk clerk saw that Vortherms was bleeding from his head. The clerk asked Vortherms if he was okay. Vortherms replied that he "hurt his head," and there had been a car accident. The clerk asked if anybody else was hurt. Vortherms said that there were others in the crash and repeated that he had "hurt his head." The clerk called 911.

[¶6.] State Trooper Patrick Bumann responded to the dispatch call and arrived at the hotel at approximately 2:31 a.m. After Bumann arrived, he "was informed that there were multiple fatalities . . . [; and] there might have been one person that was still missing from the scene." Bumann observed that Vortherms was shirtless, missing a shoe, had blood all over the front of his body, and was holding a cloth to a gash on his head. Bumann asked Vortherms for his name and contacted dispatch to verify his identity.

[¶7.] Bumann smelled alcohol on Vortherms's breath and began questioning him about the accident. Vortherms stated that he had been "cruising with a buddy" in the white pickup truck. Vortherms admitted that he had a few drinks, but he claimed that he had not been driving. Vortherms did not answer any of Bumann's other questions about his "buddy" and claimed that he was unable to remember exactly where he was sitting in the pickup. Vortherms continued to lose blood and passed in and out of consciousness while Bumann questioned him. Bumann did not conduct any field sobriety tests on Vortherms because of his injuries.

[¶8.] Three other officers, including another state trooper and a Minnehaha County Sheriff's Deputy, arrived at the hotel within several minutes of Bumann. The officers assisted Bumann by rendering first aid to Vortherms. At 2:40 a.m., an ambulance arrived at the hotel to transport Vortherms to the hospital. Bumann continued to question Vortherms while the ambulance crew began treating his injuries. The other officers helped move Vortherms onto a stretcher and into the ambulance.

[¶9.] Bumann unsuccessfully attempted to take a preliminary breath test (PBT) of Vortherms at the hotel. Another officer eventually managed to take a PBT just before Vortherms was placed in the ambulance that produced a breath alcohol content of .097. The ambulance left the hotel to transport Vortherms to a Sioux Falls hospital at 2:52 a.m. Bumann followed the ambulance to the hospital, which was approximately five miles from the hotel. Bumann testified that the other officers went to the crash site to look for other individuals who may have been hurt or involved in the crash because of Vortherms's statement that he was traveling with his "buddy."

[¶10.] The ambulance arrived at the hospital at 3:06 a.m. When Bumann arrived, he overheard healthcare personnel discussing that Vortherms had "lost a lot of blood" and needed to be admitted to surgery. Bumann had five years of experience as a state trooper and had requested around thirty telephonic warrants during his career. Bumann also knew that he needed to draw Vortherms's blood to preserve his blood alcohol content (BAC) for the investigation. Bumann requested a blood draw, believing he did not have time to obtain a search warrant before Vortherms went into surgery. The draw was taken at 3:17 a.m. and produced a BAC of .159.1

[¶11.] Back at the scene of the accident, officers identified the man on the ground as S.F.'s father, Shannon Fischer. Fischer's girlfriend, Anna Mason, had also been ejected from the Subaru. Later law enforcement determined that Mason was likely the Subaru's driver. First responders pronounced Fischer and Mason dead on scene. They both suffered fatal injuries from multiple blunt force trauma.

[¶12.] On November 16, 2017, a Minnehaha County Grand Jury indicted Vortherms on two counts of vehicular homicide, vehicular battery, and two alternative counts of driving while intoxicated.2 Vortherms filed a motion to suppress the BAC result from the warrantless blood draw. He claimed the warrantless draw violated his Fourth Amendment rights because there were not exigent circumstances. Vortherms advanced that there were multiple officers at the scene of the accident and there was adequate time to obtain a telephonic warrant, which could have been obtained in as little as fifteen minutes. [¶13.] Prior to trial, the circuit court held an evidentiary hearing on the suppression motion. The State offered Bumann's testimony and argued that there were exigent circumstances. Bumann testified that he and the other officers had not requested a warrant at the hotel because they were continuing to investigate the circumstances of the accident, including whether another person had been driving or was injured in the crash.

[¶14.] Bumann further testified that he did not believe he had time to obtain a warrant once he arrived at the hospital because he immediately learned that Vortherms would be admitted into surgery. Bumann knew that Vortherms's BAC would dissipate over time, and it could be altered by blood transfusions or medications that Vortherms might receive during surgery. He also believed that the hospital would not draw Vortherms's blood during surgery or delay the surgery until he got a warrant. Bumann acknowledged that it was possible to obtain a telephonic warrant in fifteen minutes, but he also knew from experience that it could take as long as an hour. He explained that the warrant process required him to prepare a narrative before phoning a judge to obtain approval. He also explained that he might have to call multiple judges before he reached a judge who answered the phone and could review the search warrant, especially in the early morning hours or on the weekend. Then, after the warrant was served, it could take an additional fifteen minutes to an hour for the hospital to find a phlebotomist to draw blood. The court held that exigent circumstances existed and denied the suppression motion.

[¶15.] A trial was held from April 1-4, 2019, in Minnehaha County. The State presented evidence that Vortherms was driving under the influence of alcohol and caused the accident when he lost control of his pickup and drove into the Subaru's lane at approximately 95 miles per hour. The jury found Vortherms guilty on two counts of vehicular manslaughter, one count of vehicular battery, and one count of driving under the influence of alcohol.

[¶16.] The court imposed a thirty-year prison sentence, with five years suspended, on the two vehicular manslaughter convictions; and suspended a ten-year prison sentence on the conviction for vehicular battery. The court imposed a suspended county jail sentence on the conviction for driving under the influence of alcohol with at least a .08 BAC.

[¶17.] Vortherms appeals the circuit court's denial of his motion to suppress the warrantless blood draw and requests that this Court review his ineffective assistance of counsel claims on direct appeal.3

Analysis and Decision

1. Whether the circuit court erred when it...

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