State v. Werlinger

• Decision Date: 10 September 1969
• Docket Number: No. 10576,10576
• Parties: STATE of South Dakota, Plaintiff and Respondent, v. Joseph Casmer WERLINGER, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 470

170 N.W.2d 470

84 S.D. 282

STATE of South Dakota, Plaintiff and Respondent, v. Joseph Casmer WERLINGER, Defendant and Appellant.

No. 10576.

Supreme Court of South Dakota.

Sept. 10, 1969.

Thomas R. Vickerman, Asst. Atty. Gen., Pierre, argued the cause for plaintiff and respondent. Gordon Mydland, Atty. Gen., was on the brief.

Wm. E. Anderson, Belle Fourche, argued the cause for defendant and appellant.

BIEGELMEIER, Presiding Judge.

Defendant was convicted of operating a motor vehicle while under the influence of intoxicating liquor and appeals from his sentence which imposed a fine of $200 and suspended his driver's license for 30 days.

After midnight defendant and his wife were occupants of an automobile involved in a one-car accident which occurred outside the city of Deadwood and as a result both received some injuries. Officers of the Deadwood police department, advised of the accident, soon arrived at the scene where the battered car rested partly in the ditch on the left side of the road. An ambulance summoned by police took defendant's wife to the hospital. Defendant accompanied her. The police also notified the sheriff's office and a deputy went to the scene, then proceeded to his office, picked up blood test equipment and went on to the hospital. Following some discussion defendant consented to take a blood alcohol test and now complains in several assignments of error that the court erred in failing to suppress evidence and testimony relating to the test. The test was taken pursuant to SDC 1960 Supp. 44.0302--2, now SDCL 1967, § 32--23--10, set out in State v. Batterman, 79 S.D. 191, 110 N.W.2d 139.

The admission in evidence of a report of defendant's blood sample to show its alcoholic content drawn by a physician at a hospital by direction of an officer, despite refusal of defendant to consent thereto, does not deny defendant due process of law under the Fourteenth Amendment, offend the prohibition of the Fourth Amendment against unreasonable searches and seizures, violate his right to assistance of counsel under the Sixth Amendment or his privilege against self-incrimination under the Fifth Amendment, now applicable to the states. Schmerber v. California, 1966, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908. See also Breithaupt v. Abram, 352 U.S. 432, 77 S.Ct. 408, 1 L.Ed.2d 448. It follows such evidence is admissible when taken with defendant's consent and is not a violation of similar provisions of the South Dakota Constitution, Art. VI, §§ 2, 7 and 9. See City of Sioux Falls v. Ugland, 1961, 79 S.D. 134, 109 N.W.2d 144.

It is further contended the result of the test was inadmissible as at the time of the request by the deputy sheriff, defendant had neither been arrested nor formally charged with an offense. The deputy had told defendant he was under arrest for driving while intoxicated; this was sufficient information to advise him of the offense he was charged with whether or not the arrest was valid. The court in Batterman expressly held no formal charge was necessary as this would defeat its purpose.

Under Point II defendant's brief contains argument of error in overruling objections made to any conversations between defendant and deputy sheriff. Generally the provisions of Title 15 SDCL 1967 apply to criminal actions conformable to SDCL 1967, § 15--29--17. Four assignments of error are relied on under Point II and are referred to by number. These in turn, as required by SDCL 1967, § 15--29--6, refer to the pages of the transcript and lines thereof where the alleged errors appear. They refer to conversations about taking the blood test and, as stated above, no error resulted from admitting these conversations in evidence.

We have noted, however, that the accident happened outside of the city of Deadwood and its chief of police was an early arrival at the scene. He saw four persons standing in front of the damaged auto and asked 'who owned the car--who was driving it?' to which defendant answered 'I was'. His wife also responded saying 'He...