In re the Revocation of the Driver License of Assman

388 N.W.2d 138, 1986 S.D. LEXIS 269

• Court: South Dakota Supreme Court
• Decided: May 28, 1986
• Docket: No. 14846
• Status: Published

Opinion

MORGAN, Justice.

In May 1984 Joseph Assman (Assman) was stopped by Bureau of Indian Affairs (BIA) Police Officer Louis Moran (Moran) on suspicion of driving while intoxicated (DWI). Following Assman’s poor performance on some field sobriety tests, Moran arrested Assman for DWI and read him the Implied Consent warning. See SDCL 32-23-10. Assman refused to submit to a blood test.

Moran then sent a notice of refusal to the Department of Commerce and Regulation (Department). Department sent Ass-man a notice of intent to revoke his driver’s license. Following an administrative hearing, Assman’s license was revoked. On appeal the circuit court affirmed Department’s action. We reverse.

The issue before us on this appeal is whether Moran, a BIA officer who was not cross-deputized, was a “law enforcement officer” under the provisions of SDCL 32-23-11? We hold that he was not.

Assman also was charged with driving while intoxicated per SDCL 32-23-10, and after conviction challenged the admissibility in evidence of his refusal to submit to the chemical test. SDCL 32-23-10.1. We reversed Assman’s conviction because he was not advised of the implied consent warning by a law enforcement officer as required by SDCL 32-23-10. State v. Assman, 386 N.W.2d 492 (S.D.1986).

It is obvious that the term “law enforcement officer” as referred to in SDCL 32-23-11 is identical to the law enforcement officer referred to in SDCL 32-23-10 and, therefore, Assman’s refusal cannot be used by the Department to revoke his license.

Accordingly, the revocation order is reversed.

FOSHEIM, C.J., and HENDERSON and WUEST, JJ., concur. SABERS, J., not having been a member of the Court at the time this action was submitted to the Court, did not participate.