In Re the Revocation of the Driver's License of Kotas

261 N.W.2d 415, 1977 S.D. LEXIS 129

• Court: South Dakota Supreme Court
• Decided: December 30, 1977
• Docket: 12004
• Status: Published

Opinions

PORTER, Justice (on reassignment).

The driver’s license of Michael Kotas was revoked by the Department of Public Safety after a hearing before a department examiner for Kotas’ refusal to submit to a chemical blood test. Kotas petitioned the circuit court for a trial de novo under SDCL 32-23-12. The circuit court reversed the examiner’s decision and ordered Kotas’ license to drive reinstated. We reverse.

On March 26, 1975, Kotas was observed operating his vehicle in a very erratic manner by Sioux Falls Police Officer Michael Weiss. At 2:47 a.m. Kotas was stopped and arrested by Officer Weiss for driving while intoxicated. At the scene, Officer Weiss informed Kotas of his rights under the Implied Consent Law, SDCL 32-23-10, 11, 12, and requested that Kotas submit to a blood test at McKennan Hospital. Kotas responded by stating that he could not consent until he first talked to his attorney. Kotas was then transported to the Minneh-aha County jail. On the way to the jail, the officer made at least three additional requests of Kotas, but received the same response.

Upon arriving at the jail, the officer, acting upon the unrescinded refusal, prepared the necessary papers for, and did, surrender custody of Kotas to the Minne-haha County jail officials. At the conclusion of the booking procedure, Kotas was allowed to call his attorney. After a brief conversation the arresting officer was called to the telephone and advised by Ko-tas’ attorney that Kotas would submit to the blood test. The time was between 3:25 and 3:30 a.m. The officer advised Kotas and his attorney that his prior actions had constituted a refusal, and that he would not transport him to the hospital for the blood test.

After hearing this testimony the circuit court, relying upon the decision of Lund v. Hjelle, 224 N.W.2d 552 (N.D.1974), found that the qualified refusal given by Kotas had been rescinded within a reasonable time, and that his license could not be revoked under SDCL 32-23-11.

The issues involved in this appeal were fully considered and resolved against respondent Kotas by the opinion of this court in Peterson v. State, S.D., 261 N.W.2d 405, filed December 30, 1977. For the reasons set out in Peterson we hold that Kotas’ conduct constituted, in law, a refusal of the blood test requested by Officer Weiss and that his driver’s license was therefore properly revoked. The judgment is reversed, and the cause is remanded to the circuit court so that judgment may be entered affirming the order of revocation entered by the South Dakota Department of Public Safety.

DUNN, C. J., and WOLLMAN and MORGAN, JJ., concur. ZASTROW, J., dissents.