State v. Herrmann

2002 SD 119, 652 N.W.2d 725, 2002 S.D. LEXIS 140
CourtSouth Dakota Supreme Court
DecidedOctober 2, 2002
DocketNone
StatusPublished
Cited by25 cases

This text of 2002 SD 119 (State v. Herrmann) is published on Counsel Stack Legal Research, covering South Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Herrmann, 2002 SD 119, 652 N.W.2d 725, 2002 S.D. LEXIS 140 (S.D. 2002).

Opinions

KONENKAMP, Justice (on reassignment).

[¶ 1.] When an officer mistakenly requires an arrested driver to submit to a blood test because a law enforcement dispatcher erroneously reports that the driver has multiple prior convictions, should the trial court suppress the blood test results or simply deprive the prosecution of the use of the statutory presumptions? Because there was no constitutional violation here in seizing the driver’s blood, we adhere to our longstanding precedent and hold that the correct sanction for the erroneous seizure is to deny the State the use of the statutory presumptions as evidence. We also determine that the arresting officer had sufficient reasonable suspicion to stop the driver, founded on an anonymous tip and the driver’s speeding. We affirm.

Background

[¶ 2.] Trooper Rick Steiner, a thirteen-year veteran of the South Dakota Highway Patrol assigned to the Watertown area, was on duty on the night of October 6, 2000. At the end of his shift at approximately 11:22 p.m., he was pulling into the parking lot of the law enforcement center in Watertown when he received a message from dispatch: an unknown person had called, “advising of a possible intoxicated driver” driving a 1962 yellow Chevrolet pickup southbound on Sioux Conifer Road near Watertown. Dispatch also provided Steiner with the license number of the vehicle. Steiner immediately proceeded west on Highway 20 and, as he approached the intersection with Sioux Conifer Road, he observed the vehicle described by dispatch turn from the road onto the highway. The vehicle pulled into an eastbound lane of the four-lane highway and headed toward Watertown traveling in the opposite direction as Steiner.

[¶ 3.] Steiner met and passed the other vehicle and then made a U-turn through the median and followed it. The trooper confirmed that the license number of the vehicle matched the one given by dispatch and kept pace with it as it passed into a thirty-five mile per hour zone. Steiner was traveling at approximately forty-five miles per hour and used his radar to confirm his own speed. Based upon that information, he formed the opinion that the other vehicle was speeding. Thus, at approximately 11:27 p.m., about five minutes after receiving the initial call from dispatch, Steiner activated his red lights and pulled the speeding vehicle over.

[¶ 4.] Steiner approached the driver, asked for his driver’s license, and identified him as Herrmann. When Steiner asked Herrmann if he had been drinking, Herrmann replied that he had not. Nevertheless, Steiner noted that Herrmann had an odor of an alcoholic beverage and watery, glassy eyes. Steiner instructed Herrmann to come back to the patrol car where he asked him how much he had to drink. Herrmann replied that he had a couple of beers. At that point, Steiner could still smell an alcoholic beverage odor, so he asked Herrmann to perform some field sobriety tests. When Herrmann’s performance on these tests proved unsatisfactory, Steiner placed him under arrest for driving while under the influence (DUI). Steiner then read Herrmann the implied consent warnings and the Miranda warnings.1 Herrmann refused to submit [727]*727to a blood test as requested in the implied consent warnings. However, Steiner was advised by dispatch at about the same time that Herrmann had two DUI convictions in the previous five years. With that information, Steiner informed Herrmann that a blood test was mandatory and took him to the local hospital where blood was drawn.2 Herrmann was then transported to a local detention center.

[¶ 5.] Herrmann’s blood test yielded a result of 0.171 percent by weight of alcohol. Accordingly, he was charged with one count of driving or actual physical control of a motor vehicle while under the influence of an alcoholic beverage (SDCL 32-23-1(2)). A part two information was also filed alleging that Herrmann had two prior DUI convictions. The information was later amended to allege only one prior conviction. Before trial, Herrmann’s counsel moved to suppress all evidence obtained as a result of the stop of Herrmann’s vehicle on the basis that the stop was illegal. After a hearing, the trial court entered a memorandum decision, findings of fact, conclusions of law, and an order denying the motion to suppress.

[¶ 6.] On the first day of trial, Herr-mann’s counsel filed a motion to suppress the blood test results for violation of Herr-mann’s right to refuse the test. Counsel argued that, despite the dispatcher’s advice at the time of the arrest that Herr-mann had two prior DUI convictions and thus could not refuse the test, Herrmann had only one prior DUI conviction. Therefore, counsel contended that Herr-mann had a right to refuse the blood test and that its administration over Herr-mann’s refusal required suppression of the results. The trial court denied the motion to suppress. However, the court also denied the State the benefit of a jury instruction on the statutory presumptions of intoxication that result from a blood alcohol test. See SDCL 32-23-7.3

[728]*728[¶ 7.] Following a jury verdict of guilty, Herrmann admitted Ms status as a second time DUI offender.4 The circuit court sentenced him to ninety days in the county jail with seventy-five days suspended and a fine of $375. He was also required to reimburse certain costs and expenses. Herrmann appeals, asserting two issues: (1) Was the unreliable anonymous tip corroborated by the officer, thereby providing an articulable and reasonable suspicion for the initial stop? (2) Should the blood test result be suppressed due to a State dispatch officer’s error, regarding the number of prior DWI convictions, which eliminated Herrmann’s right of refusal?

[¶ 8.] Reasonable Suspicion to Stop Vehicle.

[¶ 9.] A motion to suppress for an alleged violation of a constitutionally protected right raises a question of law, requiring de novo review. State v. Stanga, 2000 SD 129, ¶ 8, 617 N.W.2d 486, 488 (citations omitted). We review findings of fact under the clearly erroneous standard. Id. Once the facts have been determined, however, the application of a legal standard to those facts is a question of law reviewed de novo. Id.

[¶ 10.] Herrmann argues that trooper Steiner stopped his vehicle without reasonable suspicion of a violation of law and that, as a result, the stop was illegal. See State v. Faulks, 2001 SD 115, ¶ 8, 633 N.W.2d 613, 616. He contends that the trial court should have suppressed all evidence seized after the stop. Contrary to Herrmann’s assertions, however, Trooper Steiner had two reasons for stopping Herrmann’s vehicle: the anonymous tip to law enforcement and Herrmann’s speeding. The anonymous tip provided trooper Steiner with a reasonable suspicion that Herrmann was driving while under the influence of an alcoholic beverage and gave Steiner an articulable basis to stop the vehicle.

[¶ 11.] A similar case was presented in State v. Olhausen, 1998 SD 120, ¶ 8, 587 N.W.2d 715, 718. In Olhausen, an anonymous caller reported a possible drug deal on East Rice Street in Sioux Falls, named the suspect involved, gave a cursory description of him, described the car involved, and gave its license plate number.

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State v. Herrmann
2002 SD 119 (South Dakota Supreme Court, 2002)

Cite This Page — Counsel Stack

Bluebook (online)
2002 SD 119, 652 N.W.2d 725, 2002 S.D. LEXIS 140, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-herrmann-sd-2002.