State v. Hoenscheid

374 N.W.2d 128, 1985 S.D. LEXIS 349

• Court: South Dakota Supreme Court
• Decided: September 6, 1985
• Docket: 14544
• Status: Published

Opinions

WOLLMAN, Justice (on reassignment).

Defendant appeals from his conviction of driving while under the influence of an alcoholic beverage. SDCL 32-23-1. We affirm.

Shortly before 8:00 p.m. on October 5, 1983, McCook County Deputy Sheriffs Mark Norris and Dave Gibbs were patrolling Highway 38 some three miles west of Montrose when they came upon defendant’s vehicle traveling approximately 35 miles per hour. The officers decreased their speed and proceeded to follow defendant for about one mile. The officers observed defendant’s vehicle weaving in its lane of travel, crossing the center line of the highway three times. The officers activated the red lights on their police vehicle in an attempt to stop defendant. After defendant failed to stop in response to the red lights, Deputy Gibbs flashed the headlights on his vehicle several times, whereupon defendant pulled to the side of the road.

Deputy Norris asked defendant for his driver’s license. After going through his billfold two or three times, defendant produced the license. In response to Deputy Norris’ question regarding his manner of driving, defendant replied that his front tires were bad. Deputy Norris observed that one of the front tires was bias ply and the other radial ply. Deputy Norris asked defendant whether he had been drinking, to which defendant replied in the affirmative. Deputy Norris noticed that defendant had a strong smell of alcohol on his breath and person, that he mumbled his words, that his tongue was heavy and slurred, and that his eyes were droopy and bloodshot. Deputy Norris then asked defendant to step from his vehicle and perform some field sobriety tests. Defendant refused, in an verbally abusive, obscene manner, to perform the several tests requested by Deputy Norris.

In the light of defendant’s refusal to perform these field sobriety tests, Deputy Norris and Deputy Gibbs asked defendant to step between his vehicle and the patrol car to get out of the lane of traffic. Defendant manifested rapid and extreme changes in his mood. He became verbally abusive, throwing his hat on the ground and yelling and screaming. He then spoke in sad and remorseful tones about his house payments. Deputy Norris again asked defendant if he had been drinking, to which defendant replied that he had had five or six drinks in Sioux Falls and some more in Montrose. Following his conversation with defendant between the two parked vehicles, during which he noticed that defendant was unsteady on his feet and had slow reflexes and reactions, Deputy Norris placed defendant under arrest for driving while intoxicated. Deputy Norris advised defendant that he was under arrest and started to read the implied consent and Miranda warnings, whereupon defendant responded by uttering some obscenities and slapping Deputy Norris’ hand, causing his flashlight and the printed warning card to fall to the ground. The officers then handcuffed defendant and took him into custody.

I.

Trial Court’s Refusal to Suppress Testimony Regarding Defendant’s Refusal to Perform Field Sobriety Tests

The trial court granted defendant’s motion to suppress testimony regarding his refusal to submit to a blood-alcohol test but refused to suppress testimony regarding his refusal to submit to the field sobriety tests. We conclude that the court did not err in doing so.

This case presents an opportunity to correct the error we made in State v. Neville, 312 N.W.2d 723 (S.D.1981) (Neville I); and in State v. Neville, 346 N.W.2d 425 (S.D.1984) (Neville II). That error was our holding that “Neville’s refusal to submit to a blood test is evidence of a testimonial nature and thus within the protection of the privilege against self-incrimination.” 346 N.W.2d at 429. We should have limited our holding to the ground relied upon by the United States Supreme Court, i.e., that the statute requiring a motorist to choose between agreeing to submit to a chemical test of his blood and thereby giving evidence against himself or refusing to take the test and suffering the consequences of that refusal does not involve unconstitutional coercion within the meaning of the Fifth Amendment. South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983).

In State v. Roadifer, 346 N.W.2d 438, 440 (S.D.1984), we held that

[d]exterity tests are real physical evidence and are not protected by the constitutional privilege against self-incrimination. City of Wahpeton v. Skoog, 300 N.W.2d 243 (N.D.1980). These tests are based on the loss of coordination, balance and dexterity that results from intoxi- ' cation, they do not force the subject to betray his subjective knowledge of the crime through communication or testimony. These tests merely compel the suspect to demonstrate his physical characteristics and condition at that time as a source of real or physical evidence to which observers may testify.

We also held that an audio tape that showed the manner in which a defendant performed verbal field sobriety tests would be admissible.

Our holding in Roadifer was in accord with the substantial weight of authority that roadside sobriety tests do not fall within the provisions of the Fifth Amendment. See, e.g., People v. Ramirez, 199 Colo. 367, 609 P.2d 616 (1980), and cases cited at note 8 therein. As the Supreme Court of Hawaii recently held in a case challenging the introduction of the results of field sobriety tests,

The State of Hawaii sought neither “communications” nor “testimony” from Jacqueline Wyatt. What it sought of her was an exhibition of “physical characteristics of coordination,” State v. Arsenault, 115 N.H. [109] at 113, 336 A.2d [244] at 247 [(1975)], since she was a possible source of physical evidence. Consequently, the field sobriety test was not rendered infirm by the constitutionally guaranteed privilege against compulsory self-incrimination.

State v. Wyatt, 687 P.2d 544, 551 (Hawaii 1984).

It is true that if a motorist performs the field sobriety tests he provides evidence. He also provides evidence if he breathes, speaks, holds his eyes open, or leaves his vehicle at the officer’s request and walks back to the officer’s vehicle. Indeed, by the halting, fumbling, ineffectual manner in which a motorist produces his driver’s license at the investigating officer’s request, he may very well demonstrate beyond per adventure that he is under the influence of alcohol.

In State v. Anderson, 359 N.W.2d 887 (S.D.1984), we held “that SDCL 32-23-1.2 permits implementation of the PBT as a field sobriety test, which, like the traditional mental and physical dexterity tests, may be given upon reasonable suspicion that a person has violated SDCL 32-23-1.” 359 N.W.2d at 892.

Having held in Neville II that the proscription of South Dakota Constitution Art. VI, § 9, is no broader than the Fifth Amendment to the United States Constitution, we now hold that the fact of the refusal to perform tests that do not themselves constitute communicative or testimonial evidence is equally non-communicative and non-testimonial in nature. To the extent that Neville I and II are to the contrary, those holdings are overruled.

II.

Admissibility of Defendant’s Pre-Arrest Statements

As indicated above, the state introduced testimony regarding defendant’s admissions that he had been drinking in Sioux Falls and in Montrose. Defendant made no pretrial motion to suppress these statements. Accordingly, he ordinarily would not be heard to question the admissibility of those statements for the first time on appeal. See, e.g., State v. Bullis, 255 N.W.2d 290 (S.D.1977). We therefore review this claim under the plain error rule, SDCL 23A-44-15. State v. Lohnes, 324 N.W.2d 409 (S.D.1982). We conclude that on the face of the record it is manifest that defendant’s statements were admissible.

In Berkemer v. McCarty, — U.S. —, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984), a defendant was stopped after a highway-patrolman observed his car weaving in and out of his lane of travel. Based upon the defendant’s difficulty in standing after he stepped out of his automobile, the investigating officer determined that the defendant would be charged with a traffic offense. The defendant was not advised of this fact, however, and the investigating officer then asked the defendant to perform a field sobriety test. Thereafter, the investigating officer asked the defendant whether he had been using intoxicants, to which the defendant responded that he had drunk two beers and had smoked several joints of marijuana a short time before. The investigating officer then formally placed the defendant under arrest.

Based upon these facts, the Supreme Court of the United States held that the initial stop of the defendant’s automobile did not by itself render the defendant “in custody” within the meaning of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The Court went on to hold that the defendant had failed to establish that he had been subjected to restraints comparable to those associated with a formal arrest between the time of the initial stop and the time that he was placed under arrest. The fact that the investigating officer had formed the intent to arrest the defendant as soon as the defendant had stepped out of his car was held to be irrelevant to the question whether the defendant was in custody at that time, the relevant inquiry being what a reasonable person in the defendant’s position would have understood his situation to be. The Court concluded that nothing in the interaction between the investigating officer and the defendant gave any support to the defendant’s contention that he was exposed to custodial interrogation at the scene of the stop, the Court stating:

From aught that appears in the stipulation of facts, a single police officer asked respondent a modest number of questions and requested him to perform a simple balancing test at a location visible to passing motorists. Treatment of this sort cannot fairly be characterized as the functional equivalent of formal arrest.

— U.S. at —, 104 S.Ct. at 3152, 82 L.Ed.2d at 336 (footnote omitted).

State v. Hall, 353 N.W.2d 37 (S.D.1984), handed down one day after the United States Supreme Court’s decision in Ber-kemer, is similar in both its holding and its facts to Berkemer and to the facts in the case before us. In Hall, the investigating officer observed the defendant’s car parked in the middle of a main street intersection at 3:00 a.m. Upon approaching the automobile, the officer asked the defendant driver what his problem was, to which the defendant replied that he had driven the automobile to the point where it was parked in the intersection. We held that the trial court did not err in refusing to suppress the defendant’s admission that he had driven his automobile to the point where the officer found it parked, reasoning that the officer’s inquiry into the problem behind the defendant’s presence in the intersection was part of general on-the-scene questioning not within the reach of the Fifth Amendment privilege against self-incrimination or the scope of Miranda.

We conclude that Berkemer and Hall effectively refute defendant’s contention that his pre-arrest admissions regarding his drinking in Sioux Falls and in Montrose were not admissible.

III.

Sufficiency of the Evidence

Defendant contends that the evidence was insufficient to support the jury’s finding that he had been driving while intoxicated. We do not agree. In reviewing the sufficiency of the evidence on appeal, the question for us is whether there is evidence in the record which, if believed by the jury, is sufficient to sustain a finding of guilt beyond a reasonable doubt. In making that determination, we accept that evidence, and the most favorable inferences that can be fairly drawn therefrom, that will support the verdict. See State v. Maves, 358 N.W.2d 805 (S.D.1984), and cases cited therein.

When measured against this standard of review, the evidence is sufficient to support the verdict. The arresting officers’ testimony regarding their observations of defendant’s behavior and physical characteristics, as summarized above, was sufficient, if believed by the jury, as it obviously was, to establish that defendant was indeed under the influence of alcohol at the time he was stopped.

The judgment of conviction is affirmed.

FOSHEIM, C.J., concurs. MORGAN, J., concurs specially. HENDERSON, J., concurs in part and dissents in part. GROSSHANS, Circuit Judge, dissents. GROSSHANS, Circuit Judge, sitting for WUEST, Acting Justice, disqualified.