State v. Zoss

360 N.W.2d 523, 1985 S.D. LEXIS 210

• Court: South Dakota Supreme Court
• Decided: January 9, 1985
• Docket: 14485
• Status: Published

Opinions

WUEST, Acting Justice.

This is an appeal from a judgment of conviction for driving while under the influence (DWI), in violation of SDCL 32-23-1. We affirm.

On April 24, 1983, A South Dakota State Trooper observed an automobile, driven by Barbara Jo Zoss (appellant), traveling twenty-five m.p.h. in a fifty-five m.p.h. zone approximately four miles west of Water-town, South Dakota. The vehicle was drifting back and forth from the left-hand lane to the shoulder of the road. The officer stopped appellant and, after she failed six field sobriety tests, he arrested her for DWI. After the officer advised appellant of the implied consent law and the Miranda warnings, appellant indicated she understood her Miranda rights but did not respond to the implied consent law. She was subsequently taken to the Codington County Detention Center in Watertown, where she was again read the implied consent law and was asked to take a chemical breath test. The officer further explained the implied consent law to her and advised her that she was being requested to submit to a breath test. The officer also informed appellant she could have her own test at her own expense after the requested test was administered. Thereafter, appellant made statements questioning the accuracy of the breath test and when asked whether she would submit to its administration she declined but requested a blood test. Initially, the officer obtained directions to a local hospital where appellant could receive a blood alcohol test; however, after conferring with another officer, the trooper informed appellant that she was not entitled to the blood test because she refused to take the requested breath test.

Appellant was convicted of DWI in violation of SDCL 32-23-1, and with having two prior convictions for DWI within the preceding four years, in violation of SDCL 32-23-4 and 32-23-4.1. Appellant contends that she was denied her constitutional rights to due process and a fair trial when she was not allowed to have the blood test of her choice administered. Other states have so held. See Smith v. Cada, 115 Ariz. 510, 562 P.2d 390 (1977). The trial court, however, held that under South Dakota law the choice of tests to determine the blood alcohol content of a person arrested for DWI is for the law enforcement authorities and that, inasmuch as appellant declined the breath test requested by the officers involved, she was not entitled to another test. We agree.

At the time of appellant’s arrest, SDCL 32-23-15 stated:

The person tested ... shall be permitted to have a physician, laboratory technician, registered nurse, physician’s assistant or medical technologist of his own choosing administer the chemical analysis in addition to the one administered at the direction of the law enforcement officer. (Emphasis added.)

Under this statute, the officer chooses the type of test initially administered to determine blood alcohol content, and not the arrestee. State v. Birney, 85 S.D. 1, 176 N.W.2d 475 (1970).

We have dealt with cases factually analogous to the instant action involving drivers’ license revocation proceedings. See Schlenker v. South Dakota, Etc., 318 N.W.2d 351 (S.D.1982); Blow v. Commissioner of Motor Vehicles, 83 S.D. 628, 164 N.W.2d 351 (1969); Beare v. Smith, 82 S.D. 20, 140 N.W.2d 603 (1966); Stensland v. Smith, 79 S.D. 651, 116 N.W.2d 653 (1962). However, whether law enforcement officials violated appellant’s constitutional rights to due process and a fair trial by denying her request for a blood test after she refused the requested breath test are issues of first impression in our state.

Appellant contends that the officers’ conduct violated the principle test set out by the United States Supreme Court in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Under the Brady rule, the State is required by the due process clause of the United States Constitution, Amendment 14, and South Dakota Constitution, Article VI, § 2; to give a defendant, upon that defendant’s request, access to any material evidence in the State’s possession that is favorable to the accused. In discussing Brady, and similar due process cases, the United States Supreme Court recently stated:

Under the Due Process Clause of the Fourteenth Amendment, criminal prosecutions must comport with prevailing notions of fundamental fairness. We have long interpreted this standard of fairness to require that criminal defendants be afforded a meaningful opportunity to present a complete defense. To safeguard that right, the Court has developed “what might loosely be called the area of constitutionally guaranteed access to evidence.” United States v. Valenzuela-Bernal, 458 US 858, 867, 73 L Ed 2d 1193, 102 S Ct 3440 [3446] (1982). Taken together, this group of constitutional privileges delivers exculpatory evidence into the hands of the accused, thereby protecting the innocent from erroneous conviction and ensuring the integrity of our criminal justice system.

California v. Trombetta, — U.S. -, -, 104 S.Ct. 2528, 2532, 81 L.Ed.2d 413, 419-20 (1984).

There was no assurance the blood test would be exculpatory. It may have been to the contrary. The same may be said of the requested breath test. If she had wanted possible exculpatory evidence, she could have consented to the breath test which may have been exculpatory and still had a chance of getting a possible exculpatory blood test. There is nothing fundamentally unfair in this procedure, nor did it deny her a “meaningful opportunity to present a complete defense.” In fact, she would have had two chances at getting possible exculpatory evidence.

We have held in State v. Wilde, 306 N.W.2d 645 (1981), that to comply with the Brady rule, the evidence must not only be withheld, but material and exculpatory. Here, the State did not withhold any ex-culptory evidence. The appellant withheld the evidence (her breath) under the implied consent law, not the State.

The judgment of the trial court is affirmed.

FOSHEIM, C.J., and WOLLMAN and MORGAN, JJ., concur. HENDERSON, J., dissents.