PIERRE | The "implied consent" law, which declares a motorist must submit to a blood test when suspected of driving under the influence of alcohol or drugs, could soon be discarded as legal doctrine in South Dakota.
Twice in the past year — including in a recent case involving a Rapid City man — the South Dakota Supreme Court ruled unanimously in favor of defendants who claimed their blood was illegally drawn without their consent and without law enforcement officers getting a warrant first.
However, in cases where drivers refuse to allow their blood to be drawn, officers in some situations can now electronically request a judge's order allowing the blood test while still at the scene of the possible arrest. Still, the ruling may make some DUI arrests and convictions more difficult for law enforcement.
The court’s latest decision came earlier this month, regarding the arrest of Eric Medicine by a Rapid City police officer on May 3, 2014.
According to court documents, the officer read from a DUI advisement card telling Medicine that any driver in South Dakota “has consented” to a blood draw and next asked that the driver “submit” to the draw.
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The court said Medicine didn’t know he could refuse the blood draw and that the officer would have needed to ask a judge to find probable cause and issue a warrant to proceed with the blood draw.
Medicine’s arrest occurred about three months before the South Dakota Supreme Court on Aug. 20, 2014, issued a far-reaching rejection of blood draws taken without first obtaining consent or a warrant.
That earlier case involved the arrest of motorcyclist Shauna Fierro by South Dakota Highway Patrol troopers on Aug. 4, 2013, in Butte County. Fierro didn’t want to allow her blood to be drawn and said so, at one point pulling her arm away.
In its Fierro decision, the court said compelling a blood draw without consent and without a warrant was unconstitutional.
The justices said the blood draw was a violation of the defendant’s rights against unreasonable search and seizure protected by the Fourth Amendment of the U.S. Constitution and Article VI of the state constitution.
“Furthermore,” the justices said in Fierro's case, “our precedent is clear that the Legislature cannot enact a statute that would preempt a citizen’s constitutional right, such as a citizen’s Fourth Amendment right.”
Robbie Rohl of Rapid City, the appeals lawyer for the defendant in the Medicine case, said it was his understanding that other judges in some instances were waiting for the Medicine decision before ruling on suppression motions regarding blood tests in other DUI cases.
Another Rapid City lawyer, Randal Connelly, represented Medicine at the trial level. Circuit Judge Thomas Trimble had ruled in Medicine’s favor on Connelly’s motion to suppress the blood evidence.
Rohl said the South Dakota Supreme Court didn't specifically address the constitutionality of the state's implied consent law, because it was not noticed at the circuit court level and wasn’t argued on appeal.
"They didn't quite go that far," Rohl said. "There's still a little bit of door open."
In the Medicine decision, however, the South Dakota Supreme Court indicated in a footnote on page 8 that the implied-consent law might be moot: "The remaining validity of SDCL 32-23-10, if any, is not before us."
Rohl said the victory in Medicine's case is important because it is judicial recognition of the constitution's significance.
"Those are things our country was founded on," Rohl said. "It's important we fight to protect it and the rights bestowed upon us."
The two cases come in the wake of the Missouri v. McNeely decision by the U.S. Supreme Court in 2013 that declared warrants were necessary for blood draws in most circumstances.
South Dakota Attorney General Marty Jackley’s office argued in the Fierro case that the McNeely decision didn’t apply to South Dakota’s implied-consent law. The South Dakota Supreme Court disagreed.
Likewise, Jackley’s office argued in the Medicine case that the fifth point on the Rapid City police officer’s DUI advisement card asked for the defendant’s consent. The South Dakota Supreme Court said that didn’t offset the two preceding passages on the card.
The court in the Medicine decision pointed out the court’s position should have been clear from the Fierro decision regarding implied consent.
“Although we did not hold SDCL 32-23-10 invalid per se… our holding certainly recognized as invalid the invocation of SDCL 32-23-10 for the purpose of eliciting express 'consent' by declaring such has already been impliedly given,” Chief Justice David Gilbertson wrote in the Medicine decision.
Jackley said his office has advised prosecutors and law enforcement officers since Fierro that DUI advisement cards aren't a requirement any longer.
He said that the cards “while used with good intentions may give rise to unintended legal complications.” The preferred action now is to simply request consent.
Law enforcement officers can request warrants electronically from circuit judges and magistrate judges while at the scene of the pending arrest.
A third decision by the South Dakota Supreme Court appears to be necessary to clearly overturn the doctrine of implied consent.
“The Medicine decision demonstrates that reference to South Dakota's implied consent statute can be problematic in gaining actual consent, though the South Dakota Supreme Court did not officially declare it unconstitutional or say that a reference to it would completely foreclose the possibility of getting actual voluntary consent,” Jackley said.