three judge district court declared South Dakota law unconstitutional for want of requirement that lawful arrest precede nonconsensual extraction of blood
How later courts described this case
- three judge district court declared South Dakota law unconstitutional for want of requirement that lawful arrest precede nonconsensual extraction of blood
Written by the judges who cited it.
Distinguished
Distinguished by Montrym v. Panora, 429 F. Supp. 393 (1977)
The defendant argues that Holland and Chavez are inapposite to the present case for two reasons.
The opinion
BRIGHT, Circuit Judge
(concurring).
I concur in Judge Nichol’s opinion. However, I think it should be pointed out that the result of Part I of the opinion concerning the validity of Holland's arrest is largely due to South Dakota’s anachronistic arrest requirements which are ill-suited to modern day traffic violations and which in many cases effectively tie the hands of the law enforce *203 ment officer on the scene. As we read the plain language of South Dakota Statutes §§ 23-22-7 and 32-2-8, an officer may not make an arrest for a misdemeanor unless it occurs in his presence or unless he acquires a warrant. Thus an officer arriving on the scene after an accident has occurred cannot lawfully arrest anyone on a misdemeanor charge unless the unlawful conduct occurred in his presence or unless he first secures a warrant from a magistrate, no matter how difficult and time consuming that may be. Defendant argues that the South Dakota legislature, by its enactment of § 32-33-2, intended that traffic violations be considered as a separate and distinct category of misdemeanors to be accorded special procedure by law enforcement officers. The problem with this argument is that there is nothing in the cited statute which permits an officer to make a warrantless arrest for traffic violations on the basis of probable cause to believe a violation has occurred unless the violation occurred in the officer’s presence. Some states have remedied this situation through enactment of appropriate legislation. See, e. g., Ariz.Rev.Stat.Ann. § 13-1403 (Supp. 1972-73); N.D.Cent.Code § 29-06-15 (Supp.1971). 1
Our decision in Part I goes no further than to hold that a valid arrest is a constitutional prerequisite of compelling a driver to submit to a blood test under S.D. Compiled Laws Ann. § 32-23-10 (Supp.1972). South Dakota, of course, need not be wedded to its present arrest-for-misdemeanor statutes.
. Arizona’s statute provides :
A peace officer may, without a warrant, arrest a person:
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(3) When he has probable cause to believe that the person to be arrested has been involved in a traffic accident and violated any section of title 28, and that such violation occurred prior to or immediately following such traffic accident.
(4) When he has probable cause to believe a misdemeanor has been committed and probable cause to believe the person to be arrested has committed the offense. The person so arrested shall be released in conformity with the provisions of § 13-1422.
North Dakota’s statute provides:
A peace officer, without a warrant, may arrest a person :
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6. On a charge, made upon «reasonable cause, of driving or being in actual physical control of a vehicle while under the influence of alcoholic beverages.