holding that PBT results were inadmissible because of state implied consent statues
How later courts described this case
- holding that PBT results were inadmissible because of state implied consent statues
- indicating that the statutory presumptions relating to being "under the influence" are irrelevant in a prosecution under SDCL 32-23-1(2)
Written by the judges who cited it.
The opinion
HENDERSON, Justice
(dissenting in part, concurring in result in part).
This appeal arises from the same circuit, same circuit judge, where citizens who ask for a jury trial are punished more severely than those who do not ask for a jury trial. See numerous decisions and authorities in dissent of this author in State v. Braun, 351 N.W.2d 149, 152 (S.D.1984). Braun is cut off of the same bolt of legal goods.
Defendant here — had the audacity — to ask for a jury trial. You must not do this in Spink County! He was found guilty and sentenced, inter alia, to 20 days in jail; those who pleaded guilty (18 other citizens) before this same judge, who were also first DWI offenders, received a 2-day jail sentence. * Moreover, Huettl’s fine was greater and costs of $208.68 were assessed. This was not part of the sentence with the other 18 defendants. The message is clear: Do not ask for a jury trial in Spink County — you will be punished for it if you do! I dissent to the rationale and result of the majority opinion concerning defendant’s sentence; it is a rank violation of the equal protection clause. With all other aspects of the majority opinion, I concur in result.
The jury trial is the backbone of our entire judicial system and every man, woman, and child has the right to put the State on its proof. The process of the jury trial is one of the few exceptions where we lawyers and judges still permit ordinary citizens to involve themselves in the judicial branch of government. Judges should not punish citizens for asking for jury trials.
Purchased by the blood of patriots, the right to a jury trial is now used as an additional factor to levy additional punishment. We have strayed a long way from its original intent. Lexington, Concord, Siegfried Line, Flanders Field, Normandy, Anzio Beach, Saipan, Marshall Islands, Iwo Jima, Old Baldy, Hill 101, Vietnam, what did they all stand for? Well, for openers, *307 “Equal Justice Under Law.” See inscription on the United States Supreme Court Building, Washington, D.C.
The judge’s statement, set forth in the majority opinion, reflects that the judge considered the jury trial as a sentencing factor. Apparently, this Court approves of this judge considering inadmissible evidence, namely, the PBT, when he sentenced this defendant. So far as this defendant was concerned, he was to be sentenced as a first offender as he was charged as a first offender.