# State v. Hartman > South Dakota Supreme Court · July 7, 1977 · 256 N.W.2d 131 URL: https://www.frixlaw.com/law-library/cases/9851201 ## Case - **Full name:** STATE of South Dakota, Plaintiff and Respondent, v. Bruce HARTMAN, Defendant and Appellant - **Court:** South Dakota Supreme Court - **Decided:** July 7, 1977 - **Citations:** 256 N.W.2d 131; 1977 S.D. LEXIS 167 - **Precedential status:** Published - **Opinion:** Concurrence by Porter - **Judges:** Zastrow, Dunn, Wollman, Porter, Morgan - **Cited by:** 29 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9851201 ## Opinion text PORTER, Justice (concurring specially). The blood sample was taken from defendant with his express consent, after he was warned of his constitutional rights. On appeal no contention is made that his consent was given under duress, or through fraud or mistake, nor does defendant claim his consent was secured or the blood sample obtained in violation of any federal or state constitutional right. Given the above, we need not rely on Schmerber v. California, 384 U.S. 757 , 86 S.Ct. 1826 , 16 L.Ed.2d 908 (1966) [where the blood sample was taken over defendant’s refusal to consent], nor is consideration of the exclusionary rule [see footnotes 10 and 11, majority opinion] necessary absent a claim the blood sample was unconstitutionally taken from defendant. I do not view the admissibility of the blood sample in this case as in any way dependent upon the implied consent law. I view the blood sample as voluntarily given and thus admissible the same as any other relevant, competent evidence. On appeal defendant rests his argument for suppression of the blood sample principally upon the failure of the officer to comply with SDCL 32-23-10. If the crime charged here were DWI under SDCL 32-23-1,1 would suppress the blood test. That *138 was the issue this court in State v. Buckingham, S.D., 240 N.W.2d 84 (1976) had to resolve in order to decide the case. I would reaffirm the rule of Buckingham that the failure of the arresting officer to comply with the requirements of SDCL 32-23-10 rendered the test results there inadmissible. However, SDCL 32-23-10 does not express a legislative intent that a blood sample obtained from a vehicle operator may not be admitted as evidence of some other crime, unless compliance with SDCL 32-23-10 is first established. After the explanation required by SDCL 32-23-10 is given, the vehicle operator is empowered, under SDCL 32-23-11, to refuse the chemical test. If the right of refusal applies where the. test is for use in a DWI misdemeanor under SDCL 32-23-1, the imposition of a one-year license revocation for exercise of the right of refusal can reasonably be seen as a sanction not disproportionate to conviction of misdemeanor DWI. If, however, the statutory absolute right of refusal given under SDCL 32-23-11 applies regardless of the crime involved, then a felony DWI manslaughter prosecution [as charged here, under SDCL 22-16-21] may be substantially impeded by an accused in return for the wholly disproportionate penalty of a one-year license revocation. Did the legislature intend that, in addition to the federal and state constitutional protection afforded any person charged with a crime, a vehicle operator should, solely because of that status, also have the absolute statutory right to refuse a blood test, regardless of the crime charged? That intent is not expressed in the statute and I cannot imply such a purpose absent plain language to that effect within the implied consent law. To construe the absolute statutory right of refusal as applying only to SDCL 32-23-1 DWI does not mean that a vehicle operator whose blood sample is sought by the police may not refuse to consent. It does however, make clear that if the analysis of the blood sample is offered as evidence of a crime other than DWI, there is no requirement that the SDCL 32-23-10 explanation and right of refusal be given before the blood sample is taken. State v. Buckingham, upon which defendant relies, has no application here because this defendant had no absolute right under SDCL 32-23-11 to refuse to give a blood sample to be used as evidence in this case, and thus had no statutory right under SDCL 32-23-10 to the explanation of rights there required. Defendant correctly argues that the DWI manslaughter statute SDCL 22-16-21, under which he was convicted, is now specifically referred to SDCL 32-23-7. There is, however, no reference to SDCL 22-16-21 anywhere else in SDCL 32-23-1 through 32-23-17. If the legislature intended that the rights explanation and statutory right of refusal given by SDCL 32-23-10 and 32-23-11 should also apply to DWI manslaughter, SDCL 22-16 — 21, the latter section would have been added to SDCL 32-23-10 at the same time the legislature amended SDCL 32-23-7 to include reference to SDCL 22-16-21. In this case an instruction was given as to the presumption established by SDCL 32-23-7. Whether this instruction may be given in a DWI manslaughter case, absent compliance with SDCL 32-23-10 is not before us. The point has not been briefed or argued by either side and as the majority notes, there was no objection to the instruction at trial. I agree with the majority opinion that there was sufficient evidence to take the case to the jury, that there was otherwise sufficient foundation for the blood sample and that Exhibit 5 was properly admitted. For the reasons stated, I join in the judgment of the court affirming the conviction. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9851201. Public record. Not legal advice.