 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
State v. Buchholz8/11/1999
port of substantial evidence, evolves from an erroneous view of the applicable law or whether, considering the entire record, we are left with a definite and firm conviction that a mistake has been made." State v. Dreps, 1996 SD 142, § 8, 558 NW2d 339, 341 (citing State v. Baysinger, 470 NW2d 840, 843 (SD 1991)). Whether an officer had a lawful basis to conduct a warrantless search is reviewed de novo as a question of law. State v. Ashbrook, 1998 SD 115, § 6, 586 NW2d 503, 506 (citing State v. Krebs, 504 NW2d 580, 585 (SD 1993) (citation omitted)).
DECISION
[ ] 1. Whether the seizure of Buchholz's urine violated her constitutional rights.
[ ] Our recent decision in State v. Hanson, 1999 SD 9, 588 NW2d 885 controls the Disposition of this case. The issue in Hanson was exactly the same as is now before us: " hether the seizure of [the defendant's] urine violated her constitutional rights." In Hanson our analysis concluded that no violation occurred. 1999 SD 9, § 40, 588 NW2d at 893-4. There is no factual or legal reason in the case now before us to conclude otherwise.
[ ] The three disputed matters are: (1) whether there was probable cause to believe the evidence existed; (2) whether exigent circumstances existed; and (3) whether procurement of the sample was reasonable considering the interests of the accused and society. Hanson, 1999 SD 9 at § 28, 588 NW2d at 892.
[ ] a. Probable cause
[ ] Buchholz's vehicle was legally stopped in a traffic check because she had a headlight out. When stopped she also failed to produce the driver's license she should have had in her possession. Buchholz informed the officer she had come from a foosball tournament in Huron. The officer was aware of possible drug use at the tournament. The officer also knew that Buchholz was rumored to use methamphetaime and her ex-husband had been arrested for possession of methamphetamine the week before.
[ ] After issuing a warning ticket, the officer subsequently asked if she would consent to a search of her vehicle for drugs. Unlike Hanson, here Buchholz gave consent to the search. The subsequent search produced methamphetamine and drug paraphernalia. A field test at the scene clearly indicated to the officer the suspicious substance was methamphetamine. Buchholz was arrested and a urine sample was taken.
[ ] This provides a stronger case for probable cause than existed in Hanson. Here Buchholz was the sole occupant of the car while in Hanson two other occupants were found in the car besides the defendant. An open vial containing methamphetamine is no less an indication of consumption of that substance than a half-empty open container of alcoholic beverages or an odor of alcoholic beverages emanating from a car. State v. Tilton, 1997 SD 28, § 13, 561 NW2d 660, 663 (citing State v. Peterson, 407 NW2d 221, 223 (SD 1987)). If the officer had probable cause to arrest Buchholz for possession, which he clearly did, "it would follow had probable cause to test her for traces of the illegal substance for which she was arrested." Hanson 1999 SD 9 at § 33, 588 NW2d at 892.
[ ] b. Exigent circumstances
[ ] "Exigent circumstances exist when there is a situation that demands immediate attention and there is no time to get a warrant." Hanson, 1999 SD 9 at § 35, 588 NW2d at 892 (citing State v. Heumiller, 317 NW2d 126, 129 (SD 1982)). In Hanson, expert testimony was provided to show that marijuana does not dissipate from a person's system as quickly as does alcohol. Id. In this case an expert testified that methamphetamine use would only be detectable for two to three days.
[ ] Nevertheless exigent circumstances e
Page 1 2 3 4 5 6 7 8 9 South Dakota DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|