 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
State v. Engesser4/23/2003
y from the passenger side of the vehicle.
(3) Finley was deceased.
(4) The nurse who attended Engesser at the scene noticed an odor of alcoholic beverage coming from him.
(5) Fox noted a strong odor of alcohol beverage coming from Engesser.
(6) The car had been traveling at an extremely high rate of speed.
Considering these facts, we conclude that there was probable cause to arrest Engesser. The determinative question in this case is not whether there was an actual arrest, but rather whether the trooper had probable cause to arrest the defendant. He did and therefore this search was reasonable.*fn3
[ .] In this case, to insist on a requirement of a formal arrest makes little sense. Throughout his brief, Engesser strenuously asserts that he was incoherent at the time Fox ordered the blood draw. Had the trooper gone through with the formalities of arrest, Engesser may not have even known he was under arrest. In addition, requiring Fox to perform the ritual of formal arrest at a time when the suspect was still incoherent would have done nothing to increase Engesser's protection under the Fourth Amendment.
[ .] When there are exigent circumstances such as those in this case, and where the police officer has both probable cause on which to believe the test will produce evidence of an offense and probable cause to arrest the subject, it does not violate the Constitution if blood is drawn without a prior or immediate subsequent arrest.*fn4
[ .] In summary, for an involuntary, warrantless blood draw to be constitutional, either the search must be incident to arrest or the officer must have: (1) probable cause to arrest; (2) probable cause to believe that the evidence sought will be obtained; and (3) exigent circumstances justifying the intrusion. In any case, the remaining requirements of Schmerber—that the test be taken by a reliable and acceptable method and in a reasonable, medically approved manner—must be strictly observed.
2. Trooper's Testimony on Defendant's Credibility
[ .] Although Engesser did not testify in his trial, his entire thirty minute taped interview with Fox was played to the jury. After the tape was played, the trial court allowed Fox to express his opinion on Engesser's truthfulness in the interview, particularly on the part where Engesser asserted that he had not been driving. On direct examination, the State's Attorney and Fox had the following colloquy: Q: (State's Attorney) When you spoke to the defendant at that September 13th interview you said, "I don't necessarily think you're lying." Did you think he was lying to you? MR. RENSCH: Objection as to relevancy. . . THE COURT: Overruled. A: Yes. Q: What did you base that on? A: My experience interviewing people. Q: Okay. And what about his conversation with you did you—what about that conversation made you believe he was lying? MR. RENSCH: Objection . . . that's argumentative, it calls for speculation, and it's more prejudicial than probative, it's the ultimate issue. (off the record discussion) Q: I believe my question was, what about the interview made you believe he wasn't telling you the truth? A: There were numerous things during the interview. MR. RENSCH: Could I have a standing objection as to those matters, Your Honor? THE COURT: Yes. Q: Such as? A: One thing right off the bat you noted on the interview that before I had even asked him a question he went into a rather lengthy explanation that seemed rehearsed to me . . . and that initially right off the bat struck me because its not often that when you meet with somebody they volunteer a lot of stuff. In fact normally it's just the opposite. . .
Fox then touched on other reas
Page 1 2 3 4 5 6 7 8 9 10 11 12 South Dakota DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|