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State v. Herrmann10/2/2002
Trooper Rick Steiner, a thirteen-year veteran of the South Dakota Highway Patrol assigned to the Watertown area, was on duty on the night of October 6, 2000. At the end of his shift at approximately 11:22 p.m., he was pulling into the parking lot of the law enforcement center in Watertown when he received a message from dispatch: an unknown person had called, "advising of a possible intoxicated driver" driving a 1962 yellow Chevrolet pickup southbound on Sioux Conifer Road near Watertown. Dispatch also provided Steiner with the license number of the vehicle. Steiner immediately proceeded west on Highway 20 and, as he approached the intersection with Sioux Conifer Road, he observed the vehicle described by dispatch turn from the road onto the highway. The vehicle pulled into an eastbound lane of the four-lane highway and headed toward Watertown traveling in the opposite direction as Steiner.
[ ] Steiner met and passed the other vehicle and then made a U-turn through the median and followed it. The trooper confirmed that the license number of the vehicle matched the one given by dispatch and kept pace with it as it passed into a thirty-five mile per hour zone. Steiner was traveling at approximately forty-five miles per hour and used his radar to confirm his own speed. Based upon that information, he formed the opinion that the other vehicle was speeding. Thus, at approximately 11:27 p.m., about five minutes after receiving the initial call from dispatch, Steiner activated his red lights and pulled the speeding vehicle over.
[ ] Steiner approached the driver, asked for his driver's license, and identified him as Herrmann. When Steiner asked Herrmann if he had been drinking, Herrmann replied that he had not. Nevertheless, Steiner noted that Herrmann had an odor of an alcoholic beverage and watery, glassy eyes. Steiner instructed Herrmann to come back to the patrol car where he asked him how much he had to drink. Herrmann replied that he had a couple of beers. At that point, Steiner could still smell an alcoholic beverage odor, so he asked Herrmann to perform some field sobriety tests. When Herrmann's performance on these tests proved unsatisfactory, Steiner placed him under arrest for driving while under the influence (DUI). Steiner then read Herrmann the implied consent warnings and the Miranda warnings. *fn1 Herrmann refused to submit to a blood test as requested in the implied consent warnings. However, Steiner was advised by dispatch at about the same time that Herrmann had two DUI convictions in the previous five years. With that information, Steiner informed Herrmann that a blood test was mandatory and took him to the local hospital where blood was drawn. *fn2 Herrmann was then transported to a local detention center.
[ ] Herrmann's blood test yielded a result of 0.171 percent by weight of alcohol. Accordingly, he was charged with one count of driving or actual physical control of a motor vehicle while under the influence of an alcoholic beverage (SDCL 32-23-1(2)). A part two information was also filed alleging that Herrmann had two prior DUI convictions. The information was later amended to allege only one prior conviction. Before trial, Herrmann's counsel moved to suppress all evidence obtained as a result of the stop of Herrmann's vehicle on the basis that the stop was illegal. After a hearing, the trial court entered a memorandum decision, findings of fact, conclusions of law, and an order denying the motion to suppress.
[ ] On the first day of trial, Herrmann's counsel filed a motion to suppress the blood test results for violation of Herrmann's right to refuse the test. Counsel argued that, despite the dispatcher's advice at the time of the arrest that Herrmann had two prior
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