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State v. Herrmann10/2/2002
consent law] nugatory at their whim."
[ ] What this Court wisely foresaw in Buckingham is the precise scenario that has unfolded. In the present case, upholding admissibility of the blood test result once again permits law enforcement to render the implied consent law nugatory by acts of negligence and carelessness if not purposeful noncompliance. Contrary contentions that forfeiture of the statutory presumptions of intoxication adequately penalizes the State for its violation of the implied consent law are meritless in light of the body of common knowledge that education and public debate have engendered on the meaning of a 0.10 or 0.08 percent blood-alcohol test result. Therefore, to the extent that Hartman and its progeny hold that suppression of blood test results is not required for violation of the implied consent law, they should be overruled. If such a conclusion were reached, the following observation from Buckingham would again become relevant:
If the legislature desires that a motorist arrested on a charge of driving while intoxicated shall no longer have the right to choose between consenting to a test and losing his license, then presumably the legislature will say so in terms as clear as it used in spelling out a motorist's rights under [the implied consent law]. Buckingham, 90 SD at 209, 240 NW2d at 89.
[ ] The Court's decision is rewarding law enforcement for acts of negligence and carelessness in violation of the driver's statutory right to refuse the blood test. Why should law enforcement reap the benefits of its own acts of negligence and carelessness in violation of the law? The answer is obvious: they should not be able to do so. The Court's decision should enforce the law as it is until the legislature changes it.
[ ] Based upon the foregoing, I dissent from the Court's decision on Issue Two and would hold that the trial court erred in denying Herrmann's motion to suppress his blood test result as evidence and that a fair trial is required.
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