Academic journal article South Dakota Law Review

Reconciling a Split of Authority: A South Dakota Response to Recent Developments in Drunk Driving Law

Academic journal article South Dakota Law Review

Reconciling a Split of Authority: A South Dakota Response to Recent Developments in Drunk Driving Law

Article excerpt

For over forty years, South Dakota courts have presumed the Fourth Amendment does not require an officer making an arrest for drunk driving to obtain a warrant before requiring a blood test. Officers, acting on this presumption, have required suspects to submit to blood tests even after the suspect refuses. Recent case law shows this presumption is mistaken. The need for a warrant depends on the totality of the circumstances. The South Dakota judiciary should act to reclaim the weighty role of standing between police officers seeking evidence through a Fourth Amendment search in DUI cases and the citizenry they have sworn to protect. To accomplish this, the judiciary should unequivocally articulate circumstances that require a warrant and circumstances where police officers may forego obtaining a warrant. When police officers clearly understand what the courts expect, the officers' job is made easier, the judiciary's warrant approval process becomes more efficient, and the citizens' rights are better protected.


The Fourth Amendment (1) requires police officers obtain a warrant before a person arrested for Driving Under the Influence (DUI) can be required to submit to a blood test. (2) If, however, the police officer reasonably believes he faces an emergency "in which the delay necessary in obtaining a warrant ... threaten[s] 'the destruction of evidence,'" the officer may forego the warrant requirement. (3) This exception to the general warrant requirement falls within what are known as exigent circumstances. (4) In a DUI case, the most important evidence of the crime in obtaining a warrant that are not as prevalent in urban jurisdictions. (176) These include: the lack of cell phone coverage to call a magistrate, distance to medical facilities, and the unavailability of a magistrate to make the warrant determination. (177) Each future determination made by South Dakota courts will help inform police officers and prosecutors about how to conform their procedures to Fourth Amendment requirements, however the courts should not wait to spell out general guidelines: too much is at stake. (178)

In the meantime, courts should not exclude the BAC evidence where an officer relied on the Supreme Court of South Dakota's past decisions condoning warrantless nonconsensual blood tests in DUI cases. (179) After all, the purpose of the exclusion of evidence for Fourth Amendment violations is to deter future conduct, not to penalize reasonable reliance on past judicial precedent. (180) South Dakota courts should, on the other hand, caution officers that creating exigency by artificially delaying a blood draw would be rejected. (181)


Unfortunately, based on the most current statement of the law governing DUI blood tests, "A police officer ... would have no idea--no idea--what the Fourth Amendment requires of him, once he decides to obtain a blood sample from a drunk driving suspect who has refused a breathalyzer test." (182) This confusion can, and should, be cleared up at the jurisdictional level. (183) As a starting point, police officers should get a warrant whenever possible, not just to meet Fourth Amendment requirements, but also because warrants insulate the blood test from a suppression motion and switch the burden of proof to the defendant claiming the search, i.e., blood test, was unlawful. (184)

South Dakota allows telephonic warrants, but they are not streamlined. (185) This type of warrant requires an officer to fill out the warrant application and read it verbatim to the issuing magistrate. (186) Once the magistrate approves the warrant, the requesting officer can sign the magistrate's name. (187) Because the circumstances in a DUI case are often routine, prosecutors and court officers should advocate for a more efficient process including creating form warrants that require less time to fill out yet still provide individualized and detailed information to the issuing magistrate. …

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