July 31, 1980

Dr. Frederick W. Zuercher 
Secretary 
Department of Public Safety 
118 West Capitol, Room 206 
Pierre, South Dakota 57501

Official Opinion No. 80-52

Effect of Refusal of Chemical Analysis Under SDCL 32-23-10.1,-11

Dear Secretary Zuercher:

You have requested an official opinion from this office in regard to the  following factual situation:

FACTS: 

Senate Bill 36 (1980 Session Laws, Chapter 230), An act to allow refusal to submit to chemical analysis in driving while intoxicated cases into evidence at trial, and to revise the revocation based on refusal to submit to chemical analysis, went into effect on July 1, 1980.  The act has been codified at SDCL 32-23-10.1 and 32-23-11. 

It is the responsibility of the Office of Driver Improvement, Division of Highway Safety, in an implied consent license revocation proceeding, to provide an opportunity to petition for a hearing pursuant to SDCL 1-26. If no hearing is requested, the license will be revoked for one year.  When a hearing is required and the hearing officer makes findings and conclusions that the person did refuse the chemical test, his license to drive may be revoked for one year. 

In implementing the new law, questions have arisen concerning its interpretation and application.  

SDCL 32-23-10.1 provides: 

If a person refuses to submit to chemical analysis of his blood, urine, breath or other bodily substance, as provided in §  32-23-10, and that person subsequently stands trial for driving while under the influence of  alcohol or drugs, as provided in §  32-23-1, such refusal may be admissible into evidence at the trial. 

SDCL 32-23-11 provides: 

Any person described in § 32-23-10 not given a chemical analysis because of his right to refuse such test shall have the opportunity to demand a hearing pursuant to chapter 1-26 before further action is taken under this section.  After this opportunity, if the department finds that the law enforcement officer complied with the law and the refusal was made by the person, then the department may revoke for one year both that person's license to drive and any nonresident operating privileges which he may have in his possession.  The department may also allow the person to drive under restrictions which it may impose.  The provisions of this section do not apply to a person who pleads guilty to an offense in which the results of a chemical analysis test, if taken, would have been admissible in evidence, provided that the plea of guilty is entered before any departmental hearing in regard to the refusal has taken place.  (Emphasis added.)

Based on the above facts, you have asked the following questions:

QUESTIONS: 

1.  In what offenses would the results of a chemical analysis test, if  taken, be admissible in evidence? 

2.  What reporting procedures will be used to notify the Office of Driver Improvement of a guilty plea to an offense in which the results of a chemical analysis test, if taken, would be admissible in evidence?

IN RE QUESTION NO. 1:

In reviewing the new law, it appears to me that the Legislature has adopted words which may not reflect its original intent. Although statutes should be interpreted, when possible, so as not to defeat the clear intent of the Legislature, where legislative intent is unclear, the plain meaning of the statute is controlling.  The Legislature made specific reference to SDCL 32-23-1, driving under the influence of alcohol or drugs, in the evidentiary provisions of Senate Bill 36, now codified at SDCL 32-23-10.1 Similar reference to any specific offense is significantly absent from the portion of the bill which creates exemptions to license revocations for chemical test refusals under the implied consent law, SDCL 32-23-11.  Rather than referring specifically to DWI, the Legislature liberally opened the exemption door to defendants who pled guilty to any offense where the implied consent law was invoked, the test was refused, and results of the chemical analysis test, if taken, would have been admissible.

It is my opinion that evidence of intoxication would be relevant in the prosecution of most moving traffic violations.  A guilty plea to an offense which the prosecutor might charge in a case where the implied consent law was invoked and the defendant refused the test would therefore trigger the exemption provisions of SDCL 32-23-11. For example, if a defendant who refused a chemical test pled guilty to reckless driving, he would be entitled to the revocation provisions of SDCL 32-23-11.

In answer to your first question, the revocation exemption provisions of SDCL 32-23-11 would apply to guilty pleas for most moving violations, since the results of a chemical analysis test, if taken, would be admissible in a prosecution for any moving violation.  The exemption is not limited to the offense of DWI.  If the Legislature deems a specific limitation necessary, it should evidence that intent by an amendment in the next legislative session which would restrict application of the exemption to specific offenses.

IN RE QUESTION NO. 2:

The new law does not establish any reporting procedures to notify the Office of Driver Improvement of a guilty plea which would trigger the exemption provisions of SDCL 32-23-11.  Internal procedures of your department will need to be modified to accommodate the requirements of the new law.

Since I do not deem internal department policies a proper subject for an official opinion, I will decline to specify a particular report procedure.  I would caution, however, to keep in mind the provisions of SDCL 1-26-29 in making necessary revisions of the standard letter of intent to revoke. Specific reference should be made in the notice to the exemption contained in SDCL 32-23-11, so that the party on notice will have an opportunity to establish his entitlement to the exemption by producing proof of a timely guilty plea.

Respectfully submitted,

Mark V. Meierhenry
Attorney General