Blazer v. S. Dakota Dep't of Pub. Safety

1

2024 S.D. 74

DONALD WILLIAM BLAZER, Plaintiff and Appellee, v. SOUTH DAKOTA DEPARTMENT OF PUBLIC SAFETY, Defendant and Appellant.

No. 30499-r-PJD

Supreme Court of South Dakota

December 11, 2024

CONSIDERED ON BRIEFS APRIL 23, 2024

APPEAL FROM THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT EDMUNDS COUNTY, SOUTH DAKOTA THE HONORABLE RICHARD A. SOMMERS Judge

MARTY J. JACKLEY Attorney General JENNA R. SEVERYN Special Assistant Attorney General Pierre, South Dakota Attorneys for defendant and appellant.

BRANDON M. TALIAFERRO Aberdeen, South Dakota Attorney for plaintiff and appellee.

OPINION

DEVANEY, Justice

[¶1.] During an investigation of a vehicle accident caused by Donald Blazer, he voluntarily submitted to a preliminary breath test (PBT), but he refused to submit to a blood draw. The South Dakota Department of Public Safety (Department) sent Blazer notice of its intent to disqualify his commercial driver's license (CDL) for life because his refusal to submit to the blood draw constituted a second violation of SDCL 32-12A-36; the first occurred in 2014 when he was convicted of driving under the influence. Blazer requested an administrative hearing, after which the Department affirmed the disqualification of his CDL for life. The circuit court reversed, concluding that Blazer's voluntary submission to the breath test constituted a submission to a chemical analysis such that his refusal to submit to the blood draw could not result in the disqualification of his CDL. The Department appeals. We reverse.

Factual and Procedural Background

[¶2.] At approximately 10:00 p.m. on December 28, 2022 Blazer's vehicle crossed the centerline on U.S. Highway 12 and struck another vehicle. He drove away from the scene of the accident, but shortly thereafter law enforcement found his abandoned vehicle approximately a mile away and followed his footprints to his location. They brought Blazer back to his vehicle and placed him in handcuffs. Blazer admitted that he was the driver of the vehicle involved in the accident. While Blazer was talking, South Dakota Highway Patrol Trooper Tyler Woodside detected the odor of alcohol coming from him. When asked if he had been drinking alcohol, Blazer admitted to having consumed four beers. Trooper Woodside testified that he thereafter "obtained a PBT from him" and "[t]he result was .102 percent."

[¶3.] Trooper Woodside placed Blazer under arrest and ran a check on his driver's license. He discovered that Blazer held a CDL and testified that as a result, he "read him the implied consent card for a commercial driver's license holder" and asked Blazer to submit to a blood draw. Blazer refused to do so. Trooper Woodside transported Blazer to the local jail and obtained a search warrant to obtain a blood sample. Blazer complied with the blood draw when presented with the warrant.

[¶4.] On January 4, 2023, Blazer was charged by complaint with driving under the influence in violation of SDCL 32-23-1(1) and (2), failure to furnish information regarding an accident in violation of SDCL 32-34-6, and driving on the wrong side of the road in violation of SDCL 32-26-1. The complaint was dismissed without prejudice in February 2023 after the result of the chemical analysis of Blazer's blood revealed a .071 percent blood alcohol content.

[¶5.] On January 5, 2023, the Department sent Blazer a notification of its intent to disqualify Blazer's CDL for life based on his December 28, 2022 refusal to give consent to the blood draw and his 2014 conviction of driving under the influence.^[1] Blazer requested an administrative hearing, and at the hearing he was represented by counsel. The Department presented testimony from Trooper Woodside and a Department employee. Blazer testified on his own behalf.

[¶6.] During direct examination, Trooper Woodside testified about his encounter with Blazer consistent with what is related above. He also explained his reason for obtaining a PBT and subsequent blood draw: "The PBT's just to confirm that from my observations of Mr. Blazer he had, in fact, been consuming alcoholic beverages. The blood draw I can send off to the State Health Lab in Pierre, South Dakota. It's a test for the blood alcohol content."

[¶7.] When asked during cross-examination about the type of breathalyzer he used, Trooper Woodside testified that he used "an Intoximeter, the PBT that was issued to [him] by the South Dakota Highway Patrol." He indicated that he is familiar with how the Intoximeter works and answered "Yes" when asked whether he "would agree that the breathalyzer measures blood alcohol content[.]" He also answered "Yes" to the statement that "the way the breathalyzer measures blood alcohol content is due to a chemical reaction when the breath goes into the machine[.]" Also during cross-examination, Trooper Woodside replied "Yes" to the statement and question, "And you've already testified that you agree that the breath test tests for blood alcohol. So fair to say that a person's breath could be a substance to be tested for blood alcohol?"

[¶8.] Blazer testified that he sustained a severe concussion as a result of the accident and was out of work for approximately a month. He further testified that because of the injury he did not recall being read the implied consent statute by Trooper Woodside. He disagreed that his inability to recall the events of the evening was related to his consumption of alcohol, and he disagreed that he refused to submit to a chemical analysis, stating that he submitted to the breath test as requested by the officer.

[¶9.] The Administrative Law Judge (ALJ) took the matter under advisement and thereafter issued a written proposed decision. The ALJ found that Blazer submitted to a PBT and the result was .102 percent. The ALJ further found that "Blazer refused to submit to a chemical analysis" as required by SDCL 32-12A-46 when he refused Trooper Woodside's request that he submit to a blood draw. The ALJ did not specifically address the question whether Blazer's submission to a breath test qualified as submitting to a "chemical analysis" under SDCL 32-12A-46. The ALJ concluded that Blazer's refusal to submit to a blood draw constituted a second offense under SDCL 32-12A-36. The ALJ thus proposed that Blazer's CDL be disqualified for life under SDCL 32-12A-37. The Department adopted the ALJ's proposed decision and issued its final decision disqualifying Blazer's CDL for life.

[¶10.] Blazer appealed the Department's decision to the circuit court, and relevant to this appeal, he asserted that the Department erred in concluding that SDCL 32-12A-46 required him to submit to a blood test after he already submitted to a breath test. More specifically, he argued that his submission to the breath test satisfied his obligation under SDCL 32-12A-46 to submit to a chemical analysis of an "other bodily substance" to determine the amount of alcohol in his blood. Blazer relied on Trooper Woodside's testimony that the Intoximeter measures blood alcohol content through a chemical reaction to one's breath. He further argued that because SDCL 32-12A-36(5) deems it a violation for a CDL holder to refuse to submit to "a chemical analysis" and Blazer submitted to a chemical analysis of his breath, the ALJ erred in concluding that his refusal to submit to a chemical analysis of his blood provides a basis for disqualifying his CDL.

[¶11.] Before considering Blazer's arguments, the circuit court, in an email to the parties, asked them to submit additional briefing on the import of this Court's decision in State v. Richards, 378 N.W.2d 259 (S.D. 1985), which, according to the circuit court, "did rule that a breath test was a chemical analysis." In its brief, the Department argued that Richards does not apply because it concerned the presumptions arising from a chemical analysis for purposes of a criminal prosecution and not, as here, the statutory framework relevant to a CDL disqualification. The Department further asserted that SDCL 32-12A-36(5) "directly contemplates a determination of alcohol in a CDL holder's blood" and "SDCL 32-12A-46 directly contemplates a withdrawal of blood." Finally, the Department noted that under applicable federal regulations, adopted through SDCL 32-12A-58, "a refusal to be tested is [an] . . . offense which subjects the CDL holder to disqualification."

[¶12.] In Blazer's supplemental brief, he argued that Richards applies to the question whether a breath test can accomplish a chemical analysis as referenced in SDCL 32-12A-36(5). He asserted that even though Richards concerned a different statute, the Court broadly determined that a device measuring blood alcohol content from one's breath accomplishes a chemical analysis. See 378 N.W.2d at 262 (determining that "[t]he phrase 'chemical analysis' commonly includes 'tests for identifying chemical compounds by their physical properties, as the Intoxilyzer does'"). Blazer then argued that based on Trooper Woodside's testimony that the Intoximeter chemically analyzed Blazer's breath, his submission to the breath test satisfied his obligation to consent to a chemical analysis under SDCL 32-12A-46.

[¶13.] In its memorandum decision, the circuit court determined that breath is an "other bodily substance" under SDCL 32-12A-46 and that based on Richards, the test of Blazer's breath constitutes a chemical analysis. The court then noted Trooper Woodside's testimony that the Intoximeter measures blood alcohol content. The court therefore held that Blazer complied with SDCL 32-12A-46 by submitting to a chemical analysis of his breath and issued an order reversing the ALJ's decision adopted by the Department.

[¶14.] The Department appeals, asserting the circuit court erred in reversing the Department's decision...