And now, some analysis from the SDWC Legal Team

Rick Kreibel, Bob Hurlbut's opponent from the last election (And STOP Amendment supporter) had the following question in the comment section under the blogpost I did on his former opponent's DUI arrest:
I am curious why breathalyzer results are not admissable in court ? news to me, seems odd, why didnt they ask for blood ? could he even stand ??
(Ouch! -pp)

Also reading the prior post and the subsequent comment, recently returned Iraq vet and USD Law Student, Joel Arends had e-mailed me and explained why it could not be used. And since I couldn't say it any better myself, I asked, and he was nice enough to give us his legal analysis (as opposed to having to do it for one of his professors). As you will read, Joel informs us why a breathalyzer result is not admissable in court:
"Generally a PBT, ‘breathalyzer’ test is not admissible in court for the purposes of proving BAC. Due to the rules of evidence the State cannot lay the scientific foundation necessary to validate blood alcohol content (BAC) as determined by someone’s breath. However, a person’s breathalyzer reading is used, along with several other factors, to determine probable cause. A blood test, which is admissible in court, is what the State will use to show a person’s BAC.

In SD the State has the option of charging a suspect in several different ways. One of those ways does not require a blood test. According to SDCL 32-23-1(2), the State may charge a suspect with driving while under the influence of alcohol. This charge is used by the State if it can’t make the .08 blood test limit stick or if there were problems with the blood draw, etc…

Of course when the State does a valid blood draw it will charge a suspect using SDCL 32-23-1(1) which makes it illegal to drive with .08% of alcohol in your blood stream. Both charges are class 1 misdemeanors and carry the option to imprison a person for up to one year in jail.”

From the law school carrel of Joel A. Arends
I did not know that. And as the Beatles said, "I get by with a little help from my friends."

Comments

Anonymous said…
Thanks for the info PP and Douglas from the previous post.

First, while Bob and I were/are political opponents, I wish him no harm in this and hope he comes out ok.

Second, I had a friend who was busted for .2 BAC and he could not stand or even remember being arrested. My point earlier was, if Bob could stand and remember being arrested he must be drinking an incredible amount to have that kind of tolerance (maybe he couldnt and cant). As confirmed by Douglas in the previous post.

Good info on the breathalyzer use, I assumed it contributed more than it apparently does to prosecution.

RICK KRIEBEL
Douglas said…
Another thing. Even if a breathtest might not be automatically accepted as proof of a BAC, if the breathtest shows high and the driver refuses to have the blood test, that should mean an automatic license revocation via the SD "implied consent" law. The idea is to keep dangerous drunken drivers off the highways and into treatment because a drunken driving violation is usually a a very good indication that the person also has a serious drinking problem that is causing other problems in his or her life and for the people around them.

But, more responsibility should be put on the liquor industry. Shut every place selling alcohol down for a day a week or two weeks following a fatal crash related to drunken or impaired driving. The liquor industry will figure out how to be responsible if they all get shut down every other Friday or Saturday night.

And for my next sermon..... where'd my mount go anyway???? Horse's walk sober. And, all reading might want to remember the slogan I came up with for SDASAP...
Good Neighbors Drive Sober.
Anonymous said…
Well, the pup almost got it right. The PBT can be used in court. We can lay the foundation for the test and have in the past. The controlling case law in SD points out the problem, the PBT is usually administered prior to the reading of the implied consent statute (the "right to refuse" to give a sample of your blood, breath or urine). So, in short, the PBT circumvents the implied consent law. I could go on at greater lengths to describe how we can and have used it in the past but I'd put everyone to sleep.
Signed,
Been there, done that.

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