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State v. Iversen

June 24, 2009

STATE OF SOUTH DAKOTA, PLAINTIFF AND APPELLEE,
v.
JAMES MICHAEL IVERSEN, DEFENDANT AND APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT LAKE COUNTY, SOUTH DAKOTA HONORABLE TIM D. TUCKER Judge.

Per curiam.

CONSIDERED ON BRIEFS ON MARCH 23, 2009

[¶1.] James Iversen appeals his conviction for driving or control of a vehicle with a prohibited blood alcohol level. We affirm.

FACTS

[¶2.] At approximately 1:30 on the morning of January 5, 2008, a police officer patrolling in the City of Madison passed by the parking lot of an agricultural supply store. Behind an old gas station in the parking lot, the officer observed a Ford pickup parked beside a semi trailer. The lights of the pickup were off and the engine was running. Because of the early-morning hour and a history of battery thefts in the area, the officer became concerned and pulled into the parking lot. The officer then focused his patrol car's spotlight on the pickup and exited his vehicle to make contact with the pickup's driver and passenger.

[¶3.] As the officer approached the pickup, the driver rolled his window down. The officer immediately smelled the odor of an alcoholic beverage coming from the pickup and observed that the driver had bloodshot, glassy eyes and that his face was flushed. When the officer asked the driver what he and his passenger were doing the driver replied that they were just talking. After some other small talk, the officer asked the driver for his driver's license which the driver gave to the officer. The officer identified the driver as Iversen and, because of the odor of alcoholic beverages and other indications of consumption, asked Iversen to come back to his patrol car. The officer eventually had Iversen perform a series of field sobriety tests and, based upon the results and his earlier observations, placed Iversen under arrest for driving under the influence of alcohol.

[¶4.] After the arrest, the officer read Iversen the Miranda warnings and Iversen agreed to answer questions. Iversen admitted to consuming a number of beers at a local bar and that after leaving that establishment he and his companion had driven to the parking lot where the officer found them conversing. After these admissions, the officer transported Iversen to a local hospital for a blood draw. Testing later established Iversen's blood alcohol level was .153% by weight of alcohol in the blood.

[¶5.] The State charged Iversen with alternative counts of driving or control of a vehicle with a prohibited blood alcohol level and driving or control of a vehicle while under the influence of an alcoholic beverage. Before trial, Iversen moved to suppress the evidence obtained during his encounter with the police officer arguing it was the product of an unconstitutional stop, seizure and arrest. After an evidentiary hearing, the trial court entered findings of fact, conclusions of law and an order denying the motion to suppress. Iversen petitioned for an intermediate appeal of the order, which this Court denied.

[¶6.] Iversen waived a jury trial and his case was tried to the court on July 3, 2008. During trial, Iversen renewed his evidentiary objections, which were again overruled. At the close of trial, the court found Iversen guilty of driving or control of a vehicle with a prohibited blood alcohol level. Iversen was sentenced on July 21, 2008, to thirty days in jail plus fines and costs totaling $500. The jail time was suspended on various terms and conditions and was stayed for purposes of appeal. Iversen now appeals to this Court.

ISSUE

[¶7.] Whether the trial court erred in denying Iversen's motion to suppress.

Our review of a motion to suppress based on an alleged violation of a constitutionally protected right is a question of law examined de novo. See State v. Hirning, 1999 SD 53, ¶ 9, 592 NW2d 600, 603; Ornelas v. United States, 517 US 690, 699, 116 SCt 1657, 1663, 134 LEd2d 911 (1996) (standard of review for questions under the Fourth Amendment); United States v. Khan, 993 F2d 1368, 1375 (9thCir 1993). We review findings of fact under the clearly erroneous standard. See State v. Almond, 511 NW2d 572, 573-74 (SD 1994). Once the facts have been determined, however, the application of a legal standard to those facts is a question of law reviewed de novo. Spenner v. City of Sioux Falls, 1998 SD 56, ¶ 13, 580 NW2d 606, 610.

State v. Sheehy, 2001 SD 130, ¶ 6, 636 NW2d 451, 452.

[¶8.] Iversen argues that the trial court erred in denying his motion to suppress because the evidence against him was obtained as a result of an unconstitutional vehicle stop. In support of his argument, Iversen relies on a line of cases addressing the legality of vehicle stops. See, e.g., State v. Noteboom, 2008 SD 114, ¶ 3, 758 NW2d 457, 458 (police chief approached defendant's vehicle from behind and initiated a traffic stop); State v. Bergee, 2008 SD 67, ¶ 5, 753 NW2d 911, 912 (police officer stopped defendant's vehicle before it could leave a parking lot). However, as ...


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