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State v. Fierro

Supreme Court of South Dakota

August 20, 2014

STATE OF SOUTH DAKOTA, Plaintiff and Appellant,
SHAUNA FIERRO, Defendant and Appellee

Argued May 28, 2014

Page 236


MARTY J. JACKLEY, Attorney General; JEFFREY P. HALLEM, KELLY MARNETTE, Assistant Attorneys General, Pierre, South Dakota, Attorneys for plaintiff and appellant.

RONALD A. PARSONS, JR., DELIA M. DRULEY of Johnson, Heidepriem & Abdallah, LLP, Sioux Falls, South Dakota and JOSEPH M. KOSEL of Johns & Kosel, LLC, Lead, South Dakota, Attorneys for defendant and appellee.

WILBUR, Justice. GILBERTSON, Chief Justice, and KONENKAMP, ZINTER and SEVERSON, Justices, concur.


Page 237

WILBUR, Justice

[¶1] In this intermediate appeal, we examine a magistrate court's suppression of blood evidence seized without a warrant pursuant to South Dakota's implied consent statutes. We affirm the suppression of the blood evidence.


[¶2] On the evening of August 4, 2013, Shauna Fierro was riding her motorcycle to her home in Butte County, South Dakota. At approximately 11:18 p.m., South Dakota Highway Patrol Troopers Jerry Kastein and Richard Olauson stopped Fierro after she committed a traffic violation.

[¶3] After reviewing Fierro's South Dakota driver's license, Trooper Kastein administered a number of standard sobriety tests and concluded that Fierro did not pass some of them. Fierro was placed under arrest for driving under the influence of alcohol (DUI).

[¶4] After making the arrest, Trooper Kastein, reading from a DUI advisement card, informed Fierro that she was required by law to give a sample of her blood. When Fierro specifically asked if she had to submit to a blood withdrawal, Trooper Kastein responded: " Yep, because state law says you have to."

[¶5] Both troopers escorted Fierro to the Meade County jail. Trooper Olauson escorted Fierro inside the facility, where she was required to submit to a blood draw performed by a county employee. While being processed, Fierro informed the officers that she wanted to refuse the blood test and consult with an attorney. When the technician first attempted to draw blood from Fierro's arm, she pulled away to avoid it. Ultimately, a sample was obtained.

[¶6] Trooper Kastein made no attempt to obtain consent from Fierro for

Page 238

the blood draw. And, at the hearing on the motion to suppress, Trooper Kastein remarked:

Q: Okay. So just so we're clear, at no time did you give her any choice on whether or not she was going to have blood taken; right?
A: That's correct.

Trooper Kastein also testified that he had received training from his superior officers regarding the United States Supreme Court's decision in Missouri v. McNeely, __ U.S. __, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013).

[¶7] On August 7, 2013, the State charged Fierro with alternative counts of driving under the influence in violation of SDCL 32-23-1(1) and (2). On October 11, 2013, Fierro filed a motion to suppress the blood test administration and results. An evidentiary hearing was held on October 25, 2013. The magistrate court heard testimony from Trooper Kastein, Trooper Olauson, and Fierro. The court also had the opportunity to view a video excerpt of the arrest. Ultimately, the court granted Fierro's motion to suppress.

[¶8] On November 4, 2013, the State filed a motion to reconsider the suppression of the blood evidence and attempted to place new evidence into the record by filing a motion for judicial notice with various documents attached. A hearing on the motion to reconsider was held on November 22, 2013, and no additional evidence was presented. Again, the court denied the motion for reconsideration and reaffirmed its earlier ruling. The State's motion for judicial notice was never ruled upon by the court.

[¶9] The court signed and entered its order granting Fierro's motion to suppress on November 27, 2013. In its findings of fact and conclusions of law entered on December 2, 2013, the court found that Fierro was never asked to consent to the seizure of her blood, that she did not voluntarily consent to the seizure of her blood, and that she refused to voluntarily submit to the seizure of her blood before the procedure was administered at the ...

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