#27104-a-SLZ

2014 S.D. 96

                            IN THE SUPREME COURT
                                    OF THE
                           STATE OF SOUTH DAKOTA

                                   ****
STATE OF SOUTH DAKOTA,                      Plaintiff and Appellee,

      v.

NICOLE MUNDY-GEIDD,                         Defendant and Appellant.


                                   ****

                  APPEAL FROM THE CIRCUIT COURT OF
                      THE FIRST JUDICIAL CIRCUIT
                  CHARLES MIX COUNTY, SOUTH DAKOTA

                                   ****

                  THE HONORABLE BRUCE V. ANDERSON
                               Judge

                                   ****

MARTY J. JACKLEY
Attorney General

JEFFREY P. HALLEM
Deputy Attorney General

KELLY MARNETTE
Assistant Attorney General
Pierre, South Dakota                        Attorneys for plaintiff
                                            and appellee.


TIMOTHY R. WHALEN
Lake Andes, South Dakota                    Attorney for defendant
                                            and appellant.

                                   ****
                                            ARGUED ON
                                            NOVEMBER 18, 2014
                                            OPINION FILED 12/23/14
#27104

ZINTER, Justice

[¶1.]         Nicole Mundy-Geidd was convicted of driving under the influence of

alcohol (DUI) in 2013. She appeals, arguing that enforcement of the DUI statute

(SDCL 32-23-1) was prohibited at the time of her offense. She contends that until

its repeal in 2014, SDCL 34-20A-93 prohibited the enforcement of laws, such as

SDCL 32-23-1 that included “drinking, drunkenness, or being found in an

intoxicated condition” as an element of the offense. We disagree and affirm the

conviction.

                            Facts and Procedural History

[¶2.]         In 2013, Mundy-Geidd was arrested and charged with DUI, in

violation of SDCL 32-23-1. The magistrate court denied Mundy-Geidd’s pre- and

post-trial motions to dismiss, which were predicated on now repealed SDCL 34-20A-

93. Following her conviction after a magistrate court trial, the circuit court

affirmed.

[¶3.]         On appeal, Mundy-Geidd argues that from 2012 to 2014, SDCL 34-

20A-93 prohibited the enforcement of SDCL 32-23-1. Mundy-Geidd points out that

before its repeal in 2014, SDCL 34-20A-93 prohibited the State from enforcing laws

that included “drinking, drunkenness, or being found in an intoxicated condition as

one of the elements of the offense.” 1 Mundy-Geidd also points out that the DUI



1.      SDCL 34-20A-93 provided:
              Except as hereinafter provided, neither the state nor any county,
              municipality, charter unit of government, or other political
              subdivision may adopt or enforce a law, ordinance, resolution, or
              rule having the force of law that includes drinking,
              drunkenness, or being found in an intoxicated condition as one
                                                             (continued . . .)
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#27104

exception to this prohibition was repealed in 2012. See SDCL 34-20A-95 (repealed

2012) (providing that SDCL 34-20A-93 did not apply to “driving under the influence

of alcohol, or other similar offenses”). 2 Therefore, Mundy-Geidd argues that in

2013, SDCL 34-20A-93 prohibited the State from enforcing SDCL 32-23-1 because

one of the elements of SDCL 32-23-1 is driving “while under the influence of an

alcoholic beverage” or while “having 0.08 percent or more by weight of alcohol” in

one’s blood. 3

[¶4.]            The State argues that the 2012 Legislature, in repealing SDCL 34-

20A-95, did not intend to prohibit the enforcement of SDCL 32-23-1. The State


________________________
(. . . continued)
               of the elements of the offense giving rise to a criminal or civil
               penalty or sanction.

2.      SDCL 34-20A-95 provided:
                 Nothing in this chapter affects any law, ordinance, resolution, or
                 rule against drunk driving, driving under the influence of
                 alcohol, or other similar offense involving the operation of a
                 vehicle, aircraft, boat, machinery, or other equipment, or
                 regarding the sale, purchase, dispensing, possessing, or use of
                 alcoholic beverages at stated times and places or by a particular
                 class of persons or possessing a loaded firearm while intoxicated.

3.      SDCL 32-23-1 provides in relevant part:
                 No person may drive or be in actual physical control of any
                 vehicle while:
                       (1) There is 0.08 percent or more by weight of alcohol in
                       that person’s blood as shown by chemical analysis of that
                       person’s breath, blood, or other bodily substance; [or]
                       (2) Under the influence of an alcoholic beverage,
                       marijuana, or any controlled drug or substance not
                       obtained pursuant to a valid prescription, or any
                       combination of an alcoholic beverage, marijuana, or such
                       controlled drug or substance[.]

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#27104

points out that SDCL 34-20A-93 and SDCL 34-20A-95 were passed in 1974 as a

part of the Uniform Alcoholism and Intoxication Treatment Act. See 1974 S.D.

Sess. Laws ch. 240 (“An Act enacting the uniform alcoholism and intoxication

treatment act, and to amend SDCL 27-8-14 and 35-5-21.3 and to repeal SDCL 22-

13-4, 27-3-18, 27-3-20, 27-3-21, 27-3-22, 27-8-3.1, and 27-8-12, all relating to

alcoholism.”). The State also points out that the purpose of the 1974 Act was to

decriminalize alcoholism and public intoxication and afford individuals “a

continuum of treatment in order that they [could] lead normal lives as productive

members of society.” Id at § 1. The State further points out that the 2012 Act that

repealed SDCL 34-20A-95 was intended to repeal outdated and unnecessary

statutes relating to the Division of Behavioral Health. See 2012 S.D. Sess. Laws ch.

150 (“An Act to repeal certain outdated or unnecessary statutes related to the

Division of Behavioral Health within the Department of Social Services.”). Because

SDCL 32-23-1 does not involve alcoholism and public intoxication, and because it is

not an outdated or unnecessary statute relating to the Division of Behavioral

Health, the State argues that the Legislature did not intend to prohibit DUI

prosecutions by passing the 1974 and 2012 Acts. The State contends that there is

ambiguity in the Acts, and Mundy-Geidd’s literal reading produces absurd and

unreasonable results. The State contends that to resolve the parties’ conflicting

interpretations, we should examine the two Acts, their history, and the public policy

concerns expressed therein.




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#27104

                                       Decision

[¶5.]         The parties’ arguments require us to engage in statutory

interpretation. The purpose of statutory interpretation is to discover legislative

intent. Bostick v. Weber, 2005 S.D. 12, ¶ 7, 692 N.W.2d 517, 519 (citing State v.

Myrl & Roy’s Paving, Inc., 2004 S.D. 98, ¶ 6, 686 N.W.2d 651, 653). 4

[¶6.]         Mundy-Geidd argues that in ascertaining legislative intent, we are

precluded from looking beyond SDCL 34-20A-94 (repealed 2014). SDCL 34-20A-94

was enacted as a part of the 1974 Act. See 1974 S.D. Sess. Laws ch. 240, § 16(b). At

the time of Mundy-Geidd’s offense, SDCL 34-20A-94 prohibited the State and its

political subdivisions from interpreting or applying a law of general application to

circumvent SDCL 34-20A-93. 5 Mundy-Geidd contends that SDCL 32-23-1 is a law

of general application, and therefore it cannot be interpreted to circumvent SDCL

34-20A-93. At oral argument Mundy-Geidd acknowledged that SDCL 34-20A-94

does not restrict this Court from performing its judicial function of interpreting

statutes. Mundy-Geidd, however, argues that SDCL 34-20A-94 provides the only

evidence of legislative intent we should consider. She specifically contends that we

should not consider the legislative history of SDCL 34-20A-93 and SDCL 34-20A-95.

We disagree because this case does not involve a dispute over the interpretation of

4.      Statutory interpretation is a question of law that is reviewed de novo. State
        v. Jones, 2011 S.D. 60, ¶ 8, 804 N.W.2d 409, 412 (citing State v. Davis, 1999
        S.D. 98, ¶ 7, 598 N.W.2d 535, 537).

5.      SDCL 34-20A-94 provided:
              Neither the state nor county, municipality, charter unit of
              government, or other political subdivision may interpret or
              apply any law of general application to circumvent the provision
              of [SDCL 34-20A-93].

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#27104

SDCL 32-23-1, the statute of general application. The disagreement involves the

interpretation of SDCL 34-20A-93 and SDCL 34-20A-95, the parts of the 1974 and

2012 Acts that are the basis for Mundy-Geidd’s appeal.

[¶7.]         In interpreting the 1974 and 2012 Acts, we must examine more than

their text because there is ambiguity, 6 and Mundy-Geidd’s interpretation leads to

absurd results. Legislation is “ambiguous when it is capable of being understood by

reasonably well-informed persons in either of two or more senses.” Petition of

Famous Brands, Inc., 347 N.W.2d 882, 886 (S.D. 1984) (quoting Nat’l Amusement

Co. v. Wis. Dep’t of Taxation, 163 N.W.2d 625, 628 (Wis. 1969)) (internal quotation

mark omitted). Here, based on the language of the 1974 and the 2012 Acts, the

parties have articulated competing plausible interpretations of how SDCL 34-20A-

93 applies to SDCL 32-23-1. Furthermore, for the reasons expressed infra ¶ 11,


6.      The plain text of SDCL 34-20A-93 does not necessarily prohibit the
        enforcement of SDCL 32-23-1. It does not because the under the influence
        element of SDCL 32-23-1 does not require proof of “intoxication” or
        “drunkenness.” It is well established that a driver of a vehicle need not be
        intoxicated or drunk to satisfy the “under the influence” element of SDCL 32-
        23-1. To be under the influence, a driver need only be deprived of the
        clearness of intellect and control that the driver would otherwise possess.
              It is not essential to the existence of the offense [of DUI] that the
              driver of the vehicle should be so intoxicated that the vehicle
              cannot be safely driven. The expression “under the influence of
              an alcoholic beverage” covers not only all well-known and easily
              recognized conditions and degrees of intoxication, but any
              abnormal mental or physical condition which is the result of
              indulging in any degree in an alcoholic beverage and which
              tends to deprive the driver of that clearness of intellect and
              control of oneself which the driver would otherwise possess.
        State v. Mastellar, 86 S.D. 514, 517, 198 N.W.2d 503, 504-05 (1972). And the
        element involving blood-alcohol levels does not purport to require any
        alcohol-related condition. Thus, there are competing plausible
        interpretations of how SDCL 34-20A-93 applies to SDCL 32-23-1.

                                           -5-
#27104

Mundy-Geidd’s interpretation leads to absurd results. Therefore, to resolve the

ambiguity and determine legislative intent, we “look to ‘the legislative history, title,

and the total content of the legislation.’” In re Expungement of Oliver, 2012 S.D. 9,

¶ 15, 810 N.W.2d 350, 354 (quoting Zoss v. Schaefers, 1999 S.D. 105, ¶ 6, 598

N.W.2d 550, 552). We “must also reflect upon the purpose of the enactment, the

matter sought to be corrected and the goal to be attained.” State v. Davis, 1999 S.D.

98, ¶ 7, 598 N.W.2d 535, 537 (quoting De Smet Ins. of S.D. v. Gibson, 1996 S.D. 102,

¶ 7, 552 N.W.2d 98, 100).

[¶8.]        The titles, history, and purposes of the 1974 and 2012 Acts reflect that

the 2012 Legislature did not intend to end the enforcement of the DUI statute. As

previously noted, SDCL 34-20A-93 was enacted by the 1974 Legislature to

decriminalize public intoxication and offer individuals treatment for alcoholism.

1974 S.D. Sess. Laws ch. 240, § 1. Although the 1974 Act repealed certain alcohol-

related statutes and criminal offenses, SDCL 32-23-1 was not included. 1974 S.D.

Sess. Laws ch. 240, § 20. Further, the 2012 Act repealing SDCL 34-20A-95 was

enacted “to repeal certain outdated or unnecessary statutes related to the Division

of Behavioral Health within the Department of Social Services.” 2012 S.D. Sess.

Laws ch. 150. SDCL 32-23-1 is not such a statute. Indeed, the 2012 Act did not

repeal or prohibit the enforcement of any criminal statute. 2012 S.D. Sess. Laws ch.

150. We see nothing in the history or purpose of these Acts suggesting that the

2012 Legislature intended to end the enforcement of SDCL 32-23-1.

[¶9.]        Other contemporaneous legislation confirms our conclusion. Indeed,

although the 2012 Legislature repealed SDCL 34-20A-95, it simultaneously revised


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#27104

a criminal penalty statute (SDCL 22-6-5.2) to expressly authorize enhanced

penalties for violating SDCL 32-23-1. 2012 S.D. Sess. Laws ch. 119. The 2012

Legislature also amended rather than repealed SDCL 42-8-45, an analogous statute

that prohibited boating while “under the influence” of alcohol. 2012 S.D. Sess. Laws

ch. 208, § 1. And in 2013, the Legislature reaffirmed that SDCL 32-23-1 remained

enforceable. That Legislature amended SDCL 32-23-4.1 and SDCL 32-23-4.6,

statutes that governed enhanced penalties for violating SDCL 32-23-1 if the

offender had prior DUI convictions. 2013 S.D. Sess. Laws ch. 101, §§ 64, 65. Thus,

contemporaneous and subsequent legislation reflects that the Legislature’s 2012

repeal of SDCL 34-20A-95 was not intended to prohibit DUI prosecutions under

SDCL 32-23-1.

[¶10.]       We also observe that Mundy-Geidd’s interpretation of SDCL 34-20A-93

and SDCL 34-20A-95 would repeal SDCL 32-23-1 by implication. “[R]epeal by

implication is strongly disfavored.” Faircloth v. Raven Indus., Inc., 2000 S.D. 158, ¶

10, 620 N.W.2d 198, 202 (citing Morton v. Mancari et al., 417 U.S. 535, 549, 94 S.

Ct. 2474, 2482, 41 L. Ed. 2d 290, 300 (1974)). “Judges should refrain from negating

a legislative act unless it is demanded by manifest necessity.” Id. (citing Karlen v.

Janklow, 339 N.W.2d 322, 323 (S.D. 1983)). “Before judicially implying a repeal,

the Legislature’s intent to do so must be apparent.” Id. (citing Posadas v. Nat’l City

Bank of N.Y., 296 U.S. 497, 504, 56 S. Ct. 349, 352, 80 L. Ed. 351, 355 (1936)).

Here, the Legislature’s intent to repeal SDCL 32-23-1 is not manifest or apparent.

On the contrary, the 2012 Act specifically repealed 47 statutes, but SDCL 32-23-1

was not included. 2012 S.D. Sess. Laws ch. 150, §§ 1-47.


                                          -7-
#27104

[¶11.]       We finally observe that Mundy-Geidd’s interpretation produces absurd

and unreasonable results. Under Mundy-Geidd’s interpretation, numerous public

safety statutes involving alcohol would have been repealed by implication. See, e.g.,

SDCL 22-16-41 (prohibiting vehicular homicide while “under the influence of

alcohol . . . in a manner and to a degree prohibited by” SDCL 32-23-1); SDCL 42-8-

45 (prohibiting the operation of a boat while under the influence of alcohol); SDCL

50-13-17 (prohibiting persons under the influence of alcohol from operating

aircraft); SDCL 32-23-21 (prohibiting minors from operating vehicles if their blood

alcohol content is above 0.02); SDCL 35-9-2 (prohibiting minors from consuming

alcoholic beverages); SDCL 35-1-5.6 (prohibiting the consumption of alcohol on “the

premises of a licensed on-sale dealer if the alcoholic beverage was not purchased

from the on-sale dealer”); SDCL 35-1-9.1 (prohibiting the consumption of alcoholic

beverages in vehicles on highways or streets); SDCL 35-9-10 (prohibiting social

hosts from knowingly permitting eighteen-, nineteen-, or twenty-year-old persons

from consuming alcohol); SDCL 32-12A-44 (prohibiting commercial drivers from

having a blood alcohol content of 0.04 to 0.08 while being in actual physical control

of a commercial vehicle). But without an express repealer, it is unreasonable and

absurd to believe that the 2012 Legislature intended such a wholesale repeal of

these important public safety statutes. See Myrl & Roy’s, 2004 S.D. 98, ¶ 6, 686

N.W.2d at 654 (“[I]n construing statutes together[,] it is presumed that the

Legislature did not intend . . . absurd or unreasonable result[s].”) (quoting

Martinmaas v. Engelmann, 2000 S.D. 85, ¶ 49, 612 N.W.2d 600, 611).




                                          -8-
#27104

[¶12.]       We hold that the 1974 enactment of SDCL 34-20A-93 and the 2012

repeal of SDCL 34-20A-95 did not prohibit the enforcement of SDCL 32-23-1.

Because the State had authority to prosecute Mundy-Geidd for DUI under SDCL

32-23-1, we affirm.

[¶13.]       GILBERTSON, Chief Justice, and KONENKAMP, SEVERSON, and

WILBUR, Justices, concur.




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