(specially concurring in part; dissenting in part).
State should be, and must be, and is, as a party to this litigation, bound by its own testimony. This Court has repeatedly held that a party cannot claim the benefit of the facts — more favorable — than given in testimony. Waddell v. Dewey County Bank, 471 N.W.2d 591 (S.D.1991); Lalley v. Safway Steel Scaffolds, Inc., 364 N.W.2d 139 (S.D.1985); Myers v. Lennox Co-op Assn., 307 N.W.2d 863 (S.D.1981); Swee v. Myrl & Roy’s Paving, Inc., 283 N.W.2d 570 (S.D.1979); Miller v. Stevens, 63 S.D. 10, 256 N.W. 152 (1934).
In a criminal case, the burden of proof rests upon the prosecution at every stage of the trial. State v. Wilcox, 48 S.D. 289, 204 N.W. 369 (1925); State v. Reddington, 80 S.D. 390, 125 N.W.2d 58, 61 (1964). State’s witnesses, at best, gave conflicting evidence. It is clear from Officer Fryer’s testimony and the testimony of Sheriff Alb-ers that, at the time Officer Fryer arrested Jacobson, he did not know that Jacobson had two prior DUI convictions within the prior five years. Officer Fryer simply did not know that this very well could be a third DUI offense. Sheriff Albers’ testimony, as I understand it, established that Officer Fryer definitely was under the impression that he was arresting Jacobson for a first offense DUI at the time he commandeered Jacobson to the Sheriff’s office. To establish this point, Officer Fryer testified that he first saw Jacobson’s arrest record after the blood was drawn. State is trying to pin its case on a statement that Jacobson made; oral statements are . not indicia — not proof — of convictions. Indeed, I agree with the majority opinion that State has not read Heinrich correctly. Further, as a trial lawyer many moons ago, it seemed I could try a case in the office, then another one in the Court Room, and as I wended my weary body homeward, yet a third one (the one which I wished I would have tried). With this evidence so hard against the State, I highly disapprove of the Circuit Judge reviewing this case on the record to possibly enter a Finding of Fact (yes, even on the present record) to now permit the State to possibly “save” its case. As far as I am concerned, this case is tried and over. State tried its case and should not be able to try the case again. Sending this case back to the trial court is marching the troops up the hill — to march them down again. The evidence simply does not justify that the arresting officer had information, prior to the administration of Jacobson’s blood test that the arrest was for this third DUI. I specially concur to say that I agree with the majority’s treatment of Issue Two. Rather than remanding this case, I would simply reverse.
As for the dissenting aspect of this writing, I refer the inquisitive reader to my dissent in Heinrich at 28. As I previously wrote, “Our State Legislature has placed an unconstitutional quirk in the Implied Consent Law.”