(dissenting).
“Tanks,” more readily expressed as “Drunk Tanks” are ordinarily filthy, often with vomit and blood and urine, where drunks are kept because of the fact that they are arrested or picked up by law enforcement because some person is in a state of inebriation. Law enforcement, jailers, sheriffs have these “tanks” for a reason: To isolate people away from other prisoners to avoid confrontations and to permit those arrested to “sober up.” Most are poorly lighted and stink. Sickler was thrown into the “drunk tank.” After 41 years as a lawyer, judge and justice in this state, I have personally witnessed such conditions in South Dakota. As I expressed in my dissent in State v. Lanier, 452 N.W.2d 144, 150:
We must, however, at the appellate level, seek a just balance between the objectivity of theoretical decision making and the subjectivity which can be found in the process of deciding cases. In my opinion, no judge is free of subjective influences, some largely centering on his life’s experiences. In Gardner v. Toilet Goods Association, 387 U.S. 167, 201, 87 S.Ct. 1526, 1543, 18 L.Ed.2d 704 (1967) Justice Tom Clark related, in his dissenting opinion, how he deplored the practices of pharmaceutical companies; then, he proceeded to relate how he was recently “gouged” by paying an exorbitant price for certain eyewash drops. In other words, he was subjectively influenced by facts not directly in the record in arriving at his decision.
Here, blood was extracted from Sickler in an unconstitutional manner. Therefore, I dissent to what I consider to be unconstitutionally, offensive conduct by law enforcement officials. I quote from the transcript, at page 149:
Q. (By Mr. Irons, defense counsel): At any point in time were you straddling Mr. Sickler, trying to withdraw the blood sample?
A. (Deputy Penning) Not to withdraw the blood sample, no I straddled him at one time, but it wasn’t to withdraw the blood.
Q. For what purposes?
A. To check out his veins in both arms, to see which one was a good one to try to attempt on. I was comparing arms pretty well for blood withdrawing sites.
Q. How long did that take you to do that?
*75A. Five to ten minutes. He didn’t have very good veins. In the room we were at didn’t have very good lights.
Q. When you were straddling him, where was he located, Mr. Sickler, that is?
A. On the floor.
Q. On his back?
A. Yeah.
Q. What part of the jail facility was that in?
A. It was in the room that is labeled The Tank.
Q. Pardon?
A. The Tank.
Then, we turn to Page 58 of the Jury Trial Transcript to read:
Q. Are you generally familiar as a result of your training with certain medical terms?
A. Yeah.
Q. Is that something you got into in very much detail or just generally?
A. Not a whole lot of detail, because I’m the only medical person in the jail. So it — kind of taught myself.
Q. How many blood alcohol samples do you withdraw in let’s say a year?
A. This is the first one.
Q. First one you ever did?
A. Yeah.
Q. Have you done any since then?
A. For blood alcohol?
Q. Yeah.
A. Not in the Minnehaha County Jail. (emphasis supplied mine).
Q. So Mr. Sickler is your one crowning achievement of drawing a blood sample, is that correct?
A. No.
Q. That’s not the only time you did it?
A. For blood alcohol?
Q. Right.
A. No. Yes, he’s the only one I’ve done for blood alcohol, (emphasis supplied mine).
Q. That’s what I thought you said.
A. Yes.
Here, the writer of the majority opinion and the State would have the reader believe that Sickler’s objection to withdrawing the blood sample was based solely upon the fact that this was the first time Officer Penning had ever drawn such a sample. False. Rather, this Court and the lawyers of this state are referred to the following discourse between Sheriff Albers and Sick-ler’s counsel which took place at the pretrial motion hearing:
Q. But no mace was used on Mr. Sickler at that time? .
A. No.
Q. Was there any difficulty in getting that blood test from him — blood sample from him?
A. I don’t think it was any difficulty that was brought on by Mr. Sickler, if that’s what you mean. They had difficulty drawing the blood, but it was like you see that once in awhile, where they have a hard time finding a vein, but it wasn’t because he was doing anything.* (emphasis supplied mine).
Q. It was because of the person taking the sample, rather than Mr. Sickler, himself?
A. Yeah, I guess so.
Q. What I’m getting at is it didn’t take three or four police officers to hold him down so they could get a blood sample?
A. No, it sure didn’t.
These words come from the lips of the State’s witness. Now you, the reader, “read my lips,” as President Bush once expressed. It is perfectly obvious that this officer was so inexperienced and so unqualified that he could not find a vein to extract blood. He was pricking and probing in the “drunk tank.” And the lights, by the State’s own witness, were bad (poorly lit). Can you, the reader, understand to what *76extreme this state has ventured into, performing a blood test in an unreasonable, non-medically approved manner? Frankly, the writer finds it outrageous when reading and pondering our Constitution:
The right of the people to be secure in their persons, houses, papers and effects, against unreasonable search and seizures shall not be violated ... U.S. Const, amend. IV. (Emphasis supplied mine).
“Unreasonable” has many meanings; among those are irrational, excessive, immoderate, inordinate.
State and the majority writer would have you, the reader, believe that the difficulty in securing the blood was struggling by Sickler hampering the officer from securing a blood sample. Sheriff Albers, as reflected above, indicates that there was trouble in securing the blood, but it was not Sickler’s fault. Albers, inter alia, testified: “... it wasn’t because he [Sickler] was doing anything.” Remember, Officer Penning reflected that Sickler was lying on his back with the officer astraddle him in “The Tank.” Think about that. Isn’t that an inappropriate place to take blood (poorly lit and by an inexperienced officer)? Do you call that “reasonable?” I do not. I dub it “unreasonable.”
Furthermore, Art. VI, § IX of the State Constitution of South Dakota provides: “No person ... shall be compelled in any criminal case to give evidence against himself ...” (emphasis supplied mine). This is a criminal case and Sickler was compelled to give evidence against himself. This provision is the root of the tree, feeding the concept of liberty under law.
Sickler contends there were other available means to take his blood in a reasonable, medically approved manner. Placing Sickler on his back, with the officer straddling him in the drunk tank, taking 10 minutes to probe with a needle, in the drunk tank, where it was poorly lit, is contrary to the teachings of Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1967). Here, Sickler could have been taken to a hospital where a trained, experienced medical technologist under sanitary conditions with the blood taken thereat. No, not in South Dakota. Here, law enforcement is elevated over constitutional safeguards. Brutality, to serve a law enforcement goal, is not a legitimate function of the executive branch. Under the legal precept of Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1830) we, in the judiciary have the power of judicial review. Great men framed our Constitution; as the howl of contemporaries angrily denounce drunk drivers, we should not tear that Constitution asunder by approving of this type of conduct. An unreasonable exercise of government, infringing upon constitutional rights, is a wrong to be rectified by the courts, under the legal precept of judicial review. We jurists must scrutinize the methods employed by law enforcement, fearing the objectives to which they lead.
In Schmerber, no force was used. Here, force was used.
In Schmerber, we had a hospital setting. Here, we have a jail setting.
Are the administration of blood tests entirely free of Fourth Amendment constraints? Of course not. In Schmerber, the United States Supreme Court pointed out that the blood extraction involved “virtually no risk” but added when withdrawn “... by a physician in a hospital environment according to accepted medical practices.” 384 U.S. at 767, 86 S.Ct. at 1834. And at 771, 86 S.Ct. at 1836, the Schmer-ber court gave warning to law enforcement officials that it would not tolerate “... more substantial intrusions, or intrusions under other conditions.” By the language of Schmerber, this Court is dead wrong. Schmerber warned against intrusions into the body which “... are made in an improper manner.”
State argues, in its brief, page 6:
Here, the evidence provides a direct link between the observation by witness Jacobson of the erratic driving to the Sheriff’s discovery of the same pickup, with the same paint job, with the same license number, in the same location as described by Jacobson, coupled with the Sheriff’s personal observations of the Defendant behind the steering wheel, *77with the engine running, reeking of alcohol and soaked with urine.
Therefore, there being this type of direct evidence, there was no reason for this type of unsterile, brutal, and unconstitutional action. See, Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952). State had a plethora of evidence to present to a jury.
A Motion to Suppress the blood alcohol test should have been granted. It was error to deny the motion. I would reverse for a retrial on the merits, sans blood test, thereby preserving the constitutional rights of free men. A more studied outrage, on the excesses of law enforcement against our State Constitution, has never been perpetrated. If we, as jurists, sustain this type of procedure, we become responsible for the usurpations we fail to rebuke. Let us fearlessly execute our duty that we do not suffer the indignation of the people nor the denigration of the precious document that fulfills our destiny. Your servant, F. Henderson, July 4, 1992.
How then can State elevate itself over its own sworn testimony? It cannot under the holdings of this Court. See, Marnette v. Morgan, 485 N.W.2d 595 (S.D.1992); Klatt v. Continental Insurance Co., 409 N.W.2d 366, 370 (S.D.1987); Romey v. Landers, 392 N.W.2d 415, 421 (S.D. 1986); Miller v. Stevens, 63 S.D. 10, 17, 256 N.W. 152 (1934); 30 Am.Jur.2d Evidence § 1087 (1967).