(dissenting).
The majority fails to point out that under the settled law of this state:
[N]o hard and fast rules exist which state with certainty when prosecutorial misconduct reaches a level of prejudicial error which demands reversal of the conviction and a new trial; each case must be decided on its own facts. State v. Webb, [251 N.W.2d 687 (S.D.1977)]. Furthermore, we will not disturb the trial court’s ruling on a motion for a new trial based on misconduct of counsel unless we are convinced that there has been a clear abuse of discretion. State v. Havens, 264 N.W.2d 918 (S.D.1978); State v. Burtts, 81 S.D. 150, 132 N.W.2d 209 (1964); State v. Norman, 72 S.D. 168, 31 N.W.2d 258 (1948). (Emphasis added.)
State v. Kidd, 286 N.W.2d 120, 121-22 (S.D.1979).
The majority further fails to recognize that in this case, as in State v. Dace, 333 N.W.2d 812 (S.D.1983),
the trial judge was on the scene, had heard the arguments and had the opportunity to know whether [the improper remarks] had any apparent effect on the jury. He apparently didn’t feel that they had and we accede to his judgment lacking any showing on the part of the defense of actual bias or prejudice. (Emphasis added.)
State v. Havens, 264 N.W.2d 918, 923 (S.D.1978).
From reading the record as a whole, rather than the isolated portions quoted by the majority, it appears that the state’s attorney was principally attempting to challenge and erode Blaine’s strong denial that he was driving while under the influence of alcohol and that his driving and reaction abilities were not impaired. Certainly nothing is improper in the prosecutor’s motives, although a literal reading of the majority could lead one to believe the contrary.
Further, I respectfully suggest that the majority opinion insults the basic intelligence of the jurors. What citizen has not been exposed to daily reminders in the media (be they through public service announcements by MADD, SADD and others or by news accounts or poignant stories) of the serious dangers to the public caused by the drinking driver? All the state’s attorney did here was to remind the jurors of the obvious, rather than to inflame them.
Most importantly, the trial court perceived no misconduct, and, in fact, at one time characterized the objections as “overreaction” by defense counsel. Even assuming that the state’s attorney’s conduct was improper, defendant has failed to show any actual prejudice or bias and that there was a clear abuse of discretion by the trial court. Kidd, supra; Dace, supra; Havens, supra. I submit that it is improper for the majority to ignore or depart from *118the settled law of this state and to decide this case by reciting language from other courts which has marginal application to the facts here.
For the foregoing reasons I assert that the trial court should be affirmed.
I am authorized to state that Chief Justice WUEST joins in this dissent.