State v. Wright

#25534-r-GAS

2010 S.D. 91

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

* * * *

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,

v.

KEVIN D. WRIGHT, Defendant and Appellant.

* * * *

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

* * * *

HONORABLE BRUCE V. ANDERSON
Judge

* * * *

MARTY J. JACKLEY
Attorney General

GARY CAMPBELL
Assistant Attorney General
Pierre, South Dakota Attorneys for plaintiff
and appellee.

PATRICK DUFFY
Rapid City, South Dakota Attorney for defendant
and appellant.

* * * *

CONSIDERED ON BRIEFS
ON OCTOBER 4, 2010

OPINION FILED 12/08/10
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SEVERSON, Justice

[¶1.] Kevin Duane Wright was convicted of possession of marijuana in

violation of SDCL 22-42-6. He appeals the trial court’s order denying his motion to

suppress evidence obtained during the stop and subsequent search of his vehicle.

Wright argues that his failure to dim his headlights did not violate South Dakota

law and that the officer therefore did not have reasonable suspicion or probable

cause to stop his vehicle. We reverse.

BACKGROUND

[¶2.] In the early evening on November 11, 2008, Trooper Brian Biehl of the

South Dakota Highway Patrol was traveling west on Interstate 90 in Brule County,

South Dakota. It was dark and overcast. At approximately 5:55 p.m., Trooper

Biehl encountered Wright’s vehicle, which was traveling west in the right lane of

traffic. Wright was driving sixty-five miles per hour, approximately ten miles per

hour slower than Trooper Biehl. Trooper Biehl, who was driving in the left lane,

passed Wright.

[¶3.] When Trooper Biehl was approximately six car-lengths ahead of

Wright, he noticed that Wright’s headlights were exceptionally bright. Trooper

Biehl observed that Wright’s vehicle was equipped with a four headlight system.

On these systems, the two outside lights operate as the low beam and the two inside

lights operate as the high beam. Trooper Biehl saw that the two inside lights on

Wright’s vehicle were illuminated, meaning that his headlights were on high beam.

[¶4.] Trooper Biehl, believing that Wright’s failure to dim his headlights as

he was passed violated SDCL 32-17-7, decided to stop Wright. Trooper Biehl, who

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was still driving in the left lane, slowed his vehicle and allowed Wright to overtake

him. Wright failed to dim his headlights when he overtook Trooper Biehl, but

Trooper Biehl did not testify that this was a basis for the stop. Once behind

Wright’s vehicle, Trooper Biehl activated his lights. Wright pulled to the side of the

highway and stopped his vehicle.

[¶5.] Trooper Biehl approached Wright’s car. As he stood at the driver’s-side

window, Trooper Biehl immediately noticed a strong odor of burnt marijuana

emanating from Wright’s vehicle. Trooper Biehl asked Wright when he last smoked

marijuana. Wright stated that he smoked marijuana a few hours earlier. Trooper

Biehl then asked Wright “how much marijuana was in the vehicle.” Wright

admitted that “there was a bag of personal use marijuana on the floor.” Trooper

Biehl removed Wright from his vehicle and placed him in the patrol car. Trooper

Biehl searched Wright’s car and located a bag containing one-half ounce of a green

leafy substance on the floor of the vehicle. He also found a tin Altoid box containing

three-fourths of an ounce of a green leafy substance next to the driver’s seat, a pipe,

and other containers. Field tests confirmed that the substance Trooper Biehl found

in Wright’s vehicle was marijuana.

[¶6.] Trooper Biehl informed Wright that he was under arrest for possession

of marijuana and advised Wright of his Miranda rights. Wright waived his rights

and agreed to speak with Trooper Biehl. When Trooper Biehl asked Wright

whether “there was any more marijuana in the vehicle,” Wright directed Trooper

Biehl to “an apple box in the back seat of the vehicle.” Trooper Biehl located the

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box, which contained 4.16 ounces of marijuana. Wright was later transported to the

Brule County Jail, where he tested positive for marijuana ingestion.

[¶7.] Trooper Biehl issued Wright citations for possession of marijuana,

possession of drug paraphernalia, and ingestion of a toxic substance. A complaint

and an information were later filed charging essentially the same violations.

Wright filed a motion to suppress the evidence discovered during the stop and

subsequent search of his vehicle. He argued that his failure to dim his headlights

was not a violation of South Dakota law and that Trooper Biehl therefore did not

have reasonable suspicion or probable cause to stop his vehicle. The trial court

denied Wright’s motion to suppress. The trial court acknowledged that Trooper

Biehl misinterpreted SDCL 32-17-7, but found that his mistake of law was

objectively reasonable because the statute is “counterintuitive and confusing.” The

case proceeded to a bench trial, and the trial court found Wright guilty of one count

of marijuana possession. Wright appeals the trial court’s denial of his motion to

suppress.

STANDARD OF REVIEW

[¶8.] Our standard of review of motions to suppress is well settled. “A

motion to suppress based on an alleged violation of a constitutionally protected

right is a question of law reviewed de novo.” State v. Thunder, 2010 S.D. 3, ¶ 11,

777 N.W.2d 373, 377 (quoting State v. Labine, 2007 S.D. 48, ¶ 12, 733 N.W.2d 265,

268). The trial court’s factual findings are reviewed under the clearly erroneous

standard. Id. (citation omitted). “Once the facts have been determined, however,

the application of a legal standard to those facts is a question of law reviewed de

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novo.” Id. (quoting Labine, 2007 S.D. 48, ¶ 12, 733 N.W.2d at 269). This Court will

not be restricted by the trial court’s legal rationale. Id. (citing State v. Christensen,

2003 S.D. 64, ¶ 7, 663 N.W.2d 691, 694).

ANALYSIS AND DECISION

[¶9.] Wright challenges the stop of his vehicle under the Fourth Amendment

to the United States Constitution. The Fourth Amendment protects individuals

from unreasonable searches and seizures:

The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,
shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons
or things to be seized.

U.S. Const. amend. IV. “Police ordinarily must obtain a warrant based on probable

cause and issued by a neutral magistrate before searching or seizing an individual’s

property.” Thunder, 2010 S.D. 3, ¶ 13, 777 N.W.2d at 378 (citing State v.

DeLaRosa, 2003 S.D. 18, ¶ 7, 657 N.W.2d 683, 685 (citing Terry v. Ohio, 392 U.S. 1,

20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889, 905 (1968))). “If a warrantless search or

seizure is conducted, it is the State’s burden to show [that] the entry into the

protected area was justified.” Id. (citing Christensen, 2003 S.D. 64, ¶ 12, 663

N.W.2d at 695 (citing Vale v. Louisiana, 399 U.S. 30, 34, 90 S.Ct. 1969, 1972, 26

L.Ed.2d 409 (1970))).

[¶10.] “The Fourth Amendment’s prohibition against unreasonable searches

and seizures applies when a vehicle is stopped by law enforcement.” State v. Hayen,

2008 S.D. 41, ¶ 5, 751 N.W.2d 306, 308 (quoting State v. Muller, 2005 S.D. 66, ¶ 14,

698 N.W.2d 285, 288). See Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391,

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1396, 59 L.Ed.2d 660, 667 (1979). Although the Fourth Amendment generally

requires a warrant, the United States Supreme Court recognizes police officers’

need to safely and effectively perform their functions. DeLaRosa, 2003 S.D. 18, ¶ 7,

657 N.W.2d at 685-86 (citing Terry, 392 U.S. at 23, 88 S.Ct. at 1881, 20 L.Ed.2d at

906-07). The Court therefore established that “the Fourth Amendment permits a

brief investigatory stop of a vehicle when ‘the officer’s action is supported by

reasonable suspicion . . . that criminal activity may be afoot.’” Hayen, 2008 S.D. 41,

¶ 5, 751 N.W.2d at 308 (quoting State v. Kenyon, 2002 S.D. 111, ¶ 14, 651 N.W.2d

269, 273).

[¶11.] “[A]rticulating a precise definition of reasonable suspicion is ‘not

possible.’” State v. Quartier, 2008 S.D. 62, ¶ 10, 753 N.W.2d 885, 888 (quoting State

v. Aaberg, 2006 S.D. 58, ¶ 10, 718 N.W.2d 598, 600 (citing Ornelas v. United States,

517 U.S. 690, 695, 116 S.Ct. 1657, 1661, 134 L.Ed.2d 911 (1996))). “Reasonable

suspicion is a common-sense and non-technical concept dealing with the practical

considerations of everyday life.” Id. (citing Aaberg, 2006 S.D. 58, ¶ 10, 718 N.W.2d

at 600). Thus, while a stop may not be the “product of mere whim, caprice, or idle

curiosity, it is enough that the stop is based upon ‘specific and articulable facts,

which taken together with rational inferences from those facts, reasonably warrant

the intrusion.’” Id. (quoting State v. Akuba, 2004 S.D. 94, ¶ 15, 686 N.W.2d 406,

413). “Once reasonable suspicion arises, law enforcement may stop the vehicle to

confirm or discount that suspicion.” Id. (citing State v. Herrboldt, 1999 S.D. 55, ¶ 8,

593 N.W.2d 805, 808 (citing Adams v. Williams, 407 U.S. 143, 145-46, 92 S.Ct. 1921,

1923, 32 L.Ed.2d 612 (1972))).

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[¶12.] It is also well established that “[a]n officer’s observation of a traffic

violation, however minor, gives the officer probable cause to stop a vehicle[.]”

Akuba, 2004 S.D. 94, ¶ 16, 686 N.W.2d at 414 (quoting United States v. Luna, 368

F.3d 876, 878 (8th Cir. 2004)). See Whren v. United States, 517 U.S. 806, 810, 116

S.Ct. 1769, 1772, 135 L.Ed.2d 89 (1996) (“[T]he decision to stop an automobile is

reasonable where the police have probable cause to believe that a traffic violation

has occurred.”) (citing Prouse, 440 U.S. at 659, 99 S.Ct. at 1399; Pennsylvania v.

Mimms, 434 U.S. 106, 109, 98 S.Ct. 330, 332, 54 L.Ed.2d 331 (1977) (per curiam)).

Probable cause exists when the facts “would lead a reasonable and prudent person

to believe it fairly probable that a crime [has] been committed[.]” State v. Hanson,

1999 S.D. 9, ¶ 14, 588 N.W.2d 885, 890 (quoting State v. Zachodni, 466 N.W.2d 624,

629 (S.D. 1991)).

[¶13.] Probable cause, not reasonable suspicion, was the basis for the stop of

Wright’s vehicle. Trooper Biehl believed that he observed a violation of SDCL 32-

17-7 and that he therefore had probable cause to stop Wright’s vehicle:

Q: And your understanding of the stop was that he was in
violation of SDCL 32-17-7, correct?

A: Correct.

Q: And at that point, did you believe you had probable cause
to make that stop?

A: Yes, I did[.] . . .

Q: Was there any other behavior on the part of [Wright] that
gave you any other reason to stop him other than what
you have described concerning his bright lights?

A: No.

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Q: He did not weave in his lane, did he?

A: No, he did not.

...

Q: Beyond the probable cause that you’ve stated you felt you
had pursuant to SDCL 32-17-7, did you form any other
opinions about his behavior that night as he drove the
car?

A: No.

Q: So there was no, other than the headlight infraction that
you – that you believe took place, there was no other
reasonable suspicion that there was anything afoot wrong
with what he was doing that night, correct?

A: Prior to the stop, no.

Thus, although probable cause is not ordinarily required to justify a traffic stop, the

proper question in this case is whether Trooper Biehl had probable cause to believe

Wright violated SDCL 32-17-7.

[¶14.] Wright argues that his failure to dim his headlights when Trooper

Biehl passed him did not violate SDCL 32-17-7. That statute requires a motorist to

dim his headlights when he meets or overtakes another vehicle:

Whenever a motor vehicle meets another vehicle or overtakes
another vehicle proceeding in the same direction on any highway,
the driver shall tilt the beams of the headlamps downward,
provided that at all times, as required in § 32-17-4, at least two
lights shall be displayed on the front of and on opposite sides of
every motor vehicle other than a motorcycle.

SDCL 32-17-7 (emphasis added). Thus, a motorist must dim his headlights when

he passes another vehicle, but not when he is passed by another vehicle. But at the

preliminary hearing, Trooper Biehl testified that the basis for the stop was Wright’s

failure to dim his headlights when he was overtaken by Trooper Biehl:

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Q: Can you explain to me precisely the law upon which you
relied to make this stop?

A: 32-17-7 is the statute. It’s a – I can’t quote it to you
offhand, but its – you need to – required to dim your
headlights when you are meeting or overtaken by another
vehicle. And there is a certain distance. I believe it’s – I
don’t recall offhand what it is, but like I said, he never did
dim it the whole time I went – went by him.

Q: Does that law state that you should dim your lights when
approaching oncoming traffic or when you are overtaking
a vehicle?

A: Like I said, I can’t – can’t advise the exact wording of it. I
was westbound as was he.

Trooper Biehl thus made a mistake of law, believing that SDCL 32-17-7 required

Wright to dim his headlights when Trooper Biehl passed him. Because this mistake

of law was the basis for the stop, Wright argues that Trooper Biehl did not have

probable cause to stop his vehicle. 1 He contends that the stop violated his Fourth

1. At the preliminary hearing, Trooper Biehl indicated that an additional basis
for the stop was Wright’s failure to dim his headlights to oncoming traffic.
Because SDCL 32-17-7 requires a motorist to dim his headlights when he
meets oncoming traffic, the failure to dim to oncoming traffic could have
provided Trooper Biehl probable cause to stop Wright’s vehicle. But the trial
court concluded that there were not sufficient facts to establish that Wright
failed to dim to oncoming traffic. The trial court found that the video from
Trooper Biehl’s dashboard camera “shows an absence of any substantial
traffic on [Interstate] 90 around the time of the stop and search of [Wright’s]
vehicle.” The trial court also found that “[t]he fact that some traffic may have
been coming from the east at some vague point in time is irrelevant in this
case as there is no way to know, based on the record, if those vehicles were
close enough under the statute to give rise to [Wright’s] duty to dim his
lights.” Accordingly, we do not reach the question whether Wright’s failure to
dim to oncoming traffic provided Trooper Biehl probable cause to stop
Wright’s vehicle.

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Amendment rights and that the trial court should have suppressed the evidence

discovered during the stop and subsequent search of his vehicle.

[¶15.] In United States v. Sanders, 196 F.3d 910 (1999), the Eighth Circuit

addressed the effect of an officer’s mistake of law on the reasonableness of a traffic

stop. In Sanders, an officer stopped a pickup towing a trailer because one of the two

taillights on the trailer was missing a red lens and was emitting white light from

the exposed bulb. A subsequent search of the vehicle revealed methamphetamine,

marijuana, and a handgun. Sanders challenged the stop, arguing that the officer

lacked sufficient cause to stop him because a damaged taillight does not violate

South Dakota law. The Eighth Circuit upheld the stop, holding that even if the

officer was wrong in his belief that a violation occurred, his belief was objectively

reasonable. 2 Id. at 913. But the court cautioned that “[t]here may be occasions

2. A majority of courts have held that an officer’s mistake of law, no matter how
reasonable, cannot provide objectively reasonable grounds for a stop. See
United States v. Lopez-Valdez, 178 F.3d 282 (5th Cir. 1999); United States v.
Miller, 146 F.3d 274 (5th Cir. 1998); United States v. Urrieta, 520 F.3d 569
(6th Cir. 2008); United States v. McDonald, 453 F.3d 958 (7th Cir. 2006);
United States v. King, 244 F.3d 736 (9th Cir. 2001); United States v. Twilley,
222 F.3d 1092 (9th Cir. 2000); United States v. Lopez-Soto, 205 F.3d 1101 (9th
Cir. 2000); United States v. Pena-Montes, 589 F.3d 1048 (10th Cir. 2009);
United States v. Tibbetts, 396 F.3d 1132 (10th Cir. 2005); United States v.
DeGasso, 369 F.3d 1139 (10th Cir. 2004); United States v. Chanthasouxat,
342 F.3d 1271 (11th Cir. 2003). See also People v. Ramirez, 140 Cal.App.4th
849, 44 Cal.Rptr.3d 813 (2006); Hilton v. State, 961 So.2d 284 (Fla. 2007);
Martin v. Kan. Dep’t of Rev., 285 Kan. 625, 176 P.3d 938 (2008); State v.
Anderson, 683 N.W.2d 818 (Minn. 2004); State v. George, 557 N.W.2d 575
(Minn. 1997); State v. Kilmer, 741 N.W.2d 607 (Minn.App. 2007); Couldery v.
State, 890 So.2d 959 (Miss.App. 2004); State v. Lacasella, 313 Mont. 185, 60
P.3d 975 (2002); Byer v. Jackson, 241 App.Div.2d 943, 661 N.Y.S.2d 336
(1997); State v. Williams, 185 S.W.3d 311 (Tenn. 2006); State v. Lussier, 171
Vt. 19, 757 A.2d 1017 (2000); State v. Longcore, 226 Wis.2d 1, 594 N.W.2d 412
(1999).
(continued . . .)
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when an officer’s understanding of the law is simply unreasonable.” Id. at 913 n.3.

“In such a case, of course, the officer’s belief that there is a traffic violation would

not be sufficient to establish probable cause to stop the vehicle.” Id.

[¶16.] The Eighth Circuit elaborated on its approach to this issue in United

States v. Martin, 411 F.3d 998 (2005). In that case, an officer stopped Martin

because his right brake light did not illuminate as his car approached a stop sign.

The officer eventually searched the vehicle and discovered a bag of marijuana, cash,

and a small scale. Martin argued that the traffic stop was not reasonable because

an inoperative brake light did not violate the Oglala Sioux Tribe’s Motor Vehicle

Code. The Eighth Circuit first recognized that a “mistake of law that results in a

search or seizure . . . must be objectively reasonable to avoid running afoul of the

Fourth Amendment.” Id. at 1001. And the following factors are relevant to

determining the reasonableness of an officer’s mistake of law: drafting history;

prior enforcement; police training; previous judicial interpretations; and, state

customs. Id. Because the Code provision at issue was “counterintuitive and

confusing,” the Eighth Circuit ultimately held that the officer’s mistake of law was

________________________
(. . . continued)
Although the Eighth Circuit has taken the minority position, it is not alone in
this view. See United States v. Southerland, 486 F.3d 1355 (D.C. Cir. 2007).
See also Travis v. State, 331 Ark. 7, 959 S.W.2d 32 (1998); People v.
Teresinski, 30 Cal.3d 822, 640 P.3d 753, 180 Cal.Rptr. 617 (1982); People v.
Glick, 203 Cal.App.3d 796, 250 Cal.Rptr. 315 (1988); Stafford v. State, 284
Ga. 773, 671 S.E.2d 484 (2008); State v. McCarthy, 133 Idaho 119, 982 P.2d
954 (1999); Harrison v. State, 800 So.2d 1134 (Miss. 2001); DeChene v.
Smallwood, 226 Va. 475, 311 S.E.2d 749 (1984).

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objectively reasonable. Id. The Eighth Circuit therefore concluded that the stop

was supported by sufficient cause and affirmed Martin’s conviction. Id. at 1002-03.

[¶17.] The Eighth Circuit again considered the effect of an officer’s mistake of

law on the validity of a traffic stop in United States v. Washington, 455 F.3d 824

(2006). An officer stopped Washington because the windshield on his vehicle was

cracked. A subsequent search of the car revealed a firearm under the passenger

seat. Washington challenged the stop, arguing that a cracked windshield did not

violate Nebraska law. The Eighth Circuit noted:

The concept of an objectively reasonable mistake of law cannot
be . . . unmoored from actual legal authority. Where there is a
basis in state law for an officer’s action and some ambiguity or
state custom that caused the officer to make the mistake, it may
be objectively reasonable. However, in the absence of such
evidence, officers cannot act upon misunderstandings of clear
statutes or, worse yet, their own notions of what the law ought
to be. Officers have broad authority to stop vehicles for any
traffic violation, regardless of how minor, but they must have a
legal justification for the stop that is grounded in the state’s law.

Id. at 828 (internal citations omitted). The Eighth Circuit ultimately concluded

that the officer’s understanding of Nebraska law was not objectively reasonable. Id.

As a result, the State failed to establish sufficient cause to stop Washington. Id.

[¶18.] This Court reached a similar result in Webb v. S.D. Dep’t of Commerce

& Reg., 2004 S.D. 63, 680 N.W.2d 661. In Webb, an Aberdeen police officer stopped

Webb as she was backing her vehicle down a public alley. The officer believed that

Webb was violating a city ordinance. On appeal, this Court noted that the officer’s

belief that Webb was violating the law was not supported by the ordinance’s plain

language. Id. ¶ 10, 680 N.W.2d at 665. Consistent with the Eighth Circuit’s

caution in Sanders, this Court held that the officer’s understanding of the law was

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not objectively reasonable. Id. ¶ 8, 680 N.W.2d at 664. Thus, the stop was not

supported by sufficient cause. Id. ¶ 10, 680 N.W.2d at 665.

[¶19.] In this case, the trial court followed the Eighth Circuit’s approach.

After briefly examining the language of SDCL 32-17-7, the trial court turned to the

South Dakota Driver’s Manual. 3 The Driver’s Manual instructs drivers to “[u]se . . .

low beams when following another vehicle or when in heavy traffic.” The trial court

found that “it is customary to dim one’s headlights when following another vehicle”

and that the failure to do so causes the followed driver “the agony of dazzling lights,

which can distract the driver and cause danger on the highway.” See, e.g.,

Washington, 455 F.3d at 828 (identifying a state custom or practice as possible

evidence that an officer’s mistake of law was objectively reasonable). The trial court

stated without authority that “the vast majority of drivers believe that they are

required to dim in the situation [at issue.]” See id. The trial court concluded that

Trooper Biehl’s mistake of law was objectively reasonable because SDCL 32-17-7 is

“counterintuitive and confusing.” 4 See Martin, 411 F.3d at 1001. The trial court

thus denied Wright’s motion to suppress.

3. This Court takes judicial notice of the South Dakota Driver’s Manual.
State v. Machmuller, 2001 S.D. 82, 630 N.W.2d 495. The Driver’s Manual
does not have the force of law; it is only instructive.

4. The trial court also concluded that “[b]y failing to dim his headlights after
being passed by a highway patrol officer, [Wright] invited the stop of his
vehicle, similar to the circumstances in Herrboldt, [1999 S.D. 55,] 593 N.W.2d
805.” In that case, Justice Sabers, writing for a unanimous court, concluded
that the defendant “essentially invited the officers to stop him by honking his
horn while driving past them at the scene of an armed robbery. He
intentionally drew their attention to him. This is a ‘stop by invitation.’” Id. ¶
9, 593 N.W.2d at 808 (emphasis added). Because the State presented no
(continued . . .)
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[¶20.] SDCL 32-17-7 clearly provides that a motorist must dim his headlights

when he passes another vehicle, but not when he is passed by another vehicle. See

supra ¶ 14. Even the trial court concluded that the terms “meet” and “overtake”

used in SDCL 32-17-7 have “clearly definable meanings and are not confusing.”

Although the language of the statute may surprise many drivers, this fact is

insufficient to create a violation that the Legislature has not established. See

Miller, 146 F.3d at 279; DeGasso, 369 F.3d at 1150. Custom or practice does not

counter the clear language of SDCL 32-17-7.

[¶21.] This case is thus more analogous to Webb and Washington than

Martin. Trooper Biehl may have believed in good faith that Wright violated SDCL

32-17-7, “[b]ut his subjective good faith is not sufficient to justify the stop[.]”

Martin, 411 F.3d at 1001. “[O]fficers have an obligation to understand the laws

that they are entrusted with enforcing, at least to a level that is objectively

reasonable.” Id. “Any mistake of law that results in a search or seizure, therefore,

must be objectively reasonable to avoid running afoul of the Fourth Amendment.”

Id. Trooper Biehl acted upon a mistake concerning a clear and unambiguous

statute. Given the clear and unambiguous language of SDCL 32-17-7, Trooper

Biehl’s mistake of law was not objectively reasonable. Consequently, the trial court

erred by denying Wright’s motion to suppress the evidence discovered during the

stop and subsequent search of his vehicle.

________________________
(. . . continued)
evidence that Wright intentionally drew Trooper Biehl’s attention to him by
failing to dim his headlights, Herrboldt is not applicable to this case.

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[¶22.] Reversed.

[¶23.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER, and

MEIERHENRY, Justices, concur.

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