Chief Justice Lorie Skjerven Gildea wrote for the Supreme Court that only a licensed peace officer can exercise the authority of a licensed peace officer in enforcing the criminal law against "test refusal." See here.
THE CRIME: In 2008, a driver refused to take a sobriety test requested by a police officer of the Lower Sioux Community and was charged with "test refusal.
Tribal officers rescued Hester from a ditch after he slid off an icy road with temperatures of 15 degrees below zero. He failed a preliminary breath test at .12 and he failed field sobriety tests inside at the Redwood County Jail where he had been taken to warm up. Hester refused a comprehensive breath test requested by the tribal officers.
A DWI charge was dismissed, but a Redwood County jury convicted Hester of first-degree test refusal.
The trial judge rejected Hester's motion for a new trial when he claimed that he had not refused a test requested by a Qualified Peace Officer because the Lower Sioux officers did not qualify as certified officers because the tribe did not provide the insurance required for officers licensed by the Peace Officers Standards and Training Board ("POST"). The trial judge held that the tribal officers were qualified officers for the purposes of the "test refusal" statute.
The Court of Appeals affirmed the trial judge's holding.
On April 27, 2011, the Supreme Court reversed the district judge and the Court of Appeals.
Chief Justice Lorie Skjerven Gildea wrote: "because the Lower Sioux did not comply with state law by failing to carry the required liability insurance limits at the time of appellant’s arrest, the Lower Sioux police officer did not have the authority to request that appellant take a chemical test. "
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