South Dakota Drugged Driving

In South Dakota, a person is guilty of DUI if he or she operates a vehicle while under the influence of an alcoholic beverage, marijuana, or any controlled drug or substance not obtained pursuant to a valid prescription; any combination of an alcohol, marijuana, or such controlled substance; under the combined influence of an alcoholic beverage and any other substance, to a degree which renders the person incapable of safely driving. SD Codified Laws Ann. § 32-23-(1)-(5) (West 2010).

In South Dakota, it is illegal for a driver under age of twenty-one to operate a motor vehicle after having consumed marijuana or any controlled drug or substance for as long as physical evidence of the consumption remains present in the person’s body*. Id. § 32-23-21.

* NOTE: Actual impairment is not an element of this offense. Cannabis metabolites can be detected in a person’s body up to one month after use, thus it is possible to be convicted of this type of DUI weeks after a person last ingested cannabis.

Affirmative Defense

The fact that any person is or has been prescribed a drug under the laws of this state is not a defense against any charge. Id. § 32-23-6.

Implied Consent

• Any person who operates any vehicle in South Dakota is considered to have given consent to the withdrawal of blood or other bodily substance and chemical analysis of the person’s blood, breath, or other bodily substance to determine the presence of marijuana. Id. § 32-23-10.
• If a person refuses to submit to chemical analysis such refusal may be admissible into evidence at the trial. Id. § 32-23-10.1.
• The Department of Public Safety shall revoke the license of any person who refuses to submit to a chemical analysis. Id. § 32-23-18.
• Implied consent statutes require that person be advised of right to have additional chemical tests performed by technician of one’s own choosing at his or her own expense. Id. § 32-23-10; Id. § 32-23-10.
• Accused has no right to consult an attorney prior deciding to submit to a test. Balsz v. State, Dept. of Public Safety, 366 N.W.2d 492(1985)

Penalties

• First offense Class 1 misdemeanor –one year imprisonment; fine: $2,000; driving privileges revoked not less than 30 days; nor more than 1 year. SD Codified Laws Ann. §22-6-2 (West 2010).
• Second offense Class 1 misdemeanor – one year imprisonment; fine of $2,000; driving privileges revoked not less than 1 year; completion of chemical dependency program required. Id. § 32-23-3; Id. § 22-6-2.
• Third offense Class 6 felony – two years of imprisonment; fine of $4,000; license revoked not less than 1 year; completion of chemical dependency counseling program required. Id. § 22-6-1; Id. § 32-23-4.
• Fourth offense Class 5 felony – five years imprisonment; fine of $10,000; license revoked not less two years; completion of chemical dependency counseling program required. Id. § 22-6-1; Id. § 32-23-4.6.
• Fifth and subsequent offense Class 4 felony – ten years imprisonment; fine of $20,000; license revoked not less 3 years; completion of chemical dependency counseling program required. Id. § 22-6-1; Id. § 32-23-4.7.

Sobriety Checkpoints

South Dakota permits sobriety checkpoints under the state and federal Constitution.

• Establishing a roadblock to stop only vehicles leaving a party is permissible, when law enforcement has belief of underage drinking. No individual suspicion of a driver is necessary to stop a vehicle. State v. Claussen, 522 N.W.2d 196 (S.D. 1994).
• Observation of a vehicle turning around to avoid a sobriety checkpoint constitutes reasonable suspicion for stopping vehicle. State v. Thill, 474 N.W.2d 86 (S.D. 1991).