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The South Dakota DUI Guide

 

 

For Attorneys

 

 

Sioux Falls

 


 

Driving Under the Influence

Actual Physical Control

Administrative License Revocation

 

 

SD Division of Motor Vehicles

 

 

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I just got arrested for a State of South Dakota DUI charge.  What happens next?

 

ISSUE ONE:  The South Dakota Implied Consent / Administrative License Revocation Proceeding:  Under South Dakota law, any person who operates any vehicle in the State of South Dakota is considered to have given consent to the withdrawal of his or her blood or other bodily substance and chemical analysis of the person's blood, breath, or other bodily substance to determine the amount of alcohol in the person's blood and to determine the presence of marijuana or any controlled drug or substance or any substance ingested, inhaled, or otherwise taken into the body or any other substance that may render a person incapable of safely driving. 

 

This is known as South Dakota's implied consent law. 

 

Pursuant to South Dakota's implied consent law, your South Dakota drivers license (or your right to drive in South Dakota if you're not a South Dakota licensed driver) was likely revoked for one year if you refused a chemical (breath / blood / urine) test.  This revocation typically starts on the 120th day following your SD DUI arrest. 

 

Read your paperwork carefully.  If you act within 120 days, you can request a hearing from the secretary of public safety to challenge this proposed administrative revocation.  If the secretary of public safety finds that the police officer complied with the law and the refusal was made, the secretary will revoke your license to drive and (or your right to drive in South Dakota if you did not have a valid South Dakota license at the time of your arrest).

 

Speak to your South Dakota attorney for more information about contesting your administrative (implied consent) license revocation. 

 

 

ISSUE TWO:  The South Dakota DUI Criminal Case:  Separate from the administrative license proceeding is the criminal charge for driving under the influence (DUI).  In South Dakota, it is unlawful to drive or be in actual physical control of any vehicle while:

(1) There is 0.08 percent or more by weight of alcohol in your blood as shown by chemical analysis of your breath, blood, or other bodily substance (sometimes known as a per se DUI);

(2) You are under the influence of an alcoholic beverage, marijuana, or any controlled drug or substance not obtained pursuant to a valid prescription, or any combination of an alcoholic beverage, marijuana, or such controlled drug or substance;

(3) You are under the influence of any controlled drug or substance obtained pursuant to a valid prescription, or any other substance, to a degree which renders you incapable of safely driving; or

(4) You are under the combined influence of an alcoholic beverage and or any controlled drug or substance obtained pursuant to a valid prescription, or any other substance, to a degree which renders the person incapable of safely driving.

If you are under twenty-one years of age, it is unlawful to drive, operate, or be in actual physical control of any vehicle:

(1)  If there is physical evidence of 0.02 percent or more by weight of alcohol in the person's blood as shown by chemical analysis of the person's breath, blood, or other bodily substance; or

(2)  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.

Important:  The implied consent / administrative license revocation proceeding and the criminal DUI case are completely separate from one another. 

 

Will my South Dakota driver license be suspended or revoked?

 

RELATED TO ISSUE ONE ABOVE:  Your South Dakota driver license (or your right to drive in South Dakota if you do not have a valid South Dakota license) may be revoked in the implied consent proceeding for refusing a chemical test for alcohol and / or drugs.  This revocation is for one year. 

 

Again, you may challenge this proposed revocation in an administrative hearing this revocation if you make a timely hearing request.

RELATED TO ISSUE TWO ABOVE:  If you are convicted of the DUI charge, your South Dakota license (or your right to drive in South Dakota if you don't have a valid license) for between 30 days and three years depending on your DUI / DWI history.

 

What happens if I get caught driving while my license is revoked?

 

Driving while your license is revoked for a test refusal or a DUI conviction should be avoided, as it is a separate criminal offense.  If you have more than one DUI conviction in the past 10 years, and you are convicted of driving after a revocation, you face mandatory jail time.

 

I really need to drive.  Will I be able to get a restricted license / work permit / occupational / conditional / probationary permit?

 

If you're convicted of the DUI charge, the court has the discretion to authorize limited driving privileges for the period of your revocation.  If granted, these privileges generally allow you to operate a vehicle for purposes of employment, sobriety testing, school attendance, and for counseling programs.

 

If you're revoked for refusing a breath test, the secretary of public safety may authorize you to drive for employment purposes.

 

What is the difference between a DUI, DWI, OWI, OUI etc.?

 

These terms are all acronyms that refer to the crime commonly known as "drunk driving."  Different states have different names for the crime.  For example, in Iowa the acronym OWI (operating while impaired / intoxicated) is used; New York, Texas and other states use the term DWI (driving while intoxicated); Oregon uses the term DUII (driving under the influence of an intoxicant).  South Dakota law refers to: driving under the influence (DUI) and actual physical control (APC). 

 

Is a DWI offense in South Dakota a misdemeanor or felony charge?

In South Dakota, a first or second DUI conviction within a 10 year period is a misdemeanor charge.  If you are convicted of a third or subsequent DUI within a 10 year period, it is a felony offense.

What type of penalties might I face if I am convicted of an South Dakota DUI / Aggravated DWI charge?

 

Upon conviction of an South Dakota drunk driving offense, a defendant can receive a variety of penalties.  A range of penalties is set forth below: 

 


SOUTH DAKOTA DUI PENALTY CHART

CONVICTION TYPICAL PENALTIES
FIRST DUI
Class 1 Misdemeanor
  • fine of under $1000;
  • if BAC is 0.17% or more, alcohol evaluation;
  • jail possible, not required;
  • license revocation of 30 days to one year.
SECOND DUI
(second offense within past ten years)
Class 1 Misdemeanor

  • fine of under $1000;
  • if BAC is 0.17% or more, alcohol evaluation;
  • zero to 10 days jail;
  • license revocation of one year.

THIRD DUI
(third offense within past 10 years)
Class 6 Felony

  • fine of under $2000;
  • significant jail time;
  • substance abuse treatment;
  • license revocation of one year.
FOURTH DUI
(fourth offense within past 10 years)
Class 5 Felony
  • substantial fine;
  • substantial jail time;
  • substance abuse treatment;
  • license revocation of two years.
Note 1:  The critical look back period for prior drunk driving convictions in South Dakota is ten years.
Note 2:  A third DUI conviction within the past 10 years is a felony crime.

Will my defense lawyer be able to plea bargain / negotiate my South Dakota DUI / APC charge down to another (lesser) offense?

Possibly.  Unlike some states, there is no anti-plea bargaining statute in the State of South Dakota.  A South Dakota DUI charge may be reduced or dismissed only if the prosecuting attorney states the reasons for reduction or dismissal in writing and on the record and files the reasons with the clerk of court.

Will a South Dakota DUI / DWI conviction go on "my driving record?"

Yes.  A DUI / APC conviction will go on your South Dakota driving record and remain indefinitely.

Just how much jail / prison time will I have to do if I am convicted of a DUI in South Dakota?

The amount of jail time received will depend on a number of different factors, including (but not limited to) the following:

•  your prior driving record especially your DUI history (including any DUI's / DWI's outside of South Dakota);

•  your level of intoxication / blood alcohol content;

•  whether there was an accident / collision involved;

•  whether there was injury (especially serious injury) to another person;

•  which South Dakota county or court your case is in;

•  which judge sentences you;

•  whether there was a passenger especially a child in your car;

•  whether the judge feels you have accepted responsibility.

 

I am licensed to drive in a state other than South Dakota and I was cited for a DUI / APC in South Dakota.  Will my driver license be revoked or suspended?

South Dakota only has the authority to revoke your right to drive in the State of South Dakota.  However, South Dakota and 44 other states and Washington D.C. have adopted an agreement known as the "Driver License Compact."  South Dakota will report a driving under the influence conviction to the home state of the driver (assuming the home state has also adopted the Compact).  Your home state will then generally take action to suspend or revoke your drivers license.

This also works in reverse.  If you are a South Dakota licensed driver and you are convicted of a DWI / OWI / DUI in another state, South Dakota will suspend or revoke your license if it learns of your conviction. 

Will I have to install an Ignition Interlock Device on my car?

 

An ignition interlock device (IID) is a breath alcohol measurement device that is connected to a motor vehicle ignition system.  In order to start the vehicle, a driver must blow a breath sample into the IID which then measures alcohol concentration.  South Dakota does not currently require the installation of ignition interlock devices in vehicles driven by DUI drivers.

What will a South Dakota DUI do to my ability to keep my liability insurance?

If your insurance company finds out about your DUI conviction one of two things are likely to happen.  Either your South Dakota insurance company will raise your rates or your policy may be cancelled or not renewed.  Your insurance company will learn of your DUI if you have to file an SR-22.

What is an SR-22 Filing?

An SR-22 is a certificate of proof of financial responsibility (liability insurance) submitted by an insurance company licensed to do business in the State of South Dakota.  South Dakota requires an SR-22 filing for any DUI conviction.  The form must be kept on file for three years.  Failure to maintain the SR-22 will result in the revocation or re-revocation of your driver license or driving privileges

Are there special concerns for licensed pilots who get an South Dakota DUI?

 

Yes.  The FAA has special reporting requirements for certain Motor Vehicle Actions including South Dakota DUI convictions and implied consent license revocations.  Learn more about the FAA requirement here.

I missed my DUI criminal court appearance.  What do I do now?

Failing to appear (FTA) for court is to be avoided.  When you miss a South Dakota court appearance, bad things happen.  At a minimum, the South Dakota court typically issues a summons or warrant for your arrest (sometimes known as a bench warrant).  You may also face a new, additional criminal charge.  Talk to a lawyer as soon as possible.  Often, your only option is to turn yourself in on the outstanding warrant.  A new court date will then be scheduled for you.

Can I represent myself in court on my South Dakota DUI or other criminal charge(s)?

Yes.  You have an absolute constitutional right to represent yourself on any criminal charge no matter how serious including an South Dakota DUI charge.  Keep in mind that South Dakota DUI defense is a complicated area of the law as shown by the information in this website.  If you cannot afford to hire your own attorney, you definitely should apply for a court appointed attorney.  You have no right to court appointed counsel at your administrative license revocation hearing.

 

Websites, including this one, provide general South Dakota DUI information but do not provide legal advice or create a lawyer / client relationship.  General information cannot replace legal advice about your case, criminal charge, or situation.  Consult qualified South Dakota Drunk Driving - DUI - DWI lawyers / attorneys for advice about any specific problem or South Dakota drunk driving charge that you have.  South Dakota attorneys are governed by the South Dakota Rules of Professional Conduct.  This website may be considered an advertisement for services under these Rules.  Information contained in this website is believed to be accurate but is not warranted or guaranteed in any way.  No attorney associated with this website is specialized or certified in any way.  SD DUI frequently asked questions.  2013

 

Providing drunk driving (DUI) and criminal defense representation to the communities of:  Sioux Falls, Rapid City, Watertown, Aberdeen, Brookings, Pierre, Minnehaha County, Pennington County, and Brown County.  What happens with a SD DUI.  South Dakota lawyers may accept credit cards. 

 

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