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DUI Expungement in South Dakota

To “expunge” a conviction means to set it aside and not include it in the convicted individual’s record, making it as though the conviction never occurred in the first place.  South Dakota Codified Laws § 23A-27-13 provides: “Upon receiving a verdict or plea of guilty for a misdemeanor or felony not punishable by death or life imprisonment by a person never before convicted of a crime which at the time of conviction thereof would constitute a felony in South Dakota, a court having jurisdiction of the defendant, when satisfied that the ends of justice and the best interests of the public as well as the defendant will be served thereby may, without entering a judgment of guilt, and with the consent of the defendant, suspend the imposition of sentence and place the defendant on probation for such period and upon such terms and conditions as the court may deem best.”

This means that in South Dakota a court can use its discretion to suspend sentencing of an individual and instead place them on probation.  However, the South Dakota legislature has limited this discretion by restricting the court’s ability to defer a sentence involving a defendant with a prior criminal felony conviction in the state.  Thus it is significantly more difficult to avoid sentencing if you are a multiple offender as opposed to a first time offender.

In addition, South Dakota Codified Laws §23-6-8.1 says that the director of the Bureau of Criminal Statistics may expunge records of: (1) persons who are dead; (2) persons seventy five years of age or older unless a violation has occurred within the last ten years; (3) Incidents that are no longer considered crimes under the laws of the State of South Dakota; or (4) misdemeanor offenses whose final date of disposition occurred at least ten years prior to authorized destruction date.

Based on the above law, it is possible to have a DUI expunged in South Dakota in certain circumstances.  Arguably the most determinative of these is the requirement that the crime be a misdemeanor rather than a felony.  The result of this distinction is that only DUI convicts who have been convicted once or twice can file an application to have the conviction expunged.  If someone has been convicted three or more times for DUI, the conviction is a felony as opposed to a misdemeanor and as a result the defendant cannot appeal to the state of South Dakota to expunge the record.

The process of having a conviction expunged is not automatic and requires hiring a lawyer and filing out the proper forms and applications.  Among the requirements for drug and alcohol convictions to be expunged is for the defendant to submit to a chemical dependency evaluation.  Convicts should also collect letters of recommendation from family and employers in order to demonstrate their good behavior, moral character, and overall value to society.  While this process can be long and potentially expensive, it can also provide huge dividends.  It can be extremely beneficial to expunge your record; for example, potential employers will not be put on notice of the offense if your record is expunged.

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