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Frequently Asked Questions about DUI in South Dakota

Can I be stopped and arrested for DUI in South Dakota even if the vehicle was not moving?

Some states require that the person actually be driving a moving vehicle to be arrested for a DUI charge, while other states allow the conviction simply for being behind the wheel or having the keys in the ignition.  In South Dakota, a person can be found guilty of driving under the influence even if the vehicle is not moving when they are confronted by a police officer.  For example, in the case of South Dakota v. Kitchens [498 N.W.2d 649], the defendant was found leaning on his parked truck’s steering wheel with empty alcohol containers in the vehicle.  The man was arrested after a field sobriety test showed he was clearly intoxicated; the results were later confirmed by a blood test.  The court in that case convicted the defendant of driving under the influence of alcohol despite the vehicle not being in motion when he was apprehended, saying that at any time he could have woken up and continued to drive the vehicle.  Thus the prosecution was successful in establishing that the defendant was in physical control of the vehicle despite the keys not even being in the ignition.  All the prosecution had to show was that the defendant could potentially have operated the vehicle and caused it to move while in a state of inebriation.  Thus, in South Dakota a person can be convicted of driving under the influence even if they are not technically driving the vehicle (the vehicle is not in motion) at the time of the arrest.

Do I have the right to talk to an attorney before I give a sample?

Some states give defendants the right to speak with an attorney before submitting to a chemical test such as by blood or urine.  In other states, no such privilege exists and the defendant has not right to speak with his attorney until after submitting to such a test.  Regardless of when the state you are in allows you to speak with an attorney, it is a good idea to secure counsel for the purposes of your defense.  In all states including South Dakota, a defendant has a constitutional right to defense counsel (in other words, the advice of a lawyer) both before as well as during any police interrogation.

In South Dakota, a driver is afforded the opportunity to speak with an attorney before submitting to a chemical test.  However, the arresting officer is not required to and lacks incentive to disclose this information to the driver of a vehicle.  While this may not seem entirely honest, the officer must oblige once a driver requests to speak with his attorney.

Do I have the right to refuse a blood or urine sample?

If a driver refuses to submit to a chemical test by a police officer, he will be guilty of South Dakota’s implied consent law and will be arrested for driving under the influence.  However, any driver in South Dakota who is requested to take a chemical test can by law submit his or her own test as evidence.  A doctor, nurse, or other medical professional must administer this test to ensure its accuracy.  Thus drivers in South Dakota have the right to challenge the chemical tests they are forced to take by police by taking independent tests.  In addition, the defendant and his attorney have the right to access the results of any chemical test done by the police upon arrest.

Do I have to submit a field sobriety test?

Field sobriety tests allow police to determine potential inebriation before forcing drivers to submit to chemical testing of their blood or urine.  South Dakota law does not require submitting to a field sobriety test, so the driver can deny an officer’s request when prompted to take such a test.  However, such refusal will result in the officer asking the driver to take a chemical test (a breathalyzer, for example).  This request is not optional, as declining a chemical test means the driver is automatically in violation of the state implied consent law and thus guilty of DUI.  Thus while drivers in South Dakota can deny requests by police to submit to a field sobriety test, failure to comply with a chemical test can result in the same penalties as having a BAC above the legal limit.

Can a DUI charge result in vehicle confiscation in South Dakota?

Some states allow police to confiscate the driver’s vehicle upon arrest or charge for driving under the influence either permanently or for a set period of time.  This is a harsh penalty typically reserved for repeat DUI offenders, with the notion being that those most likely to commit DUI offenses (i.e., repeat offenders) will be deterred from doing so if their vehicles are confiscated.  Many states defend this concept with a public policy rationale, in other words, it is in the public’s best interest to keep such reckless drivers off the road, and confiscating their vehicles is a huge deterrent to this crime.  South Dakota law does not currently allow the police to confiscate a driver’s vehicle in this manner.  However, even states that allow such procedures have appeal processes to allow defendants to recover their vehicles where appropriate.

Can a DUI charge result in mandatory alcohol education or treatment programs?

Some states do force DUI offenders to attend alcohol education or treatment programs as part of the penalty for driving under the influence of alcohol.  These programs typically involve educating the individual as well as assessing his dependency on alcohol or other drugs.  These programs are sometimes used as part of a suspension or probation program.  Thus in states that have such treatment programs, a DUI convict can avoid a potential jail sentence as well as fines by completing the program.  South Dakota currently does not have a mandatory alcohol education or treatment program in place, although the court can order drivers to submit to such programs.  Thus drivers convicted of DUI offenses in South Dakota will not be exposed to such programs automatically, but rather at the discretion of the court.  This may not be good news to an offender, since successful completion of a program in states that endorse them can lead to significantly fewer penalties for the conviction as well as a healthier future overall with a better education on the effects of alcohol.

Boating under the influence (“BUI”) Laws:

All 50 states have laws against boating under the influence of drugs and alcohol.  In South Dakota, the legal BAC limit for driving a boat is 0.08, the same level as for driving an automobile.  However, despite the similarities the charges have some key differences as well.  For example, South Dakota does not have a lower BAC threshold for minor boaters than for boaters who have attained the age of 21.  Thus the penalty for boating under the influence is the same regardless of the age of the person convicted.  This contrasts with the state laws for DUI, which carry enhanced penalties (or at least a lower BAC threshold) when dealing with minors driving under the influence.

Open Container Laws in South Dakota:

In general, open container laws prohibit possession of open alcoholic beverage containers in a vehicle, and prohibit drinking in a vehicle even by passengers not operating the car.  In South Dakota, open container law is operative if the seal of the container is broken.  The resulting penalty is a class 2 misdemeanor, and punishments can include a fine of up to $500 as well as up to 30 days in jail, or both.


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