[subpages depth=”1″ childof=”38″]

Driving While Intoxicated (DWI)

It is provided by statute in South Dakota that any person who drives, or is in actual physical control, of a motor vehicle while under the influence of alcohol, is guilty of a crime. Drunk drivers kill and injure thousands every year. Loss of a driver’s license, substantial attorney fees, increased auto liability insurance costs, and time in the county jail or state penitentiary are some of the consequences of driving drunk. Other’s include loss of employment and even loss of family. IF YOU DRINK, DON’T DRIVE.

State Law

South Dakota law prohibits driving while intoxicated. The law defines “under the influence” to include not only all well known and easily recognized conditions and degrees of

intoxication,but also any abnormal mental or physical condition which is the result of indulging any degree in an alcoholic beverage and which tends to deprive the driver of that clearness of intellect and control of oneself which the driver would otherwise possess. It is also a separate crime to drive or be in control of a motor vehicle with .08 percent or more by weight alcohol in the blood. This offense is committed even if the driver is not “under the influence” as that term is defined in the preceding paragraph. It is also unlawful to drive or be in physical control of a motor vehicle while under the influence of marijuana or any controlled drug or substance to a degree which renders the driver incapable of safely driving.

Penalties

The maximum penalty for DWI in South Dakota is one year in the county jail and a $2,000 fine, or both. Additionally, one’s driver’s license is revoked for a period of up to one year from conviction. Multiple DWI convictions can result in a felony conviction and time in the state Penitentiary, as described below.

Although there are standard sentences for DWI offenses, these sentence recommendations are always subject to change at the discretion of the prosecutor. Different factors that would affect standard sentences would be as follows:

• Children present in the vehicle
• An accident or dangerous driving
• Extremely high blood test
• Attitude toward the officer
• Additional charges associated with the arrest; such as possession of marijuana
• History of alcohol related traffic offenses

 

If an individual is convicted of DWI three times in a 10 year period, it is a class 6 felony. The maximum penalty for a 3rd offense DWI is 2 years in the penitentiary and a $4,000 fine.

If an individual is convicted of a DWI four times in a 10 year period and one of the three prior convictions was for a felony DWI, it is a class 5 felony. The maximum penalty is 5 years in the penitentiary and a $10,000 fine, or both.

If an individual is convicted of a DWI five times in a 10 year period and one of the four prior convictions was for a felony DWI, it is a class 4 felony.  The maximum penalty is 10 years in the penitentiary and a $20,000 fine, or both.

The State legislature has determined that .08% alcohol by weight in the blood is the legal limit in South Dakota.

That does not mean one can’t be prosecuted for DWI with a blood test lower than .08. It is only the level at which a jury can presume that someone is under the influence of alcohol. For questions regarding the DWI laws in South Dakota, please refer to the South Dakota Codified Laws, Chapter 32-23.

“Standard DWI Sentences” For the Second Judicial Circuit (Revised Jan. 1, 2008)

Standard DWI – 1st

Fine:	Pre-PH/Indict:             $400 Post-PH/Indict:            $500 *The reduced fine amount is only available to defendants who plead guilty prior to a preliminary hearing or indictment.  The defendant receives a benefit only if he/she assists in relieving the court system of a portion of its burden.
Costs:	Court costs + Blood tests costs of $55.00
Jail:	30 days jail suspended *Additional suspended days or even actual jail may be imposed if “aggravating factors” are present.
Driver’s License:	Revoked for a minimum of 30 days. (1)  Work Permit only if the defendant has a valid DL and insurance at the time of sentencing. (2)  If the BAC results are 0.17 or higher, the defendant must  participate in the 24/7 program during the period of revocation in order to obtain a work permit.
Alcohol Evaluation:	If the BAC result is 0.17 or higher, the defendant must obtain a chemical dependency evaluation pursuant to statute.
Conditions:	Two Years

 

Standard DWI – 2nd

Inside Probationary Period
With Rx:	Without Rx:
Jail: 120 days (50 actual/70 susp.) * Last 30 on EM or “house arrest” if qualified	Jail: 120 days (80 actual/40 susp.)* No EM or “house               arrest”
Fine: Pre-PH/Indict: $650 Post-PH/Indict: $750 *Can credit up to $500 out-of-pocket Rx costs toward fine	Fine: Pre-PH/Indict: $650 Post-PH/Indict: $750
Costs: Court costs + Blood tests costs of $55.00	Costs: Court costs + Blood tests costs of $55.00
DL: Revoked for 1 year * WP only if defendant completes Rx, has valid DL and       proof of insurance, and participates in the 24/7       program as required by statute, following EM.	DL: Revoked for 1 year * No WP
Conditions: Five Years	Conditions: Five Years

 

Standard DWI – 2nd

Outside Probationary Period (Prior Offense up to 7 years old)	Outside Probationary Period (Prior Offense up to 7 years old or older)
With Rx:	With Rx:
Jail: 120 days If no EM:  20 actual/100 susp. -OR- If EM:  40 actual/80 susp. *Last 30 days on EM or “house arrest” if qualified	Jail: 120 days If no EM:  5 actual/115 susp. -OR- If EM:  30 actual/90 susp. *30 days in jail to be served on EM or “house arrest”          if qualified”
Fine: Pre-PH/Indict: $650 Post-PH/Indict: $750 *Can credit up to $500 out-of-pocket Rx costs toward           fine	Fine: Pre-PH/Indict: $650 Post-PH/Indict: $750 *Can credit up to $500 out-of-pocket Rx costs           toward fine
Costs: Court costs + Blood tests costs of $55.00	Costs: Court costs + Blood tests costs of $55.00
DL: Revoked for 1 year * WP only if defendant completes Rx, has valid DL and       proof of insurance, and participates in the 24/7       program as required by statute, following EM.	DL: Revoked for 1 year *WP only if defendant completes Rx, has valid DL and         proof of insurance, and participates in the 24/7         program as required by statute, following EM.
Conditions: Five Years	Conditions: Five Years
Without Rx:	Without Rx:
Jail: 120 days (40 actual/80 susp.) * No EM or “house arrest”	Jail: 120 days (10 actual/110 susp.) * No EM or “house arrest”
Fine: Pre-PH/Indict: $650 Post-PH/Indict: $750	Fine: Pre-PH/Indict: $650 Post-PH/Indict: $750
Costs: Court costs + Blood tests costs of $55.00	Costs: Court costs + Blood tests costs of $55.00
DL: Revoked for 1 year * No WP	DL: Revoked for 1 year * No WP
Conditions: Five Years	Conditions: Five Years

 

NOTE:

Pursuant to SDCL 32-23-23, any WORK PERMIT (“WP”) issued to a defendant convicted of a DWI-1st with a BAC of 0.17 or more and any DWI-2nd is conditioned on the defendant’s participation in the 24/7 sobriety program, where it is available.  SCRAM can be substituted for 24/7 upon approval by the Court.