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Asiento asignado por el Registro Nacional de Asociaciones Español: Grupo 1º, Sección 1ª, Numero 600121 - NIF: G76556646 ...

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).

Per Se Drugged Driving Laws

South Dakota has a zero tolerance per se drugged driving law enacted for cannabis, cannabis metabolites, and other controlled substances for persons under age 21. (South Dakota codified laws, Section 32-23-21)

Under South Dakota's law, it is a Class 2 misdemeanor for any person under the age of 21 to be in physical control of a 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." 

South Dakota Penalties


Incarceration


Fine

Possession*

2 oz or less

misdemeanor

1 year

$1,000

2 to 8 oz

felony

2 years

$2,000

8 oz to 1 lb

felony

5 years

$5,000

1 to 10 lbs

felony

10 years

$10,000

More than 10 lbs

felony

15 years

$15,000

*A positive urine test or other evidence of recent marijuana use is considered possession.

Sale or Cultivation

Delivery of less than 1/2 oz

misdemeanor

15 days MMS** - 1 year

$1,000

1 oz or less

felony

2 years

$2,000

1 to 8 oz

felony

5 years

$5,000

8 oz to 1 lb

felony

10 years

$10,000

1 lb or more

felony

15 years

$15,000

To a minor

felony

10 years

$10,000

Within 1,000 feet of a school or within 500 feet of specified areas.

felony

5 years MMS**

$10,000

**Mandatory minimum sentence.
All convictions carry the MMS of 30 days (first offense), 1 year (subsequent offense).

Miscellaneous (paraphernalia, license suspensions, drug tax stamps, etc...)

Paraphernalia possession

misdemeanor

30 days

$200

Inhabiting a room where marijuana is being stored or used

misdemeanor

1 year

$1,000

 

Details

 

Possession of two ounces or less of marijuana is a misdemeanor and is punishable by up to one year in jail and a fine up to $1,000. Possession of less than eight ounces is punishable by up to two years in prison and a fine up to $2,000. For less than one pound, the penalty increases to a possible five years in prison and a fine up to $5,000. Possession of 10 pounds or less carries up to 10 years in prison and a fine up to $10,000. For amounts over 10 pounds, the penalty is up to 15 years in prison and a fine up to $15,000.

A positive urine test or other evidence of recent marijuana use is considered possession and is punished as such.

Inhabiting a room where marijuana is being stored or used is punishable my up to one year in jail and a fine of up to $1,000.

Transferring less than one-half ounce of marijuana for no remuneration is punishable by not less than 15 days and not more than one year in jail and a fine up to $1,000. Cultivation, delivery or sale of one ounce or less is punishable by up to two years in prison and a fine up to $2,000. For amounts less than eight ounces the penalties increase to a possible five years in prison and a fine up to $5,000. Cultivation, delivery or sale of less than one pound carries a penalty of up to 10 years in prison and a fine up to $10,000. For any amounts of one pound or more, the penalty increases to a possible 15 years in prison and a fine up to $15,000.

All convictions for sale, cultivation or distribution carry a mandatory minimum sentence of 30 days for the first offense and one year for the second or subsequent offense.

Any sale to a minor is punishable by up to ten years in prison and a fine of up to $10,000. Any sale within 1,000 feet of a school or within 500 feet of a youth center, public pool or video arcade carries a penalty of a five-year mandatory minimum prison sentence.

The use or possession of paraphernalia is punishable by up to 30 days in jail and a fine up to $200.



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