Alcohol-related collisions and fatalities in South Dakota have been on the rise in recent years. There were 49 alcohol-related fatalities in 2020, representing a 75% increase over the 28 documented fatalities in 2019. In 2021, the recorded fatalities were 48. 11,197 DUI arrests were made in 2021, representing an 8.5% rise over the preceding three-year average (2018-2020). The trend in DUI convictions in 2021 showed a similar increase from the previous three-year average, which was at 8%.
Because of the rising incidence of DUI accidents, the South Dakota Office of Highway Safety continues to create and implement projects and programs to improve road safety, including the DUI 1st Program, which focuses on providing education for first-time offenders.
It is important to know what to do if you are injured in an accident caused by an intoxicated driver. This article will list various South Dakota DUI laws, including the difference between general and underage DUI, the penalties one may receive following a conviction, and statutes pertaining to alcohol furnishing. The time limit to file a lawsuit and the possible compensation that the plaintiff in a case may receive will also be discussed.
General DUI Laws in South Dakota
In South Dakota, it is illegal to drive or be in control of a vehicle if you are under the influence of alcohol, drugs, or other types of intoxicants. This means you can be charged with DUI even if you are not actually driving a vehicle. In particular, you are not allowed to drive while:
Having a blood alcohol concentration of 0.08 or more as shown by a chemical test of an individual's blood, breath, or other bodily substance.
Under the influence of alcohol, marijuana, or any controlled substance or drug without a prescription, or a combination of the three variables.
Under the influence of any controlled substance or drug obtained with a valid prescription to an extent that renders a person incapable of driving safely.
Under the influence of a combination of alcohol and/or any controlled substance or drug obtained with a valid prescription to an extent that renders a person incapable of driving safely.
Under the influence of any substance inhaled, ingested, or taken into the body (except for alcoholic drinks) for the purpose of becoming intoxicated, unless prescribed by a medical practitioner.
Furthermore, you can be charged with aggravated DUI if your BAC is greater than 0.17, or double the legal limit.
Exemptions for Cyclists and Equitestrians
South Dakota DUI laws are not applicable to any person who is riding a bicycle, tricycle, or other vehicle that is considered unpowered foot-pedal transportation. They also do not apply to riders of horses or any other animals. However, they can still be charged with other offenses, like public intoxication.
Minors under the age of 21 face harsher DUI laws in South Dakota. They can be charged with a Class 2 misdemeanor if:
They have a blood alcohol concentration of 0.02 or more, as shown by a chemical test of their blood, breath, or other bodily substance.
They have used marijuana or any other controlled substance or drug, other than a controlled substance or drug lawfully prescribed, for as long as physical evidence of consumption persists in their body.
If a minor is found guilty or convicted of DUI, the court will suspend their driver's license or operating privileges for a period determined by the number of offenses committed. The suspension is for 30 days for the first offense, 180 days for the second offense, and one year for the third and/or subsequent crime.
South Dakota Open Container Laws
The open container law in South Dakota forbids anyone inside a motor vehicle on a public highway from consuming any alcoholic beverage or having any receptacle or package of an alcoholic beverage in their possession unless the packaging's seal remains intact. It is not applicable if the alcoholic beverage is not accessible (such as in a locked glove compartment). If caught, you will face a Class 2 misdemeanor.
But what happens if only a portion of the alcoholic beverage is consumed? For example, you ate at a restaurant and purchased a bottle of wine. When you decided to go home, the drink had only been partially drunk. According to state legislation, you can carry your bottle of wine as long as the establishment/licensee properly reseals it and places it in a sealed container. A receipt should be provided as well.
What Are the Penalties for a DUI in South Dakota?
If you were convicted of DUI in South Dakota, you will be penalized. The severity of punishment depends on the number of DUI offenses you have committed in the past 10 years. The penalties are listed in the table below:
Class 1 misdemeanor
Up to one year
At least 30 days
Class 1 misdemeanor
Up to one year
At least one year
Class 6 felony
Class 5 felony
Class 4 felony
Penalties for Drivers with a Commercial License</h3>
If you possess a commercial driver's license and are discovered to have a BAC of less than 0.04, your license will be suspended for one day. If you are discovered driving with a BAC higher than 0.04, your CDL will be banned for one year, or three years if you are driving hazardous products. You will lose your CDL permanently if you commit a second offense.
If you refuse to take a chemical test to ascertain your BAC, you will be barred from driving for at least a year.
If an intoxicated driver negligently controls a vehicle and causes the death of another person, they will be charged with vehicular homicide. It is a Class 3 felony with harsher consequences than those described above, including a $30,000 fine, jail time of up to 15 years, and a driver's license suspension for at least 10 years from the date of sentence or initial release from prison, whichever comes later.
Implied Consent Law
Like other states, South Dakota has implied consent laws. This means that the operator of a vehicle is considered to have given their consent to undergo chemical testing to check if there are alcohol, drugs, or other substances inside the body. These include analyses of an individual's blood, breath, or other bodily substance. The arresting police officer also has the right to require the operator to submit to a chemical test for evidence.
While you can refuse a chemical test for DUI, you may face penalties such as license suspension and fines. In addition, your refusal may be used as evidence at the trial.
If your driver's license was suspended because you refused chemical testing, you can request a hearing within 120 days after your arrest. If the secretary of public safety discovers that the police officer followed the law and you refused to test, your license will be revoked for one year.
Does South Dakota Have Dram Shop Laws?
Dram shop laws allow individuals to hold businesses accountable for providing or selling alcohol to intoxicated adults who cause an accident afterward. South Dakota is one of seven states with no legislation about dram shop liability. Specifically, while it is illegal for a licensee to serve or sell alcohol to intoxicated people (they will face a Class 1 misdemeanor if caught), they are not civilly liable for any injury or death caused by the drunk driver.
However, social hosts, licensees, and people who furnish alcohol can be punished for serving or selling alcohol to individuals under the age of 21. There are various penalties one may receive, depending on the circumstances.
Penalties for Licensees
For licensees, the possible penalties are listed below:
A licensee who provides or sells alcohol to minors under the age of 18 faces a Class 1 misdemeanor and is subject to a fine of $2,000 and up to one year in jail.
A licensee who serves alcohol to individuals aged 18-21 faces a Class 2 misdemeanor and is subject to a $500 fine and up to 30 days in jail. This is not applicable if the purchase is made in the presence of a parent or guardian who is at least 21 years old.
Moreover, a licensee's alcohol permit may be suspended or revoked.
Penalties for Clerks
Clerks in this context are people who serve or sell alcohol. The possible penalties a clerk may face depend on the age of the minor involved and the number of offenses committed.
If the minor is under 18, the clerk faces a Class 1 misdemeanor.
If the minor is around 18-21 years old, the clerk faces a Class 2 misdemeanor.
The clerk's driver's license will be revoked for a minimum of 30 days or a maximum of one year for a first offense.
For the second and subsequent offenses, the clerk's driver's license will be revoked for at least 60 days but not more than one year.
Furthermore, the South Dakota Department of Revenue is required to levy civil penalties on businesses that employ a clerk who distributes alcohol to minors:
For the first violation, the fine for the clerk will be $500 if they participate in a department-approved training program. If there’s no participation, the fine is $1,000.
For the second violation in a 24-month period, the fine for the clerk will be $1,000 if they participate in a department-approved training program; otherwise, the fine is $2,000.
For the third violation, the business will have its alcohol license suspended for 24 months.
Penalties for Other People Who Give Alcohol to Minors
If you are at least 21 years old and resell or offer alcohol to minors, you may face penalties. For example, if you offer alcohol to a minor at a private party, you face a Class 1 misdemeanor punishable by a $1,000 fine and up to a year in jail.
Penalties for Minors
Minors will be charged with a Class 2 misdemeanor if they possess, purchase, attempt to purchase, or consume alcohol. People under the age of 21 will also be charged with the same class of misdemeanor if they, in an attempt to buy alcohol from a licensed establishment, misrepresent their age using falsified documents.
How Much Can Someone Sue for a Drunk Driving Injury in South Dakota?
DUI victims in South Dakota can receive compensation by submitting an insurance claim with the liable driver's insurance provider, filing an insurance claim with their own insurance policy if losses from auto accidents are covered, or filing a personal injury lawsuit against the party at fault.
If you are successful with your claim or lawsuit, there are two types of compensatory damages that you may receive: economic and non-economic. Economic damages are those that are easier to quantify, such as lost wages, medical expenses, and auto repairs. Meanwhile, non-economic damages are more subjective and more challenging to compute, including pain and suffering, loss of companionship, and mental distress.
There is no cap on damages one may claim in South Dakota in most personal injury cases. It is only applicable in medical malpractice cases, which are capped at $500,000.
Aside from compensatory damages, plaintiffs can also receive punitive damages, which are designed to punish the defendant if their actions are deemed to be intentional or malicious. There is no cap for this type of award.
Negligence Laws in South Dakota
South Dakota is an "at fault" state, in which compensation for losses in a personal injury case is decided by the percentage of culpability assigned to each party. This means that before claiming damages, a plaintiff must first prove that the other driver was at fault for the collision.
South Dakota is the only state with a "slight-gross" negligence rule. It is a combination of comparative and contributory negligence. Through this law, you can claim damages as long as your negligence was "slight" in comparison to the other driver's. However, your compensation will be reduced based on your percentage of fault.
For example, suppose you were in an accident with a drunk driver. The court ruled that you are 5% responsible for the accident, while the other party is 95% to blame. This means that, while you are qualified for compensation since your negligence was "slight," the amount you can receive will be reduced based on your proportion of culpability. If the entire compensation is $100,000, you can only collect $95,000 because you partly contributed to the accident.
If you are determined to have "gross" culpability, that is, a larger percentage of fault in the accident that cannot be treated as "slight", you may not be able to recover damages. For instance, the South Dakota Supreme Court determined in a 1997 case that the plaintiff was not eligible for compensation because her 30% negligence was not considered "slight."
The Statute of Limitations in South Dakota
When you are planning to file a claim or a lawsuit in court, there are deadlines that need to be followed. These are called "statutes of limitations", and they vary based on the type of case you want to submit.
If you are injured by a drunk driver, you can file a personal injury lawsuit against the offender. The statute of limitations for this type of case is three years from the date of the accident.
If you do not file on time, your case may be barred from getting compensation. However, in some cases, the statute of limitations can be extended. If the victim is a minor under the age of 18, the time limit begins when they reach adulthood. If the victim has a disability of any kind (e.g., mental illness) except infancy, the claim may be extended for a maximum of five years or not more than one year after the disability disappears.
But what if the drunk driver didn't injure anyone but instead crashed onto your property? In this scenario, you can file a property damage claim. The time limit for filing a case is six years.
If the case is against a government entity, the statute of limitations for filing a claim against them is one year.
Resources for Folks Injured by an Impaired Driver in South Dakota
The South Dakota Department of Public Safety comprises agencies that strive to protect residents and keep roads safe through a wide variety of programs, initiatives, and inspections. One of its projects is the Crash Assistance Program, which gives access to accident reports, crash assistance documents, and resources that can help deal with trauma and grief. It also has a range of safety campaigns on highway safety, including DriveSafeSD. To keep drivers informed, this website provides information on crash analysis, road conditions, grant applications, and other relevant data.
The South Dakota State Bar provides legal advice, counsel, and representation to members of the public. It has various services that can help citizens with their legal issues. The State Bar of South Dakota Lawyer Referral Service is one of them, and it offers consultations and options in areas such as personal injury and rights violations, criminal law, real estate, and family law. Another program is Access to Justice, which aims to provide pro bono legal aid to state residents.
Mothers Against Drunk Driving South Dakota is a grassroots organization that advocates for victims and survivors of drunk and drugged driving. It provides services focused on helping residents get back on their feet at no charge. These include support groups, victim statement preparation, guidance on the civil and criminal justice systems, referrals for additional help, and emotional support. For more information regarding their solutions, you can contact them by email at firstname.lastname@example.org or through their helpline at 1-877-623-3435.
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