Highway Safety

DUI FAQs

SDCL 32-23 - DRIVING UNDER THE INFLUENCE

What is the legal blood alcohol concentration level in South Dakota for determining if a person is driving while under the influence of alcohol?

If an individual has 0.08 percent or more by weight of alcohol in their blood, as shown by chemical analysis of their breath, blood, or other bodily substance, they are presumed to be driving under the influence of intoxicating liquor.

Do I have to be driving my vehicle to be charged with driving under the influence?

No. An individual who is in actual physical control of a motor vehicle can be charged with DUI, even if they are not actually driving the vehicle. For example, an intoxicated person behind the wheel of a vehicle with the keys in the ignition could still be charged with DUI.

Do I have to have a BAC level of .08 to be charged with driving under the influence?

No. If it is evident that alcohol consumption rendered a driver incapable of driving safely, the driver can be charged with driving under the influence of alcohol. However, if your BAC level is under .05, you are presumed to NOT be under the influence of alcohol.

If I am stopped for driving under the influence, am I required to submit to a chemical analysis of my breath or blood?

Yes, any person who operates any vehicle in South Dakota is considered to have given their consent to the withdrawal of blood or other bodily substance and chemical analysis of their blood, breath or other bodily substance to determine the amount of alcohol in their blood and to determine the presence of marijuana or any controlled drug or substance. In addition to the test required by the arresting officer, the individual does have the right to have a technician of their own choosing perform a chemical analysis of their blood, a their own expense.

What is the penalty for driving under the influence?

A first offense is a Class 1 misdemeanor, and the defendant's driving privileges shall be revoked for not less than thirty days. However, the court may issue an order permitting the person to drive for purposes relating to the person?s job or to attend a court-ordered counseling program. The court may revoke the defendant's driving privilege for a longer period not to exceed one year or restrict the privilege in such manner as it sees fit for a period not to exceed one year.

A second offense is also a Class 1 misdemeanor, and the defendant?s driving privilege will be revoked unconditionally for a period of not less than one year. However, upon the successful completion of a court-approved alcohol treatment program, the court may permit the person to drive for the purpose of employment and may restrict the privilege by the imposition of such conditions as the court sees fit. If such person is convicted of driving without a license during that period, the person shall be sentenced to the county jail for not less than three days, which sentence may not be suspended.

A third offense - If conviction is for a third offense, the person is guilty of a Class 6 felony, and the court, in pronouncing sentence, shall order that the driver's license of any person so convicted be revoked for a period of not less than one year from the date sentence is imposed or one year from the date of initial release from imprisonment, whichever is later. In the event the person is returned to imprisonment prior to the completion of the period of driver's license revocation, time spent imprisoned does not count toward fulfilling the period of revocation. If the person is convicted of driving without a license during that period, he shall be sentenced to the county jail for not less than ten days, which sentence may not be suspended. Notwithstanding 23A-27-19, the court retains jurisdiction to modify the conditions of the license revocation for the term of such revocation. Upon the successful completion of a court-approved chemical dependency counseling program, and proof of financial responsibility pursuant to 32-35-113, the court may permit the person to operate a vehicle for the purposes of employment, 24/7 sobriety testing, attendance at school, or attendance at counseling programs.

A fourth offense - If conviction is for a fourth offense and the person has previously been convicted of a felony under 32-23-4, the person is guilty of a Class 5 felony, and the court, in pronouncing sentence, shall order that the driver's license of any person so convicted be revoked for a period of not less than two years from the date sentence is imposed or two years from the date of initial release from imprisonment, whichever is later. In the event the person is returned to imprisonment prior to the completion of the period of driver's license revocation, time spent imprisoned does not count toward fulfilling the period of revocation. If the person is convicted of driving without a license during that period, the person shall be sentenced to the county jail for not less than twenty days, which sentence may not be suspended. Notwithstanding 23A-27-19, the court retains jurisdiction to modify the conditions of the license revocation for the term of such revocation. Upon the successful completion of a court-approved chemical dependency counseling program, and proof of financial responsibility pursuant to 32-35-113, the court may permit the person to operate a vehicle for the purposes of employment, 24/7 sobriety testing, attendance at school, or attendance at counseling programs.

A fifth or subsequent offense - If conviction is for a fifth offense, or subsequent offenses thereafter, and the person has previously been convicted of a felony under 32-23-4, the person is guilty of a Class 4 felony and the court, in pronouncing sentencing, shall order that the driver's license of any person so convicted be revoked for a period of not less than three years from the date sentence is imposed or three years from the date of initial release from imprisonment, whichever is later. In the event the person is returned to imprisonment prior to the completion of the period of driver's license revocation, time spent imprisoned does not count toward fulfilling the period of revocation. If the person is convicted of driving without a license during that period, the person shall be sentenced to the county jail for not less than twenty days, which sentence may not be suspended. Notwithstanding 23A-27-19, the court retains jurisdiction to modify the conditions of the license revocation for the term of such revocation. Upon the successful completion of a court-approved chemical dependency counseling program, and proof of financial responsibility pursuant to 32-35-113, the court may permit the person to operate a vehicle for the purposes of employment, 24/7 sobriety testing, attendance at school, or attendance at counseling programs.