10

Jul, 2017

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posted in Wilka, Welter & Ash LLP Law Blog.

Driving Under the Influence in South Dakota (free advice to those who read to the end)

Driving Under the Influence in South Dakota (free advice to those who read to the end)

A recent study done by www.carinsurancecomparison.com ranked South Dakota tied for 5th as one of the most dangerous states for drunk driving. The study took into account 2015 data and considered the number of fatalities, cost per fatality, DUI arrests, DUI penalties, as well as types of laws and produced a total score. It should be noted that the study regarding South Dakota is flawed in that the penalty for a 3rd offense is listed at $4000.00 as the minimum fine; however, the actual penalty carries a maximum $4000.00 fine. Regardless, DUI is a significant problem in the state of South Dakota.

In 1984, Congress passed the National Minimum Drinking Age Act. This act mandated that all states raise their minimum drinking age to 21 years. The .10 BAC (Blood Alcohol Content) legal limit was initiated as a result of a NHTSB (National Highway and Traffic Safety Board) study that found that drivers with a .10 BAC were 6 to 12 more times likely to be involved in a fatal crash than those who had no alcohol in their system. BAC is a measurable concentration of alcohol in the bloodstream. A BAC of .10 means that there is 10 grams of alcohol in 10 liters of blood (the average human has about 5 liters of blood in their entire body). In 2000, Congress adopted .08 BAC as the national illegal limit for impaired driving. All states are free to adopt their own laws regarding the penalties for DUI offenses; but must conform at least to the minimum .08 BAC. Many states have considered lowering the legal limit to .05 BAC.

The penalties for DUI vary state by state. In South Dakota, the first offense is considered a Class 1 Misdemeanor and driving privileges will be revoked for not less than thirty days. A Class 1 misdemeanor carries a potential sentence of up to one year imprisonment in a county jail, or two thousand dollars fine, or both. Additionally, the court may order the revocation or restriction of driving privileges* for up to one year.

A DUI is considered a second offense if it occurs within ten years of the first conviction**. A second offense is also considered a Class 1 misdemeanor; however, a court must unconditionally revoke an offender’s driving privileges for a not less than one year. All other penalties and fines remain the same as the first offense, at the judge’s discretion. Despite the unconditional license revocation, a judge may permit and offender to drive for limited purposes if he or she completes a court-approved chemical dependency program and files an SR-22 proof of financial responsibility (proof of insurance) with the clerk of courts. Driving during the period of revocation without a permit, or beyond the limits of the permit, results in a separate offense carrying a penalty of not less than three days jail time.

A third DUI offense within a ten year period is considered a Class 6 felony and carries the possibility of a prison sentence in the state penitentiary. A Class 6 felony carries a maximum sentence of two years imprisonment in the state penitentiary or a fine of four thousand dollars or both. A court must also order the revocation of driving privileges for a period of not less than one year from the date of sentence or release from imprisonment, whichever is later. Again, despite the license revocation, a court may permit driving for limited purposes under the same conditions as a second offense. Driving during revocation after a third offense carries in a jail term of not less than 10 days.

Fourth and subsequent violations result in higher classes of felonies carrying more severe penalties and longer periods of license revocation, up to a lifetime.

Should a judge so order, or should an offender be permitted to drive during a revocation period, he or she will most likely be required to participate in the 24/7 program. The 24/7 program is a sobriety testing program adopted by the state legislature in order to dissuade offenders from drinking during their sentence. The 24/7 program was started as a pilot program in January, 2005. If an offender is sentenced or ordered to participate in the 24/7 program by a judge or probation officer, he or she must either submit to a breath test twice daily (approximately 12 hours apart), wear a SCRAM alcohol sensing bracelet, or use an ignition interlock device at the his or her cost. Any indication of alcohol in the offender’s system will result in a violation. A first violation typically carries a 12 hour hold in county jail, a second is 24 hour hold and a third will result in a no-bond hold until the offender is seen by a judge who will set an appropriate penalty. If an offender simply chooses to participate in 24/7 to drive in accordance with the judge’s conditions during revocation, a violation results in automatic revocation of driving privileges until reinstated by the sentencing judge.

Regardless of where you live, drinking and driving is a dangerous gamble. Now for the free advice as promised: if you have been drinking, DON’T DRIVE. It is nearly impossible to judge for yourself your level of intoxication at any moment. Your safety and the safety of others depends on your responsible choices. However, should you not heed this advice and find yourself in need of representation, the lawyers at Wilka and Welter, LLP have all the expertise you need to make sure that you are treated fairly and that you receive the best possible outcome in your case.

* In any state, driving is considered a privilege and not a right; meaning that a person is not guaranteed the “right” to drive and that the “privilege” can be taken from that person by an authoritative body for good cause.

** Conviction means a final judgment of the court following a sentence or plea of guilty.