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The DUI Stop

SDCL § 32-23-1 — 0.08 or under the influence, implied consent, a refusal heard at trial, and the classes by offense

No one may drive or be in actual physical control of a vehicle with 0.08 percent or more alcohol in the blood, or under the influence of alcohol, marijuana or an unprescribed controlled substance, or impaired by a prescribed one.

  • SDCL § 32-23-1
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A driver in an accident or stopped for a violation of the chapter submits to a breath test at an officer's request. If it shows alcohol, the officer may require a chemical test.

  • SDCL § 32-23-1.2

Implied consent. Anyone who drives in the state is considered to have consented to a blood, breath or other test. A refusal may be admitted into evidence at a trial for driving under the influence.

  • SDCL § 32-23-10
  • SDCL § 32-23-10.1
  • A driver stopped for a violation of the chapter submits to a breath test at an officer's request.
  • Anyone who drives in the state is considered to have consented to a blood, breath or other test.
  • A refusal may be admitted into evidence at a trial for driving under the influence.
  • SDCL § 32-23-1.2
  • SDCL § 32-23-10
  • SDCL § 32-23-10.1
OffenseClassLicense
OffenseFirstClassClass 1 misdemeanorLicenseRevoked not less than thirty days
OffenseSecondClassClass 1 misdemeanorLicenseRevoked not less than one year
OffenseThirdClassClass 6 felonyLicenseRevoked not less than one year
  • SDCL § 32-23-2
  • SDCL § 32-23-3
  • SDCL § 32-23-4

The court may allow driving for work, school, child care, health and court appointments, and treatment, on proof of financial responsibility.

  • SDCL § 32-23-2

Testing is also limited by the Fourth Amendment. The Supreme Court of the United States has held that a breath test may be taken without a warrant as part of a lawful arrest for drunk driving and a blood test may not; that a driver may not be criminally punished for refusing a blood test where no warrant was obtained; and that the natural fall of alcohol in the blood does not by itself create an emergency excusing a warrant in every case, which is decided case by case on all the circumstances. Those holdings are a floor: a state's own constitution and statutes can give more protection than they do, never less.

  • Birchfield v. North Dakota
  • Missouri v. McNeely

The test, the stop and the count of earlier offenses are each contested in court. A particular charge is a question for a licensed South Dakota attorney.

  • SDCL § 32-23-1
Sources for this section (9)
  1. SDCL § 32-23-1 — Driving or control of vehicle prohibited with alcohol in blood or while under influence of alcohol, drug, or intoxicant
  2. SDCL § 32-23-1.2 — Submission to breath test required by officer; Chemical test after positive breath test
  3. SDCL § 32-23-10 — Operation of vehicle as consent to withdrawal of bodily substances and chemical analysis; Submission to withdrawal or analysis following arrest
  4. SDCL § 32-23-10.1 — Refusal to submit to chemical test or allow withdrawal of bodily substance admissible into evidence
  5. SDCL § 32-23-2 — Punishment for prohibited driving; First offense; Limited driving privilege
  6. SDCL § 32-23-3 — Punishment for second offense; Revocation of driving privilege; Jail sentence for driving while privilege revoked; Limited driving privilege
  7. SDCL § 32-23-4 — Punishment for third offense; Revocation of driving privilege; Jail sentence for driving while privilege revoked; Limited driving privilege
  8. Birchfield v. North Dakota, 579 U.S. 438 (2016) — A breath test may be taken incident to arrest, a blood draw needs a warrant
  9. Missouri v. McNeely, 569 U.S. 141 (2013) — The natural fall of blood alcohol is not by itself an emergency justifying a warrantless draw

Legal information, not legal advice. Verified as of October 2026. Applying it to a particular situation is the work of a licensed South Dakota attorney.

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