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.
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.
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.
- 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.
| Offense | Class | License |
|---|---|---|
| OffenseFirst | ClassClass 1 misdemeanor | LicenseRevoked not less than thirty days |
| OffenseSecond | ClassClass 1 misdemeanor | LicenseRevoked not less than one year |
| OffenseThird | ClassClass 6 felony | LicenseRevoked not less than one year |
The court may allow driving for work, school, child care, health and court appointments, and treatment, on proof of financial responsibility.
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.
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.
Sources for this section (9)
- SDCL § 32-23-1 — Driving or control of vehicle prohibited with alcohol in blood or while under influence of alcohol, drug, or intoxicant
- SDCL § 32-23-1.2 — Submission to breath test required by officer; Chemical test after positive breath test
- SDCL § 32-23-10 — Operation of vehicle as consent to withdrawal of bodily substances and chemical analysis; Submission to withdrawal or analysis following arrest
- SDCL § 32-23-10.1 — Refusal to submit to chemical test or allow withdrawal of bodily substance admissible into evidence
- SDCL § 32-23-2 — Punishment for prohibited driving; First offense; Limited driving privilege
- SDCL § 32-23-3 — Punishment for second offense; Revocation of driving privilege; Jail sentence for driving while privilege revoked; Limited driving privilege
- SDCL § 32-23-4 — Punishment for third offense; Revocation of driving privilege; Jail sentence for driving while privilege revoked; Limited driving privilege
- Birchfield v. North Dakota, 579 U.S. 438 (2016) — A breath test may be taken incident to arrest, a blood draw needs a warrant
- 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.