Driving While Intoxicated (DWI)

It is provided by statute in South Dakota that any person who

drives, or is in actual physical control, of a motor vehicle while under the influence of alcohol, is guilty of a crime. Drunk drivers kill and injure thousands every year. Loss of a driver's license, substantial attorney fees, increased auto liability insurance costs, and time in the county jail or state penitentiary are some of the consequences of driving drunk. Other's include loss of employment and even loss of family. IF YOU DRINK, DON'T DRIVE.

State Law

South Dakota law prohibits driving while intoxicated. The law defines "under the influence" to include not only all well known and easily recognized conditions and degrees of

intoxication,but also any abnormal mental or physical condition which is the result of indulging any degree in an alcoholic beverage and which tends to deprive the driver of that clearness of intellect and control of oneself which the driver would otherwise possess. It is also a separate crime to drive or be in control of a motor vehicle with .08 percent or more by weight alcohol in the blood. This offense is committed even if the driver is not "under the influence" as that term is defined in the preceding paragraph. It is also unlawful to drive or be in physical control of a motor vehicle while under the influence of marijuana or any controlled drug or substance to a degree which renders the driver incapable of safely driving.

Penalties

The maximum penalty for DWI in South Dakota is one year in the county jail and a $2000 fine, or both. Additionally, ones driver's license is revoked for a period of up to one year from conviction. Multiple DWI convictions can result in a felony conviction and time in the state Penitentiary, as described below.

Although there are standard sentences for DWI offenses, these sentence recommendations are always subject to change at the discretion of the prosecutor. Different factors that would affect standard sentences would be as follows:

Children present in the vehicle
An accident or dangerous driving
Extremely high blood test
Attitude toward the officer
Additional charges associated with the arrest; such as possession of marijuana
History of alcohol related traffic offenses

Accident

If an individual is convicted of DWI three times in a 10 year period, it is a class 6 felony. The maximum penalty for a 3rd offense DWI is 2 years in the penitentiary and a $4,000 fine.

If an individual is convicted of a DWI four times in a 10 year period and one of the three prior convictions was for a felony DWI, it is a class 5 felony. The maximum penalty for a 4th offense DWI is 5 years in the penitentiary an a $10,000 fine.

The State legislature has determined that .08% alcohol by weight in the blood is the legal limit in South Dakota.

That does not mean one can't be prosecuted for DWI with a blood test lower than .08. It is only the level at which a jury can presume that someone is under the influence of alcohol. For questions regarding the DWI laws in South Dakota, please refer to the South Dakota Codified Laws in chapter 32-23-2 at http://legis.state.sd.us/statutes/index.cfm

"Standard" DWI - 1st Plea Offer

1. Jail	30 to 45 days (all suspended) * some actual jail may be imposed if "aggravating factor(s)" present
2. Fine	before/at Dispo: $350 after Dispo: $450
3. Driver's License	revoked for 30 days * Work permit only if defendant has valid Driver's License and insurance at time of sentencing
4. Alcohol Evaluation	required (by statute) if .17 + Blood Alcohol Content

"Standard" DWI - 2nd Offer

Inside Probation	Outside Probation
With Rx:	With Rx:
1. Jail - 120 days (50 actual/70 susp.) * last 30 days jail on EM, if qualified	1. Jail - 120 days (EM determines amount of actual/susp. jail) (A) if no EM - (20actual/100 susp.) - OR - (B) if EM - (40 actual/80 susp.) *last 30 days jail on EM, if qualified
2. Fine - before/at Dispo: $650 after Dispo: $750 * can credit $500 Rx costs toward fine	2. Fine - before/at DC: $650 after DC: $750 * can credit $500 Rx costs toward fine
3. Driver's License - revoked for 1 year * WP only if Rx completed by sentencing	3. Driver's License - revoked for 1 year * WP only if Rx completed by sentencing

Without Rx:	Without Rx:
1. Jail - 120 days (80 actual/40 susp.) * No EM if defendant won't do Rx	1. Jail - 120 days (80 actual/40 susp.) * No EM if defendant won't do Rx
2. Fine - before/at DC: $650 after DC: $750	2. Fine - before/at DC: $650 after DC: $750
3. Driver's License - revoked for 1 year * No WP if defendant doesn't do Rx	3. Driver's License - revoked for 1 year * No WP if defendant doesn't do Rx