32-23-1.   Driving or control of vehicle prohibited with alcohol in blood or while under influence of alcohol, drug, or intoxicant. No person may drive or be in actual physical control of any vehicle while:

             (1)      There is 0.08 percent or more by weight of alcohol in that person’s blood as shown by chemical analysis of that person’s breath, blood, or other bodily substance;

             (2)      Under the influence of an alcoholic beverage, marijuana, or any controlled drug or substance not obtained pursuant to a valid prescription, or any combination of an alcoholic beverage, marijuana, or such controlled drug or substance;

             (3)      Under the influence of any controlled drug or substance obtained pursuant to a valid prescription, or any other substance, to a degree which renders the person incapable of safely driving;

             (4)      Under the combined influence of an alcoholic beverage and or any controlled drug or substance obtained pursuant to a valid prescription, or any other substance, to a degree which renders the person incapable of safely driving; or

             (5)      Under the influence of any substance ingested, inhaled, or otherwise taken into the body as prohibited by § 22-42-15.

Source: SDC 1939, §§ 44.0302, 44.9920, 44.9922; SL 1949, ch 42, § 1; SL 1953, ch 246, § 1; SDC Supp 1960, § 44.0302-1; SL 1973, ch 195, § 3; SL 1976, ch 158, § 42-8; SL 1982, ch 246, § 1; SL 2002, ch 160, § 1; SL 2006, ch 168, § 1.

     32-23-1.1.   Arrest without warrant on probable cause after accident. A law enforcement officer may, without a warrant, arrest a person for a violation of the provisions of § 32-23-1 when the officer has probable cause to believe that the person to be arrested has been involved in a traffic accident and has violated the provisions of § 32-23-1 and that such violation occurred prior to or immediately following such traffic accident.
Source: SL 1973, ch 195, § 10; SL 2006, ch 168, § 2.32-23-1.2.   Submission to breath test required by officer–Chemical test after positive breath test. Every person operating a vehicle which has been involved in an accident or which is operated in violation of any of the provisions of this chapter shall, at the request of a law enforcement officer, submit to a breath test to be administered by such officer. If such test indicates that such operator has consumed alcohol, the law enforcement officer may require such operator to submit to a chemical test in the manner set forth in this chapter.Source: SL 1973, ch 195, § 11; SL 2006, ch 168, § 3.32-23-1.3.   Arrested person to be charged–Requirements for reduction or dismissal. Any person arrested for driving or being in actual physical control of a vehicle while the weight of alcohol in the blood of the arrested person is 0.08 percent or greater, shall be charged with a violation of § 32-23-1. The charge may be reduced or dismissed only if the prosecuting attorney states the reasons for reduction or dismissal in writing and on the record and files the reasons with the clerk of courts.

Source: SL 1983, ch 244, § 1; SL 2002, ch 160, § 3.

32-23-2.   Punishment for prohibited driving–First offense. If conviction for a violation of § 32-23-1 is for a first offense, such person is guilty of a Class 1 misdemeanor, and the defendant’s driving privileges shall be revoked for not less than thirty days. However, the court may in its discretion issue an order upon proof of financial responsibility, pursuant to § 32-35-113, permitting the person to operate a vehicle for purposes of employment, 24/7 sobriety testing, attendance at school, or attendance at counseling programs. The court may also order the revocation of the defendant’s driving privilege for a further 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.

Source: SL 1953, ch 246, § 1; SDC Supp 1960, § 44.9922 (1); SL 1973, ch 195, § 5; SL 1975, ch 207, § 1; SL 1976, ch 198; SL 1977, ch 189, § 112; SL 1985, ch 263, § 1; SL 1991, ch 252, § 17; SL 1994, ch 255, § 5; SL 2006, ch 168, § 4; SL 2008, ch 161, § 1, eff. Feb. 27, 2008.

32-23-2.1.   Evaluation of certain persons found guilty of driving while intoxicated–Costs. Any person convicted of a first offense pursuant to § 32-23-1 with a 0.17 percent or more by weight of alcohol in the person’s blood shall, in addition to the penalties provided in § 32-23-2, be required to undergo a court-ordered evaluation by a chemical dependency counselor as defined in § 34-20A-2 or a licensed or certified health care professional with specialized training in chemical dependency evaluation to determine if the defendant is chemically dependent. The cost of such evaluation shall be paid by the defendant. The recommendations of the evaluation shall be provided to the referring judge.

Source: SL 1991, ch 262; SDCL § 32-33-23; SL 2006, ch 168, § 5; SL 2007, ch 184, § 1.

32-23-3.   Punishment for second offense–Revocation of driving privilege–Jail sentence for driving while privilege revoked–Limited driving privilege for certain purposes. If conviction for a violation of § 32-23-1 is for a second offense, such person is guilty of a Class 1 misdemeanor, and the court shall, in pronouncing sentence, unconditionally revoke the defendant’s driving privilege for a period of not less than one year. However, upon the successful completion of a court-approved chemical dependency program, and proof of financial responsibility pursuant to § 32-35-113, the court may permit the person to drive for the purposes of employment, 24/7 sobriety testing, attendance at school, or attendance at counseling programs. 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.

Source: SL 1953, ch 246, § 1; SDC Supp 1960, § 44.9922 (2); SL 1973, ch 195, § 6; SL 1977, ch 189, § 113; SL 1982, ch 247, § 1; SL 1994, ch 261, § 1; SL 2006, ch 168, § 6; SL 2008, ch 161, § 2, eff. Feb. 27, 2008.

32-23-4.   Punishment for third offense–Revocation of driving privilege–Jail sentence for driving while privilege revoked–Limited driving privilege for certain purposes. If conviction for a violation of § 32-23-1 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.

Source: SL 1953, ch 246, § 1; SDC Supp 1960, § 44.9922 (3); SL 1961, ch 240; SL 1971, ch 190; SL 1973, ch 195, § 7; SL 1982, ch 247, § 2; SL 1985, ch 263, § 2; SL 1989, ch 273, § 1; SL 2006, ch 168, § 7; SL 2008, ch 161, § 3, eff. Feb. 27, 2008.

32-23-4.1.   Calculation of number of offenses. Except as authorized under § 32-23-4.9, no previous conviction for, or plea of guilty to, a violation of § 32-23-1, 22-18-36, or 22-16-41 occurring more than ten years prior to the date of the violation being charged may be used to determine that the violation being charged is a second, third, or subsequent offense. Any period of time during which the defendant was incarcerated for a previous violation may not be included when calculating if the time period provided in this section has elapsed.

Source: SDC Supp 1960, § 44.03B23 (3) as enacted by SL 1963, ch 270; SDCL § 32-12-48; SL 1973, ch 195, § 4; SL 1983, ch 244, § 2; SL 1999, ch 164, § 1; SL 2001, ch 177, § 1; SL 2010, ch 165, § 1; SL 2013, ch 101, § 64.

32-23-4.2.   Separate allegation of former conviction. In any criminal case brought pursuant to the provisions of § 32-23-3, 32-23-4, 32-23-4.6, or 32-23-4.7, whether brought by information or indictment, a separate supporting information shall allege, in addition to the principal offense charged, any former convictions. If the information is in two separate parts, each part shall be signed by the prosecutor. In the first part the particular offense with which the accused is charged shall be set out, and in the other part any former convictions shall be alleged.

Source: SL 1979, ch 159, § 4A; SL 1989, ch 273, § 3; SL 1994, ch 261, § 2; SL 2003, ch 172, § 1; SL 2010, ch 166, § 1.

32-23-4.3.   Plea and election of method of trial on driving under influence–Advice as to former conviction charge. The plea and election of method of trial by the accused shall be first taken only on the first part of the information described in § 32-23-4.2 but before a plea is made the accused shall be informed by the judge, in absence of the jury, of the contents of the second part. There shall be entered in the minutes of the court the time and place when and where the judge so informed the accused, and like entry thereof shall be made in the judgment.

Source: SL 1979, ch 159, § 4B; SL 2006, ch 168, § 8.

32-23-4.4.   Separate trial on charge of former conviction. On a finding of guilty on the first part of the information described in § 32-23-4.2 a plea shall be taken and, if necessary, an election made on the second part and a trial thereon proceeded with, and until such time no information as to the second part of the information may be divulged to the jury. If the accused elects a jury trial in the second part of the information, such trial may be had to the same or another jury as the court may direct.

Source: SL 1979, ch 159, § 4C; SL 2006, ch 168, § 9.

32-23-4.5.   Convictions in other states considered. Any conviction for, or plea of guilty to, an offense in another state which, if committed in this state, would be a violation of § 32-23-1, 22-18-36, or 22-16-41 and occurring within ten years prior to the date of the violation being charged, shall be used to determine if the violation being charged is a second, third, or subsequent offense.

Source: SL 1983, ch 244, § 3; SL 2001, ch 177, § 2; SL 2010, ch 165, § 2.

32-23-4.6.   Punishment for fourth offense–Revocation of driving privilege–Jail sentence for driving while privilege revoked–Limited driving privilege for certain purposes. If conviction for a violation of § 32-23-1 is for a fourth offense, 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. If 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. Further, sentencing pursuant to this section includes the provisions of § 23A-27-18.

Source: SL 1989, ch 273, § 2; SL 2005, ch 173, § 2; SL 2006, ch 168, § 10; SL 2008, ch 161, § 4, eff. Feb. 27, 2008; SL 2011, ch 147, § 1; SL 2013, ch 101, § 65.

32-23-4.7.   Punishment for fifth or subsequent offense–Revocation of driving privilege–Jail sentence for driving while privilege revoked–Limited driving privilege for certain purposes. If conviction for violation of § 32-23-1 is for a fifth offense, or subsequent offenses thereafter, 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.

Source: SL 2005, ch 173, § 1; SL 2006, ch 168, § 11; SL 2008, ch 161, § 5, eff. Feb. 27, 2008; SL 2011, ch 147, § 2.

32-23-4.8.   Convictions under § 22-18-36 or 22-16-41 included in calculation of number of offenses. For purposes of determining whether a conviction for a violation of § 32-23-1 is for a second or subsequent offense, any conviction for a violation of § 22-18-36 or 22-16-41 counts as a conviction of § 32-23-1.

Source: SL 2010, ch 165, § 3.

32-23-4.10.   Costs payable to county–Nonpayment punishable by contempt. In addition to any other penalty, assessment, or fine provided by law, the court shall order any person convicted of a crime for a violation of § 32-23-1 to remit costs in the amount of fifty dollars to the clerk of courts. The clerk of courts shall forward any amount collected pursuant to this section to the county treasurer for deposit in the county general fund. Failure to remit the amount to the clerk of courts in the time specified by the court is punishable by contempt proceedings.

Source: SL 2015, ch 171, § 1.

32-23-6.   Lawful use of drugs no defense. The fact that any person charged with a violation of § 32-23-1 is or has been prescribed a drug under the laws of this state is not a defense against any charge of violating § 32-23-1.

Source: SL 1949, ch 42, §§ 1, 2; SDC Supp 1960, § 44.0302-1 (4); SL 1965, ch 191; SL 2006, ch 168, § 12.

     32-23-11.1.   Revocation of license prior to hearing or prior to revocation order prohibited. A person’s license to drive is not subject to revocation as provided in § 32-23-11 or 32-23-18 if that person pleads guilty to violating § 32-23-1, or if the charge of violating § 32-23-1 is dismissed by the state prior to the departmental hearing and the person is not convicted of a violation of § 32-24-1 or 32-24-8, or, if a hearing is not requested, prior to a revocation order being issued.
Source: SL 1982, ch 248, § 2; SL 1992, ch 225; SL 1992, ch 226, § 4; SL 1993, ch 236, § 1; SL 1993, ch 237, § 2; SL 1997, ch 189, § 3.32-23-13.   Failure to invoke refusal procedure as permission to make chemical analysis. If any operator of a motor vehicle in this state who has been requested to submit to a chemical test fails to invoke the provision in § 32-23-11 which permits him to refuse to submit to a test, then the failure to invoke the provision permitting a refusal to submit to a test shall constitute consent and authority to administer a test notwithstanding the age of the operator of the motor vehicle.Source: SL 1959, ch 264, § 5; SDC Supp 1960, § 44.0302-2; SL 1971, ch 193, § 1; SL 1982, ch 246, § 4.32-23-14.   Persons authorized to withdraw blood to determine alcohol content–Liability. Only a physician, laboratory technician, registered nurse, physician’s assistant, phlebotomist, licensed practical nurse, medical technician, medical technologist, or other person authorized pursuant to a certification, license, or training may withdraw blood for the purpose of determining the alcoholic content therein. This limitation does not apply to the taking of a breath or other bodily substance specimen. Such authorized persons, acting on the presumption of consent in § 32-23-10, and any hospital or facility employing such persons, are not liable and may not be held to pay damages to the party from whom the blood sample is withdrawn, if the withdrawal is administered with usual and ordinary care. No person authorized to withdraw blood under this section may be required or forced to withdraw blood for the purposes outlined in this chapter, unless required pursuant to a written agreement.

Source: SL 1959, ch 264, § 3; SDC Supp 1960, § 44.0302-2; SL 1971, ch 193, § 2; SL 1975, ch 208, § 1; SL 1982, ch 246, § 5; SL 1983, ch 245, § 4; SL 1989, ch 274, § 4; SL 2006, ch 169, § 4; SL 2010, ch 163, § 2.

32-23-14.1.   Requirements for validity of withdrawal or test–Director of laboratories to approve methods and issue permits. To be considered valid under the provisions of this chapter, the withdrawal or chemical analysis shall be performed at the direction of a law enforcement officer having lawfully arrested the person for a violation of § 32-23-1 or 32-23-21 and the chemical test analysis of the person’s breath, if one is performed, shall be performed according to methods approved by the director of laboratories and by a person possessing a valid permit issued by the director of laboratories for this purpose. The director of laboratories may approve satisfactory techniques or methods to ascertain the qualifications and competence of anyone to conduct such analysis and issue permits which are subject to termination or revocation at the discretion of the director of laboratories.

Source: SL 1982, ch 246, § 6; SL 1985, ch 283, § 7; SL 1989, ch 274, § 5; SL 1998, ch 198, § 4.

32-23-15.   Right to have technician of own choosing make separate test. Any person tested pursuant to §§  32-23-10 and 32-23-14 shall be permitted to have a physician, laboratory technician, registered nurse, physician’s assistant, or medical technologist of the person’s own choosing administer the chemical analysis in addition to the one administered at the direction of the law enforcement officer.

Source: SL 1959, ch 264, § 4; SDC Supp 1960, § 44.0302-2; SL 1971, ch 193, § 3; SL 1975, ch 208, § 2; SL 1976, ch 228; SL 2006, ch 169, § 2.

32-23-16.   Results of analysis available to accused or attorney. Upon the request of any person who was tested pursuant to §§ 32-23-10 and 32-23-14, or upon the request of the person’s attorney, the results of such analysis shall be made available to the person or to the person’s attorney.

Source: SL 1959, ch 264, § 2; SDC Supp 1960, § 44.0302-2; SL 1971, ch 191, § 2; SL 1971, ch 192, § 2; SL 2006, ch 169, § 3.

32-23-17.   Withdrawal, chemical test, and witness fees and expenses taxed as costs. In the case of a conviction under this chapter the costs accrued for the withdrawal and chemical analysis of blood or other bodily substance, and witness fees and expenses in connection therewith, shall be taxed by the court as costs in the action and shall, if the county is to have a lien for fees paid to counsel for an indigent, be included in the lien filed; otherwise it shall, with such other costs as the court imposes, be entered in the judgment as provided in chapter 23A-27.

Source: SL 1970, ch 179; SL 1989, ch 274, § 6.

32-23-18.   Revocation of driver license for refusal to submit to chemical analysis. The Department of Public Safety shall revoke the license of any person arrested for violating § 32-23-1 or 32-23-21, who refuses to submit to a chemical analysis as directed by a law enforcement officer pursuant to § 32-23-10.

Source: SL 1992, ch 226, § 1; SL 1993, ch 237, § 1; SL 1997, ch 189, § 4; SL 1998, ch 198, § 5; SL 2003, ch 272, § 23.

32-23-19.   Law enforcement officer to serve notice of intent to revoke–License confiscated–Notice as temporary license. A law enforcement officer shall serve the notice of intent to revoke, on behalf of the Department of Public Safety and shall take possession of any driver’s license issued by this state held by the person if the arrested driver refuses to submit to a chemical analysis as directed by the officer pursuant to § 32-23-10. A copy of the completed notice of intent to revoke form, and any South Dakota driver’s license taken into possession shall be forwarded to the department by the officer. If a valid South Dakota driver’s license is surrendered, the notice of intent to revoke shall function as a temporary license which is valid for one hundred twenty days. Upon receipt of a petition for a hearing, the department may extend the temporary license thirty days following the scheduled date of the hearing.

Source: SL 1992, ch 226, § 2; SL 1998, ch 194, § 1; SL 2003, ch 272, § 23.

32-23-20.   Revocation of nonresident driving privileges. The department shall revoke the person’s license to drive and any nonresident operating privileges pursuant to § 32-23-11.

Source: SL 1992, ch 226, § 3.