A Complete Guide to South Dakota's DUI/DWI Laws: From First Offense to Felony Charges

June 21, 2025

A Complete Guide to South Dakota's DUI/DWI Laws: From First Offense to Felony Charges

Introduction

South Dakota's "Driving While Under the Influence" (DWI), often referred to as DUI, laws are among the most stringent in the nation. The state employs a tiered penalty system that escalates significantly with prior offenses and aggravating factors. A key feature of South Dakota's approach is its emphasis on the "24/7 Sobriety Program," which is often a condition for regaining driving privileges.

The General Framework of South Dakota DWI Laws

In South Dakota, a person commits a DWI offense if they are driving or in actual physical control of a motor vehicle while:

"Per Se" DWI: Having a Blood Alcohol Concentration (BAC) of $0.08%$ or more. Proof of actual impairment is not required.
Impaired DWI: Under the influence of an alcoholic beverage, marijuana, any controlled drug or substance (prescribed or not), or any combination of these, to a degree that renders the person incapable of safely driving.
Presence of Certain Substances: Having any amount of a controlled drug or substance not obtained via a valid prescription, or any amount of marijuana, or a substance ingested/inhaled as prohibited by law, in their blood.

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Actual Physical Control (APC): You can be charged with DWI even if you are not actively driving but are in "actual physical control" of a vehicle (e.g., asleep in the driver's seat with keys in the ignition or vehicle running).

Special BAC Limits:

Commercial Drivers: A BAC of $0.04%$ or more.
Drivers Under 21 (Zero Tolerance Law): A BAC of $0.02%$ or more, or any amount of metabolized marijuana.

Implied Consent Law

South Dakota's implied consent law (SDCL § 32-23-10) means that by operating a vehicle in the state, you implicitly consent to a chemical test (blood, breath, or other bodily substance) to determine the alcohol or drug content in your system if lawfully arrested for DWI.

Refusal to Test: Refusing to submit to a chemical test after a lawful DWI arrest carries immediate and automatic administrative license revocation by the South Dakota Department of Public Safety (DPS), separate from any criminal DWI charges.

Any refusal: 1-year license revocation.
- This revocation is in addition to any suspension ordered by the court if you are later convicted of DWI.
- The fact of your refusal can also be used as evidence against you in court.

South Dakota DWI Statistics

South Dakota consistently faces a significant challenge with impaired driving. Studies often rank it among the states with the highest per capita DUI arrest rates.

In 2023, South Dakota reportedly had over 5,600 DWI arrests, calculating to an average of about 750 DWI arrests per 100,000 South Dakotans. This was cited as the highest per capita rate in the nation.
More than one-third (35.14%) of traffic deaths in South Dakota are caused by drunk drivers, a high percentage nationally.
South Dakota has also ranked high for the rate of drunk drivers under age 21 involved in fatal crashes.

These statistics underscore the ongoing severity of the impaired driving issue in the state.

Penalties for DWI in South Dakota

South Dakota uses a 10-year "look-back" period to determine if a DWI offense is a repeat offense for enhanced penalties. This means any prior DWI conviction within the previous 10 years will count towards classifying a subsequent offense. DWI convictions are public records and generally not eligible for expungement.

24/7 Sobriety Program: South Dakota's "24/7 Sobriety Program" is a prominent feature of its DWI enforcement. This program requires participants to undergo daily alcohol testing (often twice a day via Breathalyzer or continuous alcohol monitoring ankle bracelets) to ensure sobriety. It's often mandated as a condition for work permits during license revocation periods, for probation, or as an alternative to jail time. Failure to comply results in swift consequences.

First Offense DWI (Class 1 Misdemeanor)

Jail Time: Up to 1 year (no mandatory minimum jail time, but a judge has discretion).
Fines: Up to $2,000.
License Revocation: Not less than 30 days, up to 1 year.
- A court may issue an order for a limited driving privilege (work permit) during the revocation period, often conditioned on participation in the 24/7 Sobriety Program.
Alcohol Evaluation: Mandatory, with compliance to recommended treatment or education.
Aggravated First Offense (BAC $0.17%$ or higher, or other aggravating factors):
- Mandatory court-ordered evaluation by an addiction counselor.
- Mandatory participation in the 24/7 Sobriety Program to obtain a work permit during revocation.

Second Offense DWI (within 10 years - Class 1 Misdemeanor)

Jail Time: Up to 1 year (no mandatory minimum, but generally more likely than a first offense, or can be house arrest/electronic monitoring).
Fines: Up to $2,000.
License Revocation: Not less than 1 year.
- Limited driving privileges may be available after successful completion of a court-approved chemical dependency program and proof of financial responsibility (SR-22), often with mandatory 24/7 Sobriety Program participation.
Alcohol Evaluation & Treatment: Mandatory and generally more intensive than a first offense.

Third Offense DWI (within 10 years - Class 6 Felony)

Prison Time: Up to 2 years in state penitentiary.
Fines: Up to $4,000.
License Revocation: Not less than 1 year (potentially longer).
- Limited driving privileges may be available after release from jail/prison, typically with mandatory 24/7 Sobriety Program participation.
Alcohol Evaluation & Treatment: Mandatory, typically comprehensive.
Vehicle Forfeiture: Possible.

Fourth Offense DWI (within 10 years - Class 5 Felony)

If one of the three prior convictions was for a felony DWI.

Prison Time: Up to 5 years in state penitentiary.
Fines: Up to $10,000.
License Revocation: Not less than 2 years (potentially longer).
Mandatory 24/7 Sobriety Program: If driving privileges are ever restored.
Alcohol Evaluation & Treatment: Mandatory.
Vehicle Forfeiture: Possible or mandatory.
Felony Criminal Record: Permanent.

Fifth or Subsequent Offense DWI (within 10 years - Class 4 Felony)

If one of the four prior convictions was for a felony DWI.

Prison Time: Up to 10 years in state penitentiary.
Fines: Up to $20,000.
License Revocation: Can be significantly long-term or permanent.
Mandatory 24/7 Sobriety Program: If driving privileges are ever restored.
Alcohol Evaluation & Treatment: Mandatory.
Vehicle Forfeiture: Possible or mandatory.
Felony Criminal Record: Permanent.

Other Significant Penalties:

Under 21 DWI (Zero Tolerance, BAC $0.02%$ to $0.08%$ ):
- First offense: Up to $500 fine, up to 30 days jail, 30-day license suspension.
- Second offense: 180-day license suspension.
- Third or subsequent: 1-year license suspension.
- If BAC is $0.08%$ or higher, they face adult DWI penalties.
DWI with Child Passenger: If a minor is in the vehicle, it can be an aggravating factor leading to harsher penalties or additional child endangerment charges.
Vehicular Battery/Homicide (Aggravated DUI):
- Vehicular Battery: Causing serious bodily injury while DWI is a felony, leading to prison time and substantial fines.
- Vehicular Homicide: Causing a death while DWI is a felony (e.g., Class 3 Felony with mandatory prison time), carrying severe prison sentences (up to 15 years), large fines, and permanent license revocation.
Driving While Suspended/Revoked for DWI: This is a separate criminal offense with its own penalties, including mandatory jail time and further license suspension.
Ignition Interlock Device (IID): Can be ordered by the court, especially for repeat offenders or those with aggravated BACs. May be a condition for restricted driving privileges.
Collateral Consequences: DWI convictions lead to significantly increased auto insurance premiums (often requiring SR-22 filing), difficulty with employment (especially for commercial drivers), professional license issues, and restrictions on international travel (e.g., entry into Canada). Felony DWI convictions also result in the loss of civil rights (e.g., voting, firearm ownership).

Conclusion

South Dakota's DWI laws are characterized by their severity, particularly the rapid escalation to felony charges for repeat offenders and the emphasis on the 24/7 Sobriety Program. The absence of mandatory minimum jail time for first and second offenses does not imply leniency, as judges have broad discretion and often impose conditions like the 24/7 program or house arrest. The mandatory 1-year license revocation for refusing a chemical test also highlights the state's firm stance. Understanding these intricate regulations, especially the 10-year look-back period and the pervasive role of the 24/7 Sobriety Program, is crucial for any driver in South Dakota. For anyone facing a DWI charge in the Mount Rushmore State, immediate consultation with an experienced South Dakota DWI defense attorney is strongly advised to navigate the complexities of the legal system and protect your rights and future.

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