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.


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.

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

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. In addition a Fifth Offense DWI is punishable as a Class 4 Felony, penalty of 10 years in penitentiary and $20,000 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.

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