FOR IMMEDIATE RELEASE :   Wednesday, July 17, 2013
CONTACT:  Sara Rabern (605) 773-3215   

 
South Dakota Courts Upholding Searches Conducted under the State’s DUI Implied Consent Law

PIERRE, S.D - Attorney General Jackley announces favorable court rulings regarding the legality of taking of blood under the State’s implied consent laws.  The Attorney General’s Office has been assisting county prosecutors in responding to motions to suppress blood samples and test results filed in numerous DUI cases throughout the state.  In these responses, the county prosecutors have asserted that the legality of searches under the state’s implied consent laws was not addressed in the United States Supreme Court’s decision, Missouri v. McNeely; that searches pursuant to the state’s implied consent laws are constitutional; and alternatively the blood test results are admissible based upon the officer’s good faith reliance upon the implied consent laws and pre-McNeely decisions of the South Dakota Supreme Court.

A final decision denying a defendant’s motion to suppress or exclude from evidence a blood sample and test results based in part upon McNeely was issued in a Lawrence County DUI case.  The case is being prosecuted by Lawrence County State’s Attorney’s Office.  The Defendant brought the motion to suppress, arguing in part, that the withdraw of blood without a warrant was unconstitutional under McNeely.  In a final order dated July 11, 2013, the circuit court judge determined McNeely was not applicable since it did not address the legality of a warrantless withdrawal of blood under South Dakota’s implied consent laws.  The judge further determined that the Defendant did not establish that a warrantless search conducted under the implied consent laws was unconstitutional. 

On July 12, 2013, a magistrate court judge issued a letter opinion denying a Defendant’s motion to suppress or exclude from evidence results of a blood test in a Pennington County DUI. The magistrate court judge found McNeely not applicable and the implied consent statute was constitutional.  The judge also denied the defendant’s motion noting that since the blood was withdrawn prior to the McNeely decision, the arresting officer’s blood withdrawal request was in good faith reliance on the constitutionality of the implied consent laws and prior decisions of the South Dakota Supreme Court.  The DUI case is being prosecuted by the Pennington County State’s Attorney’s Office.

A number of judges have denied motions to suppress without addressing the constitutionality of the implied consent laws based solely upon the officer’s good faith reliance upon the implied consent laws and the South Dakota Supreme Court’s pre-McNeely decisions upholding the legality of these types of warrantless searches.

 
Attorney General Jackley notes that though there have been a number of favorable rulings, there has been one unfavorable ruling granting a defendant’s motion to suppress the blood test and results.  However, the defendant was convicted at trial without the blood test results. In addition, there have been a couple of judicial rulings involving pre-McNeely searches where the Judge denied the motion to suppress,  based upon on the officer’s good faith reliance on the implied consent laws and state Supreme Court decisions, even though the Court found the search was improper.

It is anticipated that the South Dakota Supreme Court will ultimately address what effect, if any, the United States Supreme Court decision in Missouri v. McNeely may have on the state’s implied consent law.  It is further anticipated that the State’s DUI implied consent law and its affect upon public safety may further necessitate discussion this upcoming legislative session.

 
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