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Attorney General Marty Jackley

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South Dakota Supreme Court Rules the State’s DUI Implied Consent Law is Unconstitutional


FOR IMMEDIATE RELEASE :     Thursday, August 21, 2014
CONTACT:  Sara Rabern (605)773-3215   

South Dakota Supreme Court Rules the State’s DUI Implied Consent Law is Unconstitutional

PIERRE, S.D –  Attorney General Marty Jackley announced today that the South Dakota Supreme Court has ruled that the state’s DUI Implied Consent Law is unconstitutional by affirming the Circuit Court’s grant of the suppression of blood evidence in State of South Dakota vs. Shauna Fierro. 
“The South Dakota Supreme Court has determined that a mandatory blood withdrawal under South Dakota’s implied consent statute is unconstitutional in light of a recent United States Supreme Court decision.  Based upon today’s decision, a blood draw in a suspected drunk driving case may only occur when there is actual consent by the driver, a warrant, or exigent circumstances.  During the upcoming Legislative session, our Legislature will likely be discussing and addressing any resulting public safety concerns and fiscal effects arising from the decision,” said Jackley.

In 2006, the South Dakota legislature enacted SDCL 32-23-10, that provides any person who operates a vehicle in the state is considered to have given consent to the withdrawal of blood and chemical analysis of the person’s blood or breath to determine the amount of alcohol in the person’s blood; and as such that the arresting officer may, subsequent to the arrest of an operator in violation of South Dakota’s DUI laws, require the operator to submit to the withdrawal of blood. The South Dakota Supreme Court had previously issued opinions that have upheld the warrantless withdrawal of blood from individuals lawfully arrested for violation of the state DUI and associated laws. This rule of law was supported by previous United States Supreme Court decisions and guided the practice of state legislatures and law enforcement for decades.

However, in April of 2013, a divided United States Supreme Court issued an opinion in Missouri v. McNeely concluding that in drunk-driving investigations the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case to justify conducting a blood test without a warrant.  The McNeely decision had not addressed the legality of the withdrawal of under an implied consent statute nor did it fully address what would constitute exigent circumstances to justify proceeding without a warrant.

 There have recently been a number of rulings on the implied consent law and the existence of good faith, but no consensus from the South Dakota courts.  In its decision, the South Dakota Supreme Court recognized that the “Reasonableness of a search depends on balancing the public’s interest in preventing crime with the individual’s right to be free from arbitrary and unwarranted governmental intrusions into persona privacy.” In addition the Court emphasized, “In determining the reasonableness of the warrantless blood draw based on exigent circumstances, a court must consider all of the facts and circumstances of a particular case and base its holding on those facts.”