April 20, 1977

Mr. Bernard Christenson 
Executive Secretary 
Law Enforcement Standards Commission 
Criminal Justice Training Center 
Pierre, South Dakota 57501

Official Opinion No. 77-34

Authority of reserve law enforcement officers

Dear Mr. Christenson:

QUESTION: 

You have requested an opinion as to the authority of reserve law enforcement officers, particularly with regard to DWI arrests and requiring submission to the breath and blood alcohol tests.

A “reserve law enforcement officer” is not defined in statute. However, SDCL 23-3-27 states: 
    
“Law enforcement officer” means any employee or officer of the state or any political subdivision thereof and who is responsible for the prevention and detection of crime and the enforcement of the criminal or highway traffic laws of this state.

Also, pursuant to SDCL 23-3-35(2) the Law Enforcement Officers Standards Commission is vested with the power to establish minimum educational and training standards for admission to employment as a law enforcement officer either in a permanent or temporary position.

Pursuant to these statutes, I have previously advised the Commission that it could adopt administrative rules, not inconsistent with the statutory requirements of SDCL 23-3, prescribing the requirements for certification of part-time law enforcement officers.  On April 12, 1977, rules providing for the certification of part-time law enforcement officers, therein referred to as “reserve law enforcement officers,” were filed by the Commission with the office of the Secretary of State.  Such rules will become effective twenty days thereafter (SDCL 1-26-8).

In my opinion, persons who comply with the requirements of the reserve law enforcement officers rules, as of their effective date, become “law enforcement officers” vested with the same functions, duties and responsibilities as full- time officers.  (See Official Opinion 75-160).  The DWI statutes in question authorize a law enforcement officer to make the arrest, administer the breath test and require submission to the chemical test SDCL 32-23-1.1, 32-23- 1.2.  A certified reserve officer is a law enforcement officer and therefore authorized to enforce the DWI laws of this state.

Respectfully submitted,

William J. Janklow
Attorney General

WJJ:LLV:rw