October 19, 1978

Mr. Kerry M. Cameron 
Roberts County State's Attorney 
Roberts County Courthouse 
Sisseton, South Dakota 57262

Official Opinion No. 78-47

Methods of juvenile prosecution

Dear Mr. Cameron:

You have requested an official opinion from this office based on the following factual situation:

FACTS: 

Some counties in the Fifth Judicial Circuit have allowed juveniles charged with possession of an open alcoholic beverage container in a motor vehicle to enter their pleas by power of attorney since this offense is listed on the uniform bond schedules, and that method of handling such offenses is easier than using a juvenile delinquency petition.  In Roberts County we have brought juveniles, charged with this offense, in on delinquency petitions since a violation of SDCL 35-1-9.1 does not seem to me to fall under any of the exceptions noted in SDCL 26-8-7, it being a violation of the chapter on alcoholic beverages rather than a violation of a state or municipal hunting, boating, or traffic law cognizable by a magistrate.  Until we get your opinion, juveniles charged with violating SDCL 35-1-9.1 will be handled on the power of attorney so that the whole circuit is treating these people uniformly.

Based on the above factual situation, you have asked the following specific question:

QUESTION: 

How should minors charged with a violation of SDCL 35-1-9.1 be handled?

SDCL 26-8-7 states as follows: 
    
In this chapter unless the context otherwise plainly requires “delinquent child” means any child ten years of age or older who, regardless of where the violation occurred, has violated any federal, state or local law or regulation for which there is a penalty of a criminal nature, except state or municipal hunting, fishing, boating or traffic laws cognizable by a magistrate, or who has committed a petty offense.

SDCL 35-1-9.1 provides: 
    
It is a Class 2 misdemeanor for any person to have a package or any receptacle containing an alcoholic beverage in his possession in a motor vehicle unless the seal of the original package remains unbroken or the alcoholic beverage is so removed that no occupant of the motor vehicle shall have access to it while the vehicle is in motion.

It is my understanding that the issues you raise have been discussed in some detail by the presiding judges of the circuit courts in the State of South Dakota as well as by the judicial conference.  Further, it is my understanding that these groups have been unable to arrive at a unanimous agreement about what the proper procedure is for the handling of the issues raised in your question.  Understanding that these facts are realities, and also understanding what the limitations of Attorney Generals' Opinions are in this regard, I will nonetheless answer your question.

It is my view that juveniles charged with violating section 35-1-9.1 are properly handled on the power of attorney procedure, assuming the facts stated above are accurate.  Although it is understandable that not everyone would agree with this interpretation, it is my view that SDCL 26-8-7, in its reference to “traffic laws cognizable by a magistrate” does refer to the offense described by Section 35-1-9.1.  Consequently, being exempt from the definition of “delinquent child” under SDCL 26-8-7, it would be appropriate for the juvenile to be handled under SDCL 35-1-9.1 according to the uniform bond schedule.

This procedure appears to me to have taken common sense into account in that the juvenile court system would not then be handling a rather wide range of traffic offenses, cognizable by a magistrate, and included within the uniform bond schedule procedure.

I understand your argument that SDCL 35-1-9.1 is found in the section of the code dealing with alcoholic beverages rather than with traffic offenses, but I believe in reading the substance of that statute, the offense is as closely related to the general substance of traffic regulation as it is to alcoholic beverages. This being so, it appears appropriate to me to include it in the “traffic laws” exception in section 26-8-7 as discussed above.

Respectfully submitted,

William J. Janklow
Attorney General

WJJ:DOC:mam