February 6, 1997

Clyde R. Calhoun
501 3rd Street
Brookings, SD 57006-2092

OFFICIAL OPINION NO. 97-03 

Responsibility for transporting juveniles and intoxicated persons 

Dear Mr. Calhoun: 

On behalf of Brookings County Sheriff Gordon N. Ribstein, you have requested an official opinion of the Office of Attorney General regarding the following facts:

          FACTS:

          Brookings County has no appropriate juvenile detention facility. Thus, Brookings County has entered into agreements with facilities in Minnehaha County for the holding of children apparently in need of supervision or taken into temporary custody pursuant to SDCL 26‑7A‑12.  In addition, no appropriate detox­ication facilities exist in Brookings County. Thus, Brookings County has entered into a contract with a facility in Minnehaha County for the holding of intoxicated persons taken into protective custody pursuant to SDCL 34‑20A‑55.  In most cases, the law enforcement officer taking such juveniles and intoxicated persons into custody is a municipal police officer, rather than county law officer. Sheriff Ribstein is of the opinion that the law enforcement officer is responsible for trans­­porting juveniles and intoxicated persons. 

Based upon the above, you have asked the following questions:

          QUESTIONS:         

          1.  Is it the responsibility of the law enforcement officer taking a juvenile into temporary custody pursuant to SDCL 26‑7A‑12, to transport such juvenile to the contractual facility for the county, or does that responsibility rest with the sheriff's office?

          2.  Is it the responsibility of the law enforcement officer taking an intoxicated person into protective custody pursuant to SDCL 34‑20A‑55, to transport such intoxicated person to the contractual facility for the county, or does that responsibility rest with the sheriff's office?

The rules of statutory construction provide guidance for both of the questions.  The South Dakota Supreme Court in State v. Harris, 494 N.W.2d 619, 622 (S.D. 1993), stated the following:

Each statute must be construed according to its manifest intent as derived from the statute as a whole, as well as other enact­ments relating to the same subject. Words used by the legislature are presumed to convey their ordinary, popular meaning, unless the context or the legislature's apparent inten­tion justifies departure.  When con­flicting statutes appear, it is the responsibility of the court to give reasonable construction to both, and to give effect, if possible, to all provisions under consideration, construing them together to make them harmonious and workable.  However, terms of a statute relat­ing to a particular subject will prevail over general terms of another statute. Finally, we must assume that the legislature, in enacting a provision, had in mind previously enacted statutes relating to the same subject.

See also SDCL ch. 2‑14.

IN RE QUESTION NO. 1:

Children may be taken into temporary custody by a law enforcement officer without order of the court.  SDCL 26‑7A‑12.  Upon taking a child into temporary custody, the law enforcement officer or court service officer shall immediately notify an intake officer who shall conduct a hearing.  SDCL 26‑7A‑13.1.  SDCL 26‑7A-14 provides in relevant part: 

A child apparently in need of supervision or an apparent delinquent child taken into tem­por­ary custody and not released to the child's parents, guardian, or custodian may be placed in foster care, shelter, or detention as des­ig­nated by the court to be the least re­stric­tive alternative for the child. (Emphasis added.)

This "detention" must be in a designated "detention facility."  SDCL 26‑7A‑1. An apparent or alleged delinquent child may be held temporarily in an adult lock-up or jail.  SDCL 26‑7A‑26. Inter­county contracts for the maintenance of juvenile detention facilities are allowed under SDCL 26‑7A‑23 and SDCL 26‑7A‑24.  

Further SDCL 26‑7A‑13.2, provides: 

The law enforcement officer or court service officer taking a juvenile into custody shall deliver the juvenile to the temporary cus­todian as directed by the court or intake officer.

Construing the above statutes as a whole leads me to the conclusion that the officer who takes the child into custody is also responsible for transporting the child to the appropriate juvenile detention facility.  This type of situation is analogous to an arrest.  In the arrest situation, it is the duty of the arresting officer to take the arrestee "to an appropriate detainment facility where he is to be held until such time as a hearing can be had before the magistrate."  AGR 87-28 at 79.  

There are no statutes which impose a specific duty on the sheriff to transport juveniles.  The sheriff, however, may be responsible for the transportation of juveniles if he takes a juvenile into custody.  AGR 87-28.  

Therefore, the answer to Question 1 is that the officer who takes the child into custody is responsible for transporting that child to the appropriate juvenile detention facility. The sheriff's office is responsible for transporting only those juveniles taken into custody by the sheriff's office.   

IN RE QUESTION NO. 2:

South Dakota once regarded public intoxication as a crime, punishable by fine and/or imprisonment.  See SDCL 22‑13‑4, repealed by SL 1974, SH 240, § 20.  Today, however, law enforcement officers may take an intoxicated person into custody to protect the intoxicated person's health and safety.  SDCL 34‑20A‑56. 

SDCL 34‑20A‑55 provides in relevant part:

Any person who appears to be intoxicated or incapacitated by the effects of alcohol or drugs in a public place and is clearly dangerous to the health and safety of himself or others may be taken into protective custody by law enforcement authorities, acting with probable cause, and, if taken into protective custody, shall be taken forthwith to an approved treatment facility offering detox­ication services for emergency commitment.

(Emphasis added.)

Though no longer a criminal violation, I construe the statutes regarding transportation of the intoxicated or incapacitated person to place comparable responsibilities upon the officer who takes the individual into protective custody as in an arrest situation. AGR 87‑28.  Again, there is no statute imposing a specific duty on the sheriff to transport such individuals. 

This conclusion, together with public policy of South Dakota, is expressed in the statute by use of the language "forthwith."  I must conclude that the statutes do not contemplate transferring the intoxicated person from a municipal law officer or highway patrol trooper to a county law officer.

Thus, the answer to question 2 is Yes.  The officer who takes an intoxicated person into custody pursuant to SDCL 34‑20A‑55 is required to transport that person to an appropriate treatment facility without delay.