May 24, 1990

Jeffry L. Bloomberg
Lawrence County State's Attorney
78-80 Sherman Street
Deadwood, South Dakota 57732

OFFICIAL OPINION NO. 90-18

Domestic abuse laws

Dear Mr. Bloomberg:

You have requested an opinion from this Office regarding the following factual situation:

FACTS:

A common question arises as to the interpretation of SDCL 23A-3-2.1(2), and particularly the provision which provides for arrest if "within the preceding four hours" there has been an assault. For example, a victim is assaulted at midnight but does not report the assault until 3:30 a.m. Based upon the report, the officer forms probable cause at 3:30 a.m., but the perpetrator is no where to be found. If the officer locates the perpetuator at 8 a.m., is he under an obligation to arrest?

Some state's attorneys have interpreted the language of SDCL 23A-3-2.1(2) to mean that the arrest must take place within four hours of the assault, and that if the four-hour period expires the mandatory requirements of the statute no longer apply.

QUESTIONS:

1. Should the "four hours" provision of SDCL 23A-3-2.1(2) be interpreted to refer to the time within which the arrest must be made or to the time within which the determination of probable cause must be made?

2. Based on the title to SDCL 23A-3-2.1, which is entitled "Circumstances permitting warrantless arrests," are the law enforcement officer's actions discretionary or mandatory?

IN RE QUESTION NO. 1:

The provisions of SDCL 23A-3-2.1(2), which deal with mandatory warrantless arrests in domestic abuse cases, state:

A law enforcement officer shall arrest and take into custody, pending release on bail, personal recognizance, or court order, a person without a warrant if the officer has probable cause to believe that:

(2) The person is eighteen years or older and within the preceding four hours has assaulted that person's spouse, former spouse, or a person eighteen years or older with whom the person resides or has formerly resided and the officer believes:

(a) An aggravated assault has occurred;
(b) An assault has occurred which has resulted in bodily injury to the victim, whether the injury is observable by the responding officer or not; or
(c) An attempt by physical menace has been made to put another in fear of imminent serious bodily harm.

The conflict you raise in your question can be resolved using the rule of statutory construction known as the Doctrine of the Last Antecedent. This rule states:

It is the general rule of statutory as well as grammatical instruction that a modifying clause is confined to the last antecedent unless there is something in the subject matter or dominant purpose which requires a different interpretation.

Kaberna v. School Board of Lead-Deadwood School District, 438 N.W.2d 542, 543 (S.D. 1989). Using this rule of construction, an arrest is mandatory if the law enforcement officer has probable cause to believe the person to be arrested is eighteen years old or older and if the law enforcement officer has probable cause to believe that, within the last four hours, the person to be arrested has assaulted his spouse, former spouse, or a person eighteen years old or older with whom the person resides or has formerly resided. Therefore, it is my opinion that the mandatory arrest provisions of SDCL 23A-3-2.1 require arrest if a determination of probable cause has been made within four hours of the assault, regardless of when the arrest is actually made.

IN RE QUESTION NO. 2:

As you are no doubt aware, SDCL 2-14-9 provides that the titles to statutes found in the code are not part of the statute. Thus, one must look to the body of the statute rather than to the title in order to ascertain its meaning. The body of SDCL 23A-3-2.1 uses the phrase "shall arrest." A related statute dealing with domestic abuse, SDCL 23A-3-21, also uses the phrase "shall arrest." These specific warrantless arrest statutes must also be reviewed in light of the general warrantless arrest statute, SDCL 23A-3-2, which uses the term "may . . . arrest." The Legislature, in short, has clearly distinguished situations in which it requires and in which it permits arrests and the language of statutes articulating such intent should be honored. It follows that the mandatory language of SDCL 23A-3-2.1 should be given effect. Therefore, it is my opinion that an arrest is mandatory under SDCL 23A-3-2.1(2), if the statutory prerequisites have been met.

Respectfully submitted,

ROGER A. TELLINGHUISEN
ATTORNEY GENERAL

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