South Dakota Legal FAQ
I have a case, but it is not in Sioux Falls, SD. Can you still help me?
Yes. We are licensed to practice anywhere in South Dakota, but practice primarily in southeastern South Dakota. The communities and counties where we routinely practice include but are not limited to: Sioux Falls in Minnehaha County, Canton in Lincoln County, Vermillion in Clay County, Elk Point in Union County, Brookings in Brookings County, Flandreau in Moody County, Madison in Lake County, Parker in Turner County, Salem in McCook County, Mitchell in Davison County, and Yankton in Yankton County.
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Why I am I being charged with a DUI 2nd when I received a suspended imposition of sentence on my first DUI offense?
A suspended imposition of sentence allows a defendant to avoid many of the consequences for a DUI convictions, but it is not the same as an outright dismissal of the charge. In fact, a defendant will be charged with a DUI 2nd if he or she is arrested for another DUI within 10 years of receiving a suspended imposition of sentence on the first DUI offense.
Can I be charged with a DWI or DUI when I was not driving?
Yes, a person can be charged with a DWI or DUI even if they were not driving if they were in physical control of a motor vehicle while under the influence of alcohol or another substance. A determination regarding whether a person was in actual physical control of a motor vehicle can be very complex, and it is advisable that you contact an attorney for a consultation that is focused on the specific facts of your case.
Can a suspended imposition of sentence save my commercial driver’s license (CDL) when charged with a DUI offense?
Unfortunately, a suspended imposition of sentence will not save a defendant’s CDL if he or she pleads guilty to or is convicted of a DUI. The only way a person can save his or her CDL when charged with a DUI is to have the DUI charge reduced or dismissed. If the defendant has a South Dakota issued CDL a suspended imposition of sentence could still allow them to keep a standard driver’s license and avoid SR-22 insurance requirements.
Can my lawyer attend my criminal court date for me?
In South Dakota, if you have been charged with a misdemeanor level offense, your lawyer can usually appear for you if you are unable to attend a court date, but you must speak to our lawyer to determine if the court date in question is one for which the lawyer is allowed to appear for you. If you have been charged with a felony, your attorney cannot appear on your behalf and you MUST be present for all court appearances. In some circumstances, it is possible for a defendant to make a remote video appearance for both misdemeanor of felony court dates, but this must be approved well in advance of your court hearing.
How much does it cost to hire a lawyer (attorney)?
Each case is different and will require a different amount of time to properly represent you. We offer free consultations to discuss fee and payment options that will vary depending on the complexity of your case.
Detectives or police officers have contacted me and wish to speak with me. What should I do now?
You have the right to remain silent. Before speaking with a detective or police officer, you must consider that anything you say can be used against you at a later time. You should consult with an attorney before speaking to law enforcement about your case.
What is the 24/7 program?
The 24/7 program is an alcohol or drug monitoring program that can be ordered by the Court. A defendant can be required to participate in the South Dakota 24/7 program either while his or her case is pending as a pre-trial bond condition or as a condition of a suspended sentence or probation after a defendant has been sentenced. There are three available options for 24/7 alcohol monitoring: (1) twice daily breathalyzers at the county jail or sheriff’s office, (2) SCRAM alcohol ankle monitors and (3) portable remote breath units. There are two common forms of 24/7 drug testing: (1) regularly scheduled urine testing and (2) weekly or bi-weekly drug patches. Each option may have a different daily cost and are subject to availability restrictions.
What happens if I violate the 24/7 program?
There are numerous consequences for 24/7 violations depending on the stage of the proceedings and where your case is pending. Additionally, the consequences for a 24/7 violation also differ based on whether your 24/7 compliance is required as a condition of bond while your case is pending, as a condition of a suspended jail sentence, or as a condition of a restricted driving permit. If your 24/7 violation occurs while your case is pending, your bond could be increased or revoked and you will likely be required to spend time in custody; the amount of time you are required to spend in custody depends on the county in which your case is pending and upon circumstances surrounding the violation. If you are on the 24/7 program as a condition of a suspended sentence and have a violation, it could lead to the imposition of some or all the suspended jail time you received when originally sentenced. Finally, if you violate 24/7 when your compliance was required to possess a restricted driving permit, that violation will lead to the revocation of your restricted driving permit.
Can I leave South Dakota after I have been convicted of a crime?
Generally, a person that has only been convicted of a misdemeanor will not face any travel restrictions because of that misdemeanor sentence and is free to leave South Dakota. If a person has been convicted of a felony and is on supervised probation or parole, then that person is not allowed to leave South Dakota without prior permission from their probation or parole officer; failure to comply with this provision could lead to a probation or parole violation.
Do I have to provide law enforcement with a urine sample (UA) or blood sample?
No. You do not have to provide law enforcement with a urine sample (UA) or blood sample. In some cases, law enforcement may seek and obtain a warrant for a sample of your blood or urine, but you are not required to consent if a warrant has not been issued.
Do I have to allow law enforcement to search my phone or other electronic device?
No. You do not have to consent to the search of your phone or other electronic device. In some cases, law enforcement may seek and obtain a search warrant for your phone or device in which case they will be able to take your phone or electronic device to conduct a search, but you are still not required to provide them with the passcode or security code for your device.
If my driver's license is revoked or suspended as a result of conviction, will I be able to obtain a restricted driving permit or work permit?
In most cases, you will be able to obtain a restricted permit for travel related to work, childcare, school, treatment, medical, or counseling related purposes. To obtain a restricted permit, the judge must authorize a restricted permit at sentencing, you must have a valid driver’s license when you are sentenced, and you must provide valid proof of car insurance. You may also be required to complete a court approved alcohol education or treatment program and comply with the 24/7 sobriety program to obtain a restricted permit. Whether or not you must complete a treatment program or comply with the 24/7 program depends on the offense that caused you driver’s license to be revoked or suspended.
What happens if I do not attend my criminal court date?
In South Dakota, it is crime to miss a scheduled court date. There are two primary consequences for missing a scheduled court date. First, a bench warrant for your arrest will be issued. Second, the State can file a new criminal charge commonly referred to as “failure to appear.” A failure to appear charge can be either a felony or a misdemeanor. If you missed a court date for a felony level offense, you could be charged with felony failure to appear, but if the court date you missed was for a misdemeanor level offense, you could only be charged with a misdemeanor failure to appear. (See SDCL 23A-43-31).
What happens if I do not report to serve a jail or penitentiary sentence as ordered by the Court?
In South Dakota, it is a felony to fail to report to serve a county jail or penitentiary sentence, regardless of whether the sentence for which the defendant failed to report to jail on was for a felony or a misdemeanor offense. (See SDCL 23A-43-21).
My case is scheduled for a preliminary hearing. What does that mean?
A preliminary hearing is scheduled for all felony charges. The purpose of a preliminary hearing is to ensure that the State has at least enough evidence, whether that evidence is tangible, circumstantial, or testimonial, to take your case to trial. If your case is bound over at a preliminary hearing, it does not mean that you are guilty. It simply means that the judge has determined that the State has presented at least enough evidence to support their theory of the case against you. At this point in the proceedings, you are still presumed to be innocent, and it is highly recommended that you retain counsel to protect your rights and interests.
My case was indicted. What does that mean?
When your case is indicted, it means that the State has presented the case against you to the grand jury (6 to 12 residents of the county where the crime is alleged to have been committed) and the grand jury has determined that the State has presented at least enough evidence to support their theory of the case against you. An indictment does not mean that you have been convicted of any crime. If your case is indicted, you are still presumed to be innocent and will move onto the next stage in the legal process. At this point, it is imperative that you secure legal counsel to ensure your rights are fully protected.
I have been served with a temporary protection order. What do I do now?
First and foremost, it is essential that you follow the terms and conditions of the protection order. If you violate a term or condition of the temporary protection order, you can be charged with a criminal offense. Typically, the temporary protection order prohibits contact of any kind with the individual(s) who obtained the protection order, even if they initiate the contact. You will have an opportunity to contest the case before a permanent protection can be granted. We can help to explain the process and ensure that you are protected.
What happens if I do not attend my protection order hearing?
If the petitioner (the person that filed for a protection order) does not go to the protection order hearing, the case will be dismissed and the temporary protection order against the respondent will be canceled. If the petitioner appears at the protection order hearing and the respondent (person against whom the protection order is being sought) does not attend the protection order hearing, it will result in the Court granting the petitioner a permanent protection order against the respondent by default.
I was injured in an accident. What compensation may I be able to collect?
For personal injury cases, you may be entitled to compensation for medical bills, property damage, pain and suffering, lost wages, loss of future earning capacity, permanent injury or disability, and mental or psychological trauma.
How quickly can I get divorced?
Once a divorce petition has been filed, South Dakota law requires a 60 day “cooling off period” before a divorce can be finalized.