South Dakota DUI: Refusal to Take a Blood, Breath, or Urine Test

In South Dakota, if you get pulled over for a DUI (driving under the influence) and the officer asks you to take a blood, breath, or urine test, do you have to take one? What happens if you refuse?

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Implied Consent

South Dakota law requires you to take a test of your blood, breath, or other bodily substance like urine or saliva if you are arrested for a DUI. South Dakota’s “implied consent” law says that if you are lawfully arrested by an officer who has probable cause to believe that you have been driving under the influence, then you consent to taking a chemical test of your blood, breath, or other bodily substance for the purpose of determining your blood alcohol content (BAC).  The test must be taken as soon as possible from when you were last driving and you cannot refuse the test without penalty.

You could be arrested for a DUI even if you are not driving. If you have actual, physical control of a vehicle while under the influence, then that can be enough for an officer to arrest you. Generally, actual, physical control means that the driver is in the vehicle and could make it move. Until very recently, this South Dakota law applied even to riding a bicycle. (To read more about a DUI conviction for drunk biking, see the case State v. Bordeaux, 710 NW 2d 169 (2006)). Currently, however, the state has decided to carve out an exception for people riding horses, bicycles, and even tricycles.

You can read South Dakota’s implied consent law in the South Dakota Codified Laws Annotated 32-23-10 and about the exception for horses and bikes in chapter 32-23-22 of the same laws.

Refusing to Take the Test

Once you are arrested, the officer will choose the chemical test for you to take. If you refuse to take the test, then the officer cannot make you take one, but you have to tell the officer that you refuse. If you simply ignore the officer’s request, then that can be considered consent. On the other hand, if you choose to take a test, then you have the right to have additional tests taken by a medical professional of your choice.

After your refusal, the officer will take your license. In its place, the officer will give you written notice that the state will suspend your license for your refusal. This notice will serve as a temporary driving permit that is good for 120 days. If you do not ask for a hearing within that time, or if you do but fail to prove that the officer did not have probable cause to arrest you or that you did not actually refuse a test, then your suspension will continue for a total of one year.

The consequences of refusal are found in the South Dakota Codified Laws Annotated 32-23-11.

Should You Refuse to Take a Mandatory DUI Test in South Dakota?

It usually does not help you to refuse to take a blood, breath, or urine test when you are arrested. For a first DUI in South Dakota, your license will be suspended from 30 days to one year, but you could get a restricted license during that time to drive to school or work. This is milder than a year-long suspension for refusal. Still, refusing the test does not guarantee that you won’t be convicted – you could be found guilty of a DUI even if your refusal means that the state does not have proof that your BAC was over.08%, the legal limit for those over 21. In fact, the prosecution can use your refusal against you by arguing that you refused the test because you knew that you were intoxicated and guilty of DUI.

Get Help With Your DUI

If you have been arrested on a DUI charge in South Dakota or any other state, get help from an experienced DUI attorney. Unlike other traffic related charges, which might be worth fighting without a lawyer, conviction for a DUI has serious consequences – especially if the incident involved injury to people or property, or if it’s your second or subsequent DUI. To avoid or reduce the consequences, your best bet is to find an attorney who is knowledgeable about your state’s laws and about how the system works in your county’s court.

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