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Are breath tests 100% accurate?

No.  The portable breath tests are not accurate, and are not admissible under South Dakota law.  The state has to prove blood alcohol level through a blood test, which can only be done with a warrant or consent.  The science behind blood levels of the accused is never 100% accurate and a skilled attorney can raise reasonable doubt in the minds of a jury.

 

How much does a DUI or DWI cost in South Dakota?

A DUI or DWI is an expensive matter.  First, there are the legal fees associated with a DUI.  Our fees typically range from $750 to several thousand dollars if there is a need to have hearings, motions, and potentially a jury trial.  We arrange the retainer based on the facts of the case and how likely we think it will go to trial or if we think there is a chance at suppressing evidence.  

 

But legal fees are a small portion of the costs.  The Court will assess fines and fees, which can easily mount up to over $500.  Ankle monitoring or sobriety SCRAM bracelets may be ordered, and those can cost around $10 to $15 per day.  

 

Finally, there are insurance costs, which typically are the highest costs associated with a DUI or DWI.  If you are convicted or plead guilty to a DUI or DWI in South Dakota, expect your insurance company to charge you high-risk insurance, which can cost generally two to three times the rates of a preferred-risk policy.

 

When can a police officer stop my vehicle and pull me over in South Dakota?

While it may seem an officer can pull you over for any reason, they must have “reasonable articulable suspicion” that some sort of criminal activity is “afoot.”  In other words, there must be some legitimate and objective showing that illegal activity is occurring.  This can mean speeding, license plate issues, poor driving, or other violations of South Dakota’s traffic laws.  The standard comes from a United States Supreme Court case, Terry v. Ohio, and as a result these types of stops are often referred to as “Terry” stops in the legal community.  

 

Pulling somebody over requires more than a gut feeling.  The officer has to be able to articulate to the judge what facts made him suspect a violation of the law was occurring.  

 

Note, the analysis for when an officer can pull you over in South Dakota differs from when an officer can search your car, which is covered in another FAQ.  

 

What is the test where the officer shines a light in my eyes?

This is called an Eye Nystagmus Test, or Horizontal Eye Nystagmus Test.  Many people believe the officer is shining the light in their eyes to see if they can follow the light.  Actually, what the officer is testing is for involuntary jerking or bouncing of the eyeball.  While there are claims about the accuracy of this test, failing this test is not a slam dunk case for the State.  Juries are suspicious of this test, officers improperly administer this test, there are causes of eye nystagmus other than alcohol, and the State has the burden of proof.  If the State does not have other good evidence in your case, our attorneys can attack the validity of this test, and how the officers administered it, in front of the jury.

 

Can I represent myself in a DUI or DUI in South Dakota?

Although it is legal for a person to defend a DUI without a lawyer in South Dakota, we strongly advise against it.  A DUI is a serious matter, and a crime that can come back to haunt you throughout your life.  An attorney can provide the following benefits:

 • The lawyer has worked with the prosecutor’s office, and has established credibility and a reputation with  

    prosecutors.  A good lawyer will be familiar with the tendencies of the judges you will face.

 • An attorney will know what the purpose behind each hearing, will know what is expected, and will be able to

    navigate the rules of procedure.

 • The attorney will be familiar with the South Dakota statutes that affect your case, as well as the decisions of

    the South Dakota Supreme Court and the U.S. Supreme Court that affect your case.

 • We are able to go to court in your place (except for some situations) so you do not need to miss work or

    other responsibilities.  This may also avoid embarrassingly running into people you know at the courthouse,    

    which is a very public place.  

 • Our lawyers are able to advise you what is a good plea bargain, and what is not a good plea bargain, based

    on our experience and evaluation of the case.

 • Our attorneys will get access to all the State’s evidence and be able to spot the legal issues, or holes in the

    prosecutor’s case, to gain an advantage.

 • Our attorneys are able to cross-examine police officers, or other witnesses a state may call during a trial or

    a motion hearing.

 

I was drinking and driving.  Should I just plead guilty?

Contact our office before you make any decision to give up your rights and plead guilty.  The state bears the burden of proving your guilt beyond a reasonable doubt.  They are responsible for proper maintenance and storage of evidence, and for making their witnesses show up and testify.  They also in some DUI cases, have the burden of proving scientifically that your blood was a certain level.  Any number of things can happen in a case that may cause even a “slam dunk” DUI case to be dismissed if you have a competent attorney advocating for you.  

 

The science behind blood analyses can be challenged, and breathalyzers are generally inadmissible as evidence against you.  Our experienced lawyers will review the evidence and hold the State to their burden.  If you enter a guilty plea without having a lawyer look at your case, you are waiving many valuable rights granted to you by the U.S. and State Constitution and unnecessarily placing yourself at risk.

 

What is a “suspended imposition” in South Dakota?

A suspended imposition of sentence is a once-in-a-lifetime option for criminal defendants in South Dakota to  have the crime effectively erased from their record if the conditions are complied with.  It is the judge’s discretion to grant a requested “suspended imp”, so it is extremely advantageous to have an attorney represent you in this request.  Suspended impositions are commonly requested in DUI/DWI cases, but they are not always advisable.  It is important to speak with your attorney whether it makes sense to request it during your DUI case.  A suspended imposition will not protect you from a second or third DUI if you are caught drinking and driving again.  

 

What is a crime of enhancement?

A crime of enhancement is a crime in which the punishment is increased for subsequent violations, even though no worse crime has been committed.  Under South Dakota law, generally, enhancement of a sentence is prohibited for simply committing the same crime again.  However, a specific exception is made for DUI violations under the State’s criminal code.  

DUI / DWI

A DUI can affect anybody. Electricians, doctors, lawyers, teachers, construction workers, and students all face DUIs. To be guilty of a DUI in South Dakota, the prosecutor can either prove that a person had a blood alcohol level greater that 0.08 or that they were “intoxicated.” This does not mean alcohol alone, for example, a person using drugs (even prescribed drugs) can be convicted of driving while “intoxicated.”

 

Our offices provide skilled representation in this area, and we will challenge the validity of the State’s actions during the pull-over and arrest. We will also challenge the science the prosecutor has to present to prove intoxication or blood levels.  

Frequently Asked Questions

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427 N. Minnesota Ave, Suite 101

Sioux Falls, SD 57104

P:  605.332.6803 • F:  605.332.3692

E:  info@nicholsrabuck.com

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