Bottoms up, South Dakota drivers! A Lake Andes attorney is arguing that the 2012 Legislature repealed our DUI laws.
The statement sounds absurd. Fire up the Legislature's website, and you find Chapter 32-23 of South Dakota Codified Law, "Driving under the Influence," laying out all the legal consequences for drinking and driving in South Dakota, from losing your license to being fitted with a charming Marty Jackley ankle bracelet.
But wait: lawyer Tim Whalen, who's defending 29-year-old Lake Andesian Ronald Fischer, Jr., against charges of killing two pedestrians in Pickstown while driving drunk, turns the legal page to SDCL 34-20A-93, a 1974 statute that reads thus:
Intoxication not an element of criminal offense. Except as hereinafter provided, neither the state nor any county, municipality, charter unit of government, or other political subdivision may adopt or enforce a law, ordinance, resolution, or rule having the force of law that includes drinking, drunkenness, or being found in an intoxicated condition as one of the elements of the offense giving rise to a criminal or civil penalty or sanction [SDCL 34-20A-93].
Oh my. We've busted a lot of people for drunk driving since 1974. Surely DUI must be one of the exceptions hereinafter provided.
Well, there was SDCL 34-20A-95, which read thus:
Nothing in this chapter affects any law, ordinance, resolution, or rule against drunken driving, driving under the influence of alcohol, or other similar offense involving the operation of a vehicle, aircraft, boat, machinery, or other equipment, or regarding the sale, purchase, dispensing, possessing, or use of alcoholic beverages at stated times and places or by a particular class of persons or possessing a loaded firearm while intoxicated.
Notice I said was. The 2012 Legislature repealed that excepting clause and a whole bunch of other laws in House Bill 1027, statutory housekeeping requested by the Department of Health and Human Services. Without that exception, the law does seem to say what attorney Whalen says it says: neither his client not anyone else in South Dakota can be punished for drinking alcohol.
Hey, any of you kids with minor consumption charges pending want Whalen's number?
Legislative intent and spirit of the law will likely win over letter of the law. Assistant Attorney General Brent Kempema says the Legislature had no intention of making drunk driving or public intoxication legal. Indeed, after passing 2012 HB 1027, the Legislature passed HB 1245, which assumed that another DUI statute still existed to be amended. There is no sign that the Legislature sought to make DUI legal... other than the wording of the law as it stands right now. I'll bet someone in the AG's office is typing HB 1001 for the 2014 session right now....
Those passing the bill would have been required to be able to read it in the first place. I wonder what percentage of our state legislature has graduated from college?
Interesting question: the Chronicle of Higher Education surveyed all state legislatures in 2011. During that term, 60.9% of South Dakota's legislators were college graduates, compared to a national average of 74.7%. We led the nation in percentage of legislators who either didn't finish or didn't go to college