All states, including South Dakota, have what are known as “implied consent” laws. Implied consent means that by operating a vehicle, a person consents to take chemical tests if police pull them over because they have a reasonable suspicion that they’re driving under the influence of alcohol and/or drugs.
South Dakota law states that a driver gives “consent to the withdrawal of blood or other bodily substance and chemical analysis…to determine the amount of alcohol in the person’s blood and to determine the presence of marijuana or any controlled drug or substance…that may render a person incapable of safely driving.” This includes breathalyzer-type tests.
Can drivers refuse to take these tests?
An officer typically can’t require drivers to submit to these tests – at least if they aren’t under arrest. However, if a person refuses to, their driver’s license can be suspended for a year (for a first-time refusal). Note that this suspension is allowed whether someone is eventually charged with driving under the influence or not.
People often refuse these tests because they think it will prevent them from being arrested for DUI/DWI. However, if officers have other evidence of impairment (for example, the way they were driving, speaking or behaving), they likely have probable cause for arrest. For those who are arrested, police may “require the operator to submit to the withdrawal of blood or other bodily substances as evidence” with a warrant – particularly for blood tests.
Many people assume this will cause enough of a delay that they may be under the legal limit for alcohol by the time the test is taken. That may be. It’s important to know that if a case goes to court, the refusal to submit to tests voluntarily can be used as evidence of a driver’s impairment. Further, the refusal can add to the consequences if they’re convicted.
When implied consent may not apply
It may be possible to argue that the implied consent law didn’t apply. For example, if police didn’t have reasonable suspicion to pull someone over or probable cause to make an arrest, it could be argued that there was no implied consent. The same is true if police fail to inform a driver of the consequences of not agreeing to be tested.
It’s crucial to know your rights and the potential consequences of not agreeing to tests for alcohol and/or drugs. It’s also important to understand when your rights may have been violated due to the failure of law enforcement officers to abide by their requirements. Having legal guidance can help you protect your rights.