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SD Supreme Court Justice Praises Novel, Albeit Perhaps Not Successful, Argument

South Dakota Supreme Court Justice John Konenkamp congratulated a Lake Andes attorney for taking a novel approach to his defense of a DUI client.
Timothy Whalen made this argument Tuesday before the state’s high court: when the state legislature eliminated one of three statutes having to do with decriminalizing public drunkenness, they inadvertently took away the state’s ability to charge the crime of driving under the influence of alcohol.
Konenkamp tells Whalen the state Supreme Court has not heard the argument before.
“How did you find this mistake?” Konenkamp asked. “I think you’re the only lawyer in the state that found this mistake and has brought this to the court’s attention.”
Whalen replied, “Actually, no. There was a gentleman, a lawyer out in Rapid City that found it, and I heard it through the grapevine.”
Konenkamp said the argument is “really great lawyering.”
“Whoever discovered this is a darn good lawyer, and you’re fulfilling the great tradition of the law by bringing this to us,” Konenkamp told Whalen. “Now whether it’s 'good judging' for us to agree with you, that remains to be seen.”
The state, represented by Assistant Attorney General Jeffrey Hallem, argued that an examination of legislative intent clearly shows that DUI, with alcohol as the intoxicant, was meant to remain a crime.
The justices will issue an opinion later.