U.S. Supreme Court Opinions Change DUI Protocols; South Dakota Law Now Outdated

Oct 4, 2016

Pennington County State's Attorney Mark Vargo
Credit Victoria Wicks

Drunk-driving laws have been on the books for more than a century. But after all those years of legislation and case law, the bugs still haven't been worked out.

In 2013, the U.S. Supreme Court issued the opinion in Missouri v. McNeely. The court ruled that before compelling a blood test, law officers at routine stops have to get consent or a warrant. That changed procedures that had been in place nationwide for almost 50 years.

And it invalidated parts of states' implied consent laws, including South Dakota's.

Implied consent is the pact a driver enters into with the state: in exchange for the privilege of driving on the state's roads and getting a driver's license, the driver gives blanket consent to chemical tests.

Attorney John Murphy, Rapid City
Credit Photo courtesy of John Murphy

Earlier this year, the U.S. Supreme Court issued another important decision in DUI law. The opinion in Birchfield v. North Dakota says law enforcement officers do not have to get a warrant before compelling a breath test from someone who is under arrest.

Pennington County's top prosecutor says his county uses a system of getting warrants that's in compliance with the McNeely opinion.

But a defense attorney says implied consent is still on the books in South Dakota, and current state laws are out of step with both McNeely and Birchfield.

To listen to oral arguments in Birchfield while following along with the transcript, click on this link and then click on "Oral Argument" at the left side of the page:

https://www.oyez.org/cases/2015/14-1468

Here's a link to the McNeely arguments and opinion announcement:

https://www.oyez.org/cases/2012/11-1425

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