If you only remember one point about refusing a breathalyzer in South Dakota, remember this: Refusal typically produces a one-year (or longer) license revocation through DPS, independent of the criminal case. Breath refusal may be criminalized consistent with Birchfield; blood refusal for criminal penalty generally requires a warrant. Procedure, examples, and the opinions below hang off S.D. Codified Laws § 32-23-10. South Dakota's implied-consent law requires chemical testing upon lawful DUI arrest; refusal has administrative license consequences.
Criminal consequences of refusal
Breath refusal may be criminalized consistent with Birchfield; blood refusal for criminal penalty generally requires a warrant.
Under Birchfield v. North Dakota, the Fourth Amendment allows criminal penalties for refusing a warrantless breath test incident to a lawful DUI arrest, but generally requires a warrant (or a recognized exception) before the State may impose criminal penalties for refusing a blood draw. Missouri v. McNeely rejected a per-se exigency based solely on natural dissipation of alcohol in the blood. South Dakota statutes and case law implement those federal baselines with local detail.
Walking through South Dakota facts
Use this walkthrough to see which South Dakota authority does the work at each step.
A driver is arrested for DUI in South Dakota and refuses the evidentiary chemical test after the implied-consent advisory.
- Identify the administrative consequence under S.D. Codified Laws § 32-23-10: Refusal typically produces a one-year (or longer) license revocation through DPS, independent of the criminal case.
- Separate that track from the criminal case: Breath refusal may be criminalized consistent with Birchfield; blood refusal for criminal penalty generally requires a warrant.
- Ask whether the refusal can be argued to the jury: Chemical results and refusal evidence are routinely used in DUI prosecutions.
- If the request is for blood rather than breath, apply the warrant rule: Breath is ordinary; blood is used for drugs or hospital draws, typically under warrant when compelled.
In South Dakota the refusal question is answered first by S.D. Codified Laws § 32-23-10, then by the administrative deadline and the criminal case.
Can refusal be used as evidence?
Chemical results and refusal evidence are routinely used in DUI prosecutions.
Prosecutors often argue consciousness of guilt; defense counsel emphasize confusion, inadequate advisories, or medical inability to provide a sample. The precise jury instruction language is state-specific — search South Dakota opinions for “refusal” and “implied consent.”
Breath tests versus blood tests
Breath is ordinary; blood is used for drugs or hospital draws, typically under warrant when compelled.
Practical tip: a driver who refuses breath may still face a warrant-backed blood draw. Refusal does not create a permanent shield against chemical evidence; it mainly adds administrative (and sometimes criminal) consequences on top of the underlying DUI case.
Practical tips
- Ask whether the stop and arrest were lawful — implied consent usually requires a lawful DUI arrest first.
- Diary the administrative hearing deadline immediately.
- Do not confuse portable roadside breath screens with the evidentiary breathalyzer at the station; statutes often treat them differently.
- Research South Dakota opinions on implied consent, refusal, and license revocation in LawDiver before a contested DMV hearing.
Case law: implied consent and refusal in South Dakota
Kenneth Owen PETERSON, Respondent, v. STATE of South Dakota, Appellant
Kenneth Owen PETERSON, Respondent, v. STATE of South Dakota, Appellant, 1977 S.D. LEXIS 126 (1977)
PORTER, Justice. This case involves the South Dakota Implied Consent Law.1 The issue presented is *407whether the driver’s later offer to take the chemical test nullified his earlier refusal to take the test when requested to do so by the arresting officer. If his conduct did not constitute a refusal of the test, his license to drive may not be revoked. RELEVANT FACTS Re…
On implied consent / breathalyzer refusal, Kenneth Owen PETERSON, Respondent, v. STATE of South Dakota, Appellant speaks to the South Dakota dispute in this passage: "PORTER, Justice. This case involves the South Dakota Implied Consent Law.1 The issue presented is *407whether the driver’s later offer to take the chemical test nullified his earlier refusal to take the test when requested to do so by the arresting officer." The surrounding opinion shows how the court applied that language to the record.
STATE of South Dakota, Plaintiff and Appellee, v. Dale F. HOENSCHEID, Defendant and Appellant — Morgan, J., concurring
…sobriety tests to the chemical test administered under the Implied Consent Law, SDCL 32-23-10 et seq., is like comparing apples to oranges. The former are for the purpose of establishing probable cause to arrest and can be administered upon suspicion only. The latter are for the purpose of determining guilt or innocence based upon statutorily established presumptions and arres…
STATE of South Dakota, Plaintiff and Appellee, v. Dale F. HOENSCHEID, Defendant and Appellant — Morgan, J., concurring is worth reading on South Dakota implied consent / breathalyzer refusal because the court put the point in its own words: "Implied Consent Law, SDCL 32-23-10 et seq., is like comparing apples to oranges. The former are for the purpose of establishing probable cause to arrest and can be administered upon suspicion only." Use that passage as the starting point, then read the facts that precede it.
STATE of South Dakota, Plaintiff and Appellee, v. Richard HERRMANN, Defendant and Appellant
…e under the influence (DUI). Steiner then read Herrmann the implied consent warnings and the Miranda warnings.[1] Herrmann refused to submit *727 to a blood test as requested in the implied consent warnings. However, Steiner was advised by dispatch at about the same time that Herrmann had two DUI convictions in the previous five years. With that information, Steiner informed He…
South Dakota opinions such as STATE of South Dakota, Plaintiff and Appellee, v. Richard HERRMANN, Defendant and Appellant are cited where implied consent / breathalyzer refusal is disputed. The court stated: "DUI). Steiner then read Herrmann the implied consent warnings and the Miranda warnings.[1] Herrmann refused to submit *727 to a blood test as requested in the implied consent warnings." That is the language to brief; the rest of the decision supplies the procedural posture.
STATE of South Dakota, Plaintiff and Appellee, v. Ronald Gene TUCKER, Defendant and Appellant
…id not, at any time, read or otherwise inform Tucker of the implied consent warnings contained in SDCL 32-23-10. 2 Tucker was subsequently transported to the McCook County Courthouse and two samples of his blood were withdrawn for blood/aleohol testing. On October 4, 1993, state filed an information charging Tucker with: two counts of vehicular homicide (SDCL 22-16-41); one cou…
On implied consent / breathalyzer refusal, STATE of South Dakota, Plaintiff and Appellee, v. Ronald Gene TUCKER, Defendant and Appellant speaks to the South Dakota dispute in this passage: "Tucker of the implied consent warnings contained in SDCL 32-23-10. 2 Tucker was subsequently transported to the McCook County Courthouse and two samples of his blood were withdrawn for blood/aleohol testing." The surrounding opinion shows how the court applied that language to the record.
STATE of South Dakota, Plaintiff and Appellee, v. Barbara Jo ZOSS, Defendant and Appellant
…ted her for DWI. After the officer advised appellant of the implied consent law and the Miranda warnings, appellant indicated she understood her Miranda rights but did not respond to the implied consent law. She was subsequently taken to the Codington County Detention Center in Watertown, where she was again read the implied consent law and was asked to take a chemical breath t…
Practitioners open STATE of South Dakota, Plaintiff and Appellee, v. Barbara Jo ZOSS, Defendant and Appellant when South Dakota implied consent / breathalyzer refusal turns on the distinction in this sentence: "DWI. After the officer advised appellant of the implied consent law and the Miranda warnings, appellant indicated she understood her Miranda rights but did not respond to the implied consent law." Do not lift it out of the facts the court was deciding.
Key takeaways
- Primary authority: S.D. Codified Laws § 32-23-10.
- Administrative hit: Refusal typically produces a one-year (or longer) license revocation through DPS, independent of the criminal case.
- Criminal exposure: Breath refusal may be criminalized consistent with Birchfield; blood refusal for criminal penalty generally requires a warrant.
- Evidence: Chemical results and refusal evidence are routinely used in DUI prosecutions.
- Blood vs. breath: federal Supreme Court doctrine in Birchfield and McNeely still frames warrant rules.
Implied consent in South Dakota
South Dakota's implied-consent law requires chemical testing upon lawful DUI arrest; refusal has administrative license consequences.
Implied consent is not the same as a Miranda warning. Officers typically must advise of the consequences of refusal before requesting a chemical test. Failure to give a required advisory can affect whether the administrative suspension sticks — a frequent issue in South Dakota appellate opinions.
License suspension and administrative hearings
Refusal typically produces a one-year (or longer) license revocation through DPS, independent of the criminal case.
The DMV / administrative track often runs separately from the criminal DUI case. Missing the short window to request an administrative hearing can lock in a suspension even if the criminal charge is later reduced or dismissed. Always calendar the administrative deadline the same day as the arrest.
Frequently asked questions
What happens if I refuse a breathalyzer in South Dakota?
Refusal typically produces a one-year (or longer) license revocation through DPS, independent of the criminal case. Breath refusal may be criminalized consistent with Birchfield; blood refusal for criminal penalty generally requires a warrant.
Is refusal a separate crime in South Dakota?
Breath refusal may be criminalized consistent with Birchfield; blood refusal for criminal penalty generally requires a warrant.
Will the prosecutor tell the jury I refused?
Chemical results and refusal evidence are routinely used in DUI prosecutions.
Do I need a warrant for a blood draw?
Breath is ordinary; blood is used for drugs or hospital draws, typically under warrant when compelled. See also Birchfield and McNeely linked above.