Expert Advice > Criminal
Criminal | DUI/DWI | Drugs | White Collar Crimes | Personal Injury | General Law
- Is it illegal to walk into a convenience store with a lighted cigarette?
Yes. It is a petty offense to smoke or carry any lighted tobacco product into any public place except bars, motel rooms, casinos, liquor stores or tobacco shops.
- If I witness a felony can I get in trouble if I do not report it to the police?
Yes. South Dakota Codified Law § 22-11-12 provides that it is "misprison of a felony" and a Class 1 misdemeanor for any person to fail to immediately disclose to the proper authorities any knowledge a person may have regarding the commission of a felony. Misprison of a felony carries a maximum punishment of 1 year in the county jail and/or a $1,000 fine.
- What is the difference between grand theft and petty theft?
Theft is "grand theft" if property is taken directly from another person's body, like a "pick-pocket," for example. Theft is also "grand theft" if the value of the property stolen exceeds $500. Most people used to think of grand theft in connection with automobiles or expensive jewelry, but grand theft can include anything valued over $500. There have been grand theft cases for stealing such things as scrap metal or a bicycle. "Grand theft" is a Class 4 felony with a maximum punishment of 10 years in the state penitentiary and/or a $10,000 fine.
REMEMBER YOUR RIGHT TO REMAIN SILENT!
- Is it against the law for an 18 year-old senior in high school to date a 15 year-old sophomore?
No. However, the 18 year-old should be aware that the Legislature has made it a crime for any person to have any sexual contact (touching of genitalia or breasts of a female) with another person who is under the age of 16. In this case, the crime would be a Class 1 misdemeanor if the senior is less than 3 years older than the sophomore. If the senior is more than 3 years older than the sophomore, the crime is a Class 3 felony, which carries a maximum penalty of 15 years in the state penitentiary and/or a $15,000 fine.
- Does a criminal defendant have a right to a jury trial in every case?
No. Under South Dakota law, a criminal defendant is only entitled to a jury trial if there is the possibility of a jail sentence. If the trial judge assures the defendant prior to trial that no actual or suspended jail time will be imposed if the defendant is convicted, then the defendant will have a "court trial" In a court trial, the judge determines whether the defendant is guilty or not guilty, rather than a jury. The defendant still retains all his other rights, but the final decision rests with the judge.
- Is being "drunk" a defense to crimes like murder, manslaughter, assault or grand theft?
In South Dakota, voluntary intoxication is usually not a defense to criminal conduct. The only time intoxication can be raised as a defense is when the crime requires a "specific intent," for example first-degree murder, which requires a "premeditated design." Intoxication is not a defense to second-degree murder because proof of a premeditated design is not an element of the offense. Not surprisingly, voluntary intoxication is not a defense to the crimes most commonly committed by drunk people - DUI (obviously), assault and intentional damage to property.
REMEMBER YOUR RIGHT TO REMAIN SILENT!
- How does someone obtain a pardon?
The first step is to submit an application to the Board of Pardons and Paroles, which you can obtain from the Board upon written request. A hearing will then be held in front of the Board. Some of the factors the Board may consider include: (1) the applicant's innocence has been subsequently proven; (2) the applicant has shown remarkable rehabilitation; (3) the victims and the community indicate that the applicant has carried the stigma of the crime for a long enough period to justify its removal; (4) the applicant wishes to pursue a professional career from which society can benefit, but a felony conviction prevents it. After a hearing, the Board will either reject the pardon application or recommend to the Governor that a pardon be issued. The final decision rests with the Governor.
- Can I be convicted of "open container" if I take a half-full bottle of whiskey to a friend's house in my car even if I never open it in the car?
It depends on where you put the bottle. Generally, the crime of "open container" has been committed if a person in a vehicle possesses any alcoholic beverage with a broken seal. The only exception is if the alcohol is so removed from the passenger area of the vehicle that no occupant has access to it. The trunk of your car, cargo area of your SUV, bed of your pickup or any glove compartment are all safe places to transport unsealed bottles of booze without running the risk of an open container conviction.
- Can I be convicted if I was not "read my rights" when I was arrested?
Yes. A policeman's failure to read you "your rights" (called Miranda warnings) does not affect the legality of your arrest. The purpose of Miranda warnings is to inform you that you have the right to remain silent and the right to talk to a lawyer before answering questions. An officer is supposed to read you these rights prior to asking you any questions. If he does not, anything you say to the officer is inadmissible at trial and may not be used against you. However, the Government may still use other evidence and witnesses to convict you of the crime charged.
- If I am stopped by law enforcement, do I have to let them search my car if they ask for permission to do so?
No. You can always refuse to give your consent to the search of your vehicle. If you don't want law enforcement to search it, just tell them "no"! There are situations where law enforcement can search your vehicle without your permission, however. They can search your vehicle if they have a search warrant or if they have probable cause to believe there is evidence of a crime in your vehicle. They can also search your car after you have already been arrested for a crime.
- Is it true that "possession is 9/10ths of the law"?
No. There is not a single statute, jury instruction or court rule that uses this language. In fact, most statutes that deal with possession of contraband, (i.e. drugs, stolen property), require "knowing" possession. The State must prove you knew the contraband was in your possession. If you did not know that your boyfriend left his stolen fuzzbuster under your car seat, you are not guilty of possessing stolen property even if the police find it in your car.
- Is it a crime to spit in the face of a DEA agent during questioning?
Depends on which DEA Agent was questioning you (joke for S.H.). . . Yes, "sliming" any law enforcement officer during questioning is a crime if done with the intent to assault. Under both federal and South Dakota law, a person may be incarcerated for up to one (1) year for this offense. A better approach is simply to refuse to answer his questions.
- Is it a crime to shoot at a pheasant flying over someone else's property even if I miss?
Shooting at a pheasant which is flying over another person's property is trespass whether you hit anything or not. A hunter traveling on the roadway may only shoot at game flying within the road right away. A hunter may retrieve a legally downed bird if it falls on the private property of another provided the hunter is on foot and unarmed when the bird is retrieved, but there can be no shooting over the fenceline, period. The maximum penalty for this offense is 30 days in jail and/or a $200 fine plus loss of your hunting privileges for one year.
- Is it a crime to have a loaded hunting rifle or shotgun in the cab of my pickup?
No. It is not illegal to have a loaded hunting rifle in the passenger compartment of your vehicle. However, it is illegal to posses a loaded firearm at any time if you are intoxicated or if you have previously been convicted of a felony.
- Do I have to repay the county for the cost of my court-appointed attorney even if I am found not guilty at trial?
Usually, you do. Judges almost always require repayment of court-appointed attorney's fees as part of a defendant's sentence if he is convicted. Judges have the authority to require repayment even if the defendant is found not guilty, but it is not mandatory. It is up to the judge.
- What is a Hung Jury?
A "hung jury" is a jury that cannot reach a unanimous decision. In South Dakota, criminal cases are tried to twelve-person juries. Each member of the jury must unanimously agree to a verdict of guilty or not guilty on each offense charged. If the jury does not unanimously agree, the jury is "hung" as to that charge and a mistrial is declared. The prosecutor then has the discretion to dismiss the charges against the defendant, or try the case again.
- Is it against the law to secretly record a telephone call?
Not if you are one of the parties to the phone call. South Dakota is a one-party consent state, meaning if one party to the conversation consents to the recording, it is OK. Generally, it would be illegal to secretly record the telephone call of two people who were talking on the phone if one of them has not consented. For example, it would be legal to secretly eavesdrop on your child's phone calls; you just can't record them.
- Are radar guns 100% accurate in calculating vehicle speed?
They should be pretty close. The radar guns used by law enforcement in South Dakota are frequently tested by technicians to determine their accuracy. The technicians can generally certify that the gun is accurate within one (1) mile per hour either way. If you are ever stopped and think the radar gun is wrong, ask the officer when his radar gun was last tested by a technician. If it has been a while, the radar gun may be out of whack.
- If I am stopped by the police for a routine traffic violation can the officer order me to get out of my vehicle?
Yes. The courts have uniformly held that it is permissible for a police officer to order a driver out of a vehicle, even if the driver is being pulled over just to issue a traffic ticket. The courts' justification for this is officer safety. The South Dakota Supreme Court has specifically recognized the inordinate risk confronting an officer as he approaches a person seated in an automobile. According to one study, approximately 30% of police shootings occurred when a police officer approached a suspect seated in an automobile.
REMEMBER YOUR RIGHT TO REMAIN SILENT!
- Can the State convict an athlete of committing the crime of assault during a sporting event even if the athlete did not intend to injure an opposing player?
Maybe. Under the "simple assault" statute, the State only needs to prove that the athlete recklessly causes bodily injury to another. What is considered "reckless" conduct during a sporting event is for the jury to decide.
- Do I have to let a police officer into my house if he asks to come inside?
No. You are never required to consent to law enforcement's entry into your home. A police officer must have a search warrant before he may legally enter your home without your consent. The only time a police officer can enter your home without your consent or without a search warrant is if exigent circumstances exist. The State will be required to prove to a judge beyond a reasonable doubt that exigent circumstances did in fact exist or the entry into your home will be adjudged unconstitutional.
- Can I shoot a burglar if I catch him breaking into my house or business?
Use of "deadly force" is permitted if you or a family member is placed in imminent danger of great bodily injury. Short of that, there is no bright line rule. You may use "force or violence" to prevent an offense against your property, as well. However, the amount of force you may lawfully use is limited by what a reasonable person in the same situation would believe to be necessary. Any force beyond that would be excessive and against the law.
- If you find someone's lost wallet and don't attempt to return it are you guilty of a crime?
Yes. Any person who finds property he knows to be lost is guilty of theft if the person fails to take reasonable steps to restore the property to its rightful owner. Thankfully, most South Dakotans would return it anyway, crime or not.
- Is "Finders keepers, losers weepers" the law? Kate Sargent, age 3
Sorry Katie, it is not. The law states that every person has a duty to take "reasonable measures" to return lost property to its rightful owner. Failure to do so is theft.
- Do stoplight violations caught on Sioux Fall's photo monitoring system go on the vehicle owner's driving record?
No. Citations issued under Sioux Fall's photo monitoring system are not criminal traffic offenses and do not go on anyone's driving record. They are simply civil fines. If they were criminal, the system would likely be unconstitutional.
- Can a police officer demand that I sit in his patrol car during a routine traffic stop?
A law enforcement officer can only do what is reasonable under the circumstances. The courts have held that a reasonable investigation of a traffic stop does include asking the driver to step out of his vehicle and sit in the patrol car. The justification offered by the courts for this intrusion on our personal freedom is it promotes officer safety. If you feel it is unreasonable for the officer to make you sit in his patrol car, politely ask for permission to stay in your vehicle or stand in front of his car.
- Can the government force my wife to testify against me in a criminal case?
Maybe. At common law, a wife could not testify against her husband under any circumstances without his consent. The doctrine was based on two principles: 1) a husband and wife are but one person and, consequently, their interests are identical; and 2) public policy demands that those living in a marital relationship should not be compelled or allowed to betray the mutual trust and confidence which that relationship implies.
The legislature repealed this rule in 1979. Now, the law states that only "confidential communications" between spouses are privileged. Thus, a wife could be forced to testify about anything she witnessed with her own eyes. She just can't repeat what her husband told her in private.
- Is it against the law for a 15 year old girl to engage in a sexual relationship with a 24 year old male if her parents consent?
Yes. It is a crime for any person to have any sexual contact (touching of genitalia or breasts of a female) with another person who is under the age of 16. Since the male is more than three years older than the 15 year old, the crime is a Class 3 felony, which carries a maximum penalty of 15 years in the state penitentiary and/or a $15,000 fine. There is no exception for consent of the parents. The only exception is marriage.
- Is there a difference between a "restraining order" and a "protection order" and how do I get one??
Technically, there is a difference according to the South Dakota Codified Laws. A "protection order" can only be issued against a person who has committed "stalking," "physical injury," or "domestic abuse" to another person. "Restraining order" is a general term, commonly used in the phrase "temporary restraining order." A protection order is a restraining order, but a restraining order may not always be a protection order.
- How do I get a protection order?
To obtain a protection order you must file a petition and affidavit in the county in which one of the parties resides. Forms can be obtained at the Clerk of Courts's office. A judge then reviews the forms to see if a temporary protection order (TPO) should be granted immediately. A TPO can only be issued for 30 days. Within those 30 days a full hearing must be held in front of a circuit judge. Certified copies of a Notice of Hearing and TPO (if one has been granted) are delivered to the sheriff for service on the defending party.
At the hearing, each party may call witnesses and present evidence. A party may appear alone or with a lawyer. The circuit judge then decides whether to enter a protection order and on what terms. A protection order may not exceed 3 years.
- Is there any way for a convicted felon to get his hunting privileges back?
Federal law prohibits convicted felons from possessing firearms. The Attorney General is authorized to reinstate a convicted felon's firearm privileges if it is established that the applicant will not act in a "manner dangerous to public safety" and reinstatement would not be "contrary to public interest." The Attorney General delegates the authority to reinstate firearm privileges to the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). Since 1992, Congress has denied funding for ATF to investigate and act upon applications for reinstatement, thus currently; there is no way to get your firearm privileges back under federal law. Your only option is to have the felony cleared from your record by a pardon or suspended imposition of sentence.
- Is it a crime to "TP" someone's house on Halloween??
You could get charged with Criminal Trespass for throwing toilet paper onto the property of another even if you never left the sidewalk. You have a defense if the owner did not communicate to you or post notice to the public that entry of toilet paper onto the land was prohibited. You would be guilty of Intentional Damage to Property if you intended the toilet paper to cause damage to the house and it did in fact cause damage. The most likely charge would be Littering. None of these crimes have a Halloween exception.
- What can you do to a neighbor that takes a pitchfork to your dog? Deb M., Sioux Falls
Call the cops. It is a Class 1 misdemeanor to intentionally injure someone else's pet. The maximum possible penalty is one year in the county jail and/or a $2,000 fine. SDCL Chapter 21-60 also provides that any person that willfully and knowingly damages the animal of another is liable for twice the value of the animal damaged.
- How are my employment opportunities affected by a felony conviction?
If you have a job or business that requires a license from the State, you may have your license suspended or revoked if convicted of a felony. Just a sampling of the types of jobs that are affected include: lawyers, physicians, surgeons, chiropractors, nursing home administrators, pharmacists, veterinarians, wholesale drug distributors, polygraph examiner, certified law enforcement officer, 911 telecommunicator, ambulance operator, jobs requiring a gaming license, video lottery licensee, appraisers, real estate brokers and salespersons, securities brokers and salespersons, licensed interpreters for the deaf, state career service employees, and any public officeholder. Also, it has now become routine for employers to do criminal background checks for almost any kind of job. Over 100,000 background checks are processed each year by the court system.
- If I get in a car wreck after I have been drinking and someone is injured am I automatically guilty of vehicular battery?
No. The State must prove: 1) you were under the influence of alcohol; 2) you were negligent in the operation of your vehicle; 3) your negligence was the proximate cause of someone's serious bodily injury; and 4) you did so without the design to cause serious bodily injury. If the State fails to prove any of these elements beyond a reasonable doubt, you are not guilty. For instance, if you did not do anything negligent or if you did not do anything to cause the other persons injuries, you are not guilty.
- There was a recent article in the paper that said parents could be put in jail for letting their kids drink. Can I really be arrested for having a beer with my 18 year-old son?
No. In South Dakota, it is not illegal for a father to have a beer with his son, even if his son is under 21. It is not a crime to furnish alcohol to a person under 21 if it is done in the immediate presence of a parent, guardian or spouse. However, it is a crime for one parent to host a party for persons under 21 if those persons' parents are not present.
- Is it illegal to walk into a convenience store with a lighted cigarette?
Yes. It is a petty offense to smoke or carry any lighted tobacco product into any public place except bars, motel rooms, casinos, liquor stores or tobacco shops.
- If I witness a felony can I get in trouble if I do not report it to the police?
Yes. South Dakota Codified Law § 22-11-12 provides that it is "misprison of a felony" and a Class 1 misdemeanor for any person to fail to immediately disclose to the proper authorities any knowledge a person may have regarding the commission of a felony. Misprison of a felony carries a maximum punishment of 1 year in the county jail and/or a $1,000 fine.
- What is the difference between grand theft and petty theft?
Theft is "grand theft" if property is taken directly from another person's body, like a "pick-pocket," for example. Theft is also "grand theft" if the value of the property stolen exceeds $500. Most people used to think of grand theft in connection with automobiles or expensive jewelry, but grand theft can include anything valued over $500. There have been grand theft cases for stealing such things as scrap metal or a bicycle. "Grand theft" is a Class 4 felony with a maximum punishment of 10 years in the state penitentiary and/or a $10,000 fine.
REMEMBER YOUR RIGHT TO REMAIN SILENT!
REMEMBER YOUR RIGHT TO REMAIN SILENT!
- Is it against the law for an 18 year-old senior in high school to date a 15 year-old sophomore?
No. However, the 18 year-old should be aware that the Legislature has made it a crime for any person to have any sexual contact (touching of genitalia or breasts of a female) with another person who is under the age of 16. In this case, the crime would be a Class 1 misdemeanor if the senior is less than 3 years older than the sophomore. If the senior is more than 3 years older than the sophomore, the crime is a Class 3 felony, which carries a maximum penalty of 15 years in the state penitentiary and/or a $15,000 fine.
- Does a criminal defendant have a right to a jury trial in every case?
No. Under South Dakota law, a criminal defendant is only entitled to a jury trial if there is the possibility of a jail sentence. If the trial judge assures the defendant prior to trial that no actual or suspended jail time will be imposed if the defendant is convicted, then the defendant will have a "court trial" In a court trial, the judge determines whether the defendant is guilty or not guilty, rather than a jury. The defendant still retains all his other rights, but the final decision rests with the judge.
- Is being "drunk" a defense to crimes like murder, manslaughter, assault or grand theft?
In South Dakota, voluntary intoxication is usually not a defense to criminal conduct. The only time intoxication can be raised as a defense is when the crime requires a "specific intent," for example first-degree murder, which requires a "premeditated design." Intoxication is not a defense to second-degree murder because proof of a premeditated design is not an element of the offense. Not surprisingly, voluntary intoxication is not a defense to the crimes most commonly committed by drunk people - DUI (obviously), assault and intentional damage to property.
REMEMBER YOUR RIGHT TO REMAIN SILENT!
REMEMBER YOUR RIGHT TO REMAIN SILENT!
- How does someone obtain a pardon?
The first step is to submit an application to the Board of Pardons and Paroles, which you can obtain from the Board upon written request. A hearing will then be held in front of the Board. Some of the factors the Board may consider include: (1) the applicant's innocence has been subsequently proven; (2) the applicant has shown remarkable rehabilitation; (3) the victims and the community indicate that the applicant has carried the stigma of the crime for a long enough period to justify its removal; (4) the applicant wishes to pursue a professional career from which society can benefit, but a felony conviction prevents it. After a hearing, the Board will either reject the pardon application or recommend to the Governor that a pardon be issued. The final decision rests with the Governor.
- Can I be convicted of "open container" if I take a half-full bottle of whiskey to a friend's house in my car even if I never open it in the car?
It depends on where you put the bottle. Generally, the crime of "open container" has been committed if a person in a vehicle possesses any alcoholic beverage with a broken seal. The only exception is if the alcohol is so removed from the passenger area of the vehicle that no occupant has access to it. The trunk of your car, cargo area of your SUV, bed of your pickup or any glove compartment are all safe places to transport unsealed bottles of booze without running the risk of an open container conviction.
- Can I be convicted if I was not "read my rights" when I was arrested?
Yes. A policeman's failure to read you "your rights" (called Miranda warnings) does not affect the legality of your arrest. The purpose of Miranda warnings is to inform you that you have the right to remain silent and the right to talk to a lawyer before answering questions. An officer is supposed to read you these rights prior to asking you any questions. If he does not, anything you say to the officer is inadmissible at trial and may not be used against you. However, the Government may still use other evidence and witnesses to convict you of the crime charged.
- If I am stopped by law enforcement, do I have to let them search my car if they ask for permission to do so?
No. You can always refuse to give your consent to the search of your vehicle. If you don't want law enforcement to search it, just tell them "no"! There are situations where law enforcement can search your vehicle without your permission, however. They can search your vehicle if they have a search warrant or if they have probable cause to believe there is evidence of a crime in your vehicle. They can also search your car after you have already been arrested for a crime.
- Is it true that "possession is 9/10ths of the law"?
No. There is not a single statute, jury instruction or court rule that uses this language. In fact, most statutes that deal with possession of contraband, (i.e. drugs, stolen property), require "knowing" possession. The State must prove you knew the contraband was in your possession. If you did not know that your boyfriend left his stolen fuzzbuster under your car seat, you are not guilty of possessing stolen property even if the police find it in your car.
- Is it a crime to spit in the face of a DEA agent during questioning?
Depends on which DEA Agent was questioning you (joke for S.H.). . . Yes, "sliming" any law enforcement officer during questioning is a crime if done with the intent to assault. Under both federal and South Dakota law, a person may be incarcerated for up to one (1) year for this offense. A better approach is simply to refuse to answer his questions.
- Is it a crime to shoot at a pheasant flying over someone else's property even if I miss?
Shooting at a pheasant which is flying over another person's property is trespass whether you hit anything or not. A hunter traveling on the roadway may only shoot at game flying within the road right away. A hunter may retrieve a legally downed bird if it falls on the private property of another provided the hunter is on foot and unarmed when the bird is retrieved, but there can be no shooting over the fenceline, period. The maximum penalty for this offense is 30 days in jail and/or a $200 fine plus loss of your hunting privileges for one year.
- Is it a crime to have a loaded hunting rifle or shotgun in the cab of my pickup?
No. It is not illegal to have a loaded hunting rifle in the passenger compartment of your vehicle. However, it is illegal to posses a loaded firearm at any time if you are intoxicated or if you have previously been convicted of a felony.
- Do I have to repay the county for the cost of my court-appointed attorney even if I am found not guilty at trial?
Usually, you do. Judges almost always require repayment of court-appointed attorney's fees as part of a defendant's sentence if he is convicted. Judges have the authority to require repayment even if the defendant is found not guilty, but it is not mandatory. It is up to the judge.
- What is a Hung Jury?
A "hung jury" is a jury that cannot reach a unanimous decision. In South Dakota, criminal cases are tried to twelve-person juries. Each member of the jury must unanimously agree to a verdict of guilty or not guilty on each offense charged. If the jury does not unanimously agree, the jury is "hung" as to that charge and a mistrial is declared. The prosecutor then has the discretion to dismiss the charges against the defendant, or try the case again.
- Is it against the law to secretly record a telephone call?
Not if you are one of the parties to the phone call. South Dakota is a one-party consent state, meaning if one party to the conversation consents to the recording, it is OK. Generally, it would be illegal to secretly record the telephone call of two people who were talking on the phone if one of them has not consented. For example, it would be legal to secretly eavesdrop on your child's phone calls; you just can't record them.
- Are radar guns 100% accurate in calculating vehicle speed?
They should be pretty close. The radar guns used by law enforcement in South Dakota are frequently tested by technicians to determine their accuracy. The technicians can generally certify that the gun is accurate within one (1) mile per hour either way. If you are ever stopped and think the radar gun is wrong, ask the officer when his radar gun was last tested by a technician. If it has been a while, the radar gun may be out of whack.
- If I am stopped by the police for a routine traffic violation can the officer order me to get out of my vehicle?
Yes. The courts have uniformly held that it is permissible for a police officer to order a driver out of a vehicle, even if the driver is being pulled over just to issue a traffic ticket. The courts' justification for this is officer safety. The South Dakota Supreme Court has specifically recognized the inordinate risk confronting an officer as he approaches a person seated in an automobile. According to one study, approximately 30% of police shootings occurred when a police officer approached a suspect seated in an automobile.
REMEMBER YOUR RIGHT TO REMAIN SILENT!
- Can the State convict an athlete of committing the crime of assault during a sporting event even if the athlete did not intend to injure an opposing player?
Maybe. Under the "simple assault" statute, the State only needs to prove that the athlete recklessly causes bodily injury to another. What is considered "reckless" conduct during a sporting event is for the jury to decide.
- Do I have to let a police officer into my house if he asks to come inside?
No. You are never required to consent to law enforcement's entry into your home. A police officer must have a search warrant before he may legally enter your home without your consent. The only time a police officer can enter your home without your consent or without a search warrant is if exigent circumstances exist. The State will be required to prove to a judge beyond a reasonable doubt that exigent circumstances did in fact exist or the entry into your home will be adjudged unconstitutional.
- Can I shoot a burglar if I catch him breaking into my house or business?
Use of "deadly force" is permitted if you or a family member is placed in imminent danger of great bodily injury. Short of that, there is no bright line rule. You may use "force or violence" to prevent an offense against your property, as well. However, the amount of force you may lawfully use is limited by what a reasonable person in the same situation would believe to be necessary. Any force beyond that would be excessive and against the law.
- If you find someone's lost wallet and don't attempt to return it are you guilty of a crime?
Yes. Any person who finds property he knows to be lost is guilty of theft if the person fails to take reasonable steps to restore the property to its rightful owner. Thankfully, most South Dakotans would return it anyway, crime or not.
- Is "Finders keepers, losers weepers" the law? Kate Sargent, age 3
Sorry Katie, it is not. The law states that every person has a duty to take "reasonable measures" to return lost property to its rightful owner. Failure to do so is theft.
- Do stoplight violations caught on Sioux Fall's photo monitoring system go on the vehicle owner's driving record?
No. Citations issued under Sioux Fall's photo monitoring system are not criminal traffic offenses and do not go on anyone's driving record. They are simply civil fines. If they were criminal, the system would likely be unconstitutional.
- Can a police officer demand that I sit in his patrol car during a routine traffic stop?
A law enforcement officer can only do what is reasonable under the circumstances. The courts have held that a reasonable investigation of a traffic stop does include asking the driver to step out of his vehicle and sit in the patrol car. The justification offered by the courts for this intrusion on our personal freedom is it promotes officer safety. If you feel it is unreasonable for the officer to make you sit in his patrol car, politely ask for permission to stay in your vehicle or stand in front of his car.
- Can the government force my wife to testify against me in a criminal case?
Maybe. At common law, a wife could not testify against her husband under any circumstances without his consent. The doctrine was based on two principles: 1) a husband and wife are but one person and, consequently, their interests are identical; and 2) public policy demands that those living in a marital relationship should not be compelled or allowed to betray the mutual trust and confidence which that relationship implies.
The legislature repealed this rule in 1979. Now, the law states that only "confidential communications" between spouses are privileged. Thus, a wife could be forced to testify about anything she witnessed with her own eyes. She just can't repeat what her husband told her in private.
The legislature repealed this rule in 1979. Now, the law states that only "confidential communications" between spouses are privileged. Thus, a wife could be forced to testify about anything she witnessed with her own eyes. She just can't repeat what her husband told her in private.
- Is it against the law for a 15 year old girl to engage in a sexual relationship with a 24 year old male if her parents consent?
Yes. It is a crime for any person to have any sexual contact (touching of genitalia or breasts of a female) with another person who is under the age of 16. Since the male is more than three years older than the 15 year old, the crime is a Class 3 felony, which carries a maximum penalty of 15 years in the state penitentiary and/or a $15,000 fine. There is no exception for consent of the parents. The only exception is marriage.
- Is there a difference between a "restraining order" and a "protection order" and how do I get one??
Technically, there is a difference according to the South Dakota Codified Laws. A "protection order" can only be issued against a person who has committed "stalking," "physical injury," or "domestic abuse" to another person. "Restraining order" is a general term, commonly used in the phrase "temporary restraining order." A protection order is a restraining order, but a restraining order may not always be a protection order.
- How do I get a protection order?
To obtain a protection order you must file a petition and affidavit in the county in which one of the parties resides. Forms can be obtained at the Clerk of Courts's office. A judge then reviews the forms to see if a temporary protection order (TPO) should be granted immediately. A TPO can only be issued for 30 days. Within those 30 days a full hearing must be held in front of a circuit judge. Certified copies of a Notice of Hearing and TPO (if one has been granted) are delivered to the sheriff for service on the defending party.
At the hearing, each party may call witnesses and present evidence. A party may appear alone or with a lawyer. The circuit judge then decides whether to enter a protection order and on what terms. A protection order may not exceed 3 years.
- Is there any way for a convicted felon to get his hunting privileges back?
Federal law prohibits convicted felons from possessing firearms. The Attorney General is authorized to reinstate a convicted felon's firearm privileges if it is established that the applicant will not act in a "manner dangerous to public safety" and reinstatement would not be "contrary to public interest." The Attorney General delegates the authority to reinstate firearm privileges to the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). Since 1992, Congress has denied funding for ATF to investigate and act upon applications for reinstatement, thus currently; there is no way to get your firearm privileges back under federal law. Your only option is to have the felony cleared from your record by a pardon or suspended imposition of sentence.
- Is it a crime to "TP" someone's house on Halloween??
You could get charged with Criminal Trespass for throwing toilet paper onto the property of another even if you never left the sidewalk. You have a defense if the owner did not communicate to you or post notice to the public that entry of toilet paper onto the land was prohibited. You would be guilty of Intentional Damage to Property if you intended the toilet paper to cause damage to the house and it did in fact cause damage. The most likely charge would be Littering. None of these crimes have a Halloween exception.
- What can you do to a neighbor that takes a pitchfork to your dog? Deb M., Sioux Falls
Call the cops. It is a Class 1 misdemeanor to intentionally injure someone else's pet. The maximum possible penalty is one year in the county jail and/or a $2,000 fine. SDCL Chapter 21-60 also provides that any person that willfully and knowingly damages the animal of another is liable for twice the value of the animal damaged.
- How are my employment opportunities affected by a felony conviction?
If you have a job or business that requires a license from the State, you may have your license suspended or revoked if convicted of a felony. Just a sampling of the types of jobs that are affected include: lawyers, physicians, surgeons, chiropractors, nursing home administrators, pharmacists, veterinarians, wholesale drug distributors, polygraph examiner, certified law enforcement officer, 911 telecommunicator, ambulance operator, jobs requiring a gaming license, video lottery licensee, appraisers, real estate brokers and salespersons, securities brokers and salespersons, licensed interpreters for the deaf, state career service employees, and any public officeholder. Also, it has now become routine for employers to do criminal background checks for almost any kind of job. Over 100,000 background checks are processed each year by the court system.
- If I get in a car wreck after I have been drinking and someone is injured am I automatically guilty of vehicular battery?
No. The State must prove: 1) you were under the influence of alcohol; 2) you were negligent in the operation of your vehicle; 3) your negligence was the proximate cause of someone's serious bodily injury; and 4) you did so without the design to cause serious bodily injury. If the State fails to prove any of these elements beyond a reasonable doubt, you are not guilty. For instance, if you did not do anything negligent or if you did not do anything to cause the other persons injuries, you are not guilty.
- There was a recent article in the paper that said parents could be put in jail for letting their kids drink. Can I really be arrested for having a beer with my 18 year-old son?
No. In South Dakota, it is not illegal for a father to have a beer with his son, even if his son is under 21. It is not a crime to furnish alcohol to a person under 21 if it is done in the immediate presence of a parent, guardian or spouse. However, it is a crime for one parent to host a party for persons under 21 if those persons' parents are not present.
