Implied consent – the long standing doctorine in South Dakota of automatic permission for a blood draw in DUI cases – has all but been voided by recent court cases:
Twice in the past year, the South Dakota Supreme Court ruled unanimously for defendants where blood was drawn without the person’s consent and without law enforcement officers getting a warrant first.
The court’s latest decision came two weeks ago, regarding the arrest of Eric Medicine by a Rapid City police officer on May 3, 2014.
The officer read from a DUI advisement card telling Medicine that any driver in South Dakota “has consented” to a blood draw and next asked that the driver “submit” to the draw.
Jackley said his office has advised prosecutors and law enforcement officers since Fierro that DUI advisement cards aren’t a requirement any longer.
He said that the cards “while used with good intentions may give rise to unintended legal complications.” The preferred action now is to simply request consent.
Law enforcement officers can request warrants electronically from circuit judges and magistrate judges while at the scene of the pending arrest.
Watch for revisions to the law from the next legislative session.