Guest Column: Lies Pt. 1 – Citizens Lying to Cops by Thomas E. Simmons

Guest Column: Lies Pt. 1 – Citizens Lying to Cops
by Thomas E. Simmons

Not everyone knows a fairly basic fact about what’s illegal: lying to a cop can be a crime. Specifically, lying to law enforcement is a class 1 misdemeanor. (Class 1 misdemeanors are punishable by one year’s imprisonment per South Dakota Codified Law 22-6-2(1).)

This fact was underscored by a recent South Dakota Supreme Court decision, South Dakota v. Biteler (SD 2025), a case which arose out of Lincoln County and was decided in December.

First, let’s look at the statute which criminalizes lying to cops. It a crime whenever someone:

Makes a report or intentionally causes the transmission of a report to law enforcement authorities which furnishes information relating to an offense or other incident within their official concern, knowing that such information is false.

South Dakota Codified Laws section 22-11-9(3).

The statute was initially enacted in 1975, but initially it only penalized the false reporting of a crime. It has since been expanded – as one can see from the text above – to include a false report (1) “relating to an offense” and; (2) to any “other incident within” an officer’s “official concern.” Lies “relating to an offense” would include misleading an officer about the whereabouts of a suspect. Penalizing lies relating to an “incident within” a cop’s “official concern” is broader still.

That’s all well and good, but the word “report” makes it sound like the only thing to avoid is filing some official formal paperwork with the police that contains knowingly false information. What is a “report,” exactly? That was the issue presented to our state supreme court in the Biteler decision.

Amanda Biteler was originally charged with a second-offense DUI a few years ago and sentenced to parole rather than incarceration. As part of her sentence, she was required to submit what is known as “24/7” breath monitoring to check for alcohol consumption. Eventually, she was permitting to submit “remote breath” tests using a portable device with a straw and a camera lens. She was instructed how to use it.

As the court explained, “When a remote breath enrollee submits a breath test, the testing device takes their photograph. One of Biteler’s test photographs was flagged because it did not appear that she was the person who blew into the testing device.” She was charged with making a false report.

The court had to determine whether a breath test and a picture amounted to a “report.” Biteler argued the breath data and photograph didn’t amount to a report because rather than affirmatively communicating to law enforcement, she was simply complying (or rather, failing to comply) with the conditions of her parole. Moreover, there were no words contained within the breath data and photograph.

The statute itself does not define “report.” So, the court turned to ordinary definitions of the word. (Note that the word here is being used as a noun – as in making a report – and not as a verb – for example, reporting something to someone.) The county circuit court had located this definition of report: “a formal oral or written presentation” and it had dismissed the charges against Biteler since the breath test coupled with the photograph didn’t meet that definition.

The South Dakota Supreme Court reversed, adopting a broader definition of “report.” It concluded that a report means “a communication which furnishes information.”  Biteler had falsified her breath test by having someone else blow into the unit while Biteler’s face pointed at the camera. The breath test accompanied by the photograph amounted to a report insofar as they represented a communication which furnished information. False information, it turns out.

Biteler essentially conceded that she had been noncompliant with the conditions of her parole because she had misused the portable unit, but she resisted the prosecutor’s assertion that she had committed a crime. She had been noncompliant, certainly, but had she attempted to deceive law enforcement with a false communication – a false “report?” Indeed, she had, the court concluded.

On that basis, her conviction was reinstated.

Lying to cops is illegal. In fairness, I expect that a lot of lies to law enforcement go uncharged and unpunished. If, for example, back when Amanda Biteler was driving under the influence and stopped, the officer may have asked her if she’d been drinking. If she denied that she had had a few, this would have been a lie. Indeed, it would have been a report (a “communication which furnishes information”).

Better to refuse to answer a question than to answer it falsely. Falsehoods and untruthfulness can get you in trouble. Lying to cops is rightfully categorized as a claim because it impedes the functions of law enforcement.

The foregoing has been “part I” of a 2-part series on lying. Here, in Part I, we considered citizens lying to cops. In Part II, we’ll consider cops lying to citizens.

Thomas E. Simmons
University of South Dakota Knudson School of Law
Vermillion, SD

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All of the views and opinions Professor Simmons expresses here on are his as an individual and do not reflect the views of the Board of Regents, the University of South Dakota, its School of Law, their employees, faculty or administrators. The foregoing editorial represents only his views as a private citizen.