South Dakota’s Drunk Driving Crisis: Why We Need the Two-Hour Presumption Now
by Dan Nelson, Brookings County State’s Attorney
Most people assume that if you have a .08 blood alcohol sample in a DUI case, you will be found guilty. Unfortunately, this is not true in South Dakota where drunk driving remains a serious public safety issue. FBI data shows South Dakota is among the nation’s worst states for drunk driving, with more than 30,000 DUI arrests from January 2021 through December 2025 – giving it the highest per-capita rate in the United States. How did we get here and what should we do about it? We can remain passive and hope the problem improves on its own, or the legislature can take proactive steps to reverse this ugly trend. I, along with the State’s Attorneys Association, Sheriffs Association, Police Chiefs Association, and Attorney Generals Office, think its time for meaningful change. Reversing the drunk driving trend and making South Dakota roads safer does not require more Highway Patrol Troopers or Sheriff Deputies. The solution is to enact a law that allows common sense DUI enforcement. In this article, I explore South Dakota’s current law, explain why it falls short, and propose a more effective approach that is currently used by numerous rural, Midwestern states.
South Dakota law provides for a presumption of intoxication at .08 blood alcohol content (BAC) and requires the State to prove the driver had a .08 or more blood alcohol content (BAC) level at the time of driving or being in physical control of a vehicle. If the State proves that .08 level at the time of driving, the jury can presume that someone is intoxicated. It is a straightforward process until you insert the realities of roadside enforcement. No BAC test is ever conducted while driving; therefore, thousands of drunk drivers escape accountability by exploiting a flawed process.
In rural states, many DUI arrests happen far from facilities where blood can be drawn. First, law enforcement conducts the initial roadside DUI investigation, and then must transport the arrested person to have their blood drawn, often traveling a significant distance.This time delay rewards the drunk driver by allowing him to reduce his BAC before a nurse can withdraw a blood sample. Roadside PBT (breath test) and field sobriety tests do not test for BAC; therefore, every alcohol DUI case relies on a blood sample taken well after the driving occurred. This raises the central question in every DUI case: how can you accurately measure the person’s BAC at the time of driving when the blood sample is collected so long after?
In South Dakota, chemists engage in retrograde extrapolation – a fancy word used to determine a BAC at the time of driving when the sample was collected well after the driving occurred. Chemists testify in every DUI trial that this extrapolation is not an exact science. In fact, it depends on a host of factors, many of which law enforcement cannot collect in most DUI investigations. Common factors that impact extrapolation include knowing when the person started and stopped drinking that night, how much alcohol they consumed, and whether they had anything to eat during that time. Most drivers make misleading statements or simply refuse to answer questions about these factors. Bottom line, most DUI cases lack the evidence needed for accurate BAC extrapolation. This forces chemists to speculate, leaving judges and juries to guess a driver’s BAC at the time of the offense. For this reason, thousands of DUIs are reduced to lesser charges, resulting in less accountability for drunk drivers. Accountability is foundational to deterrence, which is why a change in the law is necessary. It’s a broken process that demands reform.
To solve this problem, our bordering states have enacted a common sense solution. Those states acknowledged that a vast majority of DUI blood samples are collected within a two hour time frame – the same two hour time frame that chemists would use the uncertain and inexact extrapolation process to attempt to determine the driver’s BAC.
The states fixed this by extending the presumption of intoxication to within two hours of driving the vehicle. Simply stated, if a driver has a BAC of .08 or greater within two hours of driving, they are presumed to have been intoxicated while driving. By keeping the .08 BAC level, but expanding the presumption window to two hours, it removes the need to perform the extrapolation process. It is a simple and straightforward approach that eliminates the ambiguity present in most DUI investigations and results in less speculation by the jury and judges
The public policy of this rule is rooted in common sense. If you have a blood alcohol result of .08 or greater within two hours of driving, you should be presumed to be intoxicated.
The laws surrounding DUIs must be fair while acknowledging the realities of roadside enforcement. Public safety and law enforcement should not be compromised or rendered ineffective because of time delays caused by location of arrest or the inexact science of extrapolation. It is time for South Dakota to embrace a new approach to DUI enforcement. If you believe we should work to reverse the ugly trend of increasing DUIs on South Dakota roads, please help us by encouraging your legislator to vote yes on HB 1120.
This is common sense legislation. When I was a police officer in Maryland in the 70′ and 80’s, and I was a breathalyzer operator, we had a law that stated a breath test (or blood test) would be valid if taken within 2 hours of arrest. In fact my first case was a double fatal accident involving a drunk driver who was removed by ambulance while I was investigating the accident. I did not have a chance to arrest him and obtain a blood test until almost 3 hours after the accident. He alcohol content was still above 2.0 and the judge allowed it to be admissable. I would support HB 1120.
It’s unnecessary legislation. The state lab can extrapolate blood alcohol now.
Exact extrapolation requires critical information not present in most DUI investigations. Every chemist at the health lab will tell you that. Unequivocally. This issue is why numerous states including bordering states have moved away from it years ago. South Dakota hasn’t which is why we have one of the worse DUI rates in the entire country. The law enforcement community in South Dakota is requesting the legislature acknowledge this issue and take meaningful steps to correct it. HB 1120 is that step.
Maybe if our state’s prosecutors were more willing to do their jobs and follow the constitution which requires them to prove guilt versus have a defendant prove their innocence you’d have more sympathy up at the capitol.
And maybe if you focused on actual criminals versus someone who was legally under the limit when driving we might have a lower DUI rate. Instead good people are treated like criminals for being legally able to drive because you’re so worried about your Facebook posts talking about how awesome you are are convicting college students.
Slow clap. Super proud.
This makes total sense to me. We need to close these loopholes that allow drunk drivers to get off. Everybody knows you can’t drink and drive, but some people think they can beat the system.
There is a significant difference between drunk driving, the law before about 1984, and impaired driving.
BAC was .15, which was drunk driving. Around 1984 it went to .12, which was about impaired drivers. Then it went to .08, which is probably the buzzed driving you see ads on.
This change is NOT about stopping drunk or impaired driving. Humorously, it’s a back door way into the trend toward prohibition. I think everyone wants drunk and impaired drivers not behind the wheel, but that’s mostly about people doing their job under the present laws
Lee, appreciate you weighing in. South Dakota leads the country in drunk driving. How is that acceptable? As law enforcement, we’re not satisfied being worst in the country year after year. If you’ve ever had a DUI trial, you know that chemists can’t do their job effectively on most DUI cases. It’s because effective extrapolation requires information not present in most cases.That’s consensus across the board with every law enforcement agency in the country. That issue causes thousands of cases over the years to be reduced. Why wouldn’t we look at what our bordering states and others are doing to confront the issue? It’s common sense that what we’re doing now isn’t working and we need to move forward.
You heard it here, folks. Brookings county states attorney all but says let’s make a zero tolerance alcohol consumption for everyone.
Heaven forbid we have to “concede” to these hardened criminals (who didn’t even actually commit a crime) and “do them the favor” of letting them plead guilty to reckless driving (also which they are not guilty).
It’s time to make these prosecutors’ life easier.
Lee, appreciate you weighing in. South Dakota leads the country in drunk driving. How is that acceptable? As law enforcement, we’re not satisfied being worst in the country year after year. If you’ve ever had a DUI trial, you know that chemists can’t do their job effectively on most DUI cases. It’s because effective extrapolation requires information not present in most cases.That’s consensus across the board with every law enforcement agency in the country. That issue causes thousands of cases over the years to be reduced. Why wouldn’t we look at what our bordering states and others are doing to confront the issue? It’s common sense that what we’re doing now isn’t working and we need to move forward.
Let’s build more Williquors Taj Mahal gigantic
Booze stores.
They proudly advertise 8,000 varieties of booze under one roof.
Let’s allow alcohol to be sold and consumed at SDSU games.
Let’s make cannabis the boogie man so Bud and PBR are the measure of a man.
Let’s keep poking ourselves in the eye and complaining that your eye hurts.
When our state sends messages to the public that our legislators like Gary Cammak can be arrested for DWI and then mysteriously be let off with a suspended imposition of sentence, it stinks for the poor tool that blew .009 and was convicted.
I’ll try it once more….Try not to let the Truth ruin you day…
South Dakota has one of the highest binge drinking rates in the country.
21% of adults reported binge drinking.
In South Dakota have increased every year for the past 10 years.
Alcohol related deaths in South Dakota:
2022….303
2023….306
2024….365
Death from ingesting cannabis ?……ZERO
Bottoms up you dopes.
Just because you want to make it easier to do your job doesn’t justify the erosion of our rights.
Dan. I believe you are well intentioned, but again you used the phrase “drunken driving” which is not the law you are talking about
While I’ve only defended two DUIs in 42 years, I’ve prosecuted between 350-400! Probably tried 20-25 , all in a rural county. The key to success is working with those local officers, so they understand the key questions you need answered in the early stages of investigation – to make the case at trial. If you do that, at least from my experience, you don’t need more laws
Lee, your experience shows in that you acknowledge the importance of impaired drivers giving that critical information to officers in order to make extrapolation work. One problem though, they don’t always answer the officer’s questions and at best often give misleading information. The reward for that doing that? Getting away with DUI. Which is why so many states have moved away from this.flawed process and also why prosecutors and sheriffs who have done countless DUI trials support this bill. It’s time to move SD out from the bottom.
You cannot presume guilt and call it justice.
Mr. Nelson – you are doing an outstanding job in Brookings county and I applaud you. I totally agree with your article. The naysayers are the people that may have to think twice about having the next drink.
The person who wrote the hit piece arguing with people who disagree with him in the comments. Tell me you’re a narcissist without telling me you’re a narcissistic.
are we really worst in drunk driving or do the police here still do sobriety checkpoints and in other states they’ve just given up, and unless there is a crash they have to respond to, they don’t bother?
Dan,
I think you should find a new issue; this anti-alcohol push has been going on for years in Brookings County, and not much is changing among the overall population. South Dakota leads the nation in drunk driving arrests and asset forfeiture, but that doesn’t necessarily mean our state and counties are high crime havens needing more penalties or assets. It may mean we carry more cash, and that is just low-hanging fruit for law enforcement to steal (or I mean seize) said cash without even charging of a crime. We are trying to force businesses to take cash via state legislature this very year. It may mean we are at or below average per capita crime rates nationally, and we just have an abundance of law enforcement. It may mean we have very few options for those partaking in the consumption of alcohol and finding alternative transportation options.
If we need to invest more money into the anti-alcohol movement, let’s identify the actual problem. If it is impaired driving and incidents stemming from it, let’s be pragmatic and fund more alternatives instead of continuing to throw more money at a punitive approach, which has been the standard for the last 30 years, and expecting different results.
Sincerely
A non-drinking South Dakotan