Can a DUI be expunged in South Dakota?

Whether a DUI can be cleared at all

South Dakota's expungement chapter reaches the record of an arrest, not a conviction. An arrested person may ask the court that would have jurisdiction over the crime for an order expunging the arrest record one year after an arrest where no accusatory instrument was filed, one year after the prosecuting attorney formally dismisses the entire criminal case, at any time after an acquittal, or within one year of a formal dismissal on a showing of compelling necessity. A separate section makes a person placed in a diversion program eligible for expungement of the entire criminal record related to that arrest. A driving under the influence conviction, which South Dakota grades as a Class 1 misdemeanor for a first offence, is not among the categories the chapter covers.

“An arrested person may apply to the court that would have jurisdiction over the crime for which the person was arrested, for entry of an order expunging the record of the arrest: (1) After one year from the date of any arrest, if no accusatory instrument was filed”

The driving record is a separate record

This is the part most summaries leave out. A court can seal or expunge the criminal case and the licensing agency can still keep the DUI on the driver record, where it reaches insurers and counts as a prior offence if there is a second one.

Not cleared. South Dakota defines expungement to include the sealing of records held by the Department of Public Safety, but the relief itself is limited to arrest records, so a driving under the influence conviction is not reached. S.D. Codified Laws § 32-23-4.1 counts a previous conviction for, or plea of guilty to, driving under the influence in deciding whether a later violation is a second, third or subsequent offence, unless it occurred more than ten years before the violation being charged, and periods of incarceration for the earlier violation do not count toward that ten years. Where an expungement order is granted, the court still forwards a nonpublic record of disposition to the Division of Criminal Investigation for use in sentencing for later offences.

“no previous conviction for, or plea of guilty to, a violation of § 32-23-1, 22-18-36, or 22-16-41 occurring more than ten years prior to the date of the violation being charged may be used to determine that the violation being charged is a second, third, or subsequent offense”

What else sits on that record: suspensions and points in South Dakota.

How long the wait is, and from when

One year from the date of arrest where no accusatory instrument was filed, or one year from the date the prosecuting attorney formally dismisses the entire criminal case; the one-year wait may be shortened on a showing of compelling necessity, and an acquittal carries no waiting period. There is no statute of limitation for making an application, and a court may issue an order for arrests that occurred before as well as after July 1, 2010. For a diversion program, the person must have completed all terms and not been charged with any new crime, other than petty offences or minor traffic citations, within one year and thirty days of completing the program.

“A court may issue an order of expungement for arrests that occurred before, as well as those that occurred after, July 1, 2010. There is no statute of limitation for making an application.”

Automatic or by petition

South Dakota expunges arrest records only on motion, but it also removes some cases from the public record automatically. Any charge or conviction from a case where a petty offence, a municipal ordinance violation or a Class 2 misdemeanor was the highest charged offence is automatically removed from the public record after five years, if all court-ordered conditions are satisfied and no further convictions follow in that period. A first driving under the influence offence is a Class 1 misdemeanor, above that threshold. Even for records that are removed, the case record stays available to court personnel or by court order and may be used as an enhancement in the prosecution of a later offence.

“Any charge or conviction resulting from a case where a petty offense, municipal ordinance violation, or a Class 2 misdemeanor was the highest charged offense shall be automatically removed from a defendant's public record after five years”

Where it is filed, and what it costs

At least fourteen days before any hearing, a copy of the motion is served on the office of the prosecuting attorney who prosecuted the crime or violation, or who had authority to prosecute the charge if no accusatory instrument was filed, and that attorney may contest the motion in writing and at the hearing. The court may fix a time and place for a hearing unless the defendant, arrested person, prosecuting attorney and victim waive it, and may require affidavits and evidence. The court may enter an order of expungement on a showing by clear and convincing evidence that the ends of justice and the best interest of the public as well as the applicant will be served.

“the defendant or arrested person shall pay to the clerk of courts in the county where the motion is filed a fee equal to the filing fee for a civil action”

Whether a cleared DUI still counts as a prior

S.D. Codified Laws § 32-23-4.1 states that a previous conviction for, or plea of guilty to, driving under the influence counts in grading a later offence unless it occurred more than ten years before the violation being charged, and that time spent incarcerated for the earlier violation is excluded from that ten-year calculation. S.D. Codified Laws § 23A-3-31 requires the court to forward a nonpublic record of disposition to the Division of Criminal Investigation, retained solely for use by law enforcement agencies, prosecuting attorneys and courts in sentencing for subsequent offences.

“The court shall forward a nonpublic record of disposition to the Division of Criminal Investigation which shall be retained solely for use by law enforcement agencies, prosecuting attorneys, and courts in sentencing the defendant or arrested person for subsequent offenses.”

The statute: S.D. Codified Laws § 23A-3-27

“An arrested person may apply to the court that would have jurisdiction over the crime for which the person was arrested, for entry of an order expunging the record of the arrest”