Recent Decisions Highlight Police Over-Reaching In Western South Dakota And The Court’s Protection Of Our Rights

The South Dakota Supreme Court has recently issued two decisions that advance and protect the rights of persons accused of crimes in South Dakota. Both of these cases came out of Rapid City, and both involved the police using unconstitutional means to obtain evidence. Perhaps the most important decision issued in recent months is State v. Medicine. This decision further refines the analysis of when police officers must obtain warrants before they can take a DUI suspect’s blood after arrest. After the United States Supreme Court’s decision in Missouri v. McNeeley, and the South Dakota Supreme Court’s decision in State v. Fierro, most criminal defense attorneys assumed that the police would understand that they had to obtain a warrant before taking a DUI suspect’s blood. The only recognized exceptions to that was when a suspect consented, or when the police could show some exigency that made getting a warrant in a timely manner nearly impossible.
Continue Reading

Patrick Duffy – A Man Who Knew How To Love

Every attorney in South Dakota has heard the tragic news about Patrick Duffy’s untimely death. Last week, at the age of 58, he died of an apparent heart attack or aortic aneurism. In the days since his death, much has been written about him in the press, on blogs, and throughout social media. Friends and colleagues are collecting their favorite Pat quotes and remembering his great feats in the courtroom. Pat was a good friend of mine for over 20 years and I had the pleasure of being involved in a number of cases with him. During those cases, I often wished that I could pick a jury like Pat or deliver a closing argument with his passion. But, since learning of his death, I’ve spent a lot of time thinking of what I really learned from Pat and what made him so unique as a human. And, what I keep coming back to is Pat’s incredible capacity for love.
Continue Reading

How to Get Your Name Removed from the Sex Offender Registry

For those of us who practice in criminal law and do any work with sex offenses, the questions that come up regarding registry issues can be vast and complex. Often the kneejerk answer to registry questions boils down to, “You were convicted of a sex offense, so you have to register for life.” However, that is not always the case. I have seen many changes in the sex offender registry in South Dakota during the last ten years. We can now advise clients that registry offenses do not currently include South Dakota state misdemeanor sex offenses or most juvenile adjudications. SDCL 22-24B-1 and 22-24B-2. And there is the possibility to come off the registry, for some convictions. SDCL 22-24B-19 and 22-24B-19.1.
Continue Reading

South Dakota Supreme Court Issues Decision Protecting Drivers from Warrantless Forced Blood Draws

Almost a year and half after the United States Supreme Court issued its landmark decision in Missouri v. McNeely, the South Dakota Supreme Court issued a unanimous decision affirming the rights of drivers not to be forced to give blood absent a search warrant, exigent circumstances, or consent. This decision benefits all drivers in South Dakota and gives persons charged with DUI or DWI additional protections and defenses. The case at issue is State v. Fierro. In Fierro, a woman was arrested on her motorcycle for DUI and DWI in Butte County, South Dakota. She was told during the arrest process that she had to give blood based on South Dakota’s implied consent statute. Every state had, prior to McNeely, an implied consent statute. These statutes tell drivers that, as a condition of receiving their drivers license, they have already consented to giving blood upon demand by a police officer who suspects intoxication. These statutes were based largely upon an almost 50 year old United States Supreme Court decision, Schmerber v. California, that permitted warrantless blood draws in certain drug cases under certain conditions. The holding in Schmerber, though fact specific, had been broadly interpreted and led to the erosion of the rights of all drivers to be free from unreasonable seizures of their blood without a warrant and without the establishment of exigent circumstances.
Continue Reading

South Dakota Supreme Court Clarifies Drivers’ Right to Refuse Blood Draw

Over a year after the United States Supreme Court issued its landmark decision in Missouri v. McNeely, the South Dakota Supreme Court has issued its first major decision on the matter of forced blood draws in DUI cases. The case is State v. Fierro, and it goes a long way in protecting the rights of drivers in South Dakota from arbitrary, forced blood draws without the basic protection of a search warrant. In Fierro, the defendant was stopped by the South Dakota Highway Patrol as she drove her motorcycle in Butte County. Upon her arrest for suspected DUI, Fierro was told that she had to give blood pursuant to South Dakota’s “implied consent” law. This statement of law was made by the trooper four months after the United States Supreme Court had ruled that drivers cannot, in most circumstances, be forced to give blood unless a judge issues a warrant for the seizure of the blood based on a finding of probable cause. The trooper made no effort to get Fierro’s voluntary consent, and he made no effort to get a warrant from a judge. Under South Dakota law, judges may authorize a search warrant over the phone, and this process is routinely used when arrests are made after hours. Thus, there was no reason for the trooper not to request a warrant.
Continue Reading

False Rape Accusation Leads to Conviction Being Overturned After Man Spends 11 Years In Prison

In recent years, a number of inmates have been released after spending decades in prison. Often, the accused is exonerated based on DNA evidence. In some of those cases, the accused pled guilty to avoid a more severe sentence, even though he had maintained his innocence in private. A recent article in the American Bar Association’s online version of the Journal highlights a recent case where a man accused of raping his own daughter was exonerated after he had spent 11 years in prison. His release from prison was not based on DNA evidence, but based on the daughter admitting she had made the whole story up because she was mad at her father after he and her mother got divorced. She had heard about a friend who had been molested by a relative, and decided to make the same claim against her father to get back at him.
Continue Reading