South Dakota Drug Crime Lawyers

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Respected Criminal Defense Attorneys Aggressively Defend the Rights of Client Facing All Types of Narcotics Offenses

Brian Kuester
Attorney Brian Kuester
South Dakota Drug Crime Defense Team Lead
Former US Attorney
Former District Attorney
Ellen Comley
Attorney Ellen Comley
Defense Team Lead
Senior Counsel
Roger Bach
Roger Bach
Team Consultant
Former Special Agent (OIG)

Drug offenses are the most commonly prosecuted crime across the country, and South Dakota is no exception. State prosecutors take an aggressive approach to the prosecution of all drug offenses, often seeking jail time and other harsh consequences for those convicted of these crimes. However, the reality is that times are changing, and South Dakota’s position on drug crimes is quickly becoming outdated. That said, this does not change the fact that anyone charged with a South Dakota drug crime faces serious criminal consequences and must take the case seriously.

At The Criminal Defense Firm, out South Dakota drug crime lawyers have centuries of combined experience defending the rights of clients charged with misdemeanor and felony drug offenses. Over the years, we’ve earned a reputation as being aggressive advocates who stand up for our clients’ rights at every stage of the process. We understand the stress that comes along with having a drug case hang over your head and do everything we can to ensure that your arrest has as little impact on your life as possible.

South Dakota Drug Laws

South Dakota law breaks down all controlled substances into five schedules. Schedule I includes the most dangerous drugs, which have a high likelihood of abuse or addiction and no accepted medical uses. Schedules II, III, IV, and V progressively decrease in dangerousness and probability of abuse and increase in accepted medical uses. Thus, Schedule I drug offenses are the most serious, and Schedule V offenses the least serious

In South Dakota, it is illegal to possess any scheduled narcotic. In addition, the law imposes harsher penalties for those who manufacture, distribute, or possess a scheduled narcotic with the intent to sell it. South Dakota is also unique among states in that it is the only state that has a law criminalizing the ingestion of drugs.

Possession of a Controlled Substance

Although any South Dakota drug crime is serious, possession of a controlled substance charges carry the lowest penalties. Under South Dakota Codified Laws § 22-42-5, “No person may knowingly possess a controlled drug or substance unless the substance was obtained directly or pursuant to a valid prescription or order from a practitioner.”

The seriousness of a South Dakota simple possession offense depends on the schedule of the drug. For example, possession of a schedule I or II drug is a Class 5 felony, whereas possession of a schedule III or IV is a Class 6 felony.

Unauthorized Ingestion of a Controlled Drug

While other states criminalize the possession of drugs and taking drugs while operating a vehicle, South Dakota goes a step further, making it illegal to have a drug in your system. Section 22-42-5.1 is the only statute in the United States that makes it illegal to ingest a controlled substance. Specifically, the law provides that “No person may knowingly ingest a controlled drug or substance or have a controlled drug or substance in an altered state in the body unless the substance was obtained directly or pursuant to a valid prescription or order from a practitioner.”

Again, the penalties for a conviction for the unauthorized ingestion of a controlled drug depend on the schedule of the drug ingested. Ingestion of a schedule I or II drug is a Class 5 felony, and ingestion of a schedule III or IV is a Class 6 felony. These punishments are identical to those for possessing the drug.

Drug Sales and Distribution

South Dakota laws are especially harsh as they relate to the manufacture, sale, distribution or possession with intent to distribute a scheduled narcotic. Under South Dakota law, the seriousness of these charges depends on two things: the type of drug and whether any aggravating circumstances are present.

For example, § 22-42-2 covers all schedule I and schedule II drugs. The statute provides that a violation is a Class 4 felony unless three of the following apply:

  1. You had three hundred dollars or more in cash;
  2. You were also arrested with a firearm or other weapon;
  3. You possessed materials used for the bulk packaging of controlled substances;
  4. You had material used to manufacture a controlled substance, including recipes, precursor chemicals, laboratory equipment, lighting, ventilating or power generating equipment; or
  5. There was evidence of drug transaction records or customer lists.

If three or more of these facts apply to your case, then you will face a Class 3 Felony.

The sale, distribution, or possession with intent to distribute a schedule 3 drug is a Class 5 felony, carrying a mandatory 30 days in jail. However, if the drug was sold to a minor, you will face a Class 3 Felony.

The sale, distribution, or possession with intent to distribute a schedule 4 drug is a Class 6 felony, carrying a mandatory 30 days in jail. However, if the drug was sold to a minor, you will face a Class 4 Felony.

Punishments for South Dakota Drug Crimes

South Dakota law does not provide a separate sentencing scheme for drug crimes. Instead, courts use the traditional classifications of felony and misdemeanor offenses.

Class 1 felony: 50 years of imprisonment and a fine of up to $50,000.

Class 2 felony: 25 years of imprisonment and a fine of up to $50,000.

Class 3 felony: 15 years of imprisonment and a fine of up to $30,000.

Class 4 felony: 10 years of imprisonment and a fine of up to $30,000.

Class 5 felony: Five years of imprisonment and a fine of up to $10,000.

Class 6 felony: Two years of imprisonment and a fine of up to $4,000.

Defenses to South Dakota Drug Crimes

Once police arrest you for a south Dakota drug crime, there is a long road between your arrest and a conviction. The burden is always on the prosecution to prove you guilty beyond a reasonable doubt. While drug crimes have a reputation as being tough charges to beat, that’s not always the case. At The Criminal Defense Firm, our South Dakota criminal defense attorneys have extensive experience creating compelling defenses to all types of drug crimes. Some of the most common defenses to drug charges include:

Challenging the Legality of Your Arrest

Perhaps the most common—and successful—defense in any drug prosecution involves challenging the police officers’ actions that led to your arrest. When investigating any crime, police officers must respect the suspect’s constitutional rights. Most importantly, the Fourth Amendment to the United States Constitution and Article 6 § 11 of the South Dakota Constitution. These provisions protect all residents from “unreasonable searches and seizures.”

While South Dakota search and seizure laws are complex, in essence, they require police officers to have justification to stop you, pat you down, or search you, your car, or your home. The standard police officers need to meet to conduct stop-and-frisk, for example, is reasonable suspicion. Thus, if police officers have reasonable suspicion that you either committed or are about to commit a crime, they can stop you, ask you questions, and conduct a limited pat-down. However, at this point, they cannot restrain you or otherwise prevent you from leaving. If they do, any evidence they recover as a result of their investigation cannot be admitted at trial.

To conduct a search, either of your person, car, home, or belonging, police officers need to have probable cause to believe you committed a crime. Probable cause is a higher legal standard than reasonable suspicion.

When a police officer recovers evidence in violation of your constitutional rights, your South Dakota criminal defense lawyer can file a motion to suppress the evidence recovered during the investigating.

Fighting the “Possession” Element of the Crime

You aren’t guilty of a South Dakota drug crime unless you possessed the substances in question. However, “possession” in this context is a legal term that isn’t always applied in the most straightforward manner. Prosecutors will often bring drug charges against someone even though the drugs were not found on their person. For example, perhaps the drugs were recovered from an apartment or a car.

While it is possible to establish that you constructively possessed the drugs even though they were not taken off of you, this requires the prosecution to prove you knew the drugs were there and intended to exercise control over them. For example, a prosecutor may argue that, even though the drugs were recovered from the trunk of a car, you were the only occupant of the vehicle. Of course, these arguments require the judge or jury make an inference that the drugs were yours. A skilled South Dakota criminal defense attorney can challenge these inferences.

Frequently Asked Questions

Q: Is marijuana legal in South Dakota?

Currently, only medical marijuana is legal in South Dakota. However, the situation regarding recreational marijuana is much less clear. Recently, South Dakota voters passed a recreational cannabis law that would permit residents to possess small quantities of marijuana for personal use. However, before that could go into effect, Governor Kristi Noem, an outspoken critic of recreational marijuana, challenged the ballot measure. Thus, currently, recreational marijuana is illegal, and you can still be arrested, charged and convicted for possession of marijuana. Whether that remains to be the case in the future, however, is up in the air. Until recreational marijuana is legalized, The Criminal Defense Firm, is stepping in to aggressively defend anyone facing marijuana charges.

Q: What should I look for in a South Dakota drug crime defense lawyer?

After being arrested for a South Dakota drug crime, one of your first steps should be to retain the assistance of an experienced South Dakota criminal defense attorney. This is not a decision you should take lightly, as the attorney you choose to represent you can be a major factor in the outcome of your case. When interviewing criminal defense attorneys, consider asking the following questions?

  • How many years have you been handling South Dakota drug cases?
  • What other areas of law do you practice?
  • What percentage of your cases do you take to trial?
  • Can you provide me with any recent case results or success stories?
  • Which attorney specifically will be handling my case?
  • Are you available by phone when I have a question about my case?

At The Criminal Defense Firm, our South Dakota drug crime defense lawyers have extensive experience handling all types of drug charges. Many of our attorneys have decades of individual experience both prosecuting and defending these offenses. We make ourselves available for you 24/7, so whenever you have a question or concern about your case, you can reach your attorney with ease.

Call The Criminal Defense Firm, to Schedule a Free Case Evaluation with an Experienced South Dakota Drug Crime Attorney

If you’ve been arrested for a drug offense, you can’t afford to take any chances. At The Criminal Defense Firm, our South Dakota drug defense lawyers have centuries of experience investigating, litigating and negotiating with prosecutors. Many of our senior lawyers formerly worked in high-ranking positions with the federal government, including the FBI and DEA. This provides us with unparalleled knowledge of the state’s drugs laws and how to effectively defend against the government’s case. To learn more, and to schedule a free consultation, give The Criminal Defense Firm a call at 866-603-4540. You can also connect with our attorneys through the firm’s online contact form.

Further Information About Defense of Federal Drug Charges

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