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South Dakota Marijuana Laws

Penalty Details

Possession

Possession of 2 ounce or less is a Class 1 misdemeanor, punishable by a maximum sentence of 1 year imprisonment and a maximum fine of $2,000.

Possession of more than 2 ounce – 0.5 lb is a Class 6 felony, punishable by a maximum sentence of 2 years imprisonment and a maximum fine of $4,000.

Possession of 0.5 pound – 1 pound is a Class 5 felony, punishable by a maximum sentence of 5 years imprisonment and a maximum fine of $10,000.

Possession of 1 pound -10 pounds is a Class 4 felony, punishable by a maximum sentence of 10 years imprisonment and a maximum fine of $20,000.

Possession of more than 10 pounds is a Class 3 felony, punishable by a maximum sentence of 15 years imprisonment and a maximum fine of $30,000.

A civil penalty may also be imposed following a conviction. This penalty cannot exceed $10,000.

See

  • S.D. Codified Laws § 22-42-6 (2015)
  • S.D. Codified Laws § 22-6-1 (2015)
  • S.D. Codified Laws § 22-6-2 (2015)

Sale

The sale or distribution of less than 1/2 ounce is a Class 1 misdemeanor punishable by a mandatory minimum sentence of 15 days- 1 year imprisonment and a maximum fine of $2,000.

The sale or distribution of 1 ounce or less is a Class 6 felony punishable by a maximum sentence of 2 years imprisonment and a maximum fine of $4,000.

The sale or distribution of 1 ounce – 0.5 pound is a Class 5 felony which is punishable by a maximum sentence of 5 years imprisonment and a maximum fine of $10,000.

The sale or distribution of 0.5 pound – 1 pound is a Class 4 felony which is punishable by a maximum sentence of 10 years imprisonment and a maximum fine of $20,000.

The sale or distribution of more than 1 pound is a Class 3 felony, punishable by a maximum sentence of 15 years imprisonment and a maximum fine of $30,000.

The sale or distribution of 1 ounce or less to a minor is a Class 5 felony, punishable by a maximum sentence of 5 years imprisonment and a maximum fine of $10,000.

The sale or distribution of 1 ounce – 0.5 pound to a minor is a Class 4 felony which is punishable by a maximum sentence of 10 years imprisonment and a maximum fine of $20,000.

The sale or distribution of 0.5 pound – 1 pound to a minor is a Class 3 felony which is punishable by a maximum sentence of 15 years imprisonment and a maximum fine of $30,000.

The sale or distribution of more than 1 pound to a minor is a Class 2 felony which is punishable by a maximum sentence of 25 years imprisonment and a maximum fine of $50,000.

* The first felony conviction is punishable by a mandatory minimum sentence of 30 days imprisonment. A second or subsequent felony conviction is punishable by a mandatory minimum sentence of 1 year imprisonment.

The sale within 1,000 feet of a school or within 500 feet of other designated areas is a penalty that is punishable by a mandatory minimum sentence of 5 years imprisonment and a maximum fine of $10,000.

See

  • S.D. Codified Laws § 22-42-7 (2015)
  • S.D. Codified Laws § 22-6-1 (2015)
  • S.D. Codified Laws § 22-6-2 (2015)

Cultivation

Cultivation in South Dakota will be punished based upon the aggregate weight of the plants found as either simple possession or as possession with the intent to distribute. See the “Possession” and “Sale” sections for further penalty details.

Hash & Concentrates

South Dakota defines hashish as the resin extracted from any part of the cannabis plant. Hashish and concentrates constitute a Schedule I controlled substance.

See

  • S.D. Codified Laws § 34-20B-1(9) (2015)
  • S.D. Codified Laws § 34-20B-14 (10) (2015)

Manufacturing, distributing, dispensing or possessing with intent to manufacture, distribute, or dispense, hashish or concentrates is a Class 4 felony punishable by a term of imprisonment of 10 years and a fine no greater than $20,000. A first time conviction carries a minimum term of imprisonment of 1 year, with subsequent conviction carrying a minimum term of imprisonment of 10 years. If the hashish or concentrates were distributed or dispensed to a minor, then the offense is a Class 2 felony punishable by a term of imprisonment of 25 years and a fine no greater than $50,000. A first conviction involving a minor carries a minimum term of imprisonment of 5 years, with subsequent convictions carrying a minimum term of imprisonment of 15 years.

See

  • S.D. Codified Laws § 22-42-2 (2015)
  • S.D. Codified Laws § 22-6-1 (2015)

Possession of hashish or concentrates is a Class 4 felony punishable by a term of imprisonment of 10 years and a maximum fine of $20,000.

See

  • S.D. Codified Laws § 22-42-5 (2015)
  • S.D. Codified Laws § 22-6-1 (2015)

If hashish or concentrates were manufactured, distributed, dispensed, or possessed with intent to distribute or dispense within 1,000 feet of a school or playground or 500 feet of a youth center, public swimming pool, or arcade the offense is a Class 4 felony punishable by a minimum term no less than 5 years and no greater than 10 years and a fine no greater than $20,000.

See

  • S.D. Codified Laws § 22-42-19 (2015)

Any equipment or device that is used to create or manufacture hashish or concentrates is considered drug paraphernalia. Possessing any such device is a Class 2 misdemeanor punishable by a term of imprisonment of 30 days and/or a fine of $500. Manufacturing or delivering any such device is Class 6 felony punishable by term of imprisonment of 2 years and/or a fine no greater than $4,000.

See

  • S.D. Codified Laws § 22-42A-1(2) (2015)
  • S.D. Codified Laws § 22-6-2 (2015)
  • S.D. Codified Laws § 22-6-1(9) (2015)

Paraphernalia

The possession of paraphernalia is a Class 2 misdemeanor, punishable by a maximum sentence of 30 days imprisonment and a maximum fine of $500.

See

  • S.D. Codified Laws § 22-42A-3 (2015)

Miscellaneous

Inhabiting a room where marijuana is being used or stored is a misdemeanor which is punishable by a maximum sentence of 1 year imprisonment and a maximum fine of $2,000.

Drugged Driving

This state has a per se drugged driving law enacted. In their strictest form, these laws forbid drivers from operating a motor vehicle if they have a detectable level of an illicit drug or drug metabolite (i.e., compounds produced from chemical changes of a drug in the body, but not necessarily psychoactive themselves) present in their bodily fluids above a specific, state-imposed threshold. 

Mandatory Minimum Sentence

When someone is convicted of an offense punishable by a mandatory minimum sentence, the judge must sentence the defendant to the mandatory minimum sentence or to a higher sentence. The judge has no power to sentence the defendant to less time than the mandatory minimum. A prisoner serving an MMS for a federal offense and for most state offenses will not be eligible for parole. Even peaceful marijuana smokers sentenced to “life MMS” must serve a life sentence with no chance of parole.

South Dakota Drugged Driving

In South Dakota, a person is guilty of DUI if he or she operates a vehicle while under the influence of an alcoholic beverage, marijuana, or any controlled drug or substance not obtained pursuant to a valid prescription; any combination of an alcohol, marijuana, or such controlled substance; under the combined influence of an alcoholic beverage and any other substance, to a degree which renders the person incapable of safely driving. SD Codified Laws Ann. § 32-23-(1)-(5) (West 2010).

In South Dakota, it is illegal for a driver under age of twenty-one to operate a motor vehicle after having consumed marijuana or any controlled drug or substance for as long as physical evidence of the consumption remains present in the person’s body*. Id. § 32-23-21.

* NOTE: Actual impairment is not an element of this offense. Cannabis metabolites can be detected in a person’s body up to one month after use, thus it is possible to be convicted of this type of DUI weeks after a person last ingested cannabis.

Affirmative Defense

The fact that any person is or has been prescribed a drug under the laws of this state is not a defense against any charge. Id. § 32-23-6.

Implied Consent

  • Any person who operates any vehicle in South Dakota is considered to have given consent to the withdrawal of blood or other bodily substance and chemical analysis of the person’s blood, breath, or other bodily substance to determine the presence of marijuana. Id. § 32-23-10.
  • If a person refuses to submit to chemical analysis such refusal may be admissible into evidence at the trial. Id. § 32-23-10.1.
  • The Department of Public Safety shall revoke the license of any person who refuses to submit to a chemical analysis. Id. § 32-23-18.
  • Implied consent statutes require that person be advised of right to have additional chemical tests performed by technician of one’s own choosing at his or her own expense. Id. § 32-23-10; Id. § 32-23-10.
  • Accused has no right to consult an attorney prior deciding to submit to a test. Balsz v. State, Dept. of Public Safety, 366 N.W.2d 492(1985)

Penalties

  • First offense Class 1 misdemeanor –one year imprisonment; fine: $2,000; driving privileges revoked not less than 30 days; nor more than 1 year. SD Codified Laws Ann. §22-6-2 (West 2010).
  • Second offense Class 1 misdemeanor – one year imprisonment; fine of $2,000; driving privileges revoked not less than 1 year; completion of chemical dependency program required. Id. § 32-23-3; Id. § 22-6-2.
  • Third offense Class 6 felony – two years of imprisonment; fine of $4,000; license revoked not less than 1 year; completion of chemical dependency counseling program required. Id. § 22-6-1; Id. § 32-23-4.
  • Fourth offense Class 5 felony – five years imprisonment; fine of $10,000; license revoked not less two years; completion of chemical dependency counseling program required. Id. § 22-6-1; Id. § 32-23-4.6.
  • Fifth and subsequent offense Class 4 felony – ten years imprisonment; fine of $20,000; license revoked not less 3 years; completion of chemical dependency counseling program required. Id. § 22-6-1; Id. § 32-23-4.7.

Sobriety Checkpoints

South Dakota permits sobriety checkpoints under the state and federal Constitution.

  • Establishing a roadblock to stop only vehicles leaving a party is permissible, when law enforcement has belief of underage drinking. No individual suspicion of a driver is necessary to stop a vehicle. State v. Claussen, 522 N.W.2d 196 (S.D. 1994).
  • Observation of a vehicle turning around to avoid a sobriety checkpoint constitutes reasonable suspicion for stopping vehicle. State v. Thill, 474 N.W.2d 86 (S.D. 1991).

Per Se Drugged Driving Laws

South Dakota has a zero tolerance per se drugged driving law enacted for cannabis, cannabis metabolites, and other controlled substances for persons under age 21. (South Dakota codified laws, Section 32-23-21)

Under South Dakota’s law, it is a Class 2 misdemeanor for any person under the age of 21 to be in physical control of a vehicle “after having consumed marijuana or any controlled drug or substance for as long as physical evidence of the consumption remains present in the person’s body.”