Felonies, Misdemeanors, and Infractions in South Dakota

The South Dakota legislature divides criminal offenses based on severity into three categories:

• Felonies
• Misdemeanors.
• Infractions or petty offenses.

Felonies are generally the most severe of three crime categories and may carry the harshest penalties. In contrast, infractions have the least severe penalties. Convictions for these offenses and their corresponding penalties are outlined in the South Dakota criminal code. In summary, South Dakota's crimes are tried based on these categories. Beyond criminal record classifications, South Dakota statutes of limitations determine the filing window for prosecuting criminal offenses in the state.

What is a Felony in South Dakota?

Felonies are the most severe crimes in the state of South Dakota. Felony violations typically attract the stiffest penalties, which are harsher than those for misdemeanors and petty offenses. For felony convictions, South Dakota’s judicial system may impose sentences between 1 year imprisonment and a death sentence (given to certain felony crimes). Penalties may also include the following conditions:

• Payment of fines to the court or victims.
• Probation
• Restitution.
• Other legal sanctions as prescribed in accordance with state laws (SD. Code. Law § 22–6–1).

Category of Felonies in South Dakota

South Dakota divides felony violations into nine classes with presumptive sentence ranges prescribed for crimes that fall under each class (unless otherwise directed by law). The felony categories include the following:

• Class A Felonies: This category represents the most serious offenses in the state. Penalties range from life imprisonment (without the possibility of a lesser sentence) to the death sentence. Fines should not exceed $50,000.
• Class B Felonies: Life imprisonment (without possibility of a lesser sentence); fines should not exceed $50,000.
• Class C Felonies: Life imprisonment (with the possibility of a lesser sentence); fines should not exceed $50,000.
• Class 1 Felonies: Imprisonment not exceeding 50 years, fines not exceeding $50,000.
• Class 2 Felonies: Imprisonment not exceeding 25 years, fines not exceeding $50,000.
• Class 3 Felonies: Imprisonment not exceeding 15 years, fines not exceeding $30,000.
• Class 4 Felonies: Imprisonment not exceeding 10 years, fines not exceeding $20,000.
• Class 5 Felonies: Imprisonment not exceeding 5 years, fines not exceeding $10,000.
• Class 6 Felonies: The least serious felony offenses in the state. Imprisonment may not exceed 3 years, and fines may not exceed $4,000.

In summary, classes A to C are the most severe categories of felonies, while classes 5 and 6 are the least severe. Some crimes may fall under different categories or classes depending on the following factors:

• Degree of the crime
• Prior offenses
• Financial value
• Damages done.

Note: People convicted of a felony may temporarily or permanently lose certain rights.

What Are Some Examples Of Felonies In South Dakota?

In South Dakota, the following crimes may be classified under specific felony classes:

• Class A Felonies: First-degree murder.
• Class B Felonies: First-degree aggravated kidnapping (with bodily harm), second-degree murder, and so on.
• Class C Felonies: First-degree aggravated kidnapping (victim released without harm), first-degree manslaughter, first-degree rape, etc.
• Class 1 Felonies: Second-degree rape (with bodily harm), second-degree rape, etc.
• Class 2 Felonies: First-degree burglary, first-degree robbery, first-degree arson, etc.
• Class 3 Felonies: Aggravated assault, aggravated grand theft, second-degree kidnapping, etc.
• Class 4 Felonies: Second-degree manslaughter, second-degree robbery, second-degree arson, etc.
• Class 5 Felonies: Incest, terrorist threat, second offense internet gambling, etc.
• Class 6 Felonies: First offense internet gambling, bigamy, sales of child pornography, etc.

Can I get a Felony Removed from a Court Record in South Dakota?

South Dakota’s laws provide options for expunging some felony crimes, as provided in sections 23A–3–26 through 37 or under section 23–6–8.1 of the state laws. The conditions for expungement include the following:

• If a year (365 days) has passed from the day of any arrest and no charges were filed.
• If a year has passed from the day of the formal dismissal of all charges in the case.
• An individual may make a request anytime after the case is acquitted or the individual is found not guilty.
• If the individual can prove that expungement will be in the best interest of the public and the arrested person.
• If the individual was pardoned for conviction and five years have passed without the person committing subsequent crimes.
• Juvenile conviction records may be sealed after one year of discharge, and there are no subsequent charges for serious offenses like misdemeanors or felonies.
• Victims of sexual offenses may expunge records of crimes committed as a result of trafficking.
• If the eligible individual has successfully satisfied all penalty terms, like imprisonment, fines, or diversion programs.

Once the court issues and forwards an expungement order, all records concerning the case will be sealed in all related agencies that have records pertaining to the expunged case.

Is Expungement The Same As Sealing Court Records in South Dakota?

Yes, an expungement is more or less the same as sealing a court record in South Dakota. The Dakota law defines an expungement as the sealing of government-generated records as a result of arrests and court dispositions.

Expungement does not mean the destruction of court records, as the record are still accessible to authorized persons or personnel. In fact, certain agencies or personnel may still be able to access the sealed records, and non-public versions of dispositions may exist.

How Long Does a Felony Stay on Your Record in South Dakota?

Felony records generally remain on an individual’s record even after death, as South Dakota has no automatic expungement law. A felony record may stay on an individual’s criminal or background check record forever as long as no motion for an expungement has been filed and approved.

What is a Misdemeanor in South Dakota?

A misdemeanor in South Dakota is any crime that carries a penalty of up to one-year imprisonment. Misdemeanors are less severe by nature and their corresponding penalties are relatively less severe than felonies. Besides serving time in prison, offenders may receive penalties like fines or diversion programs.

In South Dakota, misdemeanors are categorized into two classes based on the imposed penalties:

• Class 1 Misdemeanor: This is more severe than class 2 misdemeanors and may be punished by imprisonment up to one year and/or fines exceeding $2,000.
• Class 2 Misdemeanor: misdemeanors in this category are less severe and may include certain acts prohibited by statute but that have no penalties imposed within. It is punishable by up to 30 days jail term and/or fines up to $500.

What Are Some Examples Of Misdemeanors In South Dakota?

Based on classes, examples of misdemeanors in South Dakota include the following:

• Class 1 Misdemeanors:
  • Failure to remove a public nuisance
  • First-degree petty theft
  • Hiring a prostitute
  • Keeping a slot machine
  • Riot or unlawful assembly
  • Possession of prohibited substances for intoxication
  • Driving without a license or operating a vehicle without authorization
• Class 2 Misdemeanors:
  • Conducting an unauthorized lottery or bingo game
  • Disorderly conduct
  • Misrepresentation of age by a minor
  • Petty theft (second degree)
  • Possession of drug paraphernalia
  • Public indecency

Subsequent convictions for some misdemeanor crimes may increase the class to a level higher. For instance, it is a class 1 misdemeanor if you have two or more convictions for a class 2 offense like disorderly conduct.

Can I Get a Misdemeanor Removed from a Record in South Dakota?

Yes, records on the arrests, charges, and/or convictions for certain misdemeanors may be expunged in South Dakota. A motion for expungement may be made under the following conditions:

• If all charges were dropped or formally dismissed, and one year has passed from the day of the arrest or dismissal.
• A misdemeanor conviction with a penalty of not exceeding 30 days imprisonment, fines not exceeding $1,000, or both, may be automatically removed from background checks after 3 years.
• If all penalty conditions have been satisfied, a motion for expungement of other misdemeanor records can be filed after 10 years.
• If the individual was found not guilty or acquitted of all the charges relating to a case, an immediate request may be made.
• The court decides that sealing a record is in the best interest of both the public and the arrested person.
• Persons who were pardoned for convictions and five years had passed without the person committing subsequent crimes are eligible for expungement.
• Certain records on juvenile delinquency or crimes committed while being victims of human or sex trafficking.
• There are no prior or subsequent convictions of serious offenses
• All penalties and probationary conditions have been satisfied.
• The Bureau of Criminal Statistics may authorize the destruction of records concerning people who are dead or at least 75 years old.
• Records of offenses that are no longer classified as crimes can also be destroyed.

Crimes or individuals who do not satisfy any of these conditions will not be able to expunge their records.

Can a DUI be Expunged in South Dakota?

DUIs cannot be expunged in South Dakota. South Dakota’s expungement law does not apply to any conviction involving the operation of a motor vehicle. However, if the DUI falls under a misdemeanor category, individuals who were arrested but not charged or had charges dismissed may apply for record expunction under these laws:

• The SD. Code. Law. § 23A–3–26 through 37.
• The SD. Code. Law § 23–6–8.1.

What constitutes an Infraction in South Dakota?

In South Dakota, an infraction or petty offense is a non-criminal violation of the state or municipality's ordinances or city codes. By nature, petty offenses are the least severe types of offenses compared to misdemeanors and felonies. As such, penalties imposed on those convicted of these violations are less severe and do not include imprisonment.

Persons charged with an infraction may pay fines or fulfill sanctions laid out by public regulatory bodies. There are no specific penalties, but the judgment amount may vary between $25 and $100. Moreover, the total amount (fines and surcharges) should not exceed $68.50 for statute violations and $62.50 for administrative rule or ordinance violations.

Most people simply pay the fine, so a jury trial may not be necessary for petty offenses. However, if requested, it will be governed by the rules of civil procedure. The treasury in the county where the offense occurred is responsible for keeping proceeds from petty offenses.

If the individual does not choose to pay the penalties, the judge may decide the following sentences:

• Execute a wage assignment
• Schedule of time payments
• Assign community service work
• Assign jail term with a rate of $60 per day served

Note: Detention of persons for the purpose of serving summons is not an imprisonment.

What Are Some Examples Of Petty Offenses In South Dakota?

Some examples of petty offenses in South Dakota are:

• Failure to restrain a child passenger
• Occupation of a towed house trailer or recreational vehicle
• Opening doors on the traffic side of a stopped vehicle
• Parking on the sidewalk
• Safeguarding of an unattended vehicle
• Stopping in places where stopping is prohibited
• Unauthorized movement of another vehicle into a prohibited area
• Violating parking rules
• Violation of flashing red or yellow signal
• Contravention of pedestrian control signals by pedestrians.

Can Petty Offenses be Expunged from a South Dakota Criminal Court Record?

Yes, petty offense charges and convictions may be automatically expunged from background check records in South Dakota. Interested parties are eligible if it has been more than 10 years since they completed court-imposed conditions. In addition, eligible parties are typically required to not have a prior or subsequent conviction for serious crimes. Sealed records may remain accessible to court personnel, authorized agents, or persons.

What is Deferred Adjudication in South Dakota?

Per section 23A-27-13, a trial court may impose a suspended imposition of sentence on persons convicted of felonies or misdemeanors under these conditions:

• The defendant does not have a prior conviction for a felony or misdemeanor.
• The suspended imposition is in the best interest of all concerned parties.

On the other hand, South Dakota courts may impose a deferred imposition of sentence to reduce specific felony convictions to misdemeanor convictions. Person eligible for this procedure must be on trial for the unauthorized possession or ingestion of a controlled substance. To obtain a deferred imposition, the defendant must enter a guilty plea to the offense. Next, the court may place the defendant on a one-year supervised probation, which may require them to complete a court-recommended treatment program. Note that the court may reverse the decision if the offender failed to adhere to the probation conditions.

Note: a defendant can only receive one deferred imposition of sentence.

Types of Crimes Eligible for Deferred Adjudication in South Dakota

In South Dakota, all misdemeanors and felonies are eligible for suspended imposition of sentence, except life imprisonment or the death penalty. For example, persons on trial for murder or aggravated sexual penetration of a minor may not receive a suspended sentence imposition.