What Is Criminal Trespass in South Dakota?

In South Dakota, criminal trespass occurs when an individual enters or remains on another's private property without the legal right or permission to do so. According to South Dakota Codified Laws (§ 22-35-5), entering a building, structure, or critical infrastructure facility without consent, especially secretly, qualifies as a Class 1 misdemeanor. Refusing to leave after being ordered to leave also qualifies as a form of trespass under § 22-35-6.

In practice, violations typically occur when notice prohibiting entry or ordering the intruder to leave is ignored. Notice may be delivered either verbally, through posted “No Trespassing” signs, or via the use of visible barriers, such as fences. Ignoring these warnings may lead to prosecution for criminal trespass.

How to Look Up Public Criminal Trespass Records in South Dakota?

Trespass records, like all other criminal records, are available via the state’s Unified Judicial System (UJS). The UJS has a Public Access Records Search portal, known as PARS, which enables the public to search for criminal case summaries. Each search costs $20, regardless of whether any records are found.

Registered users may also access eCourts, South Dakota’s online docket system, to view public case summaries, including docket entries, charges, and outcomes. On the portal, full documents such as filings or judgments may be purchased for about $0.10 per page, up to $3 per document. Additional print fees may apply at courthouse terminals.

Individuals seeking physical copies may visit the county courthouse where the case was heard and submit a request in person at the Clerk of Court’s office. Public access terminals at the courthouse also serve as an avenue to conduct free case searches. However, certified copies or complete documents typically require payment of fees.

Sealed records are not visible to the general public. If a trespass case or conviction has been sealed, only specific individuals, such as the parties involved or their attorneys, or entities with a court order, may access it.

Types of Criminal Trespass Offenses

All forms of criminal trespassing are certified misdemeanors under South Dakota Codified Laws (§ 22-35-1). Under the law, trespass is categorized into distinct types. One of which is entering or staying in a building or structure without permission. Under § 22-35-5, a person who knowingly enters or remains in a building or structure secretly, without authorization, commits a Class 1 misdemeanor.

Secondly, entering or refusing to leave someone’s property after notice also qualifies as a misdemeanor. According to § 22-35-6, an individual commits trespassing if they enter or remain on property after it is reasonably expected to have come to their notice that they are not wanted. Notice may be delivered either through direct communication, posted signs, or putting up barriers like fences. It qualifies as a Class 2 misdemeanor. If they ignore a personal order to leave, it becomes a Class 1 misdemeanor. There are also affirmative defenses allowed by state law under § 22-35-7: these are mistaken beliefs of ownership or necessity.

There is no felony category for ordinary trespass under Chapter 35. All trespass offenses are qualified misdemeanors, which may either be a Class 1 or Class 2 misdemeanor, depending on how the trespass occurred and whether the trespasser refused to leave after a valid order. Individuals may access the South Dakota Court records to inquire about various types of crime.

Penalties for Criminal Trespass in South Dakota

According to South Dakota Codified Law § 22-35-5, entering or staying in a building, structure, or critical infrastructure facility without permission is a Class 1 misdemeanor. Convictions typically carry a one-year jail term, along with a fine of up to $2,000, or both.

If someone enters a property or refuses to leave after being told to do so, as stated in § 22-35-6, they become liable to a Class 2 misdemeanor, which may result in up to 30 days in jail and a fine of up to $500. However, if the trespasser ignores a direct order from the owner or an authorized person asking them to leave, the offense becomes a Class 1 misdemeanor.

Certain factors may make the penalties harsher. For instance, trespassing into critical infrastructure, entering or staying secretly, or disregarding posted warnings may all increase the severity of consequences. Generally, SDCL does not classify trespassing as a felony just because someone is armed or if the trespass happens at night. As long as the statute involved falls under these misdemeanor rules, even repeated offenses usually do not lead to felony charges.

Can You Be Arrested for Criminal Trespass in South Dakota?

Yes, in most cases, criminal trespass is an arrestable offense in South Dakota, under South Dakota Codified Law § 22-35-5. People who knowingly enter or stay in a building or structure without permission commit criminal trespass, which is classified as a Class 1 misdemeanor.

Law enforcement officers may arrest individuals for criminal trespass if the trespass occurred under their direct observation. Arrests may also be made after surveillance footage, witness statements, or other information showing that the person illegally entered or stayed on the property.

Although criminal trespassing is typically a misdemeanor, certain situations may escalate sentencing, elevating the offense to a felony.

How Criminal Trespass Differs from Burglary or Breaking and Entering in South Dakota

In South Dakota, criminal trespass and burglary are different offenses. Each has its own legal elements, depending on the extent of intrusion and the fiduciary status of the defendant.
Under South Dakota Codified Law § 22-35-5, criminal trespass happens when a person knowingly enters or stays in a building or structure without permission, which qualifies as a Class 1 misdemeanor.

By contrast, for an act of intrusion to qualify as a burglary, the individual's entry must be coupled with an intent to commit a crime inside the restricted premises. Such crimes include theft, assault, or vandalism. Under South Dakota law, burglary is a felony offense. The penalties depend on the circumstances, including the type of building and any aggravating factors.

Can a Criminal Trespass Charge Be Dismissed or Reduced in South Dakota?

In South Dakota, criminal trespass charges may be dismissed or reduced, especially for first-time offenders, through a variety of legal options. Prosecutors may offer plea deals that involve reducing the charge to a lesser offense or suggesting alternative sentencing options.

One option is the state's Adult Diversion Program. This program lets eligible people avoid a formal conviction by completing certain requirements, like community service, counseling, or educational programs. If they complete the program successfully, charges may be dismissed, and they may qualify for record expungement under South Dakota Codified Law 23A-3-35.

Another option is the suspended imposition of sentence (SIS) for some misdemeanor offenses. With SIS, the court delays sentencing. If the individual successfully completes probation, the case may be dismissed without a conviction, which might allow for record sealing.

Eligibility for these programs depends on factors like the person’s criminal history, the nature of the offense, and meeting program requirements. Consulting with a legal professional may provide guidance tailored to the specific details of your case.

Will a South Dakota Criminal Trespass Charge Stay on Your Record?

In South Dakota, a criminal trespass charge may stay on a person's record, depending on how the case is resolved. If the charge leads to a conviction, it is typically likely to show up on background checks. However, if the case is dismissed, resolved through a diversion, or expunged, how visible the charge is may vary.

• Dismissal or Diversion: If the charge was dismissed or handled through a diversion program, the person might be able to ask for expungement. South Dakota law allows for expunging records in these situations, as long as specific conditions are met, such as the passage of time and the type of offense.
• Expungement: Expungement in South Dakota means sealing records related to a person's arrest, detention, trial, or outcome in the criminal justice system. To qualify for expungement, one must meet certain criteria, including the kind of offense and the result of the case.

Expungement or Record Sealing Options in South Dakota

In South Dakota, a criminal trespass charge may stay on a person's record, depending on how the case is resolved. If the charge leads to a conviction, it is typically likely to show up on background checks. However, if the case is dismissed, resolved through a diversion, or expunged, the visibility of the charge may vary.

Dismissal or Diversion: If the charge was dismissed or handled through a diversion program, the person might be able to ask for expungement. South Dakota law allows for expunging records in these situations, as long as specific conditions are met, such as the passage of time and the type of offense.

Expungement: Expungement in South Dakota means sealing records related to a person's arrest, detention, trial, or outcome in the criminal justice system. To qualify for expungement, one must meet certain criteria, including the kind of offense and the result of the case.

It’s important to understand that expungement does not erase the record; it just seals it from public view. Law enforcement and some other organizations may still access these sealed records.