Refusing a breathalyzer in South Dakota is not a free‑choice act; under the state’s implied‑consent law it is a criminal offense. As of 2026, a driver who declines a chemical test after being lawfully stopped for suspected impaired driving faces a misdemeanor charge, automatic license suspension, and possible fines. The refusal itself does not prove intoxication, but it triggers statutory penalties that can be harsher than those for a failed test.
Implied Consent and Its Reach
South Dakota’s implied‑consent statute, codified at SDCL § 32‑24‑33, requires every driver to submit to a breath, blood, or urine test when a police officer has reasonable suspicion of intoxication. By operating a vehicle, drivers have already consented to testing; refusal is treated as a violation of that consent. The law applies to all licensed drivers, including non‑residents, and does not distinguish between commercial and non‑commercial licenses.
Penalties for Refusing a Breathalyzer
A first‑time refusal is classified as a Class 6 misdemeanor. The typical penalties include:
- Up to 30 days in county jail (often suspended)
- A fine ranging from $200 to $500
- Immediate license suspension for 90 days, with an additional 60 days added to any future DUI suspension
If the driver has prior DUI or refusal convictions, the offense escalates to a Class 5 misdemeanor, carrying longer jail terms and higher fines. Courts may also impose probation and mandatory attendance at an alcohol education program.
Effect on Driving Record and Insurance
A refusal conviction appears on the driver’s record as “DUI refusal” and stays for three years. Insurance companies treat it similarly to a DUI, resulting in substantial premium increases—often 30 % to 50 % above baseline rates. Moreover, the automatic suspension triggers a “hit” on the driver’s SR‑22 filing requirement, forcing the driver to obtain high‑risk coverage.
Common Legal Defenses
While refusing a test is itself illegal, defendants sometimes challenge the underlying stop. Key defenses include:
- Lack of reasonable suspicion – arguing the officer had no articulable facts to justify the test request.
- Improper administration – contending the breathalyzer was not calibrated or maintained per manufacturer specifications, rendering any subsequent results unreliable.
- Medical exemption – presenting a documented medical condition that makes breath testing unsafe or inaccurate.
Successful deployment of these defenses can lead to dismissal of the refusal charge, but they require robust evidentiary support.
Legislative Trends Through 2026
In 2024 South Dakota enacted Senate Bill 118, tightening penalties for repeat refusals and expanding the mandatory suspension period. A 2025 amendment clarified that refusal for medical reasons must be documented in real time, reducing the chance of vague “health” claims. No legislation as of 2026 has eliminated the criminal nature of refusal; instead, the trend has been toward stricter enforcement to deter impaired driving.
Can a driver refuse a blood test but submit to a breath test?
Yes. The implied‑consent law permits an officer to request any type of chemical test. A driver may comply with a breath test and still refuse a blood draw, but each refusal is separately penalized.
What happens if a driver refuses at a checkpoint?
Refusal at an implied‑consent checkpoint triggers the same misdemeanor charge and automatic suspension. However, checkpoints often provide a “reasonable suspicion” standard that can be contested more readily in court.
Does the refusal automatically lead to a DUI conviction?
No. Refusal does not itself prove intoxication, but the statutory penalties are applied regardless of blood‑alcohol concentration. A separate DUI conviction requires proof of impairment, which may be pursued through other evidence.
Are commercial drivers subject to harsher penalties for refusal?
Commercial drivers face additional administrative sanctions, including a mandatory six‑month suspension of their commercial license, on top of the standard misdemeanor penalties.
Can the refusal be expunged from a driving record?
South Dakota allows expungement of certain misdemeanor offenses after a waiting period and successful completion of rehabilitation programs. A refusal conviction may be eligible for expungement after five years of a clean driving record and court approval.