Possession of a Controlled Substance in South Dakota

Most drug possession offenses carry felony penalties in South Dakota. Read on to learn how South Dakota classifies and penalizes drug possession offenses and what alternatives to jail time may be available.

How South Dakota Classifies Controlled Substances

South Dakota divides controlled substances into four schedules—Schedules I to IV. Schedule I drugs are considered the most dangerous and highly addictive, while Schedule IV drugs are the least dangerous and the least addictive. Below are examples of drugs placed into each schedule.

Schedule I includes drugs such as heroin, MDMA, LSD, mescaline, hashish, and psilocybin.

Schedule II includes drugs such as raw opium, codeine, oxycodone, morphine, cocaine, fentanyl, carfentanil, and meth.

Schedule III includes drugs such as ephedrine, GHB, ketamine, anabolic steroids, and buprenorphine.

Schedule IV includes drugs such as barbital, diazepam (Valium), flunitrazepam (Rohypnol), lorazepam (Ativan), and therapeutic medicines containing low amounts of codeine or other narcotics combined with non-narcotic active ingredients.

(S.D. Codified Laws §§ 34-20B-12 and following (2023).)

Is Illegal Drug Possession a Felony in South Dakota?

It's a crime to unlawfully possess or use a controlled substance in South Dakota. Most drug possession and use offenses are felonies.

Unlawful Possession or Use of a Schedule I, II, II, or IV Drug

A person who unlawfully possesses or ingests a Schedule I or II drug can face a Class 5 felony conviction. The penalty is a Class 6 felony when the drug is a Schedule III or IV drug.

A Class 5 felony carries up to five years in prison and a $10,000 fine, while a Class 6 felony has a maximum sentence of two years in prison and a $4,000 fine.

Unlawful Possession of Marijuana

South Dakota makes possession of any amount of marijuana a crime. The penalty depends on the amount involved. It's a:

• Class 1 misdemeanor if the amount of marijuana is two ounces or less
• Class 6 felony if the amount of marijuana is more than two ounces but less than eight ounces
• Class 5 felony if the amount of marijuana is eight ounces or more but less than one pound
• Class 4 felony if the amount of marijuana is one to 10 pounds, and
• Class 3 felony if the amount of marijuana is more than 10 pounds.

The felony penalties range from two to 15 years of prison time and maximum fines of $4,000 to $30,000. A Class 1 misdemeanor carries up to a year of jail time and $2,000 in fines.

Unlawfully Ingesting or Possessing Intoxicating Substances

It's also a Class 1 misdemeanor to possess, ingest, or inhale any intoxicating substance (other than alcohol) with the purpose of being intoxicated or high. This offense could include huffing or sniffing toxic inhalants.

Unlawful Use or Possession of Drug Paraphernalia

A person who uses or possesses with intent to use drug paraphernalia commits a Class 2 misdemeanor, punishable by up to 30 days of jail time and a $500 fine.

Enhanced Penalties for Repeat Offenders

A person being convicted of their second or third felony will receive a sentence for the next higher felony class. Anyone who faces a fourth or subsequent felony conviction can face a two-level increase.

(S.D. Codified Laws §§ 22-7-7, 22-7-8.1, 22-42-5, 22-42-5.1, 22-42-6, 22-42-15, 22-42-15.1, 22-42A-3 (2023).)

Will First-Time Offenders for Drug Possession Get Jail Time in South Dakota?

It depends. South Dakota offers a number of sentencing alternatives that may avoid jail time and, sometimes, a conviction. First-time offenders generally qualify, but these alternatives hinge on compliance with the court or prosecutor's terms. And, for the most part, these alternatives are one-time deals. For instance, a defendant gets one shot at discharge and dismissal or a deferred sentence.

Pretrial Diversion

A state's attorney may agree to suspend prosecution of charges in a drug possession case and place the defendant in a diversion program. Pretrial diversion requires the defendant to sign a contract with the prosecutor. In this contract, the prosecutor generally agrees to not pursue the charges so long as the defendant remains law-abiding, participates in treatment or counseling, and complies with all other terms in the agreement. Upon successful completion of diversion, the court will dismiss the case. The defendant may also ask for the record to be expunged.

(S.D. Codified Laws § 23A-3-35 (2023).)

Discharge and Dismissal

A first-time felony offender might receive an opportunity for discharge and dismissal of the charges. Here, a judge takes the defendant's guilty plea or verdict but doesn't enter it. The defendant is placed on probation, and upon successful completion, the court may dismiss the case without entering a conviction. Discharge and dismissal is a one-time opportunity.

(S.D. Codified Laws § 23A-27-14 (2023).)

Deferred Imposition of Sentence and Reduction

Defendants who plead guilty to felony drug possession charges may qualify for a deferred imposition of sentence. With deferred sentencing, the judge takes the guilty plea but holds off on entering a judgment or sentence. Instead, the judge places the defendant on probation, which must include any recommended treatment. Successful completion of the probation term results in a reduction of the conviction to a misdemeanor for unlawfully ingesting an intoxicating substance.

(S.D. Codified Laws § 23A-27-53 (2023).)

24/7 Sobriety Program

South Dakota created a statewide 24/7 sobriety program that can be used as a condition of a suspended sentence or probation in drug cases. It requires a person to submit to urine analysis tests or wear drug patches and report to designated centers.

(S.D. Codified Laws § 1-11-21 (2023).)

Drug Courts

South Dakota also has a number of "problem-solving courts," including drug courts. Drug court doesn't avoid a conviction, but it offers intensive supervision and support to offenders suffering from addiction. Drug courts are run by a team of professionals, including judges, attorneys, probation officers, and treatment providers, who work together to aid in the defendant's recovery. A defendant will face both sanctions and incentives as part of the program.

Possible Defenses to Drug Possession Charges in South Dakota

Defendants facing controlled substance charges have several defense strategies available to them.

Actual innocence. Defendants charged with a drug-related crime have the usual defenses available to all criminal defendants, such as "Someone else committed this crime," or "the alleged conduct did not occur."

Lack of knowledge. Defendants can try to show the jury that they did not have knowledge of the controlled substance being in their possession. For example, if a hitchhiker gets a ride from a passing car and the police locate a bag of heroin under the hitchhiker's seat, the defense will argue the defendant had no knowledge of the bag hidden under their seat.

Unlawful search and seizure. A common defense in drug possession cases includes asking the court to exclude evidence of the drugs at trial based on an unlawful search or seizure by police. Without evidence of the drugs, a prosecutor's case might fall apart, resulting in a reduction of charges or a dismissal altogether. Defense teams do this by scrutinizing and calling out faulty or suspect police methods used in gathering or handling the evidence.

Overdose immunity. South Dakota offers immunity from arrest, charges, and prosecution for drug possession charges to Good Samaritans who call 911 for someone experiencing an overdose. To receive immunity, the person must remain on the scene and cooperate with authorities. Someone who seeks medical assistance for their own overdose also receives immunity from drug possession or use charges. (S.D. Codified Laws §§ 34-20A-110, 34-20A-111 (2023).)

Talk to a Lawyer

If you've been charged with a drug-related offense in South Dakota, contact a local criminal defense attorney as soon as possible. An experienced lawyer will discuss the circumstances unique to your situation, formulate possible defenses, and protect your constitutional rights.