Kinney Law, pcKinney Law, pc2024-02-20T23:53:57Zhttps://www.kinney-law.com/feed/atom/WordPress/wp-content/uploads/sites/1100845/2021/06/cropped-favicon-32x32.jpgOn Behalf of Kinney Law, pchttps://www.kinney-law.com/?p=488012024-02-20T23:53:57Z2024-02-20T23:53:57ZThe Castle Doctrine
South Dakota follows the Castle Doctrine, meaning individuals can use force in defense. This legal principle emphasizes the sanctity of one's home as a place where a person should feel safe and secure. You have the right to use deadly force to protect yourself, your home and your property from intruders.
No duty to retreat
South Dakota also has a "stand your ground" provision, which means you are not obligated to retreat before using force if you believe it is necessary to protect yourself or others. South Dakota law also permits using force, including deadly force, in self-defense situations outside the home. However, your belief that such force is necessary to prevent imminent harm must be reasonable in the eyes of a jury.
Reasonable force standard
In self-defense situations, South Dakota adheres to the reasonable force standard. This standard means you should use only the force necessary to protect yourself or others from harm. The use of excessive force may not be justifiable under the law.
Imminent threat requirement
For self-defense to be legally justifiable, there must be an imminent threat, meaning that you must reasonably believe that there is an immediate danger of harm and the use of force is necessary to prevent that harm. Acting in self-defense after the threat has subsided may not be legal.
Exercising self-defense rights responsibly
Understanding South Dakota's self-defense laws is necessary for individuals who want to protect themselves and their loved ones. Adhering to these principles of using force means that you can exercise your self-defense rights within the state's legal framework.]]>On Behalf of Kinney Law, pchttps://www.kinney-law.com/?p=487812024-01-19T23:20:12Z2024-01-19T23:17:46Zheroin laws and penalties, see below. Though the crime is severe, there are still options for people charged with heroin possession, depending on the amount and intent.
Class 4 felony
Possession with the intent to manufacture, distribute or dispense heroin is a Class 4 felony. According to the South Dakota legislature, a Class 4 felony means up to 10 years in prison and a maximum fine of $20,000. A first conviction carries a minimum of one year in state prison. A second conviction carries mandatory minimum imprisonment of 10 years.
Class 3 felony
Class 3 felonies may carry 15 years in prison and up to $30,000 in fines. A Class 3 felony may be in play if you possess at least three of the following:
A firearm
Packing materials for the controlled substance
At least $300 in cash
Manufacturing materials for the controlled substance
A list of drug transactions
Class 2 felony
A Class 2 felony occurs if you sell to a minor. Class 2 felonies carry a mandatory minimum state penitentiary sentence of five years. Second offenses for selling to a minor have a mandatory minimum sentence of 15 years.
For every felony listed above, you may not suspend the sentence. You cannot reduce your imprisonment time through probation, suspended execution of sentence or suspended imposition of sentence either.
Heroin laws in South Dakota are very tough. If you face a possession charge, you must exhaust all options to receive a reduced sentence.]]>On Behalf of Kinney Law, pchttps://www.kinney-law.com/?p=487962024-01-19T23:16:26Z2024-01-19T23:16:26ZBlood alcohol content
The type of DUI offenses in South Dakota depends largely on blood alcohol content levels. The legal limit for BAC is 0.08%. If drivers have a BAC at or above this threshold, they can get a DUI. For those under the age of 21, the limit is much lower, and any BAC level can result in a charge.
Possible penalties
Penalties vary based on factors such as BAC levels and the number of prior offenses. Individuals may face fines, license suspension and mandatory participation in a chemical dependency program. The maximum possible fine is $2,000 and potential jail time could be up to one year.
License suspension for a first offense can range from 30 days to several months. Subsequent offenses may result in a permanent revocation of driving privileges.
Aggravating factors, such as having multiple DUIs charges or having a minor in the vehicle, could increase the charges. If individuals have additional charges for other related crimes, they could face even stiffer penalties, including prison sentences.
The best way to avoid a DUI charge is to understand the law. Knowing what constitutes driving under the influence and what the potential penalties could be can help deter someone from getting behind the wheel after consuming alcohol.]]>On Behalf of Kinney Law, pchttps://www.kinney-law.com/?p=485682022-07-25T14:20:06Z2022-07-25T14:20:06ZOn Behalf of Kinney Law, pchttps://www.kinney-law.com/?p=474222023-05-10T19:21:35Z2021-05-19T20:10:00ZNorthern Hills Drug Court program, expect to spend at least 14 months participating in it. However, you may have to take part for longer than that, depending on the severity of your substance dependency, among other circumstances.
Eligibility requirements
To be eligible for inclusion in Northern Hills Drug Court, you must be at least 18 and live within a preapproved area that falls within the borders of the 4th Judicial Circuit. You must be facing a felony charge, and you must undergo a drug evaluation that reveals your dependency or addiction-related diagnosis.
Your assessment must also reveal that you are “high-risk” and “high-need.” Furthermore, you must not be a sex offender or someone facing a drug distribution charge, as either circumstance would make you ineligible. You also must not have any convictions for violent crimes in your history. Finally, the South Dakota State’s Attorney must agree that you meet the eligibility requirements necessary to enroll in drug court.
Program requirements
If you gain entry into Northern Hills Drug Court, you must agree to undergo regular and random drug testing. You also must work toward your recovery and make regular appearances in front of the court while doing so. You also must complete five distinct phases of the program to graduate.]]>On Behalf of Kinney Law, pchttps://www.kinney-law.com/?p=479812022-07-25T14:47:48Z2021-02-11T06:45:41ZOn Behalf of Kinney Law, pchttps://www.kinney-law.com/?p=476172020-12-07T19:56:44Z2020-12-07T19:27:24Z1. WHAT IS THE DIFFERENCE BETWEEN THE TWO INIATED MEASURES?
The laws of South Dakota allow its voters to file petitions upon receiving the requisite amount of signatures in proper form to put laws to a vote by the people and not by the state’s legislative body. These statewide ballot questions come in three forms: (1) Initiated Measures, which are designed by the petitioners of the proposed law, (2) Referred laws, which asked the public to vote either in support or in opposition to a law or bill previously addressed by the legislature, and (3) an amendment to the South Dakota Constitution. Petitions to hear both medicinal and recreational marijuana legalization were submitted in September 2019 and certified for the 2020 election on November 3.
AMENDMENT A: Persons age 21 years and older will be able to legally possess up to 1 oz. of marijuana in flower form and up to 8g of marijuana concentrate (hashish, hash oil, wax, shatter, resin and edibles). The amendment sets forth basic guidelines for regulating growers, dispensaries, etc. Individual counties may pass ordinances prohibiting the commercialization of marijuana. The Department of Revenue has until April 1, 2022 to establish a regulatory framework for all aspects of marijuana licensing and taxation.
IM26: Persons with a physician-certified, debilitating medical condition will be able to legally possess up to 3 oz. of marijuana and a yet-to-be-determined amount of “cannabis products” (such as edibles, oils, tinctures, etc.) for medical purposes. These qualified persons may also grow up to 3 plants at a time as well as possess marijuana grown from the 3 plants. IM26 requires many regulations to be established by the South Dakota Department of Health regarding the proliferation of medical marijuana, and governing bodies may prohibit marijuana from being smoked in public places. Landlords are not required to allow their tenants to grow marijuana. IM26, as an initiated measure, will not become effective until July 1, 2020 as per SDCL 2-1-12.
2. LEGAL ISSUE #1: WHEN DOES AMENDMENT A BECOME LAW?
Amendment A is a constitutional amendment; it is not an initiated measure. Article XXIII of the South Dakota Constitution sets forth how amendments are to be passed. According to Sec. 3 of Article XXIII, the South Dakota Constitution may only be amended upon a majority vote by the electorate (voters). The vote count and ratification process, also known as “canvassing,” occurs within 10 days of Election Day. In this case, Amendment A was canvassed and the official vote approving Amendment A was ratified on November 10, 2020. However, in 2017, the South Dakota legislature passed a law stating that constitutional amendments as well as initiated measures and referred laws only take effect July 1 of the year following canvassing.
The news media has widely reported marijuana isn’t legal until July 1, 2021, quoting state officials who are relying on South Dakota Codified Law 2-1-12. Many attorneys and legal scholars believe the language of SDCL 2-1-12, which schedules the effective date of constitutional amendments, is unconstitutional. The argument basically claims our state representatives cannot dictate when the Constitution takes effect. I believe they are right as our Constitution is the supreme state law of our land. If the legislature are allowed to do so, opponents of marijuana legalization could pass a law … in this forthcoming 2021 session … establishing the effective date of Amendment A far into the future so as to prevent the will of the voters taking effect upon the canvassing of the vote. Therefore, a sound legal argument exists in that Amendment A is effective now and possessing marijuana is legal as you read this blog. Many criminal cases involving illegal marijuana and hashish possession are being currently under fire and being challenged.
3. LEGAL ISSUE #2: ARE POLICE LEADERS TRYING TO THROW OUT AMENDMENT A AND THE LEGALIZATION OF RECREATIONAL MARIJUANA?
Yes. Opposition to Amendment A prior to Election Day was mostly silent. Nearly everyone told me they thought legalized marijuana would fail like it did in 2006 and 2010. They were very wrong. On November 20, 2020, two lawsuits were filed in Hughes County, South Dakota, in an attempt to contest Amendment A’s passage. The lawsuits do not allege voter fraud, but claim Amendment A covers “more than one subject,” which is prohibited by a previous constitutional amendment passed in 2018. They point to taxation, penalty limits, etc., as being multiple subjects within the text of Amendment A. Those in support of Amendment A maintain it only covers one subject…cannabis. The lawsuits also allege the South Dakota Constitution does not allow the introduction of a new subject, such as cannabis, and Amendment A goes beyond the purposes of why we pass constitutional amendments.
Ironically, South Dakota law requires Amendment A to be defended by the South Dakota Attorney General’s Office. The lawsuits, supported by the Governor and supposedly funded with public money, will produce much controversy and may end up decided by the South Dakota Supreme Court. If you’re itching to get into the cannabis business or are making plans to possess, consume cannabis here in South Dakota, I suggest you wait until this legal battle’s winner is determined as law enforcement is still arresting people for marijuana possession.
I will keep all of you updated as developments occur!]]>On Behalf of Kinney Law, pchttps://www.kinney-law.com/?p=470812020-07-02T12:28:05Z2020-07-02T12:28:05ZLosing a license
One of the most common DUI punishments is a driver’s license suspension or revocation. Without a license, a motorcyclist can’t take advantage of the short summer season in the Dakotas. While a first DUI could mean no driving privileges for a month, a second or third conviction could prevent a biker from riding for a year or more.
Bulky ignition interlocks
Depending on the penalties the court hands down, you may need to install an ignition interlock device on any vehicle you drive. This machine measures your breath for alcohol before you can start the engine and asks for retests while you are moving. You may need to pull your bike over multiple times on a ride to keep your engine on.
Lost days in DUI class
The court may also assign you to alcohol education courses. These classes are typically eight-hour days over a weekend. Instead of enjoying your free time on the open road with your bike, you will be stuck inside.
Losing out on riding season
South Dakota is an excellent place for you to ride in the summer. With its varying landscape and open roads, you can experience freedom and excitement. But with a DUI conviction, you may find yourself trapped by drunk driving punishments.]]>On Behalf of Kinney Law, pchttps://www.kinney-law.com/?p=470682021-03-15T12:05:47Z2020-05-29T15:33:08ZSouth Dakota drug charges.
Ingestion laws
Although several states outlaw ingestion of a controlled substance in addition to possession, failing a drug test is a felony in South Dakota and a misdemeanor elsewhere. While state representatives have moved to make this offense a misdemeanor, the reformed law has yet to pass both the South Dakota House and Senate.
Possession penalties
Many controlled substances, including cocaine, carry Class 4 felony penalties for the first offense. Conviction can result in up to two years in prison and up to $10,000 in fines. In addition, this crime carries a mandatory minimum one-year prison sentence in South Dakota. Other controlled substances categorized in Schedule I or II can result in a Class 5 felony, while possession of controlled substances in lower schedules is a Class 6 felony.
Possession with intent to sell
An arrest involving more than a gram of cocaine or another Schedule I controlled substance constitutes possession with intention to distribute in South Dakota. This conviction carries at least two years and up to 99 years in prison, with possible fines of up to $50,000.
Selling a controlled substance to a minor is an elevated Class 2 felony. The mandatory minimum prison sentence for a conviction is five years for the first offense and 10 years for the second offense. Subsequent offenders do not qualify for a suspended sentence.
When in South Dakota, avoid the possibility of significant prison time with a controlled substance charge. A conviction for paraphernalia possession that would result in a fine in another state could result in a year in prison in South Dakota, even for offenders with no prior history of drug convictions.]]>On Behalf of Kinney Law, pchttps://www.kinney-law.com/?p=470642021-03-15T12:05:25Z2020-05-29T15:24:32ZState law reads, “No person may knowingly possess marijuana,” and legislators mean it. South Dakota does not even honor medical marijuana prescriptions from other states.
If you are being questioned about any marijuana-related crimes, it is crucial that you proceed with caution. Be aware of your rights and protect yourself. What you intend as an explanation, law enforcement may view as a confession. You may think of marijuana as a relatively harmless substance, but conviction of a marijuana-related crime in South Dakota can carry severe consequences.
Possession
Being caught with fewer than two ounces is a misdemeanor. The sentence may be jail for up to a year and a fine of $2,000. Possessing more than two ounces can result in a felony charge. Sentences vary, depending on the amount of marijuana, with possible sentences of up to 15 years in prison and a fine of up to $30,000. Sentencing is harsher for possession of concentrates such as hashish. Possessing a marijuana concentrate in any amount is a felony, punishable by up to five years’ imprisonment and up to $10,000 in fines. You may also lose property connected to possession, such as your car.
Sale
Penalties for sale of marijuana are harsher than those for possession. If the courts convict you of selling less than half an ounce, there is a mandatory sentence of 15 days to a year, possibly accompanied by a fine of up to $2,000. Selling more than a half-ounce is a felony, for which the courts may sentence you to 15 years in prison and issue a $30,000 fine. Furthermore, you may be subject to tougher sentences if convicted of selling marijuana in proximity to schools, public pools, youth centers or arcades.
Manufacturing, distributing or dispensing
Making marijuana concentrates is a felony. A first-time conviction may result in a 1- to 10-year prison sentence. A second conviction may subject you to a 10-year minimum prison term. Dispensing or distributing concentrates to a minor carries longer periods of incarceration.]]>