By Todd Epp, South Dakota Broadcasters Association
PIERRE, S.D. (SDBA) — An attempt to remove “presumptive probation” for third-offense DUI felons was unsuccessful Tuesday (Jan. 23, 2024) in the South Dakota House.
The sponsor of HB1038, Republican Rep. Mary Fitzgerald from Spearfish, initially drafted the bill to remove “presumptive probation” for DUI 3rd and 4th offenses. She said the change would not prevent a judge from granting probation, but would give the judiciary guidance from the legislature.
Fitzgerald said she talked to two state attorneys about removing the presumption.
“They said it is a directive from the legislature to judges that they sentence to probation (for DUI 3rd),” Fitzgerald said. She had testified in committee that repeat drunk drivers put themselves and the public at risk. The system has not yet gotten their attention.
Republican Rep. Mike Stevens from Yankton opposed the amendment to remove presumptive probation for third-offense DUI.
“Presumptive probation is not mandatory,” Stevens said. “It is presumed. You’re taking away some discretion from the court. Because of presumptive probation, some people have been able to get their life together.”
Republican House Majority Leader Will Mortensen from Fort Pierre said the state can’t keep filling its prisons with non-violent offenders. He said 80% of women in prison are non-violent offenders and about half of the males are in prison for non-violent crimes.
Currently, DUI 1st and 2nd are misdemeanors. The third DUI is a felony.
The motion to amend to remove presumptive probation for DUI 3rd failed on a voice vote. The bill does remove presumptive probation from a fourth DUI conviction. It passed 68 to 0 and now moves to a Senate committee.
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