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Lawyer claims driving drunk legal after Legislature changed laws

Ronald Fischer Jr., right, walks to the courtroom with his attorney, Tim Whalen, Thursday at the Charles Mix County Courthouse in Lake Andes. Fischer, 29, is accused of vehicular homicide, manslaughter and drunken driving. (Luke Hagen/The Daily Republic)

LAKE ANDES — A Lake Andes defense attorney argued Thursday that a client accused of killing two pedestrians while driving drunk cannot be charged with driving under the influence or vehicular homicide.

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Tim Whalen, attorney for Ronald Fischer Jr., 29, also of Lake Andes, said a state law that’s necessary to charge someone with DUI was repealed as part of a broader cleanup of laws by the Legislature last year.

“You may ask, ‘Are you saying, Whalen, that no one can be convicted of DUI?’ Yes, I am saying no one can be convicted of DUI,” Whalen said during a motions hearing at the Charles Mix County Courthouse.

He made a motion to dismiss the two counts of vehicular homicide and one count of first-offense DUI against Fischer. The motion did not include the manslaughter charges against Fischer.

Fischer is accused of killing two people in July when his vehicle ran into them in a Pickstown parking lot. Fischer was drunk at the time, according to investigators, and ran a stop sign while driving into the parking lot where U.S. Fish and Wildlife Service employees Robert Klumb and Maegan Spindler were packing their boat.

The DUI technicality dispute centers on a decades-old law that says it’s not a crime to be drunk. That language is in South Dakota Codified Law 34-20A-93, which says, in part: “… neither the state nor any county, municipality, charter unit of government, or other political subdivision may adopt or enforce a law, ordinance, resolution, or rule having the force of law that includes drinking, drunkenness, or being found in an intoxicated condition as one of the elements of the offense giving rise to a criminal or civil penalty or sanction.”

Until last year, another section of the law included exceptions allowing criminal charges for drunken driving and carrying firearms while drunk. That section was repealed; however, an entire chapter in the state code devoted to driving under the influence remains. Still, Whalen claims that without the one section that was repealed, there is no longer a legal basis for charging anyone with DUI.

On the issue of vehicular homicide, Whalen said that under state law offenders can only be charged with vehicular homicide if they were under the influence when their vehicle killed someone. But, since he claims state law no longer allows for anyone to be charged with anything for being drunk, he also argues by extension that Fischer cannot then be charged with vehicular homicide for being drunk.

Assistant Attorney General Brent Kempema disagreed and said the Legislature did not intend to repeal the legal underpinning for DUI.

“The intent was not to get rid of DUI or vehicular homicide. They tried to clean up old rules that weren’t necessary,” Kempema said. “The exception was not caught and it was not what the Legislature wanted.”

Kempema further argued that if the charges were dropped against Fischer, it would “create an absurd result.” He said it would be a public health concern and federal funding concern because states are required under federal law to have DUI laws in effect.

Judge Bruce Anderson said he will issue a written ruling on the matter at a later date.

Fischer waived his right to have a trial within 180 days and requested a bench trial rather than a jury trial. Judge Anderson reminded Fischer of his rights, which Fischer acknowledged, but he still waived them in favor of a bench trial.

Anderson also approved a request to allow video testimony by South Dakota Highway Patrol Trooper Mike Peterson, who reconstructed the scene of the accident. Peterson is scheduled to be deployed to Afghanistan in November, Kempema said.

“As long as the defendant is in the room face-to-face with the trooper,” Anderson said.

Anderson said it is also possible to have a video conference with Peterson, if needed, while he is overseas.