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Judge: DUI still a crime

LAKE ANDES — Drunken driving is still illegal.

A judge has denied a motion to dismiss drunken driving and vehicular homicide charges in a high-profile criminal case in Charles Mix County.

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“It is unreasonable to suggest that our legislature intended to repeal by implication our DUI law and vehicular homicide law,” wrote Judge Bruce Anderson in a 14-page decision filed Nov. 12.

Attorney Tim Whalen, who represents Ronald Fischer Jr., 29, had claimed the legal underpinning for a charge of driving under the influence no longer existed. The Legislature last year repealed some drunken-driving language as part of a broader cleanup of what were considered outdated or unnecessary statutes. A separate chapter of law dealing with drunken driving remains in the state code.

Whalen had moved for dismissal of DUI and vehicular homicide charges against Fischer, who is accused of being drunk when his vehicle struck and killed two pedestrians in a Pickstown hotel parking lot in July. The victims were U.S. Fish and Wildlife Service employees Robert Klumb and Maegan Spindler.

Whalen claimed that because DUI was no longer a legal charge, at least in his view, vehicular homicide also could not be charged because it requires the offender to have been under the influence while driving.

Whalen’s motion hinged on a decades-old statute 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, a related section of state law, SDCL 34-20A-95, specifically allowed criminal charges for being drunk while driving or carrying firearms while drunk: “Nothing in this chapter affects any law, ordinance, resolution, or rule against drunken driving, driving under the influence of alcohol, or other similar offense,” the law said, in part.

That section of law was repealed as part of the Legislature’s cleanup effort; meanwhile, an entire separate chapter in the state code containing 42 laws related to the crime of driving under the influence remains in effect.

Lawyers have attempted to exploit the supposed loophole in the DUI law at least 17 times since last year, with no known successes so far.