‘DUI is legal’ argument has been tried 17 times in SD cases

PICKSTOWN -- A lawyer's argument that a loophole in state law protects his client from being convicted of drunken driving is not new. It's been used at least 17 times since last year, according to information from the South Dakota Attorney Genera...

PICKSTOWN - A lawyer’s argument that a loophole in state law protects his client from being convicted of drunken driving is not new.

It’s been used at least 17 times since last year, according to information from the South Dakota Attorney General’s Office. Eight of those instances have occurred in Charles Mix County, where the theory is undergoing its most high-profile test.

Defense attorney Tim Whalen is using the supposed loophole to argue that his client, Ronald Fischer Jr., cannot be convicted of drunken driving or vehicular homicide for allegedly striking and killing two pedestrians in July at Pickstown.

The issue hinges 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, another 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That section of law was repealed as part of a broad effort by the Legislature to clean up “outdated or unnecessary statutes”; meanwhile, an entire separate chapter in the state code containing 42 laws related to the crime of driving under the influence remains in effect.

Still, some defense lawyers claim that the repeal of the one law knocked out the legal basis for all the other laws related to driving under the influence. Whalen also argues that since offenders can only be charged with vehicular homicide if they were under the influence when their vehicle killed someone, prosecutors are precluded not only from charging Fischer with drunken driving, but also, by extension, vehicular homicide. A judge is considering Whalen’s argument.

Among the 17 times the argument has been used so far, judges denied the motion in 11 cases, four cases are still pending and two were reduced to reckless or careless driving. The reductions, it could be argued, might have happened even without the dispute over the DUI loophole.

In a Brule County first-offense DUI case, Judge Gordon Swanson wrote an opinion in September stating drunken driving is still illegal.

Tana Herrlein, 25, of Oacoma, was arrested in July for driving drunk. She told law enforcement she “had a lot of drinks,” according to court documents. Police were called to the scene of an accident around 2 a.m. July 14. A vehicle driven by Herrlein had somehow run up onto a large rock.

She refused to do field sobriety tests because she was too drunk and said she should “go to jail because of drinking and driving and crashing her car.”

Herrlein’s attorney, Theresa Maule, of Chamberlain, argued the drunken driving charge was illegal because of the Legislature’s repeal of SDCL 34-20A-95.

Judge Swanson did not agree.


In his opinion, Swanson said if the Legislature intended to eliminate DUI laws, it would have to notify the public “of the nullification and implied repeal of not only all of the state’s DUI laws, but also all other laws that have criminal or civil penalties that comfortably fall within the provisions of 34-20A-95. There was no such notice.”

He wrote that the Legislature’s intent was clear, and that it still intends to keep DUI laws in place because it worked to modify the remaining DUI laws in 2012 and 2013.

He also wrote that the state’s DUI statutes pertaining to alcohol “do not require ‘drinking,’ ‘drunkenness’ or ‘intoxication’ as elements of the offense.”

“Under the influence” language in SDCL 32-23-1 prohibits driving or being in control of a vehicle while drunk, not just the act of being drunk, he wrote.

Herrlein later pleaded guilty to first-offense DUI.

More recently, Whalen, of Lake Andes, argued Fischer cannot be charged with drunken driving or vehicular homicide.

Fischer, 29, also of Lake Andes, is accused of killing U.S. Fish and Wildlife Service employees Robert Klumb and Maegan Spindler, who were packing their boat in July when Fischer’s vehicle allegedly blew threw a stop sign and struck them. Investigators said Fischer was drunk at the time. 

Judge Bruce Anderson plans to issue a written opinion on Whalen’s argument.


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