VERMILLION — The South Dakota Supreme Court heard a Corsica man’s argument that he should have a preliminary hearing for a DUI charge that has the potential to turn into a felony as his third offense.
Chad Rus’ case was before the state’s high court on Monday morning at the Knutson School of Law at the University of South Dakota, as the Supreme Court opened its October term with oral arguments. The case stems from Aurora County, where he was initially charged with three misdemeanors in July 2019 for driving a motor vehicle while under the influence of an alcoholic beverage, reckless driving and failure to report an accident filed on July 11, 2019, with each as Class 1 misdemeanors. On Oct. 23, 2019, Rus pleaded not guilty to the initial three counts he faced.
The supplemental information carrying felony charges for third-offense DUI had not been filed until after Rus’ attorneys had requested a preliminary hearing in the case, which was turned down by First Circuit Court Judge Patrick Smith. Smith ruled that Rus was not entitled to a preliminary hearing in this instance because until the defendant is convicted of the initially charged DUI, he does not face the enhancement to a felony.
That decision is what was being appealed to the Supreme Court on Monday. According to South Dakota codified law, a preliminary hearing is entitled for defendants charged with a felony offense.
The court is considering whether a preliminary hearing is guaranteed when a defendant is charged with an offense punishable as a felony and whether denying a hearing when charged with an offense that can be punished as a felony deprives defendants a right of due process under the U.S. Constitution.
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Rus, 45, was arrested under what was labeled a felony warrant in Charles Mix County, and Rus’ attorneys said he was subjected to treatment on par with a felony by being led away from his job in handcuffs and conducting DNA sampling that is entered into a database for felony arrests.
Rus’ attorney, Bert Bucher, argued that for Rus to make a “knowing, intelligent, and voluntary plea of guilty or not guilty, the defendant must first be aware of the maximum possible penalties.” He said the state law needs to be interpreted as plainly as it is written.
“This was troubling enough to notice this defect and this defect that needs to be cured,” Bucher said. “Give the court a chance to cure that defect. Every accused person in the state receives statutory due process.”
The investigation included collecting video surveillance from the 281 Bar and the Stickney Elevator in Stickney to show when damage to Rus’ car had occurred, and law enforcement officers collected photographic evidence of the car on the day after the mailbox was hit.
Arguing for the state, Aurora County State’s Attorney Rachel Mairose said that the decision on a preliminary hearing should only be decided based on what is specifically before the court. Mairose said she was up front with the Rus’ attorneys that they planned on filing the supplemental information that would bring about the felony charge.
“My argument is based on the fact that when he asked for a preliminary hearing, he was only facing the initial complaint,” she said.
There was some disagreement on how supplemental information should be filed, with Mairose saying that her understanding is that it had to be done before a defendant is arraigned. Gilbertson, the 25-year veteran of the Supreme Court who will retire in January, said that in his trial lawyer history in the state’s Fifth Judicial District, judges had thrown out potential cases if all information was not filed simultaneously.
Rus has two prior DUI convictions in 2011 and 2016, with one of those taking place in Aurora County. Mairose said her job is to only worry about a conviction on the current DUI that the court is considering, in which Rus allegedly drank 10 beers at the 281 Bar in Stickney, and that she “didn’t want to convict him on his prior history. “
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A third offense DUI conviction in South Dakota carries a penalty of up to two years in the state penitentiary and a maximum fine of $4,000, along with the suspension of driving privileges for one year.
Mairose that the Legislature took out the right to some misdemeanors having preliminary hearings in 2013, when South Dakota passed criminal justice reform. That includes distinctions related to DUI.
“It was amended to take away rights,” Mairose said. “The Legislature could have made that distinction at that time. I think it’s telling that they chose not to.”
