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Drug Possession Charges in South Dakota: What You Need to Know


Drug possession charges can have a long-term impact on your life, especially regarding employment. Drug charges in South Dakota can also carry jail time, so knowing what your risks are is important when determining a defense strategy. 

At Alvine Law Firm, we represent clients facing all types of drug possession charges, and we work tirelessly to ensure that you are given a fair trial. Our lawyers in Sioux Falls offer representation for DUI and drug charges If you have been arrested, reach out to us to schedule a free consultation with an attorney.

What Happens if You Are Arrested for Drug Possession in South Dakota 

The arresting officer will read you your rights, which are there to protect you and ensure you get the strongest defense possible. One of your rights is the right to remain silent, which you can enact after acknowledging you understand the rights you’ve been given. Then, you can consult with a lawyer or choose not to answer any legal questions without an attorney present. 

Common practice is to say, “I want an attorney,” or “I am exercising my right to silence.” Then, you can connect with a lawyer and consult with them to avoid saying anything that could be damaging to your case.

After being arrested, you will be booked at the police station and wait to be seen by a judge. The judge will read you your charges and arrange a time for your trial. Drug charges vary greatly in South Dakota, so the type of substance you were carrying and the quantity will play a role in determining the potential consequences. 

South Dakota Drug Possession Laws

South Dakota drug laws outline the guidelines and sentencing for individuals who are arrested and charged with possession of controlled substances and/or marijuana. Controlled substances are classified by schedules ranging from schedule I to IV. These include:

  • Schedule I: Drugs with a high potential for abuse that are not accepted for medical purposes in the U.S., such as heroin, LSD, ecstasy, and peyote. 
  • Schedule II: Drugs with a high potential for abuse and the risk of severe physical or psychological side effects. Examples include combination products with 15 or fewer milligrams of hydrocodone, cocaine, oxycodone, Adderall, and Ritalin. 
  • Schedule III: Drugs or substances that have a moderate or low risk of abuse and a low risk of dependence, such as fewer than 90 mg of codeine, ketamine, anabolic steroids, and testosterone. 
  • Schedule IV: Drugs with a low potential of abuse and dependency, including Xanax, Valium, and Ativan. 

Drugs in Schedule II, III, or IV can only be distributed for medical purposes (South Dakota Codified Law 22-42-4.2). 

Marijuana possession is illegal in South Dakota. Carrying 2 ounces or less of marijuana is a Class 1 misdemeanor; over 2 ounces but under half a pound is a Class 6 felony. It is a Class 5 felony to possess over one-half but less than 1 pound of marijuana, and a Class 4 felony to have 1 to 10 pounds of marijuana in South Dakota (South Dakota Codified Law 22-42-6). 

Possession vs. Possession With Intent to Distribute

Possessing drugs for your own use is not the same as possessing drugs with the intention to sell or distribute them. The latter carries a higher possible sentence and more severe charge. 

There are also different types of possession. You can be charged with individual possession, in which case the drugs were found on you (such as in your pockets) or constructive possession, where the drugs are somewhere within your control, like your vehicle or home. 

Penalties for Drug Possession in South Dakota 

Carrying drugs and being arrested for possession can have serious consequences, including up to 2 years in jail and a $40,000 fine. The exact penalty will vary based on the type of drug(s) in your possession and whether or not you are charged with intent to distribute. 

Here is a breakdown of potential sentencing and consequences:

  • Unlawful possession of a Schedule I or II drug is a Class 5 felony punishable by up to 5 years in prison and a $10,000 fine.
  • Unlawful possession of a Schedule III or IV drug is Class 6 felony with a maximum sentence of 2 years in prison and a $4,000 fine. 
  • Possession of marijuana is sentenced based on the quantity; felony charges range from 2 to 15 years in prison and fines ranging between $4,000 to $30,000. A Class 1 misdemeanor carries a maximum sentence of 1 year in prison and a $2,000 fine. If you have 1 pound or more, then you could face up to 15 years in prison, a $10,000 fine, or both. 

Factors Influencing the Severity of Penalties 

There are three factors that can influence the amount of jail time someone can face and the fines they may have to pay. These are:

  • The quantity of drugs you have at the time of arrest. 
  • The presence of minors at the scene.
  • Prior convictions for drug possession. 

Distributing drugs to minors is a Class 2 felony and carries a mandatory sentence in a state correctional facility for up to 1 year (South Dakota Codified Law 22-42-2). Being arrested for possession of drugs after prior convictions can also increase your maximum sentence. 

If you are found in possession of drugs, consulting with an attorney can be valuable. They can help you understand your charges, potential sentences, and build a strong defense. Contact Alvine Law Firm in Sioux Falls, SD, to speak with one of our attorneys. Your first consultation is always free — call 605-275-0808

Defenses Against Drug Possession Charges

Drug charge defense can be challenging, but there are potential avenues to explore with an experienced attorney. These include:

Challenge the Legality of the Search and Seizure

You could argue that law enforcement conducted an unlawful search of your person, vehicle, or property. If this is true, any evidence obtained could be inadmissible in court. For example, searches conducted without probable cause or a warrant could be argued as a violation of your rights.

Argue Lack of Knowledge or Control Over the Substance

You may be able to argue that you were unaware of the presence of drugs or you had no control over them being present. If you had friends or other people place drugs on your person or store them in your vehicle, then you could argue that this was not within your knowledge or control.

Prove the Substance Is Not a Controlled Drug

This defense can be much more complicated, but it involves disputing the nature of the substance in question. For example, if you were found with herbal supplements but have been charged with possession of marijuana or other drugs, you could challenge the charges by presenting expert testimony or drug tests to verify the nature of the substances in question.

Don’t Let Drug Charges Ruin Your Life

You can consult with an experienced criminal defense lawyer in Sioux Falls, SD, to help you fight drug charges. Alvine Law Firm has years of experience defending clients in a wide range of cases, from misdemeanors to capital charges. 

Please call us at 605-275-0808 or contact us online to arrange a free consultation. 

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