CHAPTER 169

(SB 1)

Driving under the influence, mandatory withdrawal of
bodily substances after arrest.


         ENTITLED, An Act to  provide for the mandatory withdrawal of blood or other bodily substances subsequent to arrest for driving while under influence.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA:

     Section  1.  That § 32-23-10 be amended to read as follows:

     32-23-10.   Any person who operates any vehicle in this state is considered to have given consent to the withdrawal of blood or other bodily substance and chemical analysis of the person's blood, breath, or other bodily substance to determine the amount of alcohol in the person's blood and to determine the presence of marijuana or any controlled drug or substance or any substance ingested, inhaled, or otherwise taken into the body as prohibited by §  22-42-15 or any other substance that may render a person incapable of safely driving. The arresting law enforcement officer may, subsequent to the arrest of any operator for a violation of §  32-23-1, require the operator to submit to the withdrawal of blood or other bodily substances as evidence .

     The person shall be requested by the officer to submit to the withdrawal of blood or other bodily substance for chemical analysis or chemical analysis of the person's breath and shall be advised by the officer that:

             (1)      If the person refuses to submit to the withdrawal or chemical analysis, no withdrawal or chemical analysis may be required unless the person has been arrested for a third, fourth, or subsequent violation of §  32-23-1, constituting a felony offense under § 32- 23-4 or 32-23-4.6; has been arrested for vehicular homicide under § 22-16-41 or vehicular battery under § 22-16-42; or has been involved in an accident resulting in death or serious bodily injury of another person;

             (2)      If the person refuses to submit to the withdrawal or chemical analysis, the person's driver's license shall be revoked for one year, unless pursuant to § 32-23-11.1 the person pleads guilty to a violation of § 32-23-1 or 32-23-21, prior to a revocation order being issued; and

             (3)      The person has the right to have a chemical analysis performed by a technician of the person's own choosing at the person's own expense, in addition to the test requested by the officer.

     Section  2.  That § 32-23-15 be amended to read as follows:
     32-23-15.   The Any person tested pursuant to §§  32-23-13 32-23-10 and 32-23-14 shall be permitted to have a physician, laboratory technician, registered nurse, physician's assistant, or medical technologist of his the person's own choosing administer the chemical analysis in addition to the one administered at the direction of the law enforcement officer.

     Section  3.  That § 32-23-16 be amended to read as follows:

     32-23-16.   Upon the request of the any person who was tested pursuant to §§  32-23-13 32-23-10 and 32-23-14, or upon the request of his the person's attorney, the results of such analysis shall be made available to him the person or to his the person's attorney.

     Section  4.  That § 32-23-14 be amended to read as follows:

     32-23-14.   Only a physician, laboratory technician, registered nurse, physician's assistant, phlebotomist, expanded role licensed practical nurse, medical technician, or medical technologist may withdraw blood for the purpose of determining the alcoholic content therein. This limitation does not apply to the taking of a breath or other bodily substance specimen. Such authorized persons, acting on the presumption of consent in §  32-23-10 , and any hospital or facility employing such persons, are not liable and may not be held to pay damages to the party from whom the blood sample is withdrawn, if the withdrawal is administered with usual and ordinary care. No person authorized to withdraw blood under this section may be required or forced to withdraw blood for the purposes outlined in this chapter, unless required pursuant to a written agreement.

     Signed March 10, 2006
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