What are the penalties for a felony in South Dakota?

Felony penalties in South Dakota range from 0–2 years for the lowest class to life imprisonment for the most serious [§ 22-6-1]. Fines, [def:probation], [def:restitution], and collateral consequences (employment, housing, civil rights) are additional.

Should I talk to the police before getting a lawyer?

No. You have the constitutional right to remain silent and to have an attorney present during questioning. Anything you say can and will be used against you. Politely invoke your rights: 'I am exercising my right to remain silent and I want to speak with an attorney.'

Does South Dakota have a speedy trial requirement?

Yes. South Dakota requires trial within 180 days under certain conditions. SDCL § 23A-44-5.1 requires every person indicted, informed, or complained against to be brought to trial within 180 days, and the period runs from the date the defendant first appeared before a judicial officer — no demand is required. Enumerated periods (defense motions and continuances, competency proceedings, defendant's unavailability, good-cause delays) are excluded. If the deadline passes, prejudice is presumed and the defendant is entitled to dismissal with prejudice unless the prosecutor rebuts the presumption.

What is the difference between a misdemeanor and a felony?

Felonies are more serious offenses carrying potential state prison time (over 1 year) [§ 22-6-1]. Misdemeanors carry county jail time (up to 1 year) [§ 22-6-2]. Felony convictions also carry greater collateral consequences — loss of voting rights, firearm restrictions, professional licensing barriers, and immigration consequences.

OverviewUpdated 2026-02-27

South Dakota Criminal Defense Guide — Charges & Process

Q: Can I get my criminal record expunged in South Dakota?

Yes, for eligible offenses [§ 23A-3-37 et seq.]. Waiting periods: 10 years from completion of sentence for eligible felonies; 5 years for misdemeanors; immediate for dismissed/acquitted charges. South Dakota enacted expungement reform in 2017. Non-violent felonies and misdemeanors eligible after waiting periods. Violent crimes and sex offenses excluded. Petition filed with the circuit court. Court weighs public interest and individual circumstances.

Charges, classifications, your rights, and the criminal process — what to know when facing criminal charges in South Dakota.

Jump to:

Drug Charges — Penalties & Defenses Assault & Domestic Violence Charges Theft & Property Crime — Charges & Penalties The South Dakota Criminal Process — Step by Step Your Rights in an South Dakota Criminal Case Expungement — How to Clear Your Record

From Arrest to Resolution

A criminal case moves through a series of stages — from arrest through resolution — and the decisions you make at each stage directly affect the outcome. The process may feel overwhelming, but it follows a predictable sequence. Understanding that sequence, and knowing where your rights apply, is the first step toward an effective defense. Below is the general path a criminal case follows, with the critical decision points that shape what happens next.

🚨

Arrest

rights attach here

🔒

Bail / Bond

release or detention

📜

Arraignment

charges & plea

🔍

Pretrial

motions & discovery

⚖️

Trial or Plea

negotiate or defend

🏛️

Sentencing

penalties determined

High-level illustration only. Every case is unique. Rights, procedures, and timelines vary by jurisdiction.

How South Dakota classifies criminal offenses §22-6-1

South Dakota divides criminal offenses into felonies and misdemeanors. The classification determines the maximum and minimum penalties a court may impose.

Felony classifications

Class A (death or life; no lesser sentence for adults) felony: varies to life, up to $50,000 fine - Class B (mandatory life for adults) felony: varies to life, up to $50,000 fine - Class C felony: varies to life, up to $50,000 fine - Class 1 felony: 0–50 years, up to $50,000 fine - Class 2 felony: 0–25 years, up to $50,000 fine - Class 3 felony: 0–15 years, up to $30,000 fine - Class 4 felony: 0–10 years, up to $20,000 fine - Class 5 felony: 0–5 years, up to $10,000 fine - Class 6 felony: 0–2 years, up to $4,000 fine

Misdemeanor classifications §22-6-2

Class 1 misdemeanor: up to 12 months, $2,000 fine - Class 2 misdemeanor: up to 1 months, $500 fine - Class Petty misdemeanor: up to 0 months, $500 fine

✓The classification of an offense determines not just the potential jail or prison time, but also fines §22-6-1 et seq., Probation length, and long-term consequences like employment restrictions and loss of civil rights.

Felony vs. Misdemeanor comparison

	Misdemeanor	Felony
Severity	Less serious offenses	More serious offenses
Incarceration	County jail (up to 1 year) §22-6-2	State prison (1 year or more) §22-6-1
Examples	Simple assault, petty theft, disorderly conduct	Aggravated assault, robbery, drug trafficking
Jury trial	12-member jury	12-member jury
Voting rights	Retained	Lost until restored
Firearm rights	Retained	Permanently prohibited §18 U.S.C. § 922
Employment impact	Moderate — visible on background checks	Severe — bars certain professions
Expungement	More offenses eligible §23A-3-37 et seq.	Fewer offenses eligible §23A-3-37 et seq.

The criminal process: arrest through resolution

Arrest

Law enforcement may arrest with or without a warrant §23A-3-2. Officers may arrest without a warrant for felonies on probable cause and for misdemeanors committed in their presence. SDCL § 23A-3-2 governs warrantless arrest. You have the right to remain silent and the right to an attorney from this point forward.

Bail and pretrial release

South Dakota Constitution Art. VI, § 8 makes all persons bailable by sufficient sureties, except for capital offenses when proof is evident or presumption great. Under SDCL § 23A-43-2, a defendant (other than one charged with an offense punishable by death or one currently released on a personal recognizance bond) is released on personal recognizance or an unsecured appearance bond. This applies unless the court finds that such release will not reasonably assure appearance or that the defendant may pose a danger to others or the community. In that case, § 23A-43-3 lets the court impose additional conditions, including an appearance bond, a bail bond with sufficient solvent sureties, or a cash deposit. §23A-43-2; §23A-43-3

Arraignment

The court formally presents charges, and the defendant enters a plea. Note: nolo contendere (no contest) pleas are NOT permitted in South Dakota.

Pretrial motions

The defense may file motions to suppress evidence, dismiss charges, or challenge procedures. This stage can determine the outcome of the case.

Trial or plea

Most criminal cases resolve through plea negotiations. If the case goes to trial, the state must prove guilt beyond a reasonable doubt to a 12-member jury that must reach a unanimous verdict.

Sentencing

If convicted, the judge imposes a sentence within the statutory range for the offense classification. Sentencing may include incarceration, Probation, fines, Restitution, and community service.

Your rights in a criminal case

Every person accused of a crime in South Dakota has constitutional protections:

Right to remain silent — You cannot be compelled to testify against yourself §U.S. Const. amend. V
Right to an attorney — If you cannot afford one, one will be appointed §23A-40-6 et seq.. South Dakota provides indigent defense through county-based public defender offices and appointed counsel systems. South Dakota Public Advocate oversees indigent capital defense.
Right to a speedy trial — South Dakota provides a specific speedy trial deadline: 180 days. SDCL § 23A-44-5.1 requires every person indicted, informed, or complained against to be brought to trial within 180 days, and the period runs from the date the defendant first appeared before a judicial officer — no demand is required. Enumerated periods (defense motions and continuances, competency proceedings, defendant's unavailability, good-cause delays) are excluded. If the deadline passes, prejudice is presumed and the defendant is entitled to dismissal with prejudice unless the prosecutor rebuts the presumption.
Presumption of innocence — The prosecution bears the entire burden of proof. You do not have to prove anything.
Right to confront witnesses — You may cross-examine every witness the state calls against you

After a conviction: what comes next

Probation in South Dakota: Misdemeanor: up to 2 years; Felony: up to 5 years.

Clearing your record

South Dakota does allow certain criminal records to be sealed or expunged §23A-3-37 et seq.. Waiting periods: 10 years from completion of sentence for eligible felonies; 5 years for misdemeanors; immediate for dismissed/acquitted charges. South Dakota enacted expungement reform in 2017. Non-violent felonies and misdemeanors eligible after waiting periods. Violent crimes and sex offenses excluded. Petition filed with the circuit court. Court weighs public interest and individual circumstances.

Common offense categories

Drug offenses

Possession, distribution, and trafficking carry penalties that vary dramatically by substance and amount §22-42-5. Marijuana possession: Misdemeanor 1 (2 oz or less, §22-42-6); Felony (over 2 oz or any Schedule I/II distribution); medical marijuana legal under Amendment A (2020).

Assault and domestic violence

Ranges from Misdemeanor simple assault to Felony aggravated assault §22-18-1 et seq.. Domestic violence offenses carry additional consequences including protective orders §25-10-1 et seq..

Theft and property crimes

Classification depends on the value of property taken. Felony threshold: Over $1,000 (Class 6 felony for more than $1,000 through $2,500; theft of a firearm, property taken from the person of another, or livestock valued at $2,500 or less is also a Class 6 felony, §22-30A-17).

⚠If you have been arrested or charged, your early decisions can affect the outcome. Exercise your right to remain silent §U.S. Const. amend. V and request an attorney §U.S. Const. amend. VI before answering questions.

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