The South Dakota Criminal Process — Step by Step

A criminal case in South Dakota moves through a series of stages from arrest to resolution. Understanding each stage — and the decisions that must be made at each one — helps you avoid the mistakes that can affect the outcome.

A criminal case begins with an arrest — either with a warrant issued by a judge based on probable cause, or without a warrant when an officer witnesses a crime or has probable cause to believe a Felony has been committed §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.

At the moment of arrest, your constitutional rights attach:

• You have the right to remain silent
• You have the right to an attorney
• Anything you say can and will be used against you

After arrest, you are booked (photographed, fingerprinted, personal information recorded) and brought before a judge or magistrate for an initial appearance.

At the initial appearance, the judge:

• Informs you of the charges
• Advises you of your rights, including the right to counsel
• Sets bail or conditions of release
• Appoints counsel if you cannot afford an attorney

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.

Bail is the mechanism that allows you to be released from custody while your case is pending. The amount and conditions are set by the judge based on:

• The seriousness of the charges
• Your criminal history
• Flight risk (ties to the community, employment, family)
• Public safety considerations

Violating bail conditions — including no-contact orders, curfews, drug/alcohol restrictions, or travel limitations — can result in immediate arrest and revocation of bail.

Depending on the charge and the jurisdiction, the next step may be a grand jury indictment or a preliminary hearing. Both serve to determine whether there is sufficient evidence (probable cause) to proceed with formal charges.

• [def:grand jury|Grand jury]: A group of citizens reviews evidence presented by the prosecution and decides whether to issue an indictment. The defense does not participate in grand jury proceedings.
• [def:preliminary hearing|Preliminary hearing]: A judge reviews evidence in an open hearing where the defense can cross-examine witnesses. This hearing may reveal the strength of the prosecution's case.

At Arraignment, the formal charges are read, and you enter a plea:

• Not guilty — Preserves all options and is the standard plea at this stage
• Guilty — Waives your right to trial and proceeds to sentencing

>Note: South Dakota does not allow nolo contendere (no contest) pleas.

After arraignment, both sides exchange evidence (discovery). The defense may file pretrial motions, including:

• Motion to suppress — Asking the court to exclude evidence obtained through illegal searches, coerced confessions, or other constitutional violations
• Motion to dismiss — Arguing that the charges should be dropped due to insufficient evidence, procedural defects, or violations of the defendant's rights
• Motion for change of venue — Requesting the trial be moved if pretrial publicity has made a fair trial impossible in the current jurisdiction

The vast majority of criminal cases — approximately 90-95% — resolve through plea negotiations rather than trial. Plea bargaining may result in:

• Reduced charges (e.g., felony reduced to misdemeanor)
• Dismissed counts (if multiple charges)
• Agreed-upon sentencing recommendations
• Diversion or deferred adjudication programs

A plea is a serious decision that should only be made after reviewing all the evidence and understanding the consequences. You have the right to reject any plea offer and proceed to trial.

If the case proceeds to trial, the prosecution must prove guilt beyond a reasonable doubt. In South Dakota, a criminal jury consists of 12 members who must reach a unanimous verdict.

The trial proceeds in this order:

If convicted — by plea or verdict — the court imposes a sentence within the statutory range for the offense classification. Sentencing may include:

• Incarceration (jail or prison depending on the offense level)
• Probation — Misdemeanor: up to 2 years; Felony: up to 5 years
• Fines and court costs §22-6-1 et seq.
• Restitution to victims
• Community service
• Mandatory programs (substance abuse, anger management, etc.)

South Dakota sets a specific 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.