Title 23A — CRIMINAL PROCEDURE
59 chapters · 948 sections in this title.
SDCL § 23A-35A-7 Contents of order
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Each order authorizing the interception of any wire, electronic, or oral communication shall specify: (1) The identity of the person, if known, whose communications are to be intercepted; (2) The nature and location of the communications facilities as to which, or the place where…
SDCL § 23A-35A-8 Cooperation and technical assistance required of carriers, landlords, and others--Compensation
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Any order authorizing wiretapping or eavesdropping shall, upon the request of the applicant, direct that the common carrier, landlords, custodians, or other persons furnish the applicant forthwith all information, facilities, and technical assistance necessary to accomplish the i…
SDCL § 23A-35A-9 Progress reports to issuing judge
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The order may require written reports to be made to the issuing judge at specified intervals showing the progress made toward achieving the authorized objective and the need for continued interception. Source: SL 1980, ch 181 , § 19.
SDCL § 23A-35B-1 Definitions
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Terms used in this chapter mean: (1) "Assault," an offense described in § 22-18-1 , in which the facts show a possibility of exchange of bodily fluids; (2) "Blood-borne pathogens," any of a family of pathogenic micro-organisms that are present in and may be transmitted by human b…
SDCL § 23A-35B-10 Convicted person to pay cost of testing
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The court shall order the convicted person to pay the cost of the testing. The cost shall be treated as any other court cost or fine under chapter 23A-27 . If the person tested is an inmate under the jurisdiction of the Department of Corrections, the cost of testing shall be take…
SDCL § 23A-35B-11 Confidentiality of test results
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The final test results shall be reported to the person tested along with precautionary, medical care, and counseling information. Except as provided in § 23A-35B-12 , the results of the test shall remain confidential. Source: SL 2012, ch 134 , § 4.
SDCL § 23A-35B-12 Petition for release of test results--Hearing
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Any person who may have had sexual relations with or otherwise exchanged bodily fluids with the tested person may petition the court to receive the results of the HIV test. The petition shall state that the petitioner believes there was an exchange of blood, semen, or other bodil…
SDCL § 23A-35B-13 Test results not to be used in criminal prosecution--Confidentiality
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The results of the test may not be used as evidence in any criminal prosecution. All persons involved in carrying out the provisions of §§ 23A-35B-8 to 23A-35B-12 , inclusive, shall act in a manner that will protect the confidentiality of the petitioner and the person tested, inc…
SDCL § 23A-35B-2 Victim's request for testing of self
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A victim may request that the Department of Health provide counseling, testing for infection by blood - borne pathogens, and referral for appropriate health care and support services to the victim through its public health services. Such referral does not include any requirement …
SDCL § 23A-35B-3 Victim's request for testing of defendant or juvenile--Hearing--Search warrant for blood sample--Time for testing
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A victim or a law enforcement officer may request in writing to the state's attorney that the defendant or the juvenile be tested for blood-borne pathogen infection by the Department of Health and that a search warrant be obtained for the purpose of taking a blood sample from the…
SDCL § 23A-35B-3.1 SDCL 23A-35B-3.1
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A request under this section shall state that the victim believes there was an exchange of blood, semen, or other bodily fluids from the defendant or juvenile to the victim, and shall state the factual basis for believing the exchange occurred. Upon motion, a court of competent j…
SDCL § 23A-35B-4 Testing procedure--Notification of victim as to results--Payment for testing
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A health professional licensed or certified to do so shall take the blood samples required for testing for blood - borne pathogen infection and forward them to the Department of Health for testing. The testing shall take place under a test protocol determined by the Department of…
SDCL § 23A-35B-5 Confidentiality--Test results unavailable to establish guilt or innocence
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All persons involved in carrying out the provisions of this chapter shall act in a manner that will protect the confidentiality of the victim, the source individual, and the defendant or juvenile, including sealing relevant court records. The results of the test for infection by …
SDCL § 23A-35B-6 Testing or counseling for officer upon possible exchange of bodily fluids with suspect
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Any law enforcement officer who has reason to believe that in a crime of violence case, an assault, a violation of chapter 32-23 or a case of resisting arrest, or in an equivalent juvenile delinquency adjudication, there may have been an exchange of blood or other bodily fluids f…
SDCL § 23A-35B-7 Emergency medical services person's request for information or testing of source individual
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An emergency medical services person who is a victim may request in writing to the source individual, or if the source individual is deceased, to a relative of the source individual or to the source individual's estate, for medical records or information concerning blood-borne pa…
SDCL § 23A-35B-8 Mandatory HIV testing of persons convicted of prostitution or solicitation of prostitution
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Any person convicted of prostitution or solicitation of prostitution shall be required, with or without that person's consent, to undergo a standard diagnostic test for human immunodeficiency virus (HIV) under the testing protocol of the Department of Health. Source: SL 2012, ch …
SDCL § 23A-35B-9 Time for HIV testing
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After conviction, but prior to sentencing, the court shall order the convicted person to submit to an HIV test and shall issue a warrant to collect a blood sample from that person. A health professional licensed or certified to do so shall take the blood samples required for test…
However, a court order sealing a supporting affidavit may not affect the right of any defendant to discover the contents of the affidavit under chapter 23A-13
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Source: SL 1987, ch 180 ; SL 2011, ch 124 , § 2.
SDCL § 23A-36-1 Determination by magistrate whether probable cause exists for search warrant--Notice of hearing to person in possession
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Upon the filing of an affidavit for a search warrant to search for obscene material, the magistrate shall determine, by examination of the matter sought to be seized, if attached, by an examination of the affidavit describing the matter, or by such other manner or means that he d…
SDCL § 23A-36-10 Order for destruction of obscene material seized
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Upon the conviction of the accused, the court may, when the conviction becomes final, order any matter in respect whereof the accused stands convicted, and which remains in the possession or under the control of the prosecuting attorney or any law enforcement agency, to be destro…
SDCL § 23A-36-2 Hearing on search warrant for obscene material--Evidence received
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The hearing on the affidavit for the issuance of a search warrant shall be at such time and upon such reasonable notice given in such manner as the magistrate may direct. The magistrate's order as to notice and hearing shall give the adverse party the right to appear and produce …
SDCL § 23A-36-3 Magistrate's orders to prevent removal of material pending hearing
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The magistrate shall further have authority to render such orders as are reasonable and necessary, to protect the court's jurisdiction over the matter described in the affidavit for a search warrant and may issue orders requiring that the matter not be removed from its location a…
SDCL § 23A-36-4 Hearing on obscenity or nonobscenity of material--Determination of probable cause for search warrant
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At the time of the hearing on the issuance of a search warrant, the magistrate shall hear evidence concerning the obscenity of the matter and shall examine the matter or any copy of the same, if produced in court, and shall afford any person in possession of the matter sought to …
SDCL § 23A-36-5 Issuance of search warrant on finding of probable cause
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If the magistrate finds that probable cause exists to believe that the matter is obscene and that probable cause exists for the immediate issuance of a search warrant, then he shall issue a search warrant ordering the seizure of the matter described in the affidavit for a search …
SDCL § 23A-36-6 Notice alleging nonobscenity of material seized--Time of hearing
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In the event that a search warrant is issued and matter alleged to be obscene is seized, any person alleged to be in possession of the matter or claiming ownership of the matter at the time of its possession or seizure may file a notice in writing with the magistrate within ten d…
SDCL § 23A-36-7 Hearing on obscenity of material seized--Return to owner if not obscene
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At a hearing pursuant to § 23A-36-6 , evidence may be presented as to the obscenity or nonobscenity of the matter seized and at the conclusion of such additional hearing, the magistrate shall make a further determination of whether probable cause exists to believe that the matter…
SDCL § 23A-36-8 Expert testimony not required in obscenity hearing--Evidence of community standards
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In the prosecution for a violation of the provisions of this chapter, neither the prosecution nor the defense shall be required to introduce expert witness testimony concerning the obscene or harmful character of the matter which is the subject of any such prosecution. Any eviden…
SDCL § 23A-36-9 Verdict on obscenity of material seized
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The jury, or the court, if a jury trial is waived, shall render a general verdict. In the verdict that is rendered, a determination as to whether the material is obscene shall also be made. Source: SL 1968, ch 29 , § 8; SDCL Supp, § 22-24-18; SL 1974, ch 165 , § 4; SDCL Supp, § 2…
SDCL 16-2-28
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Source: SL 1978, ch 178 , § 469; SL 1982, ch 170 , §§ 1 and 3.
SDCL § 23A-37-1 Property subject to chapter
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For the purposes of this chapter, "seized property" means all property seized with or without a warrant by any law enforcement officer. Source: SL 1978, ch 178 , § 462.
SDCL § 23A-37-10 Sale or transfer of unclaimed property
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If there is no claimant or if the right to possession of seized property cannot be determined after a reasonable period of time, the law enforcement agency collecting such property, through an order of the court, may: (1) Transfer ownership of the property to any governmental age…
SDCL § 23A-37-11 Controlled substances exempt from chapter
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Chapter 34-20B is specifically exempted from this chapter. Source: SL 1978, ch 178 , § 471.
SDCL § 23A-37-12 Chapter supplemental--Disposition as directed by court
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The provisions of this chapter shall not be exclusive, but shall be supplemental to other laws on the subject. Unless otherwise provided by law, all other property shall be disposed of in such manner as the court shall direct. Source: SL 1978, ch 178 , § 471.
SDCL § 23A-37-13 Controlled weapons and firearms disposal
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Any controlled weapon or firearm used in violation of chapter 22-14 shall be disposed of as follows: (1) If it is stolen, it shall be returned to the lawful owner upon proof of ownership; (2) If it is illegal, it shall be destroyed pursuant to law; or (3) If it is neither stolen …
SDCL § 23A-37-13.1 Money from sale to be deposited in law enforcement officers training fund
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Any moneys derived by the South Dakota Forensic Laboratory from the sale of weapons or firearms pursuant to § 23A-37-13 shall be deposited in the law enforcement officers training fund. Source: SL 2006, ch 137 , § 2.
SDCL § 23A-37-14 Photographing and return of property of victim seized as evidence--Admissibility of photographs
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Any property, which is not contraband, seized or confiscated by law enforcement personnel, ostensibly for use as evidence in a criminal prosecution, shall be preserved, maintained, or stored at the expense of the county where the criminal offense occurred. If the property is not …
SDCL § 23A-37-15 Notice to defendant of return--Motion not to release
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Before any property is returned to the owner pursuant to § 23A-37-14 , the law enforcement personnel in possession of the property shall notify the defendant that the property will be returned to the owner. Upon a motion made by the defendant and upon good cause shown that the pr…
SDCL § 23A-37-2 Safekeeping of seized property
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Seized property shall be safely kept and may not be taken from its custodian as long as it is required as evidence in any trial without an order of such court. Source: SL 1978, ch 178 , § 463.
SDCL § 23A-37-3 Transfer to another court of property required as evidence
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Where seized property is no longer required as evidence the court may transfer such property to the jurisdiction of any other court, including courts of another state or federal courts, where it is shown to the satisfaction of the court that such property is required as evidence …
SDCL § 23A-37-4 Application for return of property to person with right to possession
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Any person claiming the right to possession of such property may make application for its return in the office of the clerk of courts for the county in which it is being held. An application for the return of real property may be made within thirty days of the seizure of such rea…
SDCL § 23A-37-5 Time of hearing on claim for return of seized property
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All claims for the return of seized property shall be set for a hearing which shall be held not less than five nor more than thirty days after the filing of the first claim. Source: SL 1978, ch 178 , § 467.
SDCL § 23A-37-6 Notice of hearing on disposition of seized property
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The clerk of courts shall issue a notice of a hearing containing a reasonable description of the property and the time, place, and cause of its seizure. Such notice shall be reasonably calculated to apprise the affected person of the pendency of the hearing. Source: SL 1978, ch 1…
SDCL § 23A-37-7 Money restored to owner--Gambling money paid into county treasury
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Money shall be restored to the owner unless it was used in unlawful gambling or lotteries in which case it shall be paid into the county treasury pursuant to §
SDCL § 23A-37-8 Conditions for release of seized property to owner
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The court shall release all property to its rightful owner, if: (1) The owner is not prohibited by law from possessing such property; (2) The property is not needed as evidence in any judicial proceeding; (3) Satisfactory arrangements have been made to return such property to the…
SDCL § 23A-38-1 (Rule 42(a)) Summary punishment of contempt in presence of court--Contents and signature of order--Maximum punishment
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Criminal contempt may be punished summarily if a judge or magistrate judge certifies that he saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the court. An order of contempt shall recite the facts and shall be signed by the ju…
SDCL § 23A-38-10 Service of prisoner's sentence tolled for refusal to testify in certain proceedings--Prisoner defined
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If a prisoner is confined for contempt pursuant to § 23A-38-1 , 23A-38-2 , or 23A-38-5 for refusal, without just cause, to comply with an order to testify or provide other information in a proceeding before a court or grand jury, the period during which the prisoner remains in co…
(Rule 42(b)) Notice and hearing on criminal contempt out of presence of court--Disqualification of judge--Jury trial--Punishment as misdemeanor
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Criminal contempt, except as provided in § 23A-38-1 , shall be prosecuted after notice is given to the defendant. The notice shall state the time and place of hearing, allowing a reasonable time for the preparation of the defense, and shall state the essential facts constituting …
SDCL § 23A-38-3 Order to witness before grand jury to show cause against contempt
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Whenever a witness in any proceeding before a grand jury of this state refuses without just cause to comply with an order to testify or provide other information, the prosecuting attorney may apply to the court for an order directing the witness to show cause why the witness shou…
SDCL § 23A-38-4 Notice of hearing on contempt by grand jury witness
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No hearing under § 23A-38-3 shall be held unless seventy - two hours' notice is given to the witness who has refused to comply with the court order, except that a witness may be given a shorter notice if the court, upon a showing of special need, so orders. Source: SL 1978, ch 17…
SDCL § 23A-38-5 Order holding grand jury witness in contempt
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After submission of an application pursuant to § 23A-38-3 , and a hearing, at which the witness is entitled to be represented by counsel, the court may, upon a finding that such refusal was without just cause, hold the witness in contempt as provided in §