Title 23A — CRIMINAL PROCEDURE

This title governs the procedure to be used in the courts of this state in any: (1) Criminal proceeding; and (2) Prosecution for the violation of an ordinance, resolution, or the bylaws of a unit of local government of this state, which authorizes a criminal penalty. Source: SL 1…

This title is intended to provide for the just determination of every criminal proceeding. It shall be construed to secure simplicity in procedure, fairness in administration, and the elimination of unjustifiable expense and delay. Source: SL 1978, ch 178 , § 2.

A warrant issued for a felony may be executed on any day, at any time of the day or night. A warrant issued for a misdemeanor shall not be executed at night unless an authorization for a night arrest is endorsed upon the warrant by the committing magistrate. Source: CCrimP 1877, …

No warrant of arrest may be issued against a corporation. A summons directed to a corporation shall be served at least five days before the day of appearance fixed therein by delivering it to the president or other head of the corporation, or to its secretary, treasurer, managing…

The law enforcement officer executing a warrant shall make return thereof to the committing magistrate before whom the defendant is brought pursuant to §

If it appears from a complaint, or from an affidavit or affidavits filed with a complaint, that there is probable cause to believe that an offense has been committed and that a particular person has committed it, a warrant for the arrest of that person, if requested by the prosec…

The finding of probable cause for the issuance of a summons or warrant of arrest may be based upon hearsay evidence in whole or in part. The committing magistrate may require nonhearsay evidence to be submitted prior to the issuance of a summons or warrant of arrest. Source: SL 1…

A copy or an abstract of a warrant containing the information required by § 23A-2-4 may be sent by any means to one or more law enforcement officers. Such copy shall confer the same authority to any law enforcement officer within his jurisdiction as the original warrant. Source: …

A committing magistrate may, by means of facsimile transmission, receive a complaint or indictment in request of the issuance of an arrest warrant and may issue an arrest warrant by the same method. All applicable procedural and statutory requirements for the issuance of an arres…

A summons shall be in the same form as a warrant of arrest except that it shall summon the defendant to appear before a committing magistrate at a stated time and place. In addition, a summons shall state that if the defendant does not appear, a warrant will be issued for his arr…

A warrant or summons shall be executed by any law enforcement officer who is authorized by law to execute the same. This section shall not be construed to extend the territorial jurisdiction of any law enforcement officer. Source: SL 1978, ch 178 , § 10.

A warrant is executed by the arrest of the defendant. A law enforcement officer need not have the warrant in his possession at the time of the arrest, but upon request he shall show the warrant to the defendant as soon as possible. If the law enforcement officer does not have the…

Source: SL 1978, ch 178 , § 20; SL 1979, ch 159 , § 1B.

An arrest is the taking of a person into custody so that he may be held to answer for the alleged commission of a public offense. Source: SDC 1939 & Supp 1960, § 34.1601; SDCL, § 23-22-1; SL 1978, ch 178 , § 14.

Any member of a duly organized state, county, or municipal law enforcing unit of another state of the United States who enters this state in fresh pursuit, and continues within this state in such fresh pursuit, of a person in order to arrest the person on the ground that the pers…

Neither § 23A-3-9 nor 23A-3-10 shall be construed so as to make unlawful any arrest in this state which would otherwise be lawful. Source: SL 1939, ch 139 , §§ 1, 3; SDC Supp 1960, §§ 34.16B01, 34.16B03; SDCL, § 23-23-4; SL 1978, ch 178 , § 25.

If an arrest is made in this state by an officer of another state in accordance with the provisions of § 23A-3-9 or 23A-3-10 , the officer shall without unnecessary delay take the person arrested before a magistrate of the county in which the arrest was made, who shall conduct a …

For the purposes of §§ 23A-3-9 to 23A-3-15 , inclusive, the word "state" shall include the District of Columbia. Source: SL 1939, ch 139 , § 4; SDC Supp 1960, § 34.16B04; SDCL, § 23-23-3; SL 1978, ch 178 , § 26.

The term "fresh pursuit" as used in §§ 23A-3-10 to 23A-3-14 , inclusive, shall include fresh pursuit as defined by the common law, and also the pursuit of a person who has committed a felony or who is reasonably suspected of having committed a felony. It shall also include the pu…

Sections 23A-3-10 to 23A-3-14 , inclusive, may be cited as the Uniform Act on Interstate Fresh Pursuit. Source: SL 1978, ch 178 , § 29.

Any law enforcement officer of this state in fresh pursuit of a person who has committed a misdemeanor in the presence of the law enforcement officer shall have authority to arrest and hold in custody such person anywhere in this state. This section shall not make unlawful an arr…

Any law enforcement officer of this state in fresh pursuit of a person who is reasonably believed by him to have committed a felony in this state shall have the authority to arrest and hold in custody such person anywhere in this state. This section shall not make unlawful an arr…

If an arrest under § 23A-3-17 is made in obedience to a warrant, the disposition of the prisoner shall be as in other cases of arrest under a warrant; if the arrest is without a warrant, the prisoner shall without unnecessary delay be taken before a magistrate of the county where…

The term "fresh pursuit" as used in §§ 23A-3-17 to 23A-3-19 , inclusive, shall include fresh pursuit as defined by the common law and also the pursuit of a person who has committed a felony or who is reasonably suspected of having committed a felony in this state. It shall also i…

A law enforcement officer may, without a warrant, arrest a person: (1) For a public offense, other than a petty offense, committed or attempted in his presence; or (2) Upon probable cause that a felony or Class 1 misdemeanor has been committed and the person arrested committed it…

Unless the provisions of § 22-18-5 apply, a law enforcement officer shall arrest and take into custody, pending release on bail, personal recognizance, or court order, any person, without a warrant, at any time that the opportunity presents itself, if the officer has probable cau…

23A-3-4 Advice as to authority and cause of arrest without warrant. 23A-3-5 Manner of making arrest--Physical restraint--Weapons and contraband property--Breaking structure to make arrest. 23A-3-6 Aid to law enforcement officer on request. 23A-3-7 Restriction on place of arrest f…

Sections 23A-3-17 to 23A-3-19 , inclusive, may be called the "Uniform Law on Intrastate Fresh Pursuit." Source: SL 1941, ch 153 , § 5; SDC Supp 1960, § 34.16A01; SDCL, § 23-22-41; SL 1978, ch 178 , § 35. 23A-3-21. Transferred to § 25-10-36 23A-3-22, 23A-3-23. Transferred to §§ 25…

Transferred to §§ 25-10-38 , 25-10-39 23A-3-24 Federal law enforcement officer defined. 23A-3-25 Authority of federal law enforcement officer. 23A-3-26 Definition of expungement. 23A-3-27 Motion for expungement of arrest record. 23A-3-28 Service of motion--Fee. 23A-3-29 Hearing o…

For the purposes of § 23A-3-25 , the term, federal law enforcement officer, means any officer or employee of the Federal Bureau of Investigation, the Drug Enforcement Administration, the United States Marshall Service, the Internal Revenue Service, the Secret Service, the Bureau …

Any federal law enforcement officer holds the same authority as a state or local law enforcement officer in this state when making an arrest for a nonfederal crime under any of the following circumstances: (1) The officer has reasonable grounds to believe that a state felony has …

Terms used in §§ 23A-3-27 to 23A-3-33 , inclusive, mean: (1) "Expungement," the sealing of all records on file within any court, detention or correctional facility, law enforcement agency, criminal justice agency, or Department of Public Safety concerning a person's detection, ap…

An arrested person may apply to the court that would have jurisdiction over the crime for which the person was arrested, for entry of an order expunging the record of the arrest: (1) After one year from the date of any arrest, if no accusatory instrument was filed; (2) After one …

At least fourteen days before any hearing on a motion for expungement, a copy of the motion shall be served upon the office of the prosecuting attorney who prosecuted the crime or violation, or who had authority to prosecute the charge if there was no accusatory instrument filed.…

The court may fix a time and place for a hearing on the motion unless waived by the defendant, arrested person, prosecuting attorney, and victim. The court may require the filing of such affidavits and may require the taking of such evidence as it deems proper. Source: SL 2010, c…

Any person may arrest another: (1) For a public offense, other than a petty offense, committed or attempted in his presence; or (2) For a felony which has been in fact committed although not in his presence, if he has probable cause to believe the person to be arrested committed …

The court may enter an order of expungement upon a showing by the defendant or the arrested person by clear and convincing evidence that the ends of justice and the best interest of the public as well as the defendant or the arrested person will be served by the entry of the orde…

Any order of expungement shall be reported to the Division of Criminal Investigation pursuant to chapters 23-5 and 23-6 . The court shall forward a nonpublic record of disposition to the Division of Criminal Investigation which shall be retained solely for use by law enforcement …

The effect of an order of expungement is to restore the defendant or arrested person, in the contemplation of the law, to the status the person occupied before the person's arrest or indictment or information. No person as to whom an order of expungement has been entered shall be…

A court may issue an order of expungement for arrests that occurred before, as well as those that occurred after, July 1, 2010. There is no statute of limitation for making an application. Source: SL 2010, ch 126 , § 8.

Any charge or conviction resulting from a case where a petty offense, municipal ordinance violation, or a Class 2 misdemeanor was the highest charged offense shall be automatically removed from a defendant's public record after five years if all court-ordered conditions on the ca…

If an arrested person is placed in a diversion program, the person is eligible for an expungement of the entire criminal record related to that arrest if: (1) The person has successfully completed all the terms of the diversion program; and (2) The person has not been charged wit…

If the requirements of § 23A-3-35 have been met, the state's attorney shall file a dismissal of all the charges related to that arrest and a notice of completion of the diversion program by the arrested person. Source: SL 2018, ch 143 , § 2.

Upon the filing of the dismissal and notice of completion of the diversion program, the court shall grant the expungement without the filing of a motion or any further action by the court. Source: SL 2018, ch 143 , § 3.

When arresting a person without a warrant, the person making the arrest must inform the person to be arrested of his authority and the cause of the arrest, and require him to submit, except when the person to be arrested is engaged in the actual commission of an offense or when h…

An arrest is made by an actual or attempted restraint of the person arrested or by his submission to the custody of the person making the arrest. No person shall subject an arrested person to more physical restraint than is reasonably necessary to effect the arrest. Any person ma…

Every person must aid a law enforcement officer in making an arrest if the officer requests his aid. Source: SDC 1939 & Supp 1960, § 34.1601; SDCL, § 23-22-3; SL 1978, ch 178 , § 19.

No arrest for the violation of an ordinance or bylaw of any unit of local government may be made beyond the territorial jurisdiction of that unit of local government, except as otherwise provided in §

When money or property, other than that seized pursuant to chapters 23A-35 to 23A-37 , inclusive, is taken from a defendant arrested upon a charge of having committed a public offense, the law enforcement officer taking it must, at the time, make duplicate receipts therefor, spec…

Any member of a duly organized state, county, or municipal law enforcing unit of another state of the United States who enters this state in fresh pursuit, and continues within this state in such fresh pursuit, of a person in order to arrest the person on the ground that the pers…