South Dakota Implied Consent Law: What Happens If You Refuse a Breathalyzer

You can technically refuse a breathalyzer in South Dakota. Nobody will physically force the device into your mouth. But the consequences of refusal are severe and often worse than the consequences of a failed test — and they arrive on a completely separate track from your criminal case.

How Implied Consent Works in South Dakota

By driving on South Dakota roads, you've already consented to a chemical test of your blood, breath, or urine if an officer has probable cause to believe you're driving under the influence. That's the implied consent law under SDCL 32-23-10. You agreed to this when you got your license; the officer is simply invoking that agreement.

When you refuse, two things happen immediately:

1. The officer confiscates your physical license and issues a Notice of Intent to Revoke, which serves as a temporary permit valid for 120 days.
2. An administrative revocation track begins through the Department of Public Safety — entirely separate from whatever criminal charges you face.

The Automatic One-Year Revocation

A first-time refusal triggers a one-year license revocation under SDCL 32-23-11. This revocation is administrative, not criminal. It can happen even if the prosecutor drops the DUI charges entirely or you win at trial.

The critical difference from a failed test: if you consent to the test and blow 0.08% or higher, South Dakota does not suspend your license until you're actually convicted. Your license stays valid throughout the criminal case. Refuse the test, and you're facing a one-year revocation regardless of the criminal outcome.

Your Window to Contest a Refusal Revocation

You have 120 days from the date of arrest to submit a written hearing request to the DPS. This is an administrative hearing — not a criminal court proceeding. The hearing examiner will review whether the officer had probable cause for the stop, whether you were properly advised of the consequences of refusal, and whether you did in fact refuse.

Missing this 120-day deadline waives the right to contest the revocation.

Refusal as Evidence in Criminal Court

Refusing the test doesn't make the DUI charge go away. Under SDCL 32-23-10.1, your refusal can be admitted as circumstantial evidence of guilt at trial. The prosecution can argue that you refused because you knew you would fail. A jury gets to decide how much weight to give that inference.

So refusal doesn't just trigger its own administrative penalty — it also gives the prosecution an additional argument in the criminal case.

Field Sobriety Tests vs. Chemical Tests

Field sobriety tests (walk-and-turn, one-leg stand, horizontal gaze nystagmus) happen at the roadside before arrest. These are not covered by the implied consent statute. Refusing them doesn't trigger an automatic license revocation.

The implied consent law applies specifically to chemical tests — breath, blood, or urine — administered after arrest. If you refuse the portable breath test at the roadside (the PBT used to establish probable cause, not the evidentiary test at the station), do not assume that refusal follows the same administrative process as a post-arrest chemical-test refusal.

Restricted Permits After Refusal

Getting a restricted permit during a refusal revocation is harder than getting one after a conviction. The authority rests with the Secretary of Public Safety (not the court), and eligibility is strict: under Administrative Rule 61:19:01:01, you're disqualified if you've had a DUI conviction or refusal revocation in the past ten years.

The South Dakota First-Offense DUI Guide covers both the test-consent and test-refusal pathways in detail, including the administrative hearing process and what to expect at each step.

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