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CHAPTER 23A-3

(RULE 4.1) ARREST

23A-3-1      Definition of arrest.
23A-3-2      Law enforcement officer's power to arrest without warrant.
23A-3-2.1      Circumstances permitting warrantless arrests.
23A-3-2.2      Transferred.
23A-3-3      Citizen's arrest.
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 for violation of local ordinance or bylaw.
23A-3-8      Receipts given for property taken from person arrested.
23A-3-9      Fresh pursuit misdemeanor arrest by officer of another state.
23A-3-10      Fresh pursuit felony arrest by officer of another state.
23A-3-11      Other powers of arrest unimpaired by fresh pursuit authority.
23A-3-12      Taking before magistrate of person arrested by officer of another state--Commitment to await extradition--Discharge if arrest unlawful.
23A-3-13      District of Columbia treated as state.
23A-3-14      Definition of fresh pursuit for interstate felony arrest.
23A-3-15      Citation of provisions on interstate pursuit.
23A-3-16      Arrest for misdemeanor on intrastate fresh pursuit.
23A-3-17      Arrest for felony on intrastate fresh pursuit.
23A-3-18      Disposition of prisoner taken on intrastate fresh pursuit.
23A-3-19      Definition of fresh pursuit in intrastate felony arrests.
23A-3-20      Citation of provisions on intrastate fresh pursuit.
23A-3-21      Transferred.
23A-3-22, 23A-3-23.      Transferred.
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 on motion for expungement.
23A-3-30      Order of expungement.
23A-3-31      Report to Division of Criminal Investigation--Retention and use of nonpublic records--Sealing of records.
23A-3-32      Effect of order of expungement.
23A-3-33      No time limitation for making application .
23A-3-34      Automatic removal of certain charges or convictions from background check record--Case record available to court personnel.
23A-3-35      Eligibility of person placed in diversion program for expungement of record.
23A-3-36      Dismissal of charges and notice of completion of diversion.
23A-3-37      Expungement of record on filing of dismissal and notice.


     23A-3-1.   Definition of arrest. 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.


     23A-3-2.   Law enforcement officer's power to arrest without warrant. 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, although not in the officer's presence.

Source: SDC 1939 & Supp 1960, § 34.1609; SDCL, § 23-22-7; SL 1978, ch 178, § 15; SL 1979, ch 159, § 1.


     23A-3-2.1.   Circumstances permitting warrantless arrests. 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 cause to believe that:
             (1)      An order has been issued under chapter 25-10 protecting the victim and the terms of the order prohibiting acts or threats of abuse or excluding the person from a residence have been violated; or
             (2)      An order has been issued under chapter 22-19A protecting the victim and the terms of the order prohibiting acts of stalking or physical injury have been violated; or
             (3)      The person is eighteen years or older and within the preceding forty-eight hours has assaulted a person in a relationship as defined in § 25-10-3.1;
and the officer believes that an aggravated assault has occurred; an assault has occurred which has resulted in bodily injury to the victim, whether the injury is observable by the responding officer or not; or an attempt by physical menace has been made to put another in fear of imminent serious bodily harm.

Source: SL 1989, ch 207, § 1; SL 1996, ch 153; SL 1998, ch 146, § 1; SL 2001, ch 119, § 1; SL 2006, ch 134, § 1; SL 2015, ch 139, § 1.


     23A-3-2.2.   Transferred to § 25-10-35


     23A-3-3.   Citizen's arrest. 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 it.

Source: SDC 1939 & Supp 1960, § 34.1608; SDCL, § 23-22-14; SL 1978, ch 178, § 16.


     23A-3-4.   Advice as to authority and cause of arrest without warrant. 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 he is arrested on pursuit immediately after its commission.

Source: SDC 1939 & Supp 1960, §§ 34.1608, 34.1609; SDCL, §§ 23-22-9, 23-22-15; SL 1978, ch 178, § 17.


     23A-3-5.   Manner of making arrest--Physical restraint--Weapons and contraband property--Breaking structure to make arrest. 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 making an arrest may take from the arrested person all dangerous weapons and property as defined in § 23A-35-3 which the arrested person may have about his person.
     Any law enforcement officer having authority to make an arrest may break open an outer or inner door or window of a dwelling house or other structure for the purpose of making the arrest if, after giving reasonable notice of his intention, he is refused admittance, and if:
             (1)      The law enforcement officer has obtained an arrest warrant; or
             (2)      Exigent circumstances justify a warrantless arrest.

Source: SDC 1939 & Supp 1960, §§ 34.1603, 34.1605, 34.1606; SDCL, §§ 23-22-4, 23-22-17, 23-22-18; SL 1978, ch 178, § 18; SL 1985, ch 193.


     23A-3-6.   Aid to law enforcement officer on request. 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.


     23A-3-7.   Restriction on place of arrest for violation of local ordinance or bylaw. 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 § 23A-2-8.

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


     23A-3-8.   Receipts given for property taken from person arrested. 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, specifying particularly the amount of money or the kind of property taken. One of the receipts shall be given to the defendant.

Source: SDC 1939 & Supp 1960, § 34.0601; SDCL, § 23-16-1; SL 1978, ch 178, § 21.


     23A-3-9.   Fresh pursuit misdemeanor arrest by officer of another state. 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 person is believed to have committed a misdemeanor in such other state, shall have the same authority to arrest and hold such person in custody, as has any member of any duly organized state, county, or municipal law enforcing unit of this state, to arrest and hold in custody a person on the ground that the person is believed to have committed a misdemeanor in this state. The term "fresh pursuit" as used in this section shall include the pursuit of a person who has committed a misdemeanor in the presence of a law enforcement officer, and such officer is in instant pursuit.

Source: SL 1978, ch 178, §§ 23, 28.


     23A-3-10.   Fresh pursuit felony arrest by officer of another state. 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 person is believed to have committed a felony in such other state, shall have the same authority to arrest and hold such person in custody, as has any member of any duly organized state, county, or municipal law enforcing unit of this state, to arrest and hold in custody a person on the ground that the person is believed to have committed a felony in this state.

Source: SL 1939, ch 139, §§ 1, 3; SDC Supp 1960, §§ 34.16B01, 34.16B03; SDCL, § 23-23-4; SL 1978, ch 178, § 22.


     23A-3-11.   Other powers of arrest unimpaired by fresh pursuit authority. 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.


     23A-3-12.   Taking before magistrate of person arrested by officer of another state--Commitment to await extradition--Discharge if arrest unlawful. 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 hearing for the purpose of determining the lawfulness of the arrest. If the magistrate determines that the arrest was lawful the magistrate shall commit the person arrested to await for a reasonable time the issuance of an extradition warrant by the Governor of this state or admit the person to bail for such purpose. If the magistrate determines that the arrest was unlawful the magistrate shall discharge the person arrested.

Source: SL 1939, ch 139, § 2; SDC Supp 1960, § 34.16B02; SDCL, §§ 23-23-5, 23-23-6; SL 1978, ch 178, § 24.


     23A-3-13.   District of Columbia treated as state. 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.


     23A-3-14.   Definition of fresh pursuit for interstate felony arrest. 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 pursuit of a person suspected of having committed a supposed felony, though no felony has actually been committed, if there is reasonable ground for believing that a felony has been committed. Fresh pursuit as used in this title shall not necessarily imply instant pursuit, but pursuit without unreasonable delay.

Source: SL 1939, ch 139, § 5; SDC Supp 1960, § 34.16B05; SDCL, § 23-23-2; SL 1978, ch 178, § 27.


     23A-3-15.   Citation of provisions on interstate pursuit. 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.


     23A-3-16.   Arrest for misdemeanor on intrastate fresh pursuit. 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 arrest which would otherwise be lawful. The term "fresh pursuit" as used in this section shall include fresh pursuit of a person who has committed a misdemeanor in the presence of a law enforcement officer, and the law enforcement officer is in instant pursuit.

Source: SL 1978, ch 178, §§ 31, 34.


     23A-3-17.   Arrest for felony on intrastate fresh pursuit. 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 arrest which would otherwise be lawful.

Source: SL 1941, ch 153, §§ 1, 4; SDC Supp 1960, §§ 34.16A02, 34.16A05; SDCL, § 23-22-39; SL 1978, ch 178, § 30.


     23A-3-18.   Disposition of prisoner taken on intrastate fresh pursuit. 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 arrest was made, and the court shall admit the prisoner to bail, if the offense is bailable, by taking security by way of recognizance for the appearance of the prisoner before the court having jurisdiction of the criminal offense.

Source: SL 1941, ch 153, § 2; SDC Supp 1960, § 34.16A03; SDCL, § 23-22-40; SL 1978, ch 178, § 32.


     23A-3-19.   Definition of fresh pursuit in intrastate felony arrests. 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 include the pursuit of a person suspected of having committed a supposed felony in this state, though no felony has actually been committed, if there is reasonable ground for so believing. Fresh pursuit as used here shall not necessarily imply instant pursuit, but pursuit without unreasonable delay.

Source: SL 1941, ch 153, § 3; SDC Supp 1960, § 34.16A04; SDCL, § 23-22-38; SL 1978, ch 178, § 33.


     23A-3-20.   Citation of provisions on intrastate fresh pursuit. 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 §§ 25-10-38, 25-10-39


     23A-3-24.   Federal law enforcement officer defined. 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 of Alcohol, Tobacco, and Firearms, the United States Postal Inspection Service, the Federal Protective Service, the United States Fish and Wildlife Service, the United States Forest Service, the Immigration and Customs Enforcement Office of Investigations, or the National Park Service, who is responsible for the prevention or detection of crimes or for the enforcement of the United States Code and who is authorized to arrest, with or without a warrant, any person for a violation of the United States Code.

Source: SL 1994, ch 175, § 1; SL 2005, ch 125, § 1; SL 2006, ch 135, § 1; SL 2008, ch 115, § 1; SL 2010, ch 125, § 1.


     23A-3-25.   Authority of federal law enforcement officer. 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 been committed and that the person arrested committed such felony;
             (2)      The officer is rendering assistance to a state or local law enforcement officer in an emergency or at the request of the state or local law enforcement officer; or
             (3)      The officer is participating in a task force composed of state or local law enforcement officers and federal law enforcement officers.

Source: SL 1994, ch 175, § 2.


     23A-3-26.   Definition of expungement. 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, apprehension, arrest, detention, trial or disposition of an offense within the criminal justice system. Expungement does not imply the physical destruction of records.

Source: SL 2010, ch 126, § 1.


     23A-3-27.   Motion for expungement of arrest record. 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 year from the date the prosecuting attorney formally dismisses the entire criminal case on the record; or
             (3)      At any time after an acquittal.

Source: SL 2010, ch 126, § 2; SL 2012, ch 131, § 1; SL 2015, ch 140, § 1.


     23A-3-28.   Service of motion--Fee. 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 prosecuting attorney may contest the motion in writing and at the hearing on the motion.
     When a defendant or arrested person makes a motion under this section, the defendant or arrested person shall pay to the clerk of courts in the county where the motion is filed a fee equal to the filing fee for a civil action. If the defendant or arrested person establishes to the court's satisfaction that the person is indigent and unable to pay the fee, the court may waive the filing fee.

Source: SL 2010, ch 126, § 3.


     23A-3-29.   Hearing on motion for expungement. 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, ch 126, § 4.


     23A-3-30.   Order of expungement. 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 order.

Source: SL 2010, ch 126, § 5; SL 2015, ch 140, § 2.


     23A-3-31.   Report to Division of Criminal Investigation--Retention and use of nonpublic records--Sealing of records. 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 agencies, prosecuting attorneys, and courts in sentencing the defendant or arrested person for subsequent offenses.
     As part of any order of expungement, the court shall order that all official records, other than the nonpublic records to be retained by the Division of Criminal Investigation, be sealed along with all records relating to the defendant or arrested person's arrest, detention, indictment or information, trial, and disposition.

Source: SL 2010, ch 126, § 6.


     23A-3-32.   Effect of order of expungement. 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 held thereafter under any provision of any law to be guilty of perjury or of giving a false statement by reason of the person's failure to recite or acknowledge the person's arrest, indictment or information, or trial in response to any inquiry made of the person for any purpose.

Source: SL 2010, ch 126, § 7.


     23A-3-33.   No time limitation for making application. 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.


     23A-3-34.   Automatic removal of certain charges or convictions from background check record--Case record available to court personnel. 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 ten years if all court-ordered conditions on the case have been satisfied. However, the case record will remain available to court personnel or as authorized by order of the court.

Source: SL 2016, ch 134, § 1.


     23A-3-35.   Eligibility of person placed in diversion program for expungement of record. 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 with any new crimes, except for petty offenses or minor traffic citations, within one year and thirty days from the date of the successful completion of the diversion program.
     Nothing in this section requires a state's attorney to place any arrested person into a diversion program or to otherwise create or implement a diversion program.

Source: SL 2018, ch 143, § 1.


     23A-3-36.   Dismissal of charges and notice of completion of diversion. 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.


     23A-3-37.   Expungement of record on filing of dismissal and notice. 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.


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