CHAPTER 23-5
CRIMINAL IDENTIFICATION
23-5-1 Criminal identifying information--Procurement and filing by attorney general.
23-5-2 Cooperation of attorney general with law enforcement officers to establish complete state system.
23-5-3 Criminal records of inmates of penal institutions--Procuring and filing.
23-5-4 Fingerprints to be taken and forwarded on arrests--Failure of officer to take and report as misdemeanor.
23-5-5 Fingerprints taken on arrest--Comparison with files--Information on previous criminal record.
23-5-6 Identification records made by wardens and superintendents of penal institutions.
23-5-7 Identification records to be filed and preserved--Restrictions as to use.
23-5-8 Warden of correctional facility--Furnishing of identification of inmates, transmission to Division of Criminal Investigation.
23-5-9 23-5-9. Repealed by SL 1974, ch 55, § 50.
23-5-10 Definition of terms.
23-5-11 Confidential criminal justice information not subject to inspection--Exception.
23-5-12 Examination of own criminal history information--Written request--Authorization of release to others--Waiver of liability.
23-5-12.1 Criminal record check by schools, child welfare agencies or certified social worker on prospective employee or parent.
23-5-13 Costs of providing information--Special revenue fund.
23-5-14 23-5-14 to 23-5-18. Repealed by SL 2003, ch 133, §§ 33 to 37.
23-5-1. Criminal identifying information--Procurement and filing by attorney general.
The attorney general shall procure and file for record, photographs, pictures, descriptions, fingerprints, measurements, and such other information as may be pertinent of all persons who may hereafter be taken into custody for offenses other than those arising solely out of the violation of the fish, game, conservation, or traffic laws of this state with the exception of those persons charged with driving a motor vehicle while under the influence of alcoholic beverages, and also of all criminals wheresoever the same may be procured. It shall be the duty of the person in charge of any state institution to furnish any such information to the attorney general upon his request.
Source: SDC 1939, § 55.1606; SL 1966, ch 161, § 5.
23-5-2. Cooperation of attorney general with law enforcement officers to establish complete state system.
The attorney general shall also cooperate with, and assist sheriffs, chiefs of police, and other law enforcement officers to the end that a complete state system of criminal identification, investigation, and statistical information may be established.
Source: SDC 1939, § 55.1606; SL 1966, ch 161, § 5.
23-5-3. Criminal records of inmates of penal institutions--Procuring and filing.
The attorney general shall procure and file for record the fingerprint impressions and other means of identification and statistical information of all persons contained in any workhouse, jail, reformatory, penitentiary, or other penal institutions, together with such other information as he may require from the law enforcement officers of the state and its subdivisions.
Source: SDC 1939, § 55.1606; SL 1966, ch 161, § 5.
23-5-4. Fingerprints to be taken and forwarded on arrests--Failure of officer to take and report as misdemeanor.
The sheriffs, chiefs of police, marshals of the municipalities, and any other law enforcement officers and peace officers of the state, immediately upon the arrest of any person for a felony or misdemeanor, exclusive of those exceptions set forth in § 23-5-1, shall take such person's fingerprints according to the fingerprint system of identification established by the Division of Criminal Investigation, on forms furnished by the division and shall forward the fingerprints together with other descriptions as may be required with a history of the offense alleged to have been committed, to the division for classification and filing. However, in the case of a Class 2 misdemeanor, exclusive of those exceptions set forth in § 23-5-1, if the arresting officer reasonably believes that the person arrested does not present a danger to self or others and will appear in response to a summons, the arresting officer may, without complying with the provisions of this section, release the person arrested with a summons to appear; and the person arrested shall present himself or herself to the law enforcement agency issuing the summons for fingerprinting prior to the initial court appearance. Any person who fails to appear for fingerprinting in compliance with this section shall be proceeded against by warrant. A copy of the fingerprints of the person arrested, shall be transmitted forthwith by the arresting officer to the Federal Bureau of Investigation in Washington, D.C.
Any officer required by this section to take and report fingerprint records, who fails to take and report the records required by this section, is guilty of a Class 2 misdemeanor.
Source: SDC 1939, §§ 55.1607, 55.9906; SL 1966, ch 161, § 6; SL 1979, ch 150, § 28; SL 1992, ch 60, § 2; SL 1995, ch 128.
23-5-5. Fingerprints taken on arrest--Comparison with files--Information on previous criminal record.
The attorney general shall compare the description received pursuant to § 23-5-4 with those already on file in the Division of Criminal Investigation and if he finds the person arrested has a criminal record or is a fugitive from justice, he shall at once inform the arresting officer of such fact.
Source: SDC 1939, § 55.1607; SL 1966, ch 161, § 6.
23-5-6. Identification records made by wardens and superintendents of penal institutions.
The warden or superintendent of any penal or reformatory institution in this state, the attorney general or his authorized assistants or agents, the sheriff of any county in this state, or the chief of police of any municipality in the state is hereby authorized and empowered, when in his judgment such proceeding shall be necessary for the purpose of identifying any person accused or convicted of crime, or for the purpose of preventing the escape or of facilitating the recapture of any such person, to cause to be taken or made and preserved such photographs, impressions, measurements, descriptions, and records as may in the judgment of any of said officials be deemed necessary.
Source: SL 1921, ch 186, § 1; SDC 1939 & Supp 1960, § 34.1614.
23-5-7. Identification records to be filed and preserved--Restrictions as to use.
Any department or institution that makes or takes any photograph, impression, measurement, description, or record including confidential criminal investigative information, taken or made as provided for in § 23-5-6 shall be filed and preserved by the department or institution. The department or institution may not publish, transfer, or circulate any impression, measurement, description, record, or photograph, except a criminal booking photograph, for a crime classified as a felony pursuant to § 22-6-1 outside the department or institution except to a duly authorized law enforcement officer. If the subject of a measurement, description, or other record becomes a fugitive from justice, or escapes from a penal institution then the measurement, description, or record may be exhibited to the public. This section does not apply to the release of information allowed pursuant to § 24-2-20. Any criminal booking photograph for a crime classified as a felony pursuant to § 22-6-1 is a public record pursuant to chapter 1-27.
Nothing in this section requires any law enforcement agency to provide or reproduce a criminal booking photograph older than six months from the date the criminal booking photograph was taken. An agency requested to provide or reproduce a criminal booking photograph is entitled to recover costs of retrieval or reproduction pursuant to § 1-27-35.
Source: SDC 1939 & Supp 1960, § 34.1614; SL 2001, ch 118, § 1; SL 2017, ch 100, § 1.
23-5-8. Warden of correctional facility--Furnishing of identification of inmates, transmission to Division of Criminal Investigation.
The warden of the state correctional facility shall furnish photographs, fingerprints, and other identifying information of all inmates received at such institution and shall transmit the same to the Division of Criminal Investigation.
Source: SDC 1939, § 55.1605; SL 1966, ch 161, § 4; SL 2023, ch 82, § 20.
23-5-10. Definition of terms.
Terms used in §§ 23-5-10 to 23-5-13, inclusive, mean:
(1) "Confidential criminal justice information," criminal identification information compiled pursuant to chapter 23-5, criminal intelligence information, criminal investigative information, criminal statistics information made confidential pursuant to § 23-6-14, and criminal justice information otherwise made confidential by law;
(2) "Criminal history information," arrest information, conviction information, disposition information and correction information compiled by the attorney general pursuant to chapter 23-5, commonly referred to as a "rap sheet";
(3) "Criminal intelligence information," information associated with an identifiable individual, group, organization, or event compiled by a law enforcement agency: in the course of conducting an investigation into a criminal conspiracy, projecting a potential criminal operation, or producing an estimate of future criminal activities; or in relation to the reliability of information derived from reports of informants or investigators or from any type of surveillance;
(4) "Criminal investigative information," information associated with an individual, group, organization, or event compiled by a law enforcement agency in the course of conducting an investigation of a crime or crimes. This includes information about a crime or crimes derived from reports of officers, deputies, agents, informants, or investigators or from any type of surveillance;
(5) "Call for service," an event occurring in or near the jurisdiction of a law enforcement agency that requires law enforcement response, evaluation, action, or documentation.
Source: SL 1986, ch 189, § 1; SL 2004, ch 161, § 1.
23-5-11. Confidential criminal justice information not subject to inspection--Exception.
Confidential criminal justice information and criminal history information are specifically exempt from disclosure pursuant to §§ 1-27-1 to 1-27-1.15, inclusive, and may be withheld by the lawful custodian of the records. Information, if maintained, about calls for service revealing the date, time, and general location and general subject matter of the call is not confidential criminal justice information and shall be released to the public unless the information contains criminal intelligence, identity information that would jeopardize an ongoing investigation, or identity information associated with a mental health or a chemical dependency or abuse intervention. The provisions of this section do not supersede more specific provisions regarding public access or confidentiality elsewhere in state or federal law.
Source: SL 1986, ch 189, § 2; SL 2004, ch 161, § 2; SL 2009, ch 10, § 18; SL 2014, ch 112, § 1.
23-5-12. Examination of own criminal history information--Written request--Authorization of release to others--Waiver of liability.
Any person may examine criminal history information filed with the attorney general that refers to that person. The person requesting such information shall supply the attorney general with a written request together with fingerprint identification. The person may also authorize the attorney general to release his criminal history information to other individuals or organizations. The attorney general may require the person to sign a waiver releasing the state, its employees or agents from any liability before releasing criminal history information.
Source: SL 1986, ch 189, § 3.
23-5-12.1. Criminal record check by schools, child welfare agencies or certified social worker on prospective employee or parent.
The superintendent of any public school or nonpublic school or the owner or operator of any child welfare agency as defined in § 26-6-1 or a certified social worker eligible to engage in private independent practice as defined in § 36-26-17 may submit the name of any person being considered for employment by the school or agency or as an adoptive or foster parent, either directly or by contract, to the Division of Criminal Investigation for a criminal record check. If the division determines the person has a record of criminal convictions, the division shall notify the superintendent, owner, operator, or social worker of the criminal offenses.
Source: SL 1995, ch 126, § 1; SL 2002, ch 116, § 1.
23-5-13. Costs of providing information--Special revenue fund.
Any costs collected pursuant to § 1-11-13 for providing information requested under § 23-5-12 shall be deposited in a special revenue fund for reimbursement to the Office of the Attorney General for the costs of administering the procedure authorized in § 23-5-12.
Source: SL 1986, ch 189, § 4.
