35-9-1
Furnishing alcoholic beverage to child prohibited--Exceptions--Violation as
misdemeanor--Civil liability.
35-9-1.1
Furnishing alcoholic beverage to person eighteen years or older but less than twenty-one years prohibited--Exceptions--Violation as misdemeanor--Civil liability.
35-9-1.2
Reasonable attempt to investigate age.
35-9-1.3
Sale of alcoholic beverage to underaged person based on false identification
document--Conviction barred.
35-9-1.4
Circumstances under which criminal penalty may not be imposed on licensee for
furnishing alcoholic beverage to underage person.
35-9-1.5
Fine imposed on licensee when sale does not constitute criminal offense.
35-9-1.6
Hearing on liability for furnishing alcoholic beverage to underage person--Amount
of fine.
35-9-2
Purchase, possession, or consumption of beverage by person under twenty-one years
prohibited--Exception--Misrepresentation of age--Violation as misdemeanor.
35-9-2.1
Merchant may detain person under twenty-one who purchases, attempts to purchase
or possesses alcoholic beverage--Conditions.
35-9-2.2
Merchant to post notice if persons illegally attempting to purchase alcoholic
beverages will be detained.
35-9-2.3
Purchase of beverage by adult for person under twenty-one as misdemeanor.
35-9-2.4
Immunity from prosecution for offense arising out of underage consumption for
person who assists person in need of emergency assistance.
35-9-2.5
Immunity from prosecution for offense arising out of underage consumption for
person who reports own need of emergency assistance.
35-9-3
Repealed.
35-9-4
Repealed.
35-9-4.1
Legislative intent and purpose for raising minimum drinking age.
35-9-5
Repealed.
35-9-6
Determination of venue when minor apprehended for purchase, possession, or
consumption of alcoholic beverage.
35-9-6.1
Determination of venue in juvenile adjudication arising from purchase, possession,
or consumption of alcoholic beverage.
35-9-7
Driver's license suspension or restriction for certain violations.
35-9-8
Driver's license revocation for certain violations.
35-9-9
Social host prohibited from permitting consumption of alcoholic beverages by person
under age eighteen--Misdemeanor.
35-9-10
Social host prohibited from permitting consumption of alcoholic beverages by person
age eighteen, nineteen, or twenty--Misdemeanor.
35-9-11
Defense available to social host.
35-9-12
Social host's lack of physical presence not a defense.
35-9-13
Social host defined.
35-9-1. Furnishing alcoholic beverage to child prohibited--Exceptions--Violation as misdemeanor--Civil liability.
It is a Class 1 misdemeanor to sell or give for use as a beverage any alcoholic beverage to any person under the age of eighteen years unless:
(1) It is done in the immediate presence of a parent or guardian or spouse, who is at least twenty-one years of age, while not on the premises of an establishment licensed for the retail sale of alcoholic beverages pursuant to § 35-4-2 or at a special event for which an alcoholic beverage license has been issued; or
(2) It is done by prescription or direction of a duly licensed practitioner or nurse of the healing arts for medicinal purposes.
However, no licensee is civilly liable to any injured person or the injured person's estate for any injury suffered, including any action for wrongful death, or property damage suffered because of the sale or consumption of any alcoholic beverage in violation of the provisions of this section.
Source: SL 1939, ch 13; SL 1943, ch 14, §§ 1, 2; SL 1959, ch 9; SL 1959, ch 46, §§ 1, 2; SDC Supp 1960, §§ 5.0227-2, 5.9910, 13.3304; SL 1963, ch 19; SL 1965, ch 31; SDCL § 26-10-3; SL 1971, ch 211, § 110; SL 1972, ch 154, § 19; SL 1977, ch 190, § 131; SL 1984, ch 249, § 3; SL 1987, ch 261, § 11; SL 1990, ch 301, § 1; SL 1999, ch 188, § 1; SL 2010, ch 180, § 35.
35-9-1.1. Furnishing alcoholic beverage to person eighteen years or older but less than twenty-one years prohibited--Exceptions--Violation as misdemeanor--Civil liability.
It is a Class 2 misdemeanor to sell or give for use as a beverage any alcoholic beverage to any person who is eighteen years of age or older but less than twenty-one years of age unless it is done in the immediate presence of a parent or guardian or spouse over twenty-one years of age or by prescription or direction of a duly licensed practitioner or nurse of the healing arts for medicinal purposes.
However, no licensee is civilly liable to any injured person or the injured person's estate for any injury suffered, including any action for wrongful death, or property damage suffered because of the sale or consumption of any alcoholic beverage in violation of the provisions of this section.
Source: SL 1990, ch 301, § 2; SL 2010, ch 180, § 36.
35-9-1.2. Reasonable attempt to investigate age.
Any person charged with a violation of § 35-9-1, 35-9-1.1, or 35-12B-7, may offer evidence, as a defense, that the person made a reasonable attempt to investigate the age of the person by examining an age-bearing identification document that would have appeared valid to a reasonable and prudent person.
Source: SL 1991, ch 299; SL 2000, ch 182, § 1; SL 2010, ch 180, § 60; SL 2015, ch 196, § 8, eff. Jan. 1, 2016.
35-9-1.3. Sale of alcoholic beverage to underaged person based on false identification document--Conviction barred.
No person may be convicted of illegally selling any alcoholic beverage to any underage person pursuant to § 35-9-1 or 35-9-1.1, if the underage person was in possession of, and the seller relied upon, any false age-bearing identification document that was furnished to the underage person by any state agency or local law enforcement agency or any agent, employee, contractor, or associate of any state agency or local law enforcement agency for the purpose of attempting to illegally purchase any alcoholic beverage.
Source: SL 2000, ch 183, § 1.
35-9-1.4. Circumstances under which criminal penalty may not be imposed on licensee for furnishing alcoholic beverage to underage person.
No criminal penalty may be imposed on a licensee licensed pursuant to this title if:
(1) The person making the sale in violation of § 35-9-1 or 35-9-1.1 is an employee or agent of the licensee;
(2) The employee or agent does not own a controlling interest in the licensee; and
(3) The licensee or person having a controlling interest in the licensee is not present at the time of the sale.
Source: SL 2010, ch 180, § 41.
35-9-1.5. Fine imposed on licensee when sale does not constitute criminal offense.
If a sale is in violation of § 35-9-1 or 35-9-1.1 and does not constitute a criminal offense against the licensee, the state's attorney for the county in which the sale took place may as part of any proceeding against the person making the sale request that the court require the licensee to pay a fine in accordance with §§ 35-9-1.4 to 35-9-1.6, inclusive.
Source: SL 2010, ch 180, § 42.
35-9-1.6. Hearing on liability for furnishing alcoholic beverage to underage person--Amount of fine.
Upon a request from the state's attorney and notice to the licensee, the court shall conduct a hearing to determine if the licensee is liable under §§ 35-9-1.4 to 35-9-1.6, inclusive, and upon a finding that the licensee is liable, the court may order the licensee to pay a fine not to exceed:
(1) Five hundred dollars upon the first violation within two years;
(2) Seven hundred fifty dollars upon the second violation within two years; and
(3) One thousand dollars for the third violation within two years.
Source: SL 2010, ch 180, § 43.
35-9-2. Purchase, possession, or consumption of beverage by person under twenty-one years prohibited--Exception--Misrepresentation of age--Violation as misdemeanor.
It is a Class 2 misdemeanor for any person under the age of twenty-one years to purchase, attempt to purchase, or possess or consume alcoholic beverages except pursuant to § 35-9-1.1 or when consumed in a religious ceremony and given to the person by an authorized person, or to misrepresent his or her age with the use of any document for the purpose of purchasing or attempting to purchase alcoholic beverages from any licensee licensed under this title.
Source: SL 1949, ch 18, §§ 1, 2; SDC Supp 1960, §§ 5.0227-1, 5.9909; SL 1963, ch 16; SL 1968, ch 5; SL 1971, ch 211, § 111; SL 1977, ch 190, § 132; SL 1987, ch 261, § 12; SL 2010, ch 180, § 61.
35-9-2.1. Merchant may detain person under twenty-one who purchases, attempts to purchase or possesses alcoholic beverage--Conditions.
Any merchant who is a licensee under this title, or the merchant's employee, who has reasonable grounds to believe a person under the age of twenty-one has illegally purchased, attempted to purchase, or possess alcoholic beverages or has misrepresented the person's age with the use of any document for purposes of purchasing or attempting to purchase alcoholic beverages from the merchant or the merchant's employee, may detain the person, on the premises of the merchant's establishment, in a reasonable manner and for a reasonable length of time:
(1) To request identification;
(2) To verify the identification;
(3) To make reasonable inquiry as to whether the person has violated § 35-9-2;
(4) To inform a law enforcement officer of the detention of the person and surrender that person to the custody of a law enforcement officer; or
(5) In the case of a minor, to inform a law enforcement officer or the parents, guardian, or other private person interested in the welfare of that minor of this detention and to surrender custody of the minor to that person.
Source: SL 2000, ch 185, § 1.
35-9-2.2. Merchant to post notice if persons illegally attempting to purchase alcoholic beverages will be detained.
If a merchant chooses to implement the provisions of § 35-9-2.1, the merchant shall conspicuously post a notice, on the merchant's premises, stating that any person who the merchant reasonably believes was under the age of twenty-one and has attempted to purchase alcoholic beverages, will be detained and surrendered to a law enforcement officer.
Source: SL 2000, ch 185, § 2.
35-9-2.3. Purchase of beverage by adult for person under twenty-one as misdemeanor.
Except as provided in §§ 35-9-1 and 35-9-1.1, it is a Class 1 misdemeanor for any person twenty-one years of age or older to purchase or otherwise acquire alcoholic beverages from a retail establishment and to give or resell the alcoholic beverages to any person under the age of twenty-one years.
Source: SL 2000, ch 184, § 1.
35-9-2.4. Immunity from prosecution for offense arising out of underage consumption for person who assists person in need of emergency assistance.
No person may be arrested or prosecuted for any misdemeanor offense of underage consumption, open container, or public intoxication, arising out of underage consumption of alcohol if that person contacts any law enforcement or emergency medical services and reports that a person is in need of emergency medical assistance due to alcohol consumption and that person:
(1) Assists the person in need of emergency medical assistance until assistance arrives; and
(2) Remains and cooperates with medical assistance and law enforcement personnel on the scene.
Source: SL 2016, ch 191, § 1.
35-9-2.5. Immunity from prosecution for offense arising out of underage consumption for person who reports own need of emergency assistance.
No person under the age of twenty-one years may be prosecuted for any misdemeanor offense of underage consumption, open container, or public intoxication, arising out of underage consumption of alcohol if that person contacts law enforcement or emergency medical services and reports that he or she is in need of medical assistance due to alcohol consumption and that person remains and cooperates with medical assistance and law enforcement personnel on the scene.
Source: SL 2016, ch 191, § 2.
35-9-4.1. Legislative intent and purpose for raising minimum drinking age.
The South Dakota Legislature enacts chapter 261 of the 1987 Session Laws to raise the state's minimum drinking age to twenty-one years of age solely under the duress of a funding sanction imposed by the United States Department of Transportation under 23 U.S.C § 158. The Legislature strongly objects to being forced to choose between loss of highway construction funds, which are badly needed to construct priority road projects to promote the public health and safety of the state's inhabitants and visitors, and loss of its right to set its own drinking age. The action taken by this Legislature shall not be construed as a concession or waiver of its constitutional right to establish at what age an individual may lawfully purchase, possess, and consume alcoholic beverages. Rather, it is taken to ensure that South Dakota is not penalized while it challenges in the United States Supreme Court the federal government's attempt to usurp the state's right to regulate the drinking age of its citizens. This legislation is enacted with the expressed intent of providing the South Dakota attorney general the maximum flexibility to pursue South Dakota's challenge to the federal government's intrusion into a right reserved to the state while ensuring the full availability of federal highway funds for the 1988 construction season. It is the intent of this Legislature that if at any time before or after the effective date of this legislation the provisions of 23 U.S.C § 158 are repealed, expired or declared invalid by the United States Supreme Court, the provisions of this legislation shall become null and void and any provision repealed by SL 1987, ch 261 shall be revived pursuant to § 2-14-19.
Source: SL 1987, ch 261.
35-9-6. Determination of venue when minor apprehended for purchase, possession, or consumption of alcoholic beverage.
In any arrest, citation, or prosecution arising from a violation of § 35-9-2, if the person is apprehended for:
(1) The purchase or attempted purchase of alcoholic beverages, the venue is the locality where the purchase or attempted purchase occurred;
(2) The possession or consumption of alcoholic beverages, the venue is the locality where the person was apprehended or any other locality where the person possessed or consumed any portion of the alcoholic beverages.
Source: SL 2000, ch 186, § 1; SL 2001, ch 197, § 1.
35-9-6.1. Determination of venue in juvenile adjudication arising from purchase, possession, or consumption of alcoholic beverage.
In any juvenile adjudication arising from a violation of § 35-9-2, if the person is apprehended for:
(1) The purchase or attempted purchase of alcoholic beverages, the venue is the locality where the purchase or attempted purchase occurred or the juvenile's county of residence;
(2) The possession or consumption of alcoholic beverages, the venue is the locality where the juvenile was apprehended or any other locality where the juvenile possessed or consumed any portion of the alcoholic beverages or the juvenile's county of residence.
Source: SL 2001, ch 197, § 2.
35-9-7. Driver's license suspension or restriction for certain violations.
If the conviction or adjudication for a violation of § 35-9-1.1 or 35-9-2 is for a first offense, the court may, in addition to any other penalty allowed by law, order the suspension of the person's driving privileges for a period not less than thirty days and not to exceed one year. Moreover, the court may issue an order permitting the person to operate a motor vehicle for purposes of the person's employment or attendance at school or to court-ordered counseling programs during the hours of the day and the days of the week set forth in the order. The court may also restrict the privilege in some other manner as the court may see fit for a period not to exceed one year.
If the conviction or adjudication for a violation of § 35-9-1.1 or 35-9-2 is for a second or subsequent offense, the court may, in addition to any other penalty allowed by law, order the suspension of the person's driving privileges for a period not less than sixty days and not to exceed one year. Moreover, the court may issue an order permitting the person to operate a motor vehicle for purposes of the person's employment or attendance at school or to court-ordered counseling programs during the hours of the day and the days of the week set forth in the order. The court may also restrict the privilege in some other manner as the court may see fit for a period not to exceed one year.
Source: SL 2000, ch 177, § 2; SL 2001, ch 174, § 2; SL 2002, ch 174, § 1; SL 2012, ch 192, § 1.
35-9-8. Driver's license revocation for certain violations.
If the conviction or adjudication for a violation of § 35-9-1 is for a first offense, the court shall, in addition to any other penalty allowed by law, order the revocation of the defendant's driving privileges for a period not less than thirty days and not to exceed one year. However, the court may issue an order permitting the person to operate a motor vehicle for purposes of the person's employment or attendance at school or to court-ordered counseling programs during the hours of the day and the days of the week set forth in the order. The court may also restrict the privilege in such manner as it sees fit for a period not to exceed one year.
If the conviction or adjudication for a violation of § 35-9-1 is for a second or subsequent offense, the court shall, in addition to any other penalty allowed by law, order the revocation of the defendant's driving privileges for a period not less than sixty days and not to exceed one year.
Source: SL 2001, ch 174, § 3.
35-9-9. Social host prohibited from permitting consumption of alcoholic beverages by person under age eighteen--Misdemeanor.
No person, acting as a social host, may, knowingly, permit any person under the age of eighteen to illegally consume any alcoholic beverage, regardless of the source of the alcoholic beverage, on or at the premises of the person acting as social host. Any violation of this section is a Class 1 misdemeanor.
Source: SL 2014, ch 177, § 1.
35-9-10. Social host prohibited from permitting consumption of alcoholic beverages by person age eighteen, nineteen, or twenty--Misdemeanor.
No person, acting as a social host, may, knowingly, permit any person aged eighteen, nineteen, or twenty to illegally consume any alcoholic beverage, regardless of the source of the alcoholic beverage, on or at the premises of the person acting as social host. Any violation of this section is a Class 2 misdemeanor.
Source: SL 2014, ch 177, § 2.
35-9-11. Defense available to social host.
It is a defense against a conviction for a violation of §§ 35-9-9 and 35-9-10 that, immediately upon learning of the illegal consumption, the social host or an agent of the social host took effective and appropriate action to stop the illegal consumption and to secure or to attempt to secure the contraband alcoholic beverages.
Source: SL 2014, ch 177, § 3.
35-9-12. Social host's lack of physical presence not a defense.
It is not a defense of a violation of §§ 35-9-9 and 35-9-10 that the social host was not physically present on or at the premises if the social host knew that illegal consumption of alcoholic beverages would occur in his or her absence.
Source: SL 2014, ch 177, § 4.
