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22-30A THEFT
CHAPTER 22-30A

THEFT

22-30A-1      Theft--Violation.
22-30A-2      Transfer of another's property as theft.
22-30A-2.1      Repealed.
22-30A-3      Theft by deception.
22-30A-3.1 to 22-30A-3.3. Transferred.
22-30A-4      Theft by threat.
22-30A-5      Repealed.
22-30A-6      Theft of lost or mislaid property.
22-30A-7      Receiving stolen property.
22-30A-8      Obtaining property or services without paying.
22-30A-8.1      Obtaining property or services with false debit or credit card.
22-30A-8.2 to 22-30A-8.5. Transferred.
22-30A-9      Diverting services of another.
22-30A-10      Embezzlement of property received in trust.
22-30A-10.1      Return of stolen property considered in mitigation of punishment--Return not a defense.
22-30A-11      Disqualification from public office.
22-30A-12      Unauthorized operation of vehicle or vessel as misdemeanor.
22-30A-13      Theft by conversion of rented personalty after notice of termination.
22-30A-14      Affirmative defense to conversion of leased or rented personalty.
22-30A-15      Theft as single offense incorporating previous separate offenses--Terms used in alleging theft.
22-30A-16      Ignorance and honest claim of right as affirmative defenses to theft.
22-30A-17      Grand theft--Felony.
22-30A-17.1      Aggravated grand theft--Felony.
22-30A-17.2      Petty theft in the first degree--Misdemeanor.
22-30A-17.3      Petty theft in the second degree--Misdemeanor.
22-30A-18      Aggregation of related thefts to determine degree of offense.
22-30A-19      Repealed.
22-30A-19.1      Liability of shoplifter to owner or seller--Penalty.
22-30A-19.2      Detention of suspected shoplifter--Reasonableness--Grounds.
22-30A-19.3      Demand for payment by victim of retail theft.
22-30A-19.4      Failure to pay liability for theft--Penalty doubled.
22-30A-20      Unauthorized possession of federal Department of Agriculture commodities transferred to state.
22-30A-21      Law enforcement officer retaining seized property as theft.
22-30A-22, 22-30A-23. Repealed.
22-30A-24      Theft by insufficient funds check--Degrees according to amount--Aggregation of checks.
22-30A-25      Theft by no account check--Degrees according to amount--Aggregation of checks.
22-30A-26      Return of property or payment of check and the costs and expenses prohibits criminal prosecution.
22-30A-27      Passing insufficient funds check as prima facie evidence of knowledge of insufficiency.
22-30A-28      Goods, services, taxes, and other obligations as present consideration.
22-30A-29      Postdated check not in violation.
22-30A-30      Prosecution for passing check against insufficient funds--Establishment of probable cause-Testimony of official not necessary.
22-30A-31      Passing check as prima facie evidence.
22-30A-32      Notice of dishonor required before prosecution for theft by insufficient funds--Check or theft by no account check--Presumption of service--Waiting period.
22-30A-33      Additional civil penalty for failure to pay amount of check and fees and costs--Prosecution.
22-30A-34      Contents of notice of dishonor.
22-30A-35      Proof of notice not required--Payment of check, costs, and expenses bar to prosecution.
22-30A-36      Limitation of theft by insufficient funds check and theft by no account check prosecutions.
22-30A-37      Circumstances under which maker, drawer, or issuer not criminally or civilly liable for damages and costs.
22-30A-38      Combination of instruments--Court.
22-30A-39      Alteration or removal of serial number--Possession of property with altered serial number--Felony.
22-30A-40      Liability for cost of motor fuel received--Service charge.
22-30A-41      Request for vehicle owner information--Format and content--Response by law enforcement.
22-30A-42      Demand for payment from motor vehicle owner for motor fuel received--Content of notice.
22-30A-43      Payment or dispute of claim--Court action--Service charge and expenses .
22-30A-44      Criminal action prohibited if retailer receives payment or court award.
22-30A-45      Public official defined.
22-30A-46      Public official's use of public funds for official's financial benefit as theft.


22-30A-1Theft--Violation.

Any person who takes, or exercises unauthorized control over, property of another, with intent to deprive that person of the property, is guilty of theft.

Source: SDC 1939, § 13.3801; SDCL, § 22-37-1; SL 1976, ch 158, § 30A-7; SL 2005, ch 120, § 49.


22-30A-2Transfer of another's property as theft.

Any person who transfers property of another, or any interest in the property of another, with intent to benefit the transferor or another who is not entitled thereto, is guilty of theft.

Source: SL 1976, ch 158, § 30A-8; SL 2005, ch 120, § 50.


22-30A-2.1
     22-30A-2.1.   Repealed by SL 2005, ch 120, § 51, eff. July 1, 2006.


22-30A-3Theft by deception.

Any person who obtains property of another by deception is guilty of theft. A person deceives if, with intent to defraud, that person:

(1)    Creates or reinforces a false impression, including false impressions as to law, value, intention, or other state of mind. However, as to a person's intention to perform a promise, deception may not be inferred from the fact alone that that person did not subsequently perform the promise;

(2)    Prevents another from acquiring information which would affect the other person's judgment of a transaction;

(3)    Fails to correct a false impression which the deceiver previously created or reinforced, or which the deceiver knows to be influencing another to whom the deceiver stands in a fiduciary or confidential relationship; or

(4)    Fails to disclose a known lien, adverse claim, or other legal impediment to the enjoyment of property which the deceiver transfers or encumbers in consideration for property the deceiver obtains, whether such impediment is or is not valid, or is or is not a matter of official record.

The term, deceive, does not, however, include falsity as to matters having no pecuniary significance or puffing by statements unlikely to deceive reasonable persons.

Source: SL 1976, ch 158, § 30A-9; SL 2005, ch 120, § 52.


22-30A-3.1
     22-30A-3.1 to 22-30A-3.3.   Transferred to §§ 22-40-8 to 22-40-10 by SL 2005, ch 120, §§ 80 and 83, eff. July 1, 2006.


22-30A-4Theft by threat.

A person is guilty of theft if the person obtains property of another by threatening to:

(1)    Inflict bodily injury on anyone or commit any criminal offense;

(2)    Accuse anyone of a criminal offense;

(3)    Expose any secret tending to subject any person to hatred, contempt, or ridicule, or to impair any person's credit or business repute;

(4)    Take or withhold action as an official, or cause an official to take or withhold action;

(5)    Bring about or continue a strike, boycott, or other collective unofficial action, if the property is not demanded or received for the benefit of the group in whose interest the actor purports to act;

(6)    Testify or provide information or withhold testimony or information with respect to another's legal claim or defense; or

(7)    Inflict any other harm which would not benefit the person making the threat.

Source: SDC 1939, §§ 13.3901, 13.3902, 13.3907; SDCL, §§ 22-31-1, 22-31-2, 22-31-5; SL 1976, ch 158, § 30A-10; SL 2005, ch 120, § 53.


22-30A-5
     22-30A-5.   Repealed by SL 1977, ch 189, § 126


22-30A-6Theft of lost or mislaid property.

Any person who comes into control of property of another that the person knows to have been lost, estrayed, mislaid, or delivered under a mistake as to the nature or amount of the property or the identity of the recipient, is guilty of theft if, with intent to deprive the owner thereof, the person fails to take reasonable measures to restore the property to a person entitled to have the property.

Source: SDC 1939, § 13.3807; SDCL, § 22-37-11; SL 1976, ch 158, § 30A-11; SL 2005, ch 120, § 54.


22-30A-7Receiving stolen property.

Any person who receives, retains, or disposes of property of another knowing that the property has been stolen, or believing that the property has probably been stolen, unless the property is received, retained, or disposed of with the intent to restore the property to the owner, is guilty of theft.

Source: SDC 1939, § 13.3813; SL 1961, ch 41; SL 1965, ch 33; SL 1966, ch 34; SDCL, § 22-37-18; SL 1976, ch 158, § 30A-12; SL 2005, ch 120, § 55.


22-30A-8Obtaining property or services without paying.

Any person is guilty of theft if that person intentionally obtains property or service which that person knows is available only for compensation, by deception, threat, or other means to avoid payment for the service or property.

Source: SDC 1939, § 13.4206; SDCL, § 22-41-15; SL 1972, ch 143; SL 1976, ch 158, § 30A-13; SL 1977, ch 189, § 60; SL 2005, ch 120, § 56.


22-30A-8.1Obtaining property or services with false debit or credit card.

Any person who, by use of a debit card or credit card issued to another person, without the consent of the person to whom issued, or by use of a debit card or credit card which has been revoked or canceled or has expired, or by use of a falsified, mutilated, altered, or counterfeit debit card or credit card obtains property or services, is guilty of theft.

Source: SL 1977, ch 189, § 59; SL 2005, ch 120, § 57; SL 2014, ch 191, § 5.


22-30A-8.2
     22-30A-8.2 to 22-30A-8.5.   Transferred to §§ 22-40-11 to 22-40-14 by SL 2005, ch 120, § 85, eff. July 1, 2006.


22-30A-9Diverting services of another.

Any person who, having control over the disposition of services of others, to which that person is not entitled, diverts such services to his or her own benefit or to the benefit of another not entitled thereto, is guilty of theft.

Source: SL 1976, ch 158, § 30A-14; SL 2005, ch 120, § 58.


22-30A-10Embezzlement of property received in trust.

Any person, who has been entrusted with the property of another and who, with intent to defraud, appropriates such property to a use or purpose not in the due and lawful execution of his or her trust, is guilty of theft. A distinct act of taking is not necessary to constitute theft pursuant to this section.

Source: SDC 1939, §§ 13.1236, 13.1305, 13.4001, 13.4003 to 13.4007; SDCL, §§ 3-16-4, 3-16-5, 22-38-1 to 22-38-7; SL 1976, ch 158, § 30A-15; SL 1977, ch 189, § 61; SL 2005, ch 120, § 59.


22-30A-10.1Return of stolen property considered in mitigation of punishment--Return not a defense.

If any person, who has been accused of theft, restores or returns the property allegedly stolen before an indictment or information is laid before a magistrate, such fact may be considered in mitigation of punishment. The restoration or return of the property is not a defense nor may it be considered by the finder of fact.

Source: SL 1977, ch 189, § 58; SL 1986, ch 183, § 1; SL 2005, ch 120, § 60.


22-30A-11Disqualification from public office.

Any person convicted of theft under § 22-30A-10 for unlawfully obtaining property of this state, of any of its political subdivisions, or of any agency or fund in which the state or its people are interested shall, in addition to the punishment prescribed by § 22-30A-17 and chapter 22-6 and that may also be prescribed under § 3-23-5 or 3-23-9, be disqualified from holding any public office, elective or appointive, under the laws of this state.

Source: SDC 1939, § 48.0207; SDCL § 3-16-6; SL 1976, ch 158, § 30A-15; SL 2005, ch 120, § 61; SL 2017, ch 31, § 17.


22-30A-12Unauthorized operation of vehicle or vessel as misdemeanor.

Any person who, without the intent to deprive the owner thereof, operates another's motor vehicle or vessel without the consent of the owner, is guilty of a Class 1 misdemeanor.

Source: SL 1976, ch 158, § 30A-17; SL 2005, ch 120, § 62.


22-30A-13Theft by conversion of rented personalty after notice of termination.

Any person who intentionally converts to his or her own use any leased or rented personal property, after receiving proper notice demanding the return of the property following expiration of the lease or rental agreement, is guilty of theft. For the purposes of this section, the term, proper notice, means a written demand for the return of the property addressed and mailed by certified or registered mail to the lessee or renter or personal service of such written demand in the manner provided for service of a summons.

Source: SL 1976, ch 158, §§ 30A-19, 30A-20; SL 1981, ch 178; SL 2005, ch 120, § 63.


22-30A-14Affirmative defense to conversion of leased or rented personalty.

The following factors, taken as a whole, constitute an affirmative defense to a prosecution commenced under § 22-30A-13:

(1)    That the lessee accurately stated his or her name and address at the time of rental;

(2)    That the lessee's failure to return the item at the expiration date of the rental contract was lawful;

(3)    That the lessee failed to receive the lessor's notice personally; and

(4)    That the lessee returned the personal property to the owner or lessor within forty-eight hours of receiving notice of the commencement of prosecution, together with any charges for the overdue period and the value of damages to the personal property, if any.

Source: SL 1976, ch 158, § 30A-21; SL 2005, ch 120, § 64.


22-30A-15Theft as single offense incorporating previous separate offenses--Terms used in alleging theft.

Conduct constituting theft pursuant to this chapter constitutes a single offense including any separate offenses committed or charged before the effective date of this chapter and known as larceny, embezzlement, extortion, fraudulent conversion, false pretense, and receiving stolen property. An accusation of theft may be supported by evidence that the theft was committed in any manner that would be theft under this chapter, notwithstanding the specification of a different manner in the indictment or information, subject only to the power of a court to ensure a fair trial by granting a continuance or other appropriate relief if the conduct of the defense would be prejudiced by lack of fair notice or by surprise.

Source: SL 1976, ch 158, § 30A-2; SL 2005, ch 120, § 65.


22-30A-16Ignorance and honest claim of right as affirmative defenses to theft.

It is an affirmative defense to a prosecution for theft that the defendant:

(1)    Was unaware that the property taken was that of another; or

(2)    Acted under an honest and reasonable claim of right to the property involved or that the defendant had a right to acquire or dispose of the property as he or she did.

Source: SDC 1939, § 13.4009; SDCL, § 22-38-10; SL 1976, ch 158, § 30A-5; SL 1977, ch 189, § 62; SL 2005, ch 120, § 66.


22-30A-17Grand theft--Felony.

Grand theft is a Class 6 felony, if the property stolen:

(1)    Exceeds one thousand dollars in value but is less than or equal to two thousand five hundred dollars;

(2)    Is a firearm with a value of less than or equal to two thousand five hundred dollars;

(3)    Is taken from the person of another with a value of less than or equal to two thousand five hundred dollars; or

(4)    The property stolen is cattle, horses, mules, sheep, goats, buffalo, or captive nondomestic elk with a value of less than or equal to two thousand five hundred dollars.

Grand theft is a Class 5 felony if the value of the property is more than two thousand five hundred dollars but less than or equal to five thousand dollars.

Grand theft is a Class 4 felony if the value of the property is more than five thousand dollars but less than or equal to one hundred thousand dollars.

Grand theft is a Class 3 felony if the value of the property is more than one hundred thousand dollars but less than or equal to five hundred thousand dollars.

Source: SDC 1939, §§ 13.3802 to 13.3803, 13.4008; SL 1959, ch 39; SL 1961, ch 40; SDCL §§ 22-37-2, 22-37-3, 22-37-6, 22-38-12; SL 1976, ch 158, § 30A-3; SL 1977, ch 189, §§ 63, 64; SL 1978, ch 158, § 72; SL 1982, ch 178; SL 1990, ch 165, § 2; SL 1997, ch 139, § 1; SL 2001, ch 114, § 1; SL 2005, ch 120, § 67; SL 2013, ch 101, § 60; SL 2013, ch 110, § 1.


22-30A-17.1Aggravated grand theft--Felony.

Theft is aggravated grand theft, if the value of the property stolen exceeds five hundred thousand dollars. Aggravated grand theft is a Class 2 felony.

Source: SL 2005, ch 120, § 68; SL 2013, ch 101, § 61.


22-30A-17.2Petty theft in the first degree--Misdemeanor.

Theft is petty theft in the first degree, if the value of the property stolen exceeds four hundred dollars but does not exceed one thousand dollars. Petty theft in the first degree is a Class 1 misdemeanor.

Source: SL 2005, ch 120, § 69.


22-30A-17.3Petty theft in the second degree--Misdemeanor.

Theft is petty theft in the second degree, if the value of the property stolen is four hundred dollars or less. Petty theft in the second degree is a Class 2 misdemeanor.

Source: SL 2005, ch 120, § 70.


22-30A-18Aggregation of related thefts to determine degree of offense.

Amounts involved in thefts, whether from the same person or several persons, committed pursuant to one scheme or course of conduct, may be aggregated in determining the degree of the offense.

Source: SL 1976, ch 158, § 30A-4; SL 2005, ch 120, § 71.


22-30A-19
     22-30A-19.   Repealed by SL 1989, ch 199, § 5


22-30A-19.1Liability of shoplifter to owner or seller--Penalty.

Any adult, or any emancipated minor as defined in § 25-5-24, or any parent or guardian of any unemancipated minor, who takes possession of any goods, wares, or merchandise displayed or offered for sale by a store or other mercantile establishment without the consent of the owner or seller, and with the intention of converting the goods to the person's own use without having paid the purchase price, is liable to the owner or seller for the retail value of the merchandise, regardless of whether or not the merchandise has been recovered in undamaged condition by the owner or seller. In addition, the owner or seller is entitled to a penalty of four times the retail value of the merchandise, or one hundred dollars, whichever is greater.

Source: SL 1989, ch 199, § 1; SL 1993, ch 213, § 108; SL 1994, ch 179, § 1; SL 1997, ch 138, § 1; SL 2005, ch 120, § 72.


22-30A-19.2Detention of suspected shoplifter--Reasonableness--Grounds.

Any owner or seller of merchandise, who has reasonable grounds to believe that a person has committed retail theft pursuant to § 22-30A-19.1, may detain such person, on or off the premises of a retail mercantile establishment, in a reasonable manner and for a reasonable length of time:

(1)    To request identification;

(2)    To verify such identification;

(3)    To make reasonable inquiry as to whether such person has in his or her possession unpurchased merchandise and, to make reasonable investigation of the ownership of such merchandise;

(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; and

(5)    In the case of a minor, to inform a law enforcement officer, a parent, guardian, or other private person interested in the welfare of the detained minor and to surrender custody of the minor to such person.

An owner or seller of merchandise may make a detention as permitted in this section off the premises of a retail mercantile establishment only if such detention is pursuant to the immediate pursuit of such person.

Source: SL 1989, ch 199, § 2; SL 2005, ch 120, § 73.


22-30A-19.3Demand for payment by victim of retail theft.

Any owner or seller of merchandise who is the victim of retail theft pursuant to § 22-30A-19.1 may make a written demand for the amount for which any person is liable pursuant to § 22-30A-19.1. Except for a sole proprietorship, a member of management, other than the initial detaining person, shall evaluate the validity of the accusation that an act of retail theft was committed and shall approve the accusation before a written demand for payment is issued. The demand for payment shall be mailed by certified mail to the person from whom payment is demanded or served personally on the person from whom payment is demanded. Personal service shall be accomplished in the same manner as the service of a summons.

Source: SL 1989, ch 199, § 3; SL 1997, ch 138, § 3; SL 2005, ch 120, § 74.


22-30A-19.4Failure to pay liability for theft--Penalty doubled.

If the person to whom a written demand is made pursuant to § 22-30A-19.3 complies by making full payment of the amount required by the written demand within thirty days after its receipt, that person incurs no further civil liability to the owner or seller of the merchandise. However, if the person to whom a written demand is made fails to make full payment pursuant to that written demand, then the penalty allowed in § 22-30A-19.1 may be doubled.

Source: SL 1989, ch 199, § 4; SL 1997, ch 138, § 2; SL 2005, ch 120, § 75.


22-30A-20Unauthorized possession of federal Department of Agriculture commodities transferred to state.

Any person who receives, retains, or disposes of United States Department of Agriculture commodities which have been transferred to the State of South Dakota, who is not entitled to possess those commodities, either as an eligible recipient of commodities pursuant to 7 CFR 250.3 as effective on January 1, 1981, or as a purchaser of commodities which have been released for sale due to condition or damage and have been plainly marked as available for sale to the public, is guilty of theft.

Source: SL 1981, ch 179, § 1; SL 2005, ch 120, § 76.


22-30A-21Law enforcement officer retaining seized property as theft.

No state, county, or municipal law enforcement officer may retain or dispose of property that has been seized or confiscated unless the law enforcement officer retains or disposes of such property pursuant to law or a court order. A violation of this section constitutes theft pursuant to § 22-30A-1.

Source: SL 1983, ch 177; SL 2005, ch 120, § 77.


22-30A-22
     22-30A-22, 22-30A-23.   Repealed by SL 2005, ch 120, §§ 78, 79, eff. July 1, 2006.


22-30A-24Theft by insufficient funds check--Degrees according to amount--Aggregation of checks.

Any person who, for himself or herself or as agent or representative of another, for a present consideration, with intent to defraud, passes a check drawn on a financial institution knowing at the time of such passing that there are not sufficient funds in the account on which the check was drawn in the financial institution for the payment of such check and all other checks upon such funds then outstanding, in full upon its presentation, although no express representation is made with reference thereto, is guilty of theft by insufficient funds check. Theft by insufficient funds check is punishable as theft pursuant to chapter 22-30A. In determining the degree of theft, the value of the property stolen or attempted to be stolen is the same as the face amount of the insufficient funds check. Any series of insufficient funds checks within any thirty-day period may be aggregated in amount to determine the degree of theft of such course of conduct.

Source: SDC 1939, § 13.4204; SL 1959, ch 40; SL 1967, ch 27; SL 1973, ch 153, §§ 1, 6; SDCL Supp, § 22-41-1.1; SL 1976, ch 158, § 41-1; SL 1977, ch 189, § 74; SL 1978, ch 158, § 15; SL 1990, ch 165, § 1; SDCL, § 22-41-1; SL 2005, ch 120, §§ 132, 139.


22-30A-25Theft by no account check--Degrees according to amount--Aggregation of checks.

Any person who, for himself or herself or as an agent or representative of another, for present consideration, with intent to defraud, passes a check drawn on a financial institution knowing at the time of such passing that neither the check passer or the check passer's principal has an account with such financial institution, is guilty of theft by no account check. Theft by no account check is punishable as theft pursuant to chapter 22-30A. In determining the degree of theft, the value of the property stolen or attempted to be stolen is the same as the face amount of the no account check. Any series of no account checks within any thirty-day period may be aggregated in amount to determine the degree of theft of such course of conduct.

It is a defense to prosecution pursuant to this section that the check passer's or the check passer's principal's account was closed without the check passer's knowledge. Evidence that the financial institution mailed a notice by certified or registered mail to the person in whose name the account was listed at the last address contained in the financial institution's records is prima facie proof that the check passer had knowledge that such account was closed.

Source: SL 1973, ch 153, § 4; SL 1976, ch 158, § 41-2; SL 1977, ch 189, § 75; SDCL, § 22-41-1.2; SL 2005, ch 120, §§ 133, 139.


22-30A-26Return of property or payment of check and the costs and expenses prohibits criminal prosecution.

If any person, who has been accused of a violation of § 22-30A-24 or 22-30A-25, restores or returns the property allegedly obtained as consideration or makes payment of the check and the costs and expenses provided for in § 57A-3-421 to the holder within thirty days of the mailing or delivery of the notice of dishonor, no criminal prosecution may occur in regard to the check.

Source: SL 1986, ch 183, § 2; SDCL, § 22-41-1.3; SL 2005, ch 120, §§ 134, 139.


22-30A-27Passing insufficient funds check as prima facie evidence of knowledge of insufficiency.

The passing of a check, described in § 22-30A-24, is prima facie evidence that the person who passed the check had knowledge of insufficient funds in the account on which the check was drawn in the financial institution.

Source: SDC 1939, § 13.4204; SL 1959, ch 40; SL 1967, ch 27; SL 1973, ch 153, § 2; repealed SL 1976, ch 158, § 41-11; re-enacted SL 1977, ch 189, § 76; SDCL, § 22-41-2; SL 2005, ch 120, §§ 135, 139.


22-30A-28Goods, services, taxes, and other obligations as present consideration.

Present consideration includes goods which are delivered or constructively delivered, and services which are completed, seven days, exclusive of the date of such delivery or completion and exclusive of legal holidays and Sundays, before or after payment therefor. Present consideration also includes payment made for goods and services, if the goods and services are obtained under an understanding that the goods and services would be paid for at a specific time by written agreement or under an established method of payment of accounts. In addition, payment of taxes and any other obligation due the State of South Dakota or any of its political subdivisions and payment of alimony or child support constitutes present consideration for the purposes of this chapter.

Source: SL 1973, ch 153, § 3; SL 1976, ch 158, § 41-3; SL 1977, ch 189, § 77; SL 1980, ch 177; SL 1986, ch 184; SL 1993, ch 180; SDCL, § 22-41-2.1; SL 2005, ch 120, §§ 136, 139.


22-30A-29Postdated check not in violation.

The making of a postdated or hold check, knowingly received as such, or a check issued under an agreement with the payee that the check would not be presented for payment for a specified time, does not constitute a violation of § 22-30A-24.

Source: SL 1973, ch 153, § 7; SL 1987, ch 169; SDCL, § 22-41-2.2; SL 2005, ch 120, §§ 137, 139.


22-30A-30Prosecution for passing check against insufficient funds--Establishment of probable cause-Testimony of official not necessary.

For purposes of establishing probable cause that a criminal offense has been committed in violation of § 22-30A-24 or 22-30A-25, probable cause is established if the prosecution has presented as evidence at the preliminary hearing, or before the grand jury, a check bearing reasonable indicia that the check has been presented for payment and that the check has not been paid or honored by the financial institution because of insufficient funds in the account upon which the check was drawn or that the account did not exist. Upon the offer and acceptance of the check as evidence at the preliminary hearing, or before the grand jury, it is not necessary for an official or employee of the financial institution to testify at the preliminary hearing, or before the grand jury, concerning the financial institution's records with respect to the account upon which the check has been drawn.

Source: SL 1987, ch 170; SL 1991, ch 194; SL 1992, ch 26, § 4; SDCL, § 22-41-2.3; SL 2005, ch 120, §§ 138, 139.


22-30A-31Passing check as prima facie evidence.

The passing of a check, described in § 22-30A-24, that bears the name and address of an account holder and bears a signature, purporting to be that of the account holder, is prima facie evidence that an account holder executed the check.

Source: SL 1998, ch 138, § 1; SDCL, § 22-41-2.4; SL 2005, ch 120, § 139.


22-30A-32Notice of dishonor required before prosecution for theft by insufficient funds--Check or theft by no account check--Presumption of service--Waiting period.

The holder of an insufficient funds check or no account check shall, before presenting the check to the state's attorney for prosecution, serve a notice of dishonor upon the writer of the check, by registered or certified mail, return receipt requested, or by first class mail, supported by an affidavit of mailing sworn and retained by the sender, in the United States mail and addressed to the recipient's most recent address known to the sender. If the notice is mailed, and not returned as undeliverable by the United States Postal Service, notice is conclusively presumed to have been given on the date of mailing. The holder of the dishonored check, whether it be a no account check or insufficient funds check, shall, upon return of the receipt, hold the check for a period of at least thirty days if notice is given by first class mail, and upon the expiration of that period shall present the check with the attached bank return, return receipt or affidavit of mailing, and copy of the dishonor notice to the state's attorney for prosecution.

Source: SL 1973, ch 153, § 8; SL 1976, ch 158, § 41-4; SL 2003, ch 128, § 1; SDCL, § 22-41-3.1; SL 2005, ch 120, §§ 139, 140.


22-30A-33Additional civil penalty for failure to pay amount of check and fees and costs--Prosecution.

If the drawer of a check does not pay the fees and costs provided for in § 57A-3-421 and the amount of the check to the holder of the check within thirty days of the mailing of the notice of dishonor, the drawer shall owe to the holder of the check an additional civil penalty equal to twice the amount of the check. The state's attorney may then prosecute the dishonor. No state's attorney may collect a civil penalty for prosecuting the dishonor. No state's attorney may assign a check for civil collection for violation of § 22-30A-24 or 22-30A-25.

Source: SL 2005, ch 120, § 442; SL 2006, ch 128, § 1.


22-30A-34Contents of notice of dishonor.

The notice of dishonor required by § 22-30A-32 shall be in substantially the following form:

Date ________________________________________________________________

Name of issuer ________________________________________________________

Bank on which drawn ___________________________________________________

Date of check _________________________________________________________

Amount of check _______________________________________________________

Holder of the check _____________________________________________________

You are hereby notified that your check described above has been dishonored and is now being held by the above holder for a period of thirty days from the date of the mailing of this notice. Civil liability incurred by a check issuer pursuant to SDCL 57A-3-420 is not a defense to a violation of this chapter. If you do not pay the amount of the check and the costs and expenses provided for by SDCL 57A-3-421 within thirty days of the mailing of this notice of dishonor to you, your check will be delivered to the state's attorney for criminal prosecution for theft, and you will be liable to the holder of the check for an additional civil penalty of an amount equal to twice the amount of the check in addition to the amount of the check and the costs and expenses provided for by SDCL 57A-3-421.

Source: SL 1973, ch 153, § 8; SL 1983, ch 368, § 2; SDCL, § 22-41-3.2; SL 2005, ch 120, §§ 139, 444.


22-30A-35Proof of notice not required--Payment of check, costs, and expenses bar to prosecution.

The service of a notice of dishonor in accordance with §§ 22-30A-32 and 22-30A-34 is not an element of the crime of theft by insufficient funds check or theft by no account check, nor is it an element of proof thereof or a defense to any prosecution therefor.

If the notice required by §§ 22-30A-32 and 22-30A-34 is returned undelivered, or if it appears to the state's attorney that there is reasonable cause to believe that the writer of the check intends to remove himself or herself from the jurisdiction of the court, the state's attorney may elect to prosecute without such notice. However, if the insufficient funds check or no account check is paid by the drawer to the holder, along with the costs and expenses provided for in § 57A-3-421, within the thirty days after the notice is mailed or delivered to the drawer, the check may not be prosecuted.

Source: SL 1973, ch 153, § 8; SL 1975, ch 170; SL 1976, ch 158, § 41-5; SL 1977, ch 189, § 78; SDCL, § 22-41-3.3; SL 2005, ch 120, §§ 139, 141; SL 2006, ch 117, § 3.


22-30A-36Limitation of theft by insufficient funds check and theft by no account check prosecutions.

Any criminal prosecution under § 22-30A-24 or 22-30A-25 shall be commenced within six months after the holder of a check receives notice of its dishonor. Failure to prosecute a complaint within six months constitutes a bar to any criminal action under those sections.

Source: SL 1973, ch 153, § 5; SL 1976, ch 158, § 41-6; SL 1977, ch 189, § 79; SDCL, § 22-41-3.4; SL 2005, ch 120, §§ 139, 142.


22-30A-37Circumstances under which maker, drawer, or issuer not criminally or civilly liable for damages and costs.

The maker, drawer, or issuer is not criminally liable or civilly liable for damages and costs specified in this chapter if:

(1)    The account contained sufficient funds or credit to cover the check, draft, or order at the time the check, draft, or order was issued, plus all other checks, drafts, and orders on the account then outstanding and unpaid; or

(2)    The check, draft, or order was not paid because a paycheck, deposited in the account in an amount sufficient to cover the check, draft, or order, was not paid upon presentation; or

(3)    Funds sufficient to cover the check, draft, or order were garnished, attached, or setoff, and the maker, drawer, or issuer had no notice of such garnishment, attachment, or setoff at the time the check, draft, or order was issued; or

(4)    The maker of the check, draft, or order was not competent or of full age to enter into a legal contractual obligation at the time the check, draft, or order was issued; or

(5)    The making of the check, draft, or order was induced by fraud or duress; or

(6)    The transaction which gave rise to the obligation for which the check, draft, or order was given lacked consideration or was illegal.

Source: SL 2005, ch 120, § 445.


22-30A-38Combination of instruments--Court.

If the same person is the maker, drawer, or issuer of two or more checks, drafts, or orders, such instruments may be combined. An action for their recovery pursuant to this chapter may be brought in any county in which one of the dishonored checks, drafts, or orders were issued or in the county in which the check writer resides. A cause of action under this chapter may be brought in small claims court, if the amount of the demand does not exceed the jurisdiction of that court, or in any other appropriate court.

Source: SL 2005, ch 120, § 446.


22-30A-39Alteration or removal of serial number--Possession of property with altered serial number--Felony.

Any person who, without consent of the owner, intentionally alters, obliterates, or removes a serial number or other identifying mark on personal property, or possesses any personal property knowing that the property has a serial number or identifying mark which has been intentionally obliterated, altered, or removed, which number or marking may be used to determine ownership of the property, is guilty of a Class 6 felony.

Source: SL 1977, ch 189, § 23; SDCL, § 22-11-27; SL 2005, ch 120, §§ 223, 224.


22-30A-40Liability for cost of motor fuel received--Service charge.

The owner of a motor vehicle who has not paid for the motor fuel received is liable to the motor fuel retailer for the cost of the motor fuel. If notice of a service charge is conspicuously displayed on the premises when the motor fuel was received, the motor fuel retailer may impose a service charge not to exceed thirty dollars for any collection cost.

Source: SL 2005, ch 121, § 1.


22-30A-41Request for vehicle owner information--Format and content--Response by law enforcement.

If a motor fuel retailer provides, in writing, the license plate number of any motor vehicle owner who failed to pay for the motor fuel received to any law enforcement officer, the law enforcement officer shall provide the motor vehicle owner's name and addresses, recorded pursuant to § 32-5-3, to the retailer. The written request for the vehicle owner information may only be submitted by the registered owner or corporate officer of the motor fuel business. The owner or corporate officer shall enclose a self-addressed and stamped envelope with the written request. The format for the request shall be prescribed by the Department of Public Safety and include the following information:

(1)    The name and signature of the employee witnessing the theft;

(2)    The name and signature of the owner or corporate officer;

(3)    The address and telephone number of the owner or corporate officer;

(4)    License plate number of the motor vehicle; and

(5)    Reference to the applicable provisions of §§ 22-30A-40 to 22-30A-44, inclusive.

The law enforcement officer shall respond, in writing, to the owner or corporate officer of the motor fuel business.

Source: SL 2005, ch 121, § 2.


22-30A-42Demand for payment from motor vehicle owner for motor fuel received--Content of notice.

A motor fuel retailer may, within thirty days of the occurrence, demand payment from the motor vehicle owner for the motor fuel received by sending a notice by certified mail, return receipt requested. The notice shall be prescribed by the Department of Public Safety and include the following information:

(1)    The name, address, and license plate number of the motor vehicle owner;

(2)    Date the act occurred;

(3)    Type of motor fuel;

(4)    The unpaid dollar amount;

(5)    The service charge;

(6)    A citation of §§ 22-30A-40 and 22-30A-43; and

(7)    The employee's and employer's signature.

Source: SL 2005, ch 121, § 3.


22-30A-43Payment or dispute of claim--Court action--Service charge and expenses.

The motor vehicle owner shall pay the motor fuel retailer the full amount due within thirty-three days after receiving notice demanding payment pursuant to § 22-30A-42. The motor vehicle owner may dispute the motor fuel retailer's claim by sending a notice by certified mail, return receipt requested, to the motor fuel retailer within the thirty-three day period. If the motor vehicle owner disputes or fails to pay the retailer's claim, the retailer may take the claim to court. The court may award the retailer the unpaid dollar amount for the motor fuel, the service charge, and reasonable court expenses. If the motor vehicle owner does not dispute the claim and fails to pay the claim within the thirty-three day period, the court may award the retailer the unpaid dollar amount for the motor fuel, the service charge, and reasonable court expenses.

Source: SL 2005, ch 121, § 4.


22-30A-44Criminal action prohibited if retailer receives payment or court award.

If a motor fuel retailer receives payment or a court award pursuant to §§ 22-30A-40 to 22-30A-44, inclusive, the motor fuel retailer may not initiate or pursue a criminal action against the motor vehicle owner because of that loss.

Source: SL 2005, ch 121, § 5.


22-30A-45Public official defined.

For the purposes of § 22-30A-46, the term, public official, means any elected official, appointed official, officer, employee, authority member, board member, commission member, fiscal agent, executive of a local service agency, or any other person subject to the provisions of chapter 3-16, 3-23, 5-18A, or 6-1.

Source: SL 2017, ch 98, § 1.


22-30A-46Public official's use of public funds for official's financial benefit as theft.

Any public official who knowingly uses funds or property that has been entrusted to the public official in violation of the public trust and that results in a direct financial benefit to the public official commits a direct criminal conflict of interest.

Any public official who commits a direct criminal conflict of interest is guilty of theft.

Source: SL 2017, ch 98, § 2.


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