Corsica man has right to preliminary hearing in DUI case, state Supreme Court rules

Mar. 25—PIERRE — The South Dakota Supreme Court has ruled that a Corsica man should have received a preliminary hearing in a third-offense DUI case because the potential crime is punishable as a felony.

The Supreme Court opinion was written by retired Chief Justice David Gilbertson, who was still on the bench in October when the oral arguments regarding Chad Rus' case were heard Oct. 5, 2020, at the University of South Dakota.

"The plain language of SDCL 23A-4-3 entitles a defendant to a preliminary hearing if he or she is charged by complaint or information with an offense 'punishable as a felony,' Gilbertson wrote. "The State charged Rus with a third-offense DUI. Under the plain language of SDCL 32-23-4, a third-offense DUI is a 'Class 6 felony.' Rus, therefore, is entitled to a preliminary hearing. We reverse and remand for proceedings consistent with this decision."

The case stems from Aurora County, where Rus was initially charged with three misdemeanors in July 2019 for driving a motor vehicle while under the influence of an alcoholic beverage, reckless driving and failure to report an accident filed on July 11, 2019, with each as Class 1 misdemeanors. On Oct. 23, 2019, Rus pleaded not guilty to the initial three counts he faced.

Rus was charged by the state by complaint and information for driving under the influence, which would have been his third DUI within a 10-year span, which is a Class 6 felony, if convicted. He moved that he was entitled for a preliminary hearing, because he was facing a felony. In October, his attorney argued that to make a knowing plea about guilty or not guilty, Rus should know the maximum possible penalties.

Aurora County State's Attorney Rachel Mairose argued that the decision on a preliminary hearing should only have been based on what was specifically before the court, even though she was up front with Rus and his attorneys about plans to later file supplemental information that would elevate the charge to a felony.

Gilbertson agreed with the defendant Rus that the language of the law must be read and applied with plain language. The opinion also reversed a prior court opinion from 1986 which classified SDCL 32-23-4 as a "punishment enhancement statute." In that same case, the defendant faced a third-offense DUI charge and argued that the charges entitled him to preemptory challenges, and the 1986 court rejected that, with Gilbertson writing that the court in correctly drew from the state's habitual offender statutes.

As the Court noted, our State's habitual offender statutes 'do not create a new offense, but merely authorize the trial court, in its discretion, to impose a more severe penalty upon one who is found to have the status of a habitual criminal,'" Gilbertson said. "Conversely, our State's DUI scheme does not merely 'authorize a trial court, in its discretion, to impose a more severe penalty.' Rather, our State's DUI statutes prescribe the level of punishment the individual faces if convicted of the subsequent DUI offense."

Gilbertson wrote that the rationale today aligns with a 2009 third-offense DUI conviction case, which concluded that the conviction could be "available for sentence enhancement purposes" under the habitual offender scheme. The other four Supreme Court justices concurred with the Gilbertson opinion.

A third offense DUI conviction in South Dakota carries a penalty of up to two years in the state penitentiary and a maximum fine of $4,000, along with the suspension of driving privileges for one year.