Exposing a first responder to drugs could become a felony under new South Dakota bill

PIERRE — Bills involving certain aspects of the criminal justice system are making their way through legislative committees as the first week of the 99th Legislative Session wraps up.

Lawmakers heard a bill in House State Affairs on Friday morning that would shift the cost of representing people within state prisons, who commit crimes behind bars, from the county level to the state. Lawmakers sent the bill on to House Appropriations.

Another bill, which would make it a crime to expose law enforcement to drugs, was heavily debated and passed on to the House floor.

Here's a breakdown of the arguments:

Can someone be charged for accidentally exposing a first responder to drugs?

HB 1025 would make it a class three felony with up to 15 years in the state prison if someone exposed law enforcement, EMTs or fire fighters to a drug that results in serious bodily injury or harm.

Rep. Ben Krohmer, R-Mitchell, sponsored the bill and explained that as fentanyl continues to harm residents in South Dakota, there have already been incidents where law enforcement have been exposed to the drug either by breathing in small particles or having skin-to-skin contact.

Fentanyl overdoses and arrests continue to rise across the nation. On Thursday, Attorney General Marty Jackley told senators there had been 88 fentanyl-related arrests and an average of 10 pounds of fentanyl seized in South Dakota in 2022.

"We confiscated enough fentanyl to kill all of South Dakota several times over," Jackley said.

Krohmer showed body camera footage Friday morning from two incidents, including one from Florida in 2022 when a police officer was shown to lose consciousness after being exposed to a drug powder during an arrest, and the other when a San Diego deputy was exposed to the drug.

"This drug is dangerous to everyone," Krohmer said. "Our police, law enforcement officers, firefighters, paramedics, first responders and correctional officers are the most at risk."

Opposition to Krohmer's bill was swift, including the Defense Lawyer's Association and the Trial Attorney's Association.

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Cash Anderson, a lobbyist for the South Dakota Defense Lawyers Association, said experts had rebuked the San Diego body camera footage shown and argued inhaling small fentanyl particulates couldn't cause serious harm or death.

"It would take over 200 minutes of breathing fentanyl at the highest airborne concentrations to yield a therapeutic dose but not a potentially fatal dose," he said, citing a 2017 report from the American College of Medical Toxicology and the American Academy of Clinical Toxicology.

Anderson added because of the fear around fentanyl, law enforcement officers experience symptoms akin to a panic attack.

"A lot of times with these, there's not a whole lot of follow up confirmatory testing regarding fentanyl," he said.

Rep. Mike Stevens, R-Yankton, questioned if the bill was necessary since the aggravated assault on law enforcement law includes attempting to cause serious bodily harm and if the length of punishment if someone unintentionally exposed law enforcement to the drug.

"I think if somebody intentionally does something, I think they should be punished more than somebody who gets arrested and their in an ambulance," he said, referencing an example of a first responder getting poked by a needle with a trace amount of drugs on it from the pocket of an unconscious patient. "They're not intending to hurt anybody in that regard."

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Rep. Tyler Tordsen, R-Sioux Falls, added he was concerned about the penalty for what could be a potentially accidental action.

Rep. Mary Fitzgerald, R-Saint Onge, said it would be up to the prosecutors to decided if they were going to use the bill if it became law to charge a person with the crime.

Stevens was unable to convince the committee to kill the bill, and instead an amendment brought by Rep. Bethany Soye, R-Sioux Falls, to lower the felony penalty from class two to class three passed. HB 1025 with the amendment passed 8-4.

Lawmaker: Let the state pay for incarcerated men's legal defense fees

HB 1039 was created after a summer study on county funding issues. Rep. Ernie Otten, R-Tea, sponsored the bill but was unable to defend it in committee.

Instead, House Majority Leader Will Mortenson spoke on the bill, saying only inmates who couldn't afford legal council would have their legal costs covered by the state. Currently, counties foot the bill for incarcerated people's legal fees when they commit a crime inside a state prison, while the state covers expenses incurred by the Attorney General's Office for prosecution.

"We're really talking about the folks who are the most impoverished in our communities that qualify for these," the Fort Pierre Republican said.

Erik Erickson, a lobbyist representing the South Dakota Association of County Commissioners, noted an incident at the Mike Durfee men's prison in Springfield where a group of incarcerated men incurred more than $3 million in defense costs after a drug ring they were running inside the prison was busted in 2018.

"[Bon Homme county's] budget is about $5 million so that wasn't just going to work very well," he said.

While there was no opposition from lawmakers about passing the bill off to the Appropriations committee, officials with the Department of Corrections opposed HB 1039, saying it was near impossible to track what the fiscal impact of shifting the financial burden from the counties to the state would be like.

"For criminal defense, Minnehaha County doesn't track which cases occurred at the Penitentiary, so they don't know what their annual costs are that the state would assume and what budget adjustments would actually need to be made," said Brittni Skipper, the DOC director of finance and administration.

She urged for more research to be done and cautioned that the new men's penitentiary, set to be built in Lincoln County, won't open its door until 2028. There was time for more research, she said.

This article originally appeared on Sioux Falls Argus Leader: Exposing first responders to drugs may become a felony in South Dakota