Rights of drunk driving accident victims in South Dakota

If a drunk driver hurt you or someone you love in South Dakota, the state's rules decide what you can recover, who you can hold responsible, and how long you have to act. Some of those rules are unusual. South Dakota shields bars and party hosts from liability that most states allow, uses a comparative-fault standard almost no other state uses, and builds coverage into your own policy that pays when the drunk driver can't. Here is how it works, statute by statute.

Drunk driving is not a small part of the danger on South Dakota roads. Of the 140 people killed in traffic crashes statewide in 2023, 38 died in crashes involving a driver at or above the .08 legal limit, and 27 of those involved a driver at .15 or higher, roughly twice the limit.¹ Nationally that year, alcohol-impaired crashes killed 12,429 people, about 30 percent of all traffic deaths, one death every 42 minutes.²

Who pays for your injuries

South Dakota is a traditional fault (tort) state. There is no no-fault system and no mandatory personal injury protection. The driver who caused the crash, or that driver's liability insurer, is responsible for your medical bills, lost income, vehicle damage, and pain.³

Every driver has to carry liability limits of at least $25,000 for injury to one person, $50,000 per accident, and $25,000 for property damage, the 25/50/25 minimum set by SDCL 32-35-70.⁴ Those are floors, not typical policies, and a serious drunk-driving injury runs past $25,000 fast.

Medical payments coverage (MedPay), which pays your early treatment regardless of fault, is optional here. The South Dakota Division of Insurance lists it as an add-on, not a required coverage.³ If you bought it, use it right away.

When the drunk driver can't pay

Drunk drivers are disproportionately uninsured, underinsured, or gone from the scene. South Dakota law plans for that. Every auto liability policy issued in the state has to include uninsured motorist (UM) coverage and underinsured motorist (UIM) coverage, each at limits equal to your own bodily injury coverage, unless you signed a waiver for less.⁵⁶ The required amount is capped at $100,000 per person and $300,000 per accident unless you asked for more, which is a good reason to buy more.⁵

One rule catches people off guard. You cannot stack your UM and UIM limits on top of each other for a single crash. SDCL 58-11-9.7 says the two coverages can't be added together for one accident, with a narrow exception when two separate at-fault drivers are involved, one uninsured and one underinsured.⁷ Government-owned vehicles are the only policies exempt from the UM/UIM requirement.⁵

The bar is off the hook. The driver is not.

Here South Dakota parts ways with most of the country. There is no dram shop liability. If a bar kept serving someone who was already visibly drunk, and that person then killed a family driving home, the bar is not legally responsible for the crash.

The Legislature made that choice on purpose. SDCL 35-11-1 declares that the consumption of alcohol, not the serving of it, is the proximate cause of any injury an intoxicated person causes, and it specifically abrogated the earlier South Dakota Supreme Court decision, Walz v. City of Hudson, that had allowed those claims.⁸ A licensed vendor who serves an obviously intoxicated patron commits a Class 1 misdemeanor, yet SDCL 35-4-78 says that same vendor is not civilly liable to anyone injured as a result.⁹ Social hosts who pour drinks at a private party get the same immunity under SDCL 35-11-2.¹⁰

That leaves the drunk driver personally. Against that driver, South Dakota gives you something extra: punitive damages. Under SDCL 21-3-2, a jury may award damages "for the sake of example, and by way of punishing the defendant" when the defendant acted with malice, actual or presumed.¹¹ Driving drunk can meet that standard. There is a gate, though. Before you can take discovery on punitive damages or put the question to a jury, the judge has to hold a hearing and find, by clear and convincing evidence, a reasonable basis to believe the defendant engaged in willful, wanton, or malicious conduct (SDCL 21-1-4.1).¹² Clear that gate and the punitive award is not capped by statute.

No cap on what a jury can award

South Dakota has no statutory ceiling on the damages a jury can award in a car-crash case. The state's one significant damages cap, a limit on general (noneconomic) damages under former SDCL 21-3-11, was struck down as unconstitutional in Knowles v. United States.¹³ Your compensation for pain and the quality of life you have lost is whatever the jury finds it to be. Punitive damages, as noted, are also uncapped once the pretrial gate is cleared.

Your own conduct: the slight/gross rule

Most states use a percentage bar, where you lose if you were 50 or 51 percent at fault. South Dakota does not. It uses a comparative standard almost no other state shares, written into SDCL 20-9-2: your own negligence bars recovery only if it was more than "slight" in comparison with the defendant's negligence, and if you do recover, your damages are reduced in proportion to your share of fault.¹⁴

"Slight" is a qualitative judgment for the jury, not a fixed percentage, and the jury reaches it without announcing your percentage of fault.¹⁴ That usually helps a drunk-driving victim. Next to a driver who chose to get behind the wheel drunk, a victim's minor lapse, a few miles over the limit or a late lane change, tends to read as slight. It can cut the other way, so expect the defense to argue your conduct was more than slight and should bar the claim outright.

Deadlines you cannot miss

You have three years from the date of the crash to file a personal injury lawsuit in South Dakota (SDCL 15-2-14).¹⁵ Miss it and the claim is gone, however strong it was. When the injured person is a child, the clock generally does not start until they turn 18, because SDCL 15-2-22 pauses the limitation period during minority.¹⁶

Vehicle damage runs on a longer clock. A claim for damage to your car falls under South Dakota's six-year limit for injury to goods or chattels (SDCL 15-2-13), twice the personal-injury window.¹⁷ If your car was totaled or lost resale value, our South Dakota diminished value guide covers that claim, and it stays open well after the injury deadline closes.

Build the file early

The police crash report is the backbone of a drunk-driving claim, and in South Dakota it comes from the Department of Public Safety's Office of Accident Records. Our South Dakota crash reports page walks through how to request one. Get it, and hold on to everything else: photos, your medical records, and the names of anyone who saw the driver before or after the crash. Because the bar cannot be sued, the driver's own conduct is the whole case, and the record of that conduct is what carries both your compensatory claim and the punitive-damages hearing.

If you are weighing whether to bring a claim, a South Dakota attorney who handles these cases can look at your specific facts and tell you what they are worth. You can start with the legal directory.

This is general information about South Dakota law, not legal advice about your situation.

Sources

1. NHTSA, State Alcohol-Impaired-Driving Estimates: 2023 Data (DOT HS 813 726), Table 2. https://crashstats.nhtsa.dot.gov/Api/Public/ViewPublication/813726.pdf

2. NHTSA, Alcohol-Impaired Driving: 2023 Data (DOT HS 813 713). https://crashstats.nhtsa.dot.gov/Api/Public/Publication/813713

3. South Dakota Division of Insurance, Automobile Insurance consumer guidance. https://dlr.sd.gov/insurance/general_guidance/auto.aspx

4. SDCL 32-35-70, Motor vehicle liability policy minimum limits. https://sdlegislature.gov/Statutes/32-35-70

5. SDCL 58-11-9, Uninsured motorist coverage required. https://sdlegislature.gov/Statutes/58-11-9

6. SDCL 58-11-9.4, Underinsured motorist coverage required. https://sdlegislature.gov/Statutes/58-11-9.4

7. SDCL 58-11-9.7, No stacking of uninsured and underinsured limits. https://sdlegislature.gov/Statutes/58-11-9.7

8. SDCL 35-11-1, Consumption of alcohol as proximate cause of injury. https://sdlegislature.gov/Statutes/35-11-1

9. SDCL 35-4-78, Sale to intoxicated person; no civil liability of licensee. https://sdlegislature.gov/Statutes/35-4-78

10. SDCL 35-11-2, Immunity of social hosts. https://sdlegislature.gov/Statutes/35-11-2

11. SDCL 21-3-2, Exemplary damages for breach of a noncontract obligation. https://sdlegislature.gov/Statutes/21-3-2

12. SDCL 21-1-4.1, Punitive damages pretrial hearing and clear-and-convincing standard. https://sdlegislature.gov/Statutes/21-1-4.1

13. Knowles v. United States, 1996 SD 10, 544 N.W.2d 183. https://www.courtlistener.com/opinion/7930885/knowles-v-united-states/

14. SDCL 20-9-2, Contributory negligence not a bar when slight. https://sdlegislature.gov/Statutes/20-9-2

15. SDCL 15-2-14, Three-year limitation for an action for personal injury. https://sdlegislature.gov/Statutes/15-2-14

16. SDCL 15-2-22, Tolling of limitation for minority or mental illness. https://sdlegislature.gov/Statutes/15-2-22

17. SDCL 15-2-13, Six-year limitation for injuring goods or chattels. https://sdlegislature.gov/Statutes/15-2-13