Administering Entity
South Dakota State Forensic Laboratory
Recent / Pending Legislation
- SB 49 (2026, enacted) – an act to safeguard the integrity, privacy, and security of genetic data and provide a civil penalty therefore. Consent needed to share with third parties.
Arrestees: Yes, from adults only. Booking Station Rapid Ready.
Qualifying Crimes: Any “qualifying offense”: (1) a felony; (2) a crime of violence — murder, manslaughter, rape, aggravated assault, riot, robbery, first-degree burglary, arson, kidnapping, felony sexual contact, felony child abuse, or any other felony in which the perpetrator used force, was armed with a dangerous weapon, or used an explosive or destructive device, including attempts, solicitations, and conspiracies; or (3) a violation of chapter 22-22 (sex offenses).
Time of Collection: At booking, or as determined by the supervising agency (no additional sample is required where the person’s DNA is already in the state database).
Expungement: Available on request where the arrest that triggered collection (1) produced no felony charge within one year, (2) was resolved by dismissal, acquittal, or a misdemeanor conviction, or (3) produced no felony conviction — or (4) where the conviction or delinquency adjudication supporting inclusion was reversed and the case dismissed. Upon receipt of (1) written request for expungement; (2) certified copy of the final court order reversing and dismissing the conviction or delinquency adjudication; and (3) any other information necessary to ascertain the validity of the request, the South Dakota State Forensic Laboratory shall expunge all DNA ascertain the validity of the request, the South Dakota State Forensic Laboratory shall expunge all DNA records and identifiable information in the database pertaining to the person and destroy the DNA sample from the person, unless the South Dakota State Forensic Laboratory determines that the person has otherwise become obligated to submit a DNA sample.
Statutes / Case Law
SDCL § 23–5a–2, Establishment of State DNA Database and State DNA Databank—Purpose—Compatibility with FBI Procedures—Capabilities
§ 23–5a–5.2, Adult Arrested for Qualifying Offense Required to Provide DNA Sample
§ 23–5a–28, Request for Expungement—Grounds
§ 23-5A-29. Expungement of record–Receipt of court order—Exception
Convicted Offenders: Yes.
Qualifying Crimes: Adults convicted of, and juveniles adjudicated delinquent for, a “qualifying offense” — (1) any felony; (2) a crime of violence (murder; manslaughter; rape; aggravated assault; riot; robbery; first-degree burglary; arson; kidnapping; felony sexual contact; felony child abuse; or any other felony involving force, a dangerous weapon, or an explosive or destructive device, including attempts, solicitations, and conspiracies); or (3) a chapter 22-22 sex offense. Registered sex offenders must also provide a sample (SDCL § 23-5A-5.1). [The original entries under this heading were transposed; corrected against SDCL ch. 23-5A.]
Time of Collection: The chapter directs convicted persons and registrants to provide samples “as required in this chapter” (SDCL §§ 23-5A-5, 23-5A-5.1) without fixing a separate collection moment for convicted persons; in practice the arrestee provision governs most collections, at booking or as determined by the supervising agency, and no additional sample is required where one is already in the state database (SDCL § 23-5A-5.2).
Expungement: Available on written request — accompanied by a certified copy of the relevant final court order — where the conviction or delinquency adjudication supporting inclusion was reversed and the case dismissed.
Statutes / Case Law
SDCL § 23-5A-1. Definition of Terms
SDCL § 23-5A-4. Persons required to provide DNA sample – retroactivity of requirement
SDCL § 23–5A–5. Persons convicted or adjudicated delinquent for qualifying offense required to provide DNA sample
SDCL § 23-5A-5.1. Registered sex offenders required to provide DNA sample
SDCL § 23-5A-28. Request for expungement – grounds
SDCL § 23-5A-29. Expungement of record – receipt of court order – exception
Legislative History
- SB 184 (2003) → SL 2003, ch. 133, “DNA database to be established” (signed Mar. 4, 2003). Created SDCL ch. 23-5A, establishing the State DNA Database and Databank under the State Forensic Laboratory and defining “qualifying offense” as any state felony, a crime of violence under § 22-1-2, or a ch. 22-22 violation. Section 4 (§ 23-5A-4) mandated samples from anyone convicted or adjudicated delinquent for a qualifying offense, reaching back to those still incarcerated or under supervision. Repealed the predecessor statute at §§ 23-5-14 to 23-5-18.
- SB 148 (2006) → SL 2006, ch. 123, “Sex offender registry revised” (signed Mar. 7, 2006). Section 11 added § 23-5A-5.1, requiring a DNA sample from any person required to register as a sex offender; § 7 directed the registering agency to collect at registration unless prior collection is confirmed.
- SB 133 (2008) → SL 2008, ch. 114, “Adult arrested for a qualifying offense to provide a DNA sample” (signed Mar. 12, 2008). Section 1 added § 23-5A-5.2, requiring a sample at booking from any adult arrested for a qualifying offense. Section 3 amended § 23-5A-28 to add a request-based expungement right keyed to the arrest’s disposition. Predates Maryland v. Kingby five years.
- HB 1166 (2009) → SL 2009, ch. 120, “Postconviction DNA testing for certain inmates” (signed Mar. 10, 2009). Created SDCL ch. 23-5B, requiring the convicting court to order DNA testing on a motion meeting ten conditions, including a sworn assertion of actual innocence and exhaustion of other relief. Permits retesting by substantially more probative methods; forecloses habeas relief.
- SB 132 (2010) → SL 2010, ch. 124, “DNA samples used to determine parentage under certain conditions” (signed Mar. 10, 2010). Amended §§ 23-5A-17 and 23-5A-25 to permit release of a record or sample on court order for parentage determination, only where no other sample is available and all reasonable alternatives are exhausted.
- HB 1180 (2019) → SL 2019, ch. 112, collection and storage of sexual assault kit evidence. Amended §§ 23-5C-2 to 23-5C-4 and repealed §§ 23-5C-5 to 23-5C-7. Section 3 set the 14-day law enforcement submission deadline and 90-day laboratory analysis deadline, and barred exclusion of a DNA record for noncompliance with the chapter.
- HB 1074 (2020) → SL 2020, ch. 92, sexual assault kit preservation period (signed Feb. 27, 2020). Raised preservation in §§ 23-5C-2 and 23-5C-3 from one year to seven years, or until the victim reaches twenty-five, whichever is later, and added a seven-year preservation duty on the law enforcement agency holding the kit.
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