#24304-rev & rem-SLZ 

2007 SD 78

IN THE SUPREME COURT 

OF THE 

STATE OF SOUTH DAKOTA 

* * * * 

STATE OF SOUTH DAKOTA, Plaintiff and Appellant, 

 v. 

WAYNE L. DUCHENEAUX, Defendant and Appellee. 

 

* * * * 

APPEAL FROM THE CIRCUIT COURT OF 

THE FOURTH JUDICIAL CIRCUIT 

LAWRENCE COUNTY, SOUTH DAKOTA 

* * * * 

HONORABLE WARREN G. JOHNSON 

Judge 

* * * * 

LAWRENCE E. LONG 

Attorney General 

KATIE L. HANSEN 

Assistant Attorney General Attorneys for plaintiff 

Pierre, South Dakota and appellant. 

JOSEPH M. KOSEL of 

Johns & Kosel, Prof. LLC Attorneys for defendant 

Lead, South Dakota and appellee. 

* * * * 

CONSIDERED ON BRIEFS 

ON MAY 21, 2007 

 OPINION FILED 07/25/07 
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ZINTER, Justice 

[¶1.] Wayne Ducheneaux was charged with driving while under the 

influence (DUI). A Part II Information alleging that this was a third DUI offense 

was also filed. The circuit court granted Ducheneaux’s motion to strike the Part II 

Information. The State appeals. We reverse. 

[¶2.] Ducheneaux was arrested in 2006 for driving with a blood alcohol 

content of 0.08 or more. He was alternatively charged with DUI under SDCL 32-23-

1(1) and (2). The State’s attorney also filed a Part II Information alleging that 

Ducheneaux had two prior DUI convictions. One of the prior offenses was a 2003 

Colorado conviction for driving while ability impaired (DWAI). Ducheneaux moved 

to strike the Part II Information on the ground that the Colorado conviction was not 

substantially similar to the elements of South Dakota’s DUI statute, and therefore, 

could not be considered a prior offense under SDCL 32-23-4.5. The circuit court 

granted the motion to strike and the State appeals raising one issue: 

Whether a conviction under Colorado’s driving while ability impaired 

statute could be considered a prior driving under the influence offense 

under SDCL 32-23-4.5. 

We review such questions of statutory interpretation de novo. State v. Asmussen, 

2006 SD 37, ¶12, 713 NW2d 580, 586. 

[¶3.] Under SDCL 32-23-4.5, any prior offense committed by a defendant in 

any state in the past ten years may be considered a prior offense as long as it would 

have been a violation of SDCL 32-23-1 if committed in this State: 

Any conviction for, or plea of guilty to, an offense in another 

state which, if committed in this state, would be a violation of § 

32-23-1, and occurring within ten years prior to the date of the 
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violation being charged, shall be used to determine if the 

violation being charged is a second, third, or subsequent offense. 

SDCL 32-23-1(2) defines the elements of DUI in South Dakota: 

No person may drive or be in actual physical control of any 

vehicle while: . . . 

(2) Under the influence of an alcoholic beverage, marijuana, or 

any controlled drug or substance not obtained pursuant to a 

valid prescription, or any combination of an alcoholic beverage, 

marijuana, or such controlled drug or substance[.] 

The comparable Colorado statute defines the elements of DWAI as: 

(b) It is a misdemeanor for any person who is impaired by alcohol or by 

one or more drugs, or by a combination of alcohol and one or more 

drugs, to drive any vehicle in this state. . . .

(g) “Driving while ability impaired” means driving a vehicle 

when a person has consumed alcohol or one or more drugs, or a 

combination of both alcohol and one or more drugs, which 

alcohol alone, or one or more drugs alone, or alcohol combined 

with one or more drugs, affects the person to the slightest degree 

so that the person is less able than the person ordinarily would 

have been, either mentally or physically, or both mentally and 

physically, to exercise clear judgment, sufficient physical 

control, or due care in the safe operation of a vehicle. 

Colo. Rev. Stat. 42-4-1301(1)(b) and (g). 

[¶4.] Although the South Dakota statute does not define the under the 

influence offense in detail like the Colorado DWAI statute, this Court has often 

stated the elements of “under the influence,” within the meaning of SDCL 32-23-

1(2) as follows:

[T] his phrase covers “not only all well known and easily 

recognized conditions and degrees of intoxication, but any 

abnormal mental or physical condition which is the result of 

indulging in any degree in alcoholic liquor and which tends to 

deprive [the defendant] of that clearness of intellect and control 

of himself which [the defendant] would otherwise possess.”
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State v. Hullinger, 2002 SD 83, ¶14, 649 NW2d 253, 259

(quoting State v. Masteller, 86 SD 514, 517, 198 NW2d 503, 505 

(1972) (emphasis added)). Therefore, it is not required that a 

defendant display the easily observable signs of impairment 

such as staggering or slurred speech. Rather, any abnormal 

mental or physical condition that deprives an individual of the 

clearness of intellect and self control that they would otherwise 

possess will suffice. 

State v. Motzko, 2006 SD 13, ¶8, 710 NW2d 433, 437 (emphasis in original). See 

also State v. Dale, 66 SD 418, 421-422, 284 NW 770, 771-772 (1939); State v. 

Vandergrift, 1997 SD 5, ¶7, 558 NW2d 862, 863. Considering this definition, the 

elements of SDCL 32-23-1(2) are substantially similar to the elements of Colo. Rev. 

Stat. 42-4-1301(1)(g). They are substantially similar because, like our common-law 

definition, the Colorado statute only requires that the alcohol “affect[s] the person 

to the slightest degree so that the person is less able than the person ordinarily 

would have been, either mentally or physically, or both mentally and physically, to 

exercise clear judgment, sufficient physical control, or due care in the safe operation 

of a vehicle.” Colo. Rev. Stat. 42-4-1301(g). 

[¶5.] The circuit court incorrectly focused on considerations that are not 

relevant to determining whether the elements of Colorado’s DWAI statute are 

substantially similar to South Dakota’s DUI statute. The court noted differences 

between the blood alcohol content statutes in Colorado and South Dakota and 

Colorado’s different evidentiary inferences arising from blood alcohol levels. The 

court also noted that DWAI is a lesser included DUI offense in Colorado. However, 

SDCL 32-23-1(2) does not involve a blood alcohol content, and the lesser included 

offense analysis is not relevant in determining whether the elements of Colorado’s 
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DWAI statute are substantially similar to the elements of South Dakota’s DUI 

statute. 

[¶6.] Because the elements of Colo. Rev. Stat. 42-4-1301(1)(g) are 

substantially similar to SDCL 32-23-1(2), the Colorado conviction can be considered 

a prior offense in Ducheneaux’s Part II Information. 

[¶7.] Reversed and remanded for proceedings consistent with this opinion. 

[¶8.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, and 

MEIERHENRY, Justices, concur.