SD · state guide

South Dakota background screening law

How the courts here are organized

South Dakota runs a single unified court system, and that is the fact that decides how a search here is scoped. The Unified Judicial System describes the structure in its own words: "There are two levels of courts in South Dakota: Supreme Court and circuit courts. In addition, magistrate courts operate under supervision of the circuit courts." Its about page puts the same structure in one sentence: the system was "Established through a constitutional amendment that was enacted in 1975" and "operates under a unified structure comprising the South Dakota Supreme Court, circuit courts and magistrate courts." The organizing unit for a search is therefore the court, not an autonomous county court, and there is no separate county trial tier to run in parallel.

The circuit is the trial tier and the count is fixed by statute. Section 16-5-1.2 provides that "There shall be seven judicial circuits which shall be numbered and consist of counties as follows", then names them: First (Aurora, Bon Homme, Brule, Buffalo, Charles Mix, Clay, Davison, Douglas, Hanson, Hutchinson, McCook, Turner, Union and Yankton), Second (Lincoln and Minnehaha), Third (Beadle, Brookings, Clark, Codington, Deuel, Grant, Hamlin, Hand, Jerauld, Kingsbury, Lake, Miner, Moody and Sanborn), Fourth (Butte, Corson, Dewey, Harding, Lawrence, Meade, Perkins and Ziebach), Fifth (Brown, Campbell, Day, Edmunds, Faulk, Marshall, McPherson, Roberts, Spink and Walworth), Sixth (Bennett, Gregory, Haakon, Hughes, Hyde, Jackson, Jones, Lyman, Mellette, Potter, Stanley, Sully, Todd and Tripp) and Seventh (Custer, Fall River, Oglala Lakota and Pennington). Those lists total sixty-six counties, which matches the sixty-six county names the Unified Judicial System's own court finder returns. Section 16-6-1 names the same seven circuits and assigns their judges: six, fourteen, six, four, four, four and eight, forty-six in all.

Criminal jurisdiction is split between the two trial courts by offense class, and the split is statutory rather than administrative. Section 16-6-12 provides that "The circuit court has exclusive original jurisdiction to try and determine all cases of felony, and original jurisdiction concurrent with courts of limited jurisdiction as provided by law to try and determine all cases of misdemeanor and actions or proceedings for violation of any ordinance, bylaw, or other police regulation of political subdivisions." A felony therefore has one forum. A misdemeanor has two: section 16-12B-11 gives "A magistrate court with a magistrate judge presiding ... concurrent jurisdiction with the circuit courts to try and determine all cases of misdemeanor and actions or proceedings for violation of any ordinance, bylaw, or other police regulation of a political subdivision." Section 16-12B-13 sets the magistrate court's civil limit at twelve thousand dollars, including small claims, and withholds from a magistrate judge the power to issue an ex parte domestic abuse protection order or to try petitions for temporary custody, visitation or support.

One structural detail decides how thin a record can be. Section 16-12A-2.2 establishes a magistrate court "within each judicial circuit", and section 16-12A-2.3 then provides that "Any magistrate court with a magistrate judge presiding is a court of record. However, no magistrate court with a clerk magistrate presiding is a court of record." A misdemeanor disposed of by a clerk magistrate is therefore a matter heard in a court that is not a court of record, which is worth knowing before treating the absence of a transcript as an absence of a case. Section 16-6-10 gives the circuit court "jurisdiction of appeals from all final judgments, decrees, or orders of all courts of limited jurisdiction, inferior officers, or tribunals, in the cases prescribed by statute", so the magistrate tier is reviewed in the circuit court rather than in a separate appellate court.

Public access runs through a single statewide tool with a start date, and the date is the operational fact. The Unified Judicial System says of it: "Public Access Record Search (PARS) is an online tool which provides a summary of public court information in criminal cases, domestic protection orders, stalking protection orders, and foreign protection orders. PARS can be used to obtain a background check on yourself, another individual or a business." The same page gives the terms: "There is $20 fee for each search submitted via PARS. The fee is charged when the search is submitted and applies regardless of whether the search returns any records." And it gives the boundary: "Criminal cases are available, unless sealed from 1989 to present. For cases prior to 1989, records must be requested directly from the clerk of courts office for the county in which the case was filed." Open records in a PARS summary can be viewed or printed from public access terminals at courthouses, and a bulk records request route exists for large volumes.

The count of seven circuits is current but not settled, which matters to anyone writing it down as a fixed fact. The Unified Judicial System maintains a page headed "Proposed Fourth and Seventh Judicial Circuit Merger", described there as a proposal to merge the Fourth and Seventh judicial circuits, with public input being sought. Nothing has changed in section 16-5-1.2, so seven is correct as at this review, and a search built on circuit boundaries should be built to be re-scoped rather than treated as permanent.

The public criminal-case route is a summary with a start date, and both limits are structural. PARS covers criminal cases and protection orders and nothing else, so a civil judgment, a money judgment or a municipal ordinance matter is not in it. Within criminal cases it reaches back only to 1989, and the system states the alternative: "For cases prior to 1989, records must be requested directly from the clerk of courts office for the county in which the case was filed." A statewide search therefore is a 1989-onward search, and anything older is a county-by-county exercise against the clerk rather than a database query. Sealed matters are excluded from the summary, and the twenty dollar fee is charged on submission regardless of the result, so a nil return is a paid nil return and not evidence that nothing exists outside the tool.

The state repository is closed, and the closing is in the statute rather than in a policy. Section 23-5-11 provides that "Confidential criminal justice information and criminal history information are specifically exempt from disclosure pursuant to §§ 1-27-1 to 1-27-1.15, inclusive, and may be withheld by the lawful custodian of the records." Section 23-5-10(2) defines "Criminal history information" as "arrest information, conviction information, disposition information and correction information compiled by the attorney general pursuant to chapter 23-5, commonly referred to as a `rap sheet`". The only general access route is section 23-5-12, which is drafted around the subject: "Any person may examine criminal history information filed with the attorney general that refers to that person. The person requesting such information shall supply the attorney general with a written request together with fingerprint identification." Release to anyone else runs through the same person's authority, and the Attorney General may require a liability waiver before releasing it at all.

Whether a screening firm can use that route was not resolved by this pass, and the page states the conditions rather than a commercial path. Section 23-5-12 does contemplate release beyond the subject, because it provides that "The person may also authorize the attorney general to release his criminal history information to other individuals or organizations", which on its face reaches a firm acting on the subject's authority. Two conditions sit on top of it: the written request must carry fingerprint identification, and the Attorney General "may require the person to sign a waiver releasing the state, its employees or agents from any liability". Nothing in the chapter gives an employer or a screening firm a direct channel of its own. The one named third-party channel is section 23-5-12.1, which reaches school superintendents, child welfare agencies and certified social workers in private independent practice, on the name of a person being considered for employment or as an adoptive or foster parent, and it is a name-based submission rather than a fingerprint one.

The two record-clearing mechanisms behave differently, and neither deletes anything. Section 23A-3-26 defines expungement as "the sealing of all records on file within any court, detention or correctional facility, law enforcement agency, criminal justice agency, or Department of Public Safety concerning a person's detection, apprehension, arrest, detention, trial or disposition of an offense within the criminal justice system", and then states the limit expressly: "Expungement does not imply the physical destruction of records." Section 23A-3-31 requires the nonpublic record to go to the Division of Criminal Investigation, retained "solely for use by law enforcement agencies, prosecuting attorneys, and courts in sentencing the defendant or arrested person for subsequent offenses", with all other official records sealed. Section 23A-3-34 works differently again: it removes a non-felony case from the defendant's public record automatically after five years, but "the case record remains available to court personnel or as authorized by order of the court and may be used as an enhancement in the prosecution of subsequent offenses as provided by law." A public-record search can therefore miss a case that the repository file still holds, and the two answers are both correct and about different records.

The routing consequence is that a South Dakota answer has to say which of three sources produced it. A PARS response is a 1989-onward public summary of criminal cases and protection orders, sealed matters excluded, twenty dollars charged either way. A repository response is a fingerprint-supported rap sheet that only the subject can set in motion, under a written request and a possible liability waiver. A clerk-of-courts response from the county of filing is the only route to a pre-1989 case. None of the three is a South Dakota statewide criminal history on its own, and the county is not the unit that separates them, except below 1989.

The federal baseline

Federal law sets the floor here as it does everywhere. It is at 15 U.S.C. §1681 et seq., it binds the agency and the employer separately, and it does not vary by state. The FCRA article covers it section by section, including the seven-year limits, the salary threshold and the adverse action sequence, so that this page does not restate any of it.

What follows is only the overlay: what South Dakota adds on top of that floor, and where it departs from it.

What South Dakota law adds

Reporting limits at a glance

Every figure below is against South Dakota law. Where a row says “federal only”, the state has set nothing and 15 U.S.C. §1681c governs.

Adverse action here

The federal sequence applies unchanged: pre-adverse action notice with a copy of the report and the summary of rights, a reasonable opportunity to dispute, then the adverse action notice with the agency’s details and a dispute route. The FCRA article sets it out in full.

South Dakota adds no state adverse-action notice duty, no state pre-request notice and no state lookback rule. On a criminal-history report the federal sequence is the whole of the procedural requirement, and an employer that follows it is not exposed to a further state step. The state overlay is in what a report may lawfully contain and what may be relied on, rather than in the notice stages.

The repository access rule shapes what a letter can rely on. Section 23-5-12 puts the subject inside the transaction: the written request must come from the person the record refers to, with fingerprint identification, and release to anyone else runs through that person's authorization, with the Attorney General able to require a liability waiver. A letter that cites a Division of Criminal Investigation record in a process where the subject's written request and authorization are not on file is relying on something the access rule did not authorize.

What the two clearing mechanisms do and do not clear belongs in a dispute file. Section 23A-3-26 defines expungement as sealing and states that it "does not imply the physical destruction of records", and section 23A-3-31 keeps a nonpublic Division of Criminal Investigation record for law enforcement, prosecutors and sentencing courts, so an expunged matter may still exist in a nonpublic file. Section 23A-3-34 removes a non-felony case from the public record automatically after five years but leaves "the case record ... available to court personnel or as authorized by order of the court". A report that omits such a case is not necessarily wrong, and a dispute that turns on whether the matter still exists anywhere has to say which record it means.

Section 23A-3-32 gives the person a statement right for the expungement route, and it belongs in the file before the letter is written. The effect of an order of expungement is "to restore the defendant or arrested person, in the contemplation of the law, to the status the person occupied before the person's arrest or indictment or information", and no person as to whom an order has been entered "shall be held thereafter under any provision of any law to be guilty of perjury or of giving a false statement by reason of the person's failure to recite or acknowledge the person's arrest, indictment or information, or trial in response to any inquiry made of the person for any purpose." That protection is tied to an order of expungement under chapter 23A-3; it is not conferred by the automatic removal in section 23A-3-34, which contains no equivalent sentence.

A cannabis result needs to be read before it is acted on, because the answer turns on the job rather than on the card. Section 34-20G-22 permits adverse action or a refusal to hire on a positive metabolite test alone for a safety-sensitive job, as that term is defined at section 34-20G-1(24) by the employer's reasonable belief, and section 34-20G-24 creates no cause of action for discrimination or wrongful termination arising from enforcement of a drug-free workplace policy in compliance with the chapter. For a position that is not safety-sensitive, the section gives the registered qualifying patient the same rights as a person on a prescribed pharmaceutical as to employer interaction and drug testing, so a decision resting on the card alone is not one the section supports.

Screening in South Dakota: what your process needs

• Do not write South Dakota into a process as a ban-the-box state. Section 20-13-10 enumerates race, color, creed, religion, sex, ancestry, disability and national origin, criminal record is not among them, and no South Dakota statute restricts the criminal-record question at any stage.
• Do not carry across a conditional-offer trigger as a legal requirement. There is no inquiry restriction to trigger, so a process built around one is applying a rule South Dakota does not have.
• Check the public-sector mandate before designing a state-agency process. Section 3-6C-26 requires a state and federal criminal background investigation, with a DCI and FBI fingerprint check and a repeat every five years, for executive branch employees with access to confidential federal tax information, and the appointing authority may pay the cost.
• Treat the Division of Criminal Investigation file as closed. Section 23-5-11 exempts criminal history information from the public records law, and section 23-5-12 puts the written request, the fingerprint identification and any liability waiver in the subject's hands. Confirm the authorization is actually on file before relying on a state record.
• Use the named channel only where it applies. Section 23-5-12.1 covers school superintendents, child welfare agencies and certified social workers in private independent practice, on a name submitted for a person being considered for employment or as an adoptive or foster parent. It is not a general employer route.
• Scope a public court search to 1989 onward and say so on the report. Public Access Record Search returns criminal cases and protection orders from 1989, at twenty dollars a search charged whether or not anything is returned, and sealed matters are excluded.
• Send a pre-1989 requirement to the right place. For a case filed before 1989, the record is with the clerk of courts in the county where the case was filed, not in the statewide tool.
• Do not treat a nil PARS result as a clean record. It means no unsealed criminal case or protection order from 1989 onward was found, and nothing more. The fee is charged on submission either way.
• Check whether a misdemeanor was heard in a court of record. Under section 16-12A-2.3 a magistrate court with a clerk magistrate presiding is not a court of record, and section 16-12B-11 gives a magistrate court concurrent jurisdiction over misdemeanors with the circuit court, so the same offense can sit in either tier.
• Keep felony and misdemeanor routing separate. Section 16-6-12 gives the circuit court exclusive original jurisdiction over felonies, so a felony has one forum and a misdemeanor has two.
• Read a removal or an expungement for what it actually is. Section 23A-3-34 removes a non-felony case from the defendant's public record after five years and leaves the case record available to court personnel and by court order; section 23A-3-26 defines expungement as sealing and states that it "does not imply the physical destruction of records".
• Check the expungement timing before advising an applicant. Section 23A-3-27 allows a motion one year after an arrest with no accusatory instrument filed, one year after a formal dismissal on the record, at any time after an acquittal, or within one year of a dismissal on a showing of compelling necessity.
• Ask which job the cannabis result concerns before acting on it. Section 34-20G-22 permits adverse action or a refusal to hire on a positive metabolite test alone in a safety-sensitive job as defined at section 34-20G-1(24), and for any other position it gives a registered qualifying patient the same rights as a person on a prescribed pharmaceutical as to employer interaction and drug testing.
• Do not rely on a state-law wrongful termination claim to police a cannabis policy. Section 34-20G-24 provides that "No cause of action is created for employment discrimination or wrongful termination arising from an employer's enforcement of a drug-free workplace policy in compliance with this chapter."
• If the role is in medical cannabis, run the statutory check. Section 34-20G-61 requires a background check on every prospective principal officer, board member, agent, volunteer and employee before they begin work, and section 34-20G-62 bars employing anyone convicted of a disqualifying felony offense or under twenty-one.
• Ask before you assume on salary history, credit and automated tools. No South Dakota prohibition was located on salary-history inquiries, no state statute restricts credit checks, and no bill regulating automated employment decisions appears in the 2022 to 2026 sessions. Each is a finding about the instruments and bill lists read, not a categorical statement about the state.

Related states

• Nebraska. Nebraska releases its state criminal history to anyone who pays the fee, with interest in the subject demonstrated by paying it, so a name-based Nebraska check needs no authorization. Its twelve judicial districts are composed differently for district courts and for county courts, which makes the district number an unstable identifier, and its employer-screening provision governs reference disclosures on written consent rather than reports.
• Montana. Montana caps criminal record reporting at seven years and the cap reaches convictions, with no salary exemption anywhere in the statute and no exceptions subsection at all, so an old conviction is not reportable here at any salary. It also names marijuana in its off-duty lawful-product protection, and it splits the state’s criminal record into a restricted stream and an unrestricted one in which the courts sit.
• Minnesota. Minnesota requires a report to reach the consumer within 24 hours of going to the employer, and its ban-the-box law binds private employers with no size threshold.

What we do

South Dakota is a state where the law says less than the summaries do, in both directions. There is no ban-the-box rule in either sector and no state consumer reporting statute, no salary-history prohibition, no credit-check restriction and no lookback limit, and section 20-13-10's enumerated grounds for an employment discrimination claim do not include criminal record. Against that, section 3-6C-26 compels a DCI and FBI fingerprint background investigation, repeated every five years, for executive branch employees with access to confidential federal tax information. The medical cannabis provision at section 34-20G-22 gives a registered qualifying patient the standing of a person on a prescribed pharmaceutical as to employer interaction and drug testing, and then excepts adverse action or a refusal to hire on a positive metabolite test alone in a safety-sensitive job, a term defined by the employer's own reasonable belief about what the tasks could cause, with no cause of action for enforcement of a compliant drug-free workplace policy. The state criminal history sits in a Division of Criminal Investigation file that section 23-5-11 exempts from the public records law and that only the subject can set in motion, under a written request with fingerprints and a possible liability waiver. Public criminal case access runs from 1989 forward at twenty dollars a search, and anything older is a county clerk. Our South Dakota work separates the public record from the repository file, reads the job before it reads the test result, and says which of the three sources answered the question. If your current vendor applies a ban-the-box rule here that does not exist, or reports a South Dakota rap sheet without the subject's written authorization on file, this is where that shows.

Sources

• SDCL § 34-20G-22, Employment and drug testing, the medical cannabis employment provision
• SDCL § 34-20G-24, Cannabis at workplace, and § 34-20G-28, discipline for ingestion at work
• SDCL § 34-20G-1, definitions, including "safety-sensitive job" at (24)
• SDCL § 34-20G-61 and § 34-20G-62, background checks and employment restrictions for medical cannabis establishments
• SDCL § 20-13-10, unfair or discriminatory practices, and § 20-13-14, requiring security clearance
• SDCL § 23-5-11, confidentiality of criminal history information, and § 23-5-12, examination of own criminal history and authorization of release
• SDCL § 23-5-12.1, criminal record check by schools, child welfare agencies or a certified social worker
• SDCL § 23A-3-26 to § 23A-3-34, expungement, effect of an order, and automatic removal of non-felony charges
• SDCL § 16-5-1.2, the seven judicial circuits and their counties, and § 16-6-1, the judges of each circuit
• SDCL § 16-6-12, original criminal jurisdiction of the circuit court
• SDCL § 16-12A-2.2 and § 16-12A-2.3, magistrate courts and courts of record, and § 16-12B-13, jurisdictional limits
• SDCL § 3-6C-26, criminal background checks for executive branch employees with access to confidential information
• SDCL § 20-12-4 and § 20-12-5, authority of municipalities and counties and local commissions on human relations
• South Dakota Unified Judicial System, Public access to court records, describing Public Access Record Search, its coverage from 1989 and the twenty dollar fee
• South Dakota Unified Judicial System, Court structure, the court finder listing seven circuits and sixty-six counties, and the proposed Fourth and Seventh Circuit merger
• Thom v. Barnett, 2021 S.D. 65, the opinion striking down Constitutional Amendment A under Article XXIII, § 1, read as the court's own PDF from the Unified Judicial System opinions search
• Route note: sdlegislature.gov serves the same 5,982-byte JavaScript shell for every HTML path, including paths that do not exist, so no statute quotation could be read from the pages a reader would open. Every South Dakota statute on this page was read from the site's own backing service instead, at https://sdlegislature.gov/api/Statutes/Statute/ with the section cite as the last path segment, which returns the section text, catchline, previous and next sections and the source notes; /api/Statutes/LastStatuesEffectiveDate returned 2026-09-03, so the text read is current to 3 September 2026. ujs.sd.gov was reachable live and its court structure, court finder, public access, bulk records request and circuit merger pages were read directly, as was the court's own PDF of Thom v. Barnett through the opinions search. The municipal code hosts were closed: siouxfalls.gov returned HTTP 403, library.municode.com returned a byte-identical 2,684-byte shell for the Sioux Falls and Rapid City paths, rapidcity.municipal.codes and siouxfalls.municipal.codes returned a Cloudflare challenge, and the Internet Archive held only the same shell for those hosts. No statute or ordinance quotation was taken from a secondary source.

Last reviewed 23 September 2026. This page is checked on a quarterly cycle, because state screening law changes every legislative session. Nothing here is legal advice; see the terms of use.