Without an 'in-between' law in South Dakota, state's AG faces small penalty in deadly crash
One month ago, county prosecutors charging South Dakota Attorney General Jason Ravnsborg noted the state lacked a "negligent homicide" statute that might've been brought against the AG for his fatal pedestrian-car crash. As the case proceeds, a look at laws across the region finds South Dakota sets a high bar for bringing prosecutions when the aggravating motorist is not under the influence of alcohol or drugs.
PIERRE, S.D. — On a summer's day in 2019 a man from southern Minnesota lost control of a trailer that crashed into a motorcycling South Dakota couple, killing both of them.
When it came time to prosecute the motorist, an assistant county attorney in Gaylord, Minn., had multiple options, including the state's vehicular homicide statute, which allows prosecution for driving in a "grossly negligent manner."
At a hearing, however, the court heard the man, Curtis Petzel, hadn't hooked up the wobbly trailer: His brother had. So the prosecutor dropped the felony charge, and the 60-year-old pleaded to a lesser careless driving charge last November.
Still, for David Schauer, Sibley County Attorney, the vehicular homicide statute — even for motorists who aren't intoxicated but whose driving grossly endangers the public — remains a tool in his prosecutorial toolbox.
"I didn't handle the case," said Schauer, in a phone call on Thursday, March 18. "But basically it was decided that the criminal vehicular (charge) couldn't be sustained."
That reality — a vehicular homicide charge for a motorist who was neither drunk, nor high — is not possible under the statute of the same name in South Dakota, where traffic death laws are under increasing scrutiny with a high-profile criminal proceeding involving the state's attorney general.
One week after the opening hearing in Hughes County for Attorney General Jason Ravnsborg, questions continue to be raised about the prosecutorial decision made in charging Ravnsborg. He is charged with three misdemeanors ( "traffic citations," his publicist said),for killing a pedestrian along a highway.
The facts are agreed-upon. The night of Sept. 12, west of Highmore, S.D., the attorney general was speeding. His Ford Taurus was in the shoulder. Ravnsborg struck 55-year-old Joseph Boever, prosecutors say. The Highmore man was killed.
Nevertheless, the 44-year-old attorney general faces — at most — 90 days in county jail and a fine of $1,500. For some, that doesn't taste like justice. And even that penalty may be increasingly elusive. March 12, attorney Tim Rensch entered a "not guilty" plea on Ravnsborg's behalf.
"In this case, there's a mountain range of discovery," Rensch told the courtroom.
Afterward, the victim's cousin, former Democratic legislator Nick Nemec, shook his head in disbelief at the latest turn in this six-month drama.
"He was obviously outside of his lane. The skid marks on Highway 14 are still visible," said Nemec. "I think he's just as guilty as can be."
But "guilt" depends entirely on finding the right law.
A tool in prosecutor's 'toolbox'
When charges against Ravnsborg were announced in February, Beadle County State's Attorney Mike Moore offered up a rationale for not bringing felony vehicular homicide or second-degree manslaughter charges.
Vehicular homicide under South Dakota law, Moore said, wasn't appropriate because a blood test the morning after the collision found Ravnsborg, who attended a GOP fundraiser in Redfield, S.D., didn't have any alcohol or drugs in his system.
Moreover, Moore said Ravnsborg's swerving and striking Boever west of Highmore, S.D., on that dark night didn't meet the "reckless" standard required by the manslaughter law.
What was needed, he suggested, was a "negligent homicide" statute — a law they don't have.
"The people of South Dakota in the Legislature have rejected the idea of criminal responsibility as it relates to negligent conduct," Moore said.
State legislative records reveal that South Dakota lawmakers have tried negligent homicide bills in the past. Nearly 20 years ago, Jay Torgerson hid in a duck blind in western South Dakota when he was fatally shot in the head — accidentally — by a nearby land owner who'd thought the adjacent decoys to be real geese and had tried flushing the birds away with his rifle blasts.
The shooter eventually pleaded to a Class 1 misdemeanor. The victim's mother, Carol, appeared in 2006 before the South Dakota House Judiciary Committee, begging for what she called a law "in between" manslaughter and a misdemeanor.
"Nothing is going to bring back Jay," said the bereaved mother. "I would rather see you get very angry at the lack of a law."
But lobbyists representing professional groups, including hospitals, argued against the bill .
"It's not an exact science in health care," said Dave Hewitt, representing the South Dakota Organization of Healthcare Associations. "And read in a certain way, health care professionals could be charged with a Class 6 felony."
HB 1108 was almost unanimously defeated. Moreover, as Moore pointed out last month, that measure explicitly did not include traffic deaths.
Two members of that committee who sponsored that bill in 2006 sit still in the Legislature. Rep. Mark Willadsen , Sioux Falls-R, declined to comment, citing the possibility he may vote on a potential impeachment for Ravnsborg.
Al Novstrup , an Aberdeen Republican now in the Senate, responded to a request for comment with the linked text of the bill, bolding that the bill wouldn't apply to a driver.
'Sounds like a good law to me'
A review by Forum News Service of various statutes in states neighboring South Dakota reveals the state might have one of the higher bars for prosecutors to reach, at least with respect to pressing charges related to fatal motor vehicle crashes.
A negligent homicide is a class C felony in neighboring North Dakota. In Nebraska, a motorist who is sober can be charged with " motor vehicle homicide " if the driver shows "willful disregard for the safety of persons."
And in Minnesota, prosecutors have an array of options for destructive driving that winds up in a fatality.
"In Minnesota, by contrast, we actually have eight different kinds of vehicular manslaughter," wrote Ted Sampsell-Jones on Thursday. The Mitchell Hamline School of Law professor Ted Sampsell-Jones noted many provisions are "overlapping," so the difference isn't as "stark as it sounds."
According to a FNS records request from the Minnesota court systems, nearly 160 persons have been convicted in Minnesota of vehicular homicide over the last five years.
Still, different states use different laws to reach the same conclusion. And more laws wouldn't necessarily mean justice for Boever or his family, as likely a jury would ultimately judge the danger inherent in Ravnsborg's driving that night west of Highmore.
One state's attorney in South Dakota said he has two options when a fatal car crash happens involving criminal behavior: second-degree manslaughter or vehicular homicide. And he doesn't necessarily see either as inadequate.
Reached Thursday in Deadwood, longtime Lawrence County State's Attorney John Fitzgerald, who is president of the South Dakota State's Attorney Association , says his association hasn't discussed advocating in Pierre for a negligent homicide statute.
"Obviously that's a policy decision made by the South Dakota Legislature," Fitzgerald said.
"But speaking as a state's attorney?" he added. "Sounds like a good law to me."