Cut And Paste Reasonable Suspicion

In order to justify stopping and detaining a person, an officer must possess a “reasonable suspicion” based on his training or experience to believe an individual is engaging in criminal activity.  Often called a “Terry stop,” the concept of reasonable suspicion was first made precedent by the United States Supreme Court in Terry v. Ohio.  In Terry, the Court ruled that an officer may stop an individual for a brief amount of time in order to determine whether that person was involved in a punishable crime.  The stop may include a “pat down,” or search for weapons that could place the officer in danger.  The reasonable suspicion standard has also been used to justify detaining persons involved in a traffic stop long enough for a drug dog to be called to do a canine sniff test for illegal drugs.  The reasonable suspicion standard requires “specific and articulable facts” and more than just an “inchoate and unparticularized hunch” of an officer.  Reasonable suspicion looks to the  “totality of circumstances” that a reasonable officer, in his experience and training, would justify detaining an individual.

Recently, in South Dakota and elsewhere, there has been an alarming trend in police reports that has not gone unnoticed by defense attorneys.  Whenever a person is detained for a criminal act, the officers involved will file a police report.  The report is a written statement of what that officer observed from the point of contact through the actual detention.  This report may be accompanied by a video or audio account of the interaction with the officer.  These accounts are made as a safeguard for your liberties and to hold the officer accountable for such, but don’t always tell the whole or correct story.  Part of the report will be the officer’s observations of what he determines to be reasonable suspicion for a detention.  It has been noticed, however, that several reports in South Dakota have contained language of a similar nature regarding reasonable suspicion.  In fact, many accounts are nearly word for word indicating that officers may be “cutting and pasting,” into their reports, wording or language used in other reports.  What is more curious are the observations made that are being used as indications of reasonable suspicion.  In a recent second circuit email circulation, several attorneys have seen reports of “nervousness,” “swearing to god,” or “pulsating carotid arteries” in the police reports.  These types of observations are particularly concerning due to the fact that nervousness typically is associated with any confrontation with authorities.  Also, observations regarding arterial pulsation are suspicious due to the fact that police do not have medical training to make such observations and that those observations are almost never evident in a video and certainly never in audio.  Thus, reasonable suspicion becomes suspect in and of itself.  Add to the mix that the same language appears in multiple reports, and it becomes worrisome that reasonable suspicion is being manufactured by police in order to circumvent the Terry protections against unreasonable searches.

Luckily, the courts have noticed the same trends and have made rulings that force authorities to find more conclusive observations in their quest for reasonable suspicion.  In the 8th Circuit, the Court in U.S. v. Jones, ruled that, “Because the government repeatedly relies on nervousness as a basis for reasonable suspicion, it must be treated with caution.”  And in U.S. v. Beck, the Court stated that, “any suspicion associated with Beck’s nervous demeanor during the traffic stop to be, at best, minimal.”

Despite the best efforts of the courts as watchdogs preventing overreaching by authorities, you need an attorney to review your specific case and make sure that your rights are protected.  You need the experience and expertise of the attorneys at Wilka, Welter and Ash who keep up on current events and know how to fight for you.

What You Need to Know About Auto Insurance

Every time you turn on the television you are bombarded with advertisements telling you that “fifteen minutes can save you some odd amount of money on car insurance.”  Most of these direct you to a website that allows you to fill out your own form for insurance.  Doing so usually saves you money because you are not using an agent as a “middle man” to sell you a policy.  But what do all those terms mean?  Do you need medical coverage if you have health insurance, and how much coverage do I need?  Does insurance provide coverage for the person or the car?  This web log entry attempts to clarify all these terms to make you are more aware consumer regarding car insurance and how important that is you are involved in an automobile accident.


How does auto insurance work; am I covered or is it my car?


The short answer is that your car is covered.  Basically, when you purchase insurance you purchase it based on your vehicle and driving record, but its is the vehicle that insured, not you.  So, for instance, if you borrow your friend’s car and get in an accident, his insurance pays.  The only time your insurance would become active is if your friend’s policy did not cover the total damages, or was uninsured for the accident.  So be careful when lending your car ,because if it is involve in an “at fault” accident, it’s your insurance that pays and you face increased premiums as a result.


What types of insurance coverage are there and what do I need?


Liability coverage is the cheapest coverage and is required of all vehicles on the road.  Liability covers only the property and bodily injury of another and provides no coverage for you or your vehicle.  If you finance or lease your vehicle you will be required to provide the following types of insurance:

Comprehensive insurance is a type of coverage that will pay for repairs or replacement of your vehicle if it is not in a collision.  It covers things such as fire, vandalism, natural disasters such as hail, or theft.  It is not a mandatory coverage by law, but if you have a loan or lease your vehicle it may be required.

Collision insurance is a type of coverage that will pay to repair or replace your vehicle if it is damaged by another vehicle or object.  It does not provide for medical payments or damage to another vehicle.  It also does not confer damage to your vehicle no related to driving (see comprehensive coverage.


What if the another driver causes and accident and doesn’t have insurance?


You can protect against uninsured or underinsured motorists by purchasing uninsured motorist coverage.  In the State of South Dakota, your insurance coverage will take the place of an uninsured motorist and cover you in the event you are in an accident caused by someone without insurance.  Similarly, if a motorist is underinsured, the legal limit of liability coverage in South Dakota is only $25,000, your insurance will take the place of an underinsured’s coverage and protect you.


How much coverage should I buy?


As was just stated, the legal limit for liability insurance in South Dakota is $25,000 per person and property as well as $50,000 for multiple persons; however, if you finance or lease your vehicle, the lessor or bank will most likely dictate that you must have $100,000/$300,000 comprehensive and collision to cover their losses should you be involved in an accident.  One important thing to remember is that if the amount of damage exceeds the limits to you policy, you can be held personally responsible for the remainder.  Given the high cost of medical care, it is advisable to have as much insurance as you can afford.  Higher dollar insurance policies are often times not much more than standard coverage, so it’s important to look at more insurance when making a decision on how much to buy.


What about medical payments coverage or med pay?


Payments for medical coverage are offered as an al la carte option for your policy.  It can be confusing because you probably have medical insurance so why would you want med pay?  Medical payments insurance will pay for your medical bills if you are in an accident and the at-fault’s company is withholding payments until your claim is complete.  So, if you have out of pocket expenses in the meantime, you are responsible for making those payments.  Given that, in South Dakota, a claim for bodily injury must be filed within 3 years, those amounts, even with co-pays and deductibles from your health insurance, can really add up!


Buying automobile insurance can be very confusing and using an agent is advisable.  However, with more and more companies encouraging people to buy direct in order to save money, it is important that you understand how insurance works and what type and amount to buy.  If you find yourself in an accident and need advice on your policy or how to proceed if you have been injured, call the attorneys at Wilka and Welter for a no cost consultation regarding your claim.

The South Dakota Marijuana Controversy

As other states begin to review their laws on the criminality of the possession and use of marijuana, South Dakota continues to make it illegal for any person to possess or ingest the drug — whether a medicinal or recreational use.  However, there is significant controversy and confusion regarding new derivatives of the marijuana drug.  In the past few years, new techniques have emerged that allow for the extraction of the potent chemical found in marijuana, THC or Delta- 9 –Tetrahydrocannibinol to be made into a hashish, oil, wax or edible form that is much more potent than the original plant.

In many surrounding states, marijuana, as well as its derivatives, is listed as Schedule 1 Controlled Substances and possession is dealt with similarly by weight of the substance.  However, in South Dakota, marijuana is not listed as a controlled substance, but its derivatives are listed as a controlled substance.  This means that possession of marijuana may not be a felony, but the possession of wax, shatter, dab or an edible is a felony.  Or is it?

In South Dakota, possession of 2 ounces or less of marijuana in its unaltered state is considered a Class 1 Misdemeanor punishable by up to 1 year in jail and/or a $2000 fine.  However, possession of hashish, hash oil and marijuana derivatives containing THC is a Class 4 Felony punishable by up to 10 years in prison and/or a $20,000 fine.  These laws and their distinctions have been untested for several years.  But now, with the advent of newer types of concentrates as well as some high-profile offenders, the laws have come under scrutiny.  The controversy is complex and its most basic premise comes from the fact that marijuana is the only precursor for hash, or other derivatives containing THC.  The way the laws are written create a confusion that makes it impracticable for anyone to be able to distinguish what is and what is not “marijuana”.

A Fourth Circuit State Court in South Dakota has construed the applicable statutes and found two separate defendants not guilty of possession of a controlled substance in the form of marijuana concentrates.  The reasoned opinions hold that the applicable statutes regarding marijuana when harmonized with each other say that if the substance contains an extraction of marijuana, it is marijuana and should not be considered a controlled substance, and any other interpretation of the applicable statutes creates a result that is ambiguous and contradictory — potentially creating confusion for the ordinary citizen. It should be noted that this is the opinion of just one State Circuit Court in South Dakota and is not the binding law of the State of South Dakota.


Until South Dakota legislature changes the statutes or the Supreme Court provides clarity by its judicial review of these statutes this controversy concerning what is and is not “marijuana” continues.

If you or someone you know has been charged with possession or any other crime, you can trust that the attorneys at Wilka, Welter & Ash, LLP are up to date on the law and can assist you in your defense.



Tractor Trailer Accidents

As a professional driver, tractor trailer operators have a duty within the law they must uphold. These commercial drivers must stay vigilant of other drivers they encounter as they travel. Whether driving across the country, locally or even regionally, the driver must adhere to federal and local regulations. It is the duty of each individual to know these laws and abide by them in order to protect those around them.  Not only is it a legal matter, it is morally right to follow these for the safety of others.


Lasting Pain

For those who have ever been involved in an accident with a tractor trailer, the effects can be devastating. The size and weight of these vehicles can cause extreme damage. Family members who have lost someone in this type of accident know the pain all too well. Victims who have suffered also experience a healing process that leaves emotional scars lasting a lifetime. Overcoming the pain and stresses affecting the victims and their families is not an easy feat.



A victim or the family may feel the need to find the fault within the accident. Though this will not remove the pain caused, it does provide some relief. For a person struggling to do this on his or her own, finding answers can cause even more stress on top of what is already being experienced. One of the easiest ways to prove the blame is that of the truck driver is to find evidence of negligence in following the local and federal CDL laws. Since the drivers are required to uphold these standards, this proof alone is often a court victory for the injured party.


Pro Se

Filing a lawsuit against the driver is possible to do without legal representation. This type of filing is called pro se. For those who choose to go this route, the main appeal is financial savings. While it is entirely possible to do, taking on these cases alone without any law experience can prove to be difficult. Following court standards and gaining evidence against the defendant is easier said than done. If these things are done incorrectly, the outcome of the case is in jeopardy. The plaintiff’s experience is not favorable when expecting positive results.



Finding a personal injury lawyer in Sioux Falls can help a victim, or the family, experience a smoother process. An experienced attorney knows what to look for when sorting through the evidence. The lawyer will know what laws apply to the CDL driver, finding fault if any are broken. In court, legal counsel will know what the procedures are, following these in order to make a better case for the suffering party. A victory against the careless acts of a professional driver can help bring peace to those hurt.

What to Do after Experiencing Medical Malpractice

Every day, individuals in the United States of America fall victim to medical malpractice. While the results of this may vary from person to person, any form of malpractice should not be tolerated. While smaller cases may be dismissed, notifying the Medical Licensing Board of one’s experience can stop an unqualified medical professional from doing the same to someone else. The following is what to do after experiencing medical malpractice.

Seek Proper Medical Care

More often than not, a patient is going to know that something is wrong during or after the procedure takes place. This can cause them to panic, which can add to the traumatic experience. The second a patient notices the signs of malpractice, bringing the issue to light with the medical staff is crucial, as seeking proper medical care may be needed. When suing for an injury that was caused by medical malpractice, it is important to keep a documented trail expressing the events of the day of the injury. Doing so can make the experience more legitimate in the eyes of the court. Should the patient have sought the medical services of another doctor to rectify the previous one’s mistakes, having this in writing will be essential.

Talk to an Injury Attorney

Every case is different, but all merit the chance to be heard and solved in a professional manner. Experiencing an injury due to malpractice can greatly affect a person’s life. In some cases, it can even change it forever. In order to be compensated for one’s suffering, it can be beneficial to hire representation for one’s claim. By hiring an injury lawyer in Sioux Falls, plaintiffs can have the best chances of having their voice heard and understood. Having proof of one’s injury during this process can help an injury lawyer build a case that can result in due compensation.

Stay Motivated

After an injury has occurred, it can be difficult for a plaintiff to remain motivated, especially when having to wait until one’s case is approved to take action. In order to stay motivated, communicating with one’s injury lawyer and staying up to date with injury law is key. The more a person knows, the more confident they’ll be when they walk into a courtroom.

File a Complaint

For some people, taking instant action after experiencing medical malpractice may not be possible. Taking time to heal is important, which is why not everyone should charge just yet. In order to not push one’s case to the side completely, however, filing an official complaint to the Medical Licensing Board and the establishment responsible can be necessary. Doing so will prove the fact that one’s injuries came from medical malpractice and were not received afterwards and blamed on a past treatment.

First DUI Offenses- What to Expect

A person who has been pulled over and issued a first time DUI offense will likely have many questions. These questions can range from how the crime will affect one’s personal life, to what happens when the scheduled court date arrives. It can be overwhelming to think about what the future will look like. Guilt is a common feeling, DUI’s have the ability to hurt the driver and other drivers on the road. Admitting to the mistake and finding answers can help relieve some of the burden one is feeling.



First-time offenders likely want to know what penalties they will be facing under South Dakota law. While there is no minimum sentence required, a maximum of one year in jail is a possibility. This may be scary to think about. Jail time can affect family, employment, and finances. The driver also faces up to a two thousand dollar fine. A driver’s license will be revoked for a minimum of thirty days, with exceptions considered for court orders and work. The judge may see a counseling program as an option for the offender and require the driver to attend.


Implied Consent

A driver does have some rights when being stopped, for example, performing a field sobriety test can be declined. A chemical test, however, will be required under the implied consent law. The officer must inform the suspected driver of this law upon refusal and give them a second chance to consent to the testing. Refusal after being informed of the rights results in a one year or more license suspension. A chemical test can be administered in different forms, including a breath test and a blood test. The choice is up to the arresting officer.


Alcohol and Drugs

DUI and DWI are often confused for being solely alcohol related offenses. Drivers may feel they are safe from being prosecuted if the offense involves marijuana. This is not the case. For those who have been arrested in Sioux Falls for DUI involving drugs, a lawyer will be able to help go over the rights of the driver and decide the best way to handle the case. The same penalties apply as with alcohol related offenses. Controlled substances, even if prescribed, will fall under these laws as well.



When the day comes for the driver to go to court, it is best to have legal representation. Having an attorney can help keep the offender calm and prepared for this crucial day. While it will always be concerning, there is relief in knowing what to expect. The Sioux Falls lawyer will also be able to negotiate penalties and come up with the lowest punishment that suits the defendant while keeping state requirements in mind.  It is most important for a driver to know these minimum requirements follow the advice of expert attorneys.

Tips on Winning a Child Custody Battle

Don’t Let the Feud Between You and Your Spouse Get in the Way

When in the midst of a child-custody battle, it can be easy to let feelings get in the way of logic and clarity. The possibility of losing parental rights over a child sets the stakes very high, which is why looking like a respectable and honest parent is to be expected in court. Letting an existing feud between one’s spouses affect one’s comportment in court can jeopardize the outcome of a case. Acting civilly towards one’s ex, no matter how many jabs they throw one’s way can positively affect a judge’s ruling. Being able to keep ones cool during a hectic situation are good qualities in a parent, ones that will surely be noticed.

Ask for an In-House Custody Visit

Events that occurred in the past can make it look as though a willing parent doesn’t have a suitable home for their child, but all that can change. By cleaning one’s act up and baby-proofing their home, a house that was once not suitable for children can become the opposite. Once a parent’s home is up to court standards, it is in their best interest to ask for an in-house custody visit. Should their living situation pass proper examination, this can make one look favorable in the eyes of the court.

Find Out Everything you Need to Know

Being well-versed in the custody-battle process and meeting important deadlines shows a parent’s dedication. Parents who present themselves in court without having consulted a family lawyer in Sioux Falls can come off as unserious about the dwellings of a case. Should they be misinformed about a certain process, causing court to be rescheduled, this parent can be subjected to fines and lose some major pointers with the judge. Hiring a family lawyer is of great importance, as it can solidify one’s chances of winning their child custody battle.

Don’t be Late to Any Child-Custody Visitations

During a child-custody battle, it is custom for a parent to still have visitation rights over their child — depending on how serious the case is. Should a parent have child-custody visitations scheduled, it is dire that they present themselves to these on time and in good spirits. Having a clean track record when it comes to child-custody visitations can make the court question if sole-custody is really in the child’s best interest.

Willingly Accept Drug Tests and Pass

Lastly, a parent is in a great position to win a child custody battle when they are willing to take a drug test. Passing this drug test shows the court that a parent can offer their child a safe home environment.

Protect Your Rights in South Dakota DUI/DWI Cases

Have you been charged with a DUI/DWI in South Dakota? Consult with Wilka & Welter, LLP, highly experienced lawyers in Sioux Falls, and have their law firm represent you so that your rights are protected.

Why Wilka & Welter, LLP Offers the Best DUI/DWI Representation

There are serious consequences to DUI/DWI. If you have been charged in a DUI/DWI accident in Sioux Falls or elsewhere in South Dakota, there is no time to waste – it’s vital that you work with lawyers with experience in these types of cases. You potentially face loss of your driver’s license (and all the repercussions that can cause, including possible loss of your job), or even a jail sentence if convicted. Our lawyers in Sioux Falls provide a vigorous defense. They will help protect your rights as you face the prosecutor and criminal court, especially if the case involves personal injury that your actions may have inflicted on one or more victims in the accident.

DUI/DWI – A Serious Matter Requiring Experienced Lawyers in Sioux Falls, SD

DUI/DWI is a serious matter that must be addressed by highly competent attorneys who will work on your behalf. Wilka & Welter, LLP is also an experienced personal injury law firm, and knows the tactics prosecutors will try and use against you. Our firm offers you the expert representation you need. We invite you to review the biographies of our attorneys and note their experience. You can trust our firm to defend you in your DUI/DWI case.

Call Wilka & Welter today at 605-338-9711 for experienced DUI/DWI defense.

About Wilka & Welter, LLP

Wilka & Welter, LLP offers decades of legal knowledge, skill, and experience that will help you with aggressive representation and a case that is well-prepared to provide the best possible outcome for you. Whether you need sound legal representation in a personal injury case, divorce case, Social Security disability case, DUI/DWI, or other legal area, we encourage you to discuss your legal matter with our experienced trial attorneys.

What is Hearsay?

Hearsay used in a courtroom is easily able to confuse one attempting to prove a case. While the definition may seem simple, the reality is a complicated matter. What is and is not allowed can be defined by a personal injury attorney in Sioux Falls. Hearsay is anything used as evidence in a courtroom based on something said by a third party outside of court. While this is generally not allowed, there are a number of exceptions to the rule which are allowed to be used.


Using Hearsay as Proof

The issue is not in the definition of the word, but in the exceptions which are allowed in a court of law. For one without legal representation, he or she may feel the evidence falls under one of these exceptions when in fact it does not. For these people, it is best to avoid it, especially if other evidence is available that fully proves the case. For those called to the witness stand, a statement made under oath may contain hearsay that is not allowed in court. If the party is planning on using the statement, it is best to go over it with a lawyer to determine if it will be allowed.


When Hearsay is Against the Person

If the person in court is facing hearsay as evidence against them, they may not know what to object to and what not to. If a lawyer is used, experienced counsel will have the ability to make sure any illegal uses are not considered as evidence. While hearsay could easily slip through with the complications of so many exceptions, the judgment of the lawyer can help prevent this from happening. This is only one of many reasons why experienced counsel is a bonus in court.


Types of Cases

Hearsay does not affect just one type of case. It can be part of criminal or civil cases and the laws remain the same. The type of case, however, may influence what exceptions are used. For example, state of mind exceptions may be proved to declare a person as an incompetent party or witness. This may be used in civil cases and divorce cases to show that the opposing party is unable to make positive decisions. This type can be used in a criminal case, to prove the intent of one to injure another.


The best way to prevent and use hearsay appropriately is knowing the law. Studying the possibilities and using them correctly will make court an easier process. As previously stated, legal counsel is a citizen’s best defense against this complex process. The experience will also create ease throughout the entire court proceedings. This makes the results much more favorable for the party involved, regardless of the type of case at hand.

Common Reasons to File a Worker’s Compensation Claim

When it comes to a worker’s compensation attorney, Sioux Falls residents might need to contact this type of professional for several reasons. If you are hurt on the job, this form of compensation might be needed to keep you afloat while you are recovering until you are able to get back to your job. Knowing some of the common reasons why people might file this type of claim can aid you in knowing if it is something that you might qualify for.




This might not be a job-related injury that you think about since so many adults are naturally overextended due to life responsibilities. However, this is actually related to your physical being and it happens when you either force a joint beyond its normal range or you pull a muscle. This is often seen in those working hard labor jobs, such as construction or in factories. It might also happen to police officers.




There are various falls that might happen when you are at the workplace. For example, you might slip on a damaged or wet floor, or you might fall to a lower level. For example, if you are working on a ladder, you could fall off and experience an injury. This is not uncommon among those working construction or in warehouses. Slip and fall injuries can happen in just about any work setting.


Struck By Object


If you are walking by a shelf and something falls off and hits you, this could result in a variety of injuries, ranging from minor bruising to a severe concussion, depending on the circumstances of the accident. This is common seen in retail workers and those working in a warehouse since there is the potential for items to tumble off of a shelf. In some cases, restaurant workers might also experience this, such as if they are putting glasses away and a rack falls.


Machinery Accidents


Even the most careful person is at risk for experiencing an injury when they are working with machinery. The slightest distraction or a malfunction with the equipment both make this type of accident possible and the injuries can be very serious, such as traumatic brain injury or losing a limb.


You can see that there are numerous reasons why someone might need to file a worker’s compensation claim. If you need assistance with your claim, are not sure if you qualify or are having difficulty with your employer, you might consider talking to a worker’s compensation attorney in Sioux Falls. They can guide you and make sure that you are being treated fairly throughout the process, so that you can focus on your recovery.