Mandatory Minimums and Safety Valve Sentencing

Mandatory minimum sentences are those that require offenders to spend a predetermined amount of time in prison. The sentences are generated in the legislature by law and remove the discretion from the judges of the judicial branch when handing down sentences for certain types of offenses. Mandatory minimums are most often imposed in drug crimes, violent crimes and repeat offenses. The premise behind the minimum sentencing is to limit the irregularity of outcomes due to judicial discretion.

The mandatory minimum sentences began in the Federal System and were part of the Anti-Drug Abuse Act of 1986. That legislation combatted the “War on Drugs” by imposing mandatory prison terms for specified amounts of cocaine powder and crack. At about that same time, the Federal Sentencing Guidelines were enacted. The Guidelines were a set of rules that were supposed to make sentencing more uniform for those convicted of more serious crimes.

Supreme Court on Mandatory Minimum Sentences

Constitution of the United States of America

Although the Federal Sentencing Guidelines were meant to be mandatory, in 2005, the Supreme Court held that they violated the Sixth Amendment right to trial by jury. The Guidelines are now advisory only, but the mandatory minimum sentences continue to exist.

Some would argue that the mandatory sentencing is also unconstitutional. This is due to the fact that the separation of powers dictate that the three separate branches of government operate in a way that provides a system of checks and balances to avoid overreaching by one branch into another. Since mandatory sentences are a product of the legislative branch, they essentially tie the hands of the judicial branch by limiting the discretion of judges to sentence criminals.

Safety Valve Sentencing

Paradoxically, instead of repealing the mandatory minimum sentences, Congress passed a law that allowed a judge to depart from the mandatory minimum sentence for offenses that involved non-violent drug crimes. This law became and is referred to today as a “safety valve.” The departure from the mandatory minimum sentences became available to those offenders who offered substantial assistance to the government in prosecuting other individuals. Qualification for the substantial assistance is ordinarily only available upon motion of the government under 18 USC § 3553(e) and Rule 35(b) of the Federal Rules of Criminal Procedure; however, 18 USC 3353(f) permits a sentencing court to disregard a statutory minimum sentence for the benefit of a low-level, nonviolent, cooperative defendant with minimal prior criminal record. It is then up to the discretion of the judge to make a determination of how much time should be shaved from the minimum.

Following in the footsteps of the Federal Government, several states have also enacted both mandatory minimum sentences and safety valve legislation. In South Dakota, SDCL § 22-42-2 states the law for the mandatory minimum sentences for drug crimes:

The distribution of a substance listed in Schedules I or II to a minor is a Class 2 felony. A first conviction under this section shall be punished by a mandatory sentence in the state penitentiary of at least one year, which sentence may not be suspended. Probation, suspended imposition of sentence, or suspended execution of sentence may not form the basis for reducing the mandatory time of incarceration required by this section. A second or subsequent conviction under this section shall be punished by a mandatory sentence in the state penitentiary of at least ten years, which sentence may not be suspended. Probation, suspended imposition of sentence, or suspended execution of sentence may not form the basis for reducing the mandatory time of incarceration required by this section. However, a first conviction for distribution to a minor under this section shall be punished by a mandatory sentence in the state penitentiary of at least five years, which sentence may not be suspended. Probation, suspended imposition of sentence, or suspended execution of sentence may not form the basis for reducing the mandatory time of incarceration required by this section. A second or subsequent conviction for distribution to a minor under this section shall be punished by a mandatory sentence in the state penitentiary of at least fifteen years, which sentence may not be suspended. Probation, suspended imposition of sentence, or suspended execution of sentence, may not form the basis for reducing the mandatory time of incarceration required by this section.

However, SDCL § 22-42-2.3, follows on the heels of the mandatory sentences with a safety valve:

The sentencing court may impose a sentence other than that which is required by § 22-42-2 if the court finds that mitigating circumstances exist which require a departure from the mandatory sentence imposed by § 22-42-2. The court’s finding of mitigating circumstances allowed by this section and the factual basis relied upon by the court shall be in writing.

SDCL § 22-42-2.3 allows for a departure from the mandatory minimum sentences and, unlike Federal Rule 34 (b), does not require the motion of the prosecution or any type of substantial assistance. The statute only requires “mitigating circumstances” that could literally be anything from treatment, to acceptance of responsibility, good works, lack of repeat offenses or even the time since the offense. And while suspended imposition of sentence or execution of sentence may not form the basis for reducing the mandatory time of incarceration under § 22-42-2, the departure could very well include either the suspended imposition or execution of sentence as a means to avoid or void a felony record altogether.

Repealing Mandatory Sentencing Minimums

prison or jail

The advent of mandatory minimums as sentences for certain crimes brought Constitutional challenges and a reduced confidence in the judiciary. Safety valve legislation was therefore enacted in order to right the wrongs that the mandatory minimums brought to sentencing. Reforms are underway in several states, most notably North Dakota, to repeal the mandatory minimums as well as the safety valves in order to restore the sentencing power and the discretion of the judge.

If you have been charged with a crime that includes a mandatory minimum or have questions about safety valve legislation, contact the lawyers at Wilka, Welter, and Ash for a free consultation about your case.

Personal Injury: Just What Is It?

Personal injury is a legal term that refers to an injury inflicted upon the body, emotions, or mind. Personal injury does not refer to injury or damage caused to the property owned by an individual, that reflects other legal actions altogether.


Personal Injury Lawyers: All There Is To Know

Finding a good personal injury attorney in Sioux Falls can be a real pain, but it does not have to be. When faced with a personal injury case, the term negligence and neglect will come up over and over again. It is important to consider neglect and how someone might be accused of negligence, in either side of the case. For example, when it comes to dealing with a traffic accident, both drivers could be at fault, rendering them as sharing the same amount of neglect in that situation.When pursuing help form a personal injury attorney, it is important to understand the facts ahead of time.

“Negligence” as it is described above, is part of a larger legal umbrella term that can refer to negligence, gross negligence, intentional misconduct, or reckless conduct. A good personal injury attorney is there to make sure that compensation and settlements can be won, and that negligence is identified properly.


When someone is the victim of a negligent person, it can cause a lot of grief, time, and take a lot of money to get his or her lives back on track. The stress associated with dealing with this ordeal is already a lot to handle, to say the least. That’s why personal injury lawyers are there to help settle the score, and make it so that he or she is fully compensated, and receives the right services, treatment, and attention they require throughout the case.



Anything Could Be Around The Corner

At work, school, on the streets, at shopping centers, concert venues and elsewhere, the threats of a negligent person could come from anywhere. It is important to stay focused in order to avoid becoming the victim of a negligent person, but in the event that one could not prevent something happening to them, inflicted by a negligent person, then the personal injury attorney must step in to insure that he or she is treated properly in court.


If you or someone you know becomes the victim of a negligent person, then the next phone call you make could be directed towards a personal injury specialist. There are countless personal injury lawyers to choose from in the state of South Dakota, and the entire United States for that matter. Making the right choice has a lot to do with location, preference, cost, and expertise.


Wrongful Death Lawsuit: How To Get Closure for Your Loved One

If you have recently lost a loved one to an accident not caused by their own faultiness, you might be eligible to take legal action with a wrongful death lawsuit – compensating you the monetary amount you and your family are due. An injury lawyer in Sioux Falls can help you get the justice your family deserves.


But, you might be wondering: what constitutes a scenario as a wrongful death?


Wrongful death is defined as a death resulting from another person’s default, neglect, or a wrongful act, according to South Dakota Codified Law. This could be caused by any of the following:


  • Work hazards
  • Medical malpractice
  • Vehicle accident
  • Toxic or dangerous products
  • Murder
  • Dangerous premises


Wrongful death is usually a result of someone’s carelessness or inattention to detail. These incidents typically arise from an incident which would result in personal injury, however, the person passed away as a result of the incident.


Is a wrongful death lawsuit right for you?


Oftentimes, in the event of a wrongful death, the deceased has passed away unexpectedly. An unexpected death of a loved one can throw your family into a whirlwind – someone will need to be appointed to manage the estate of the deceased. In the case that someone has not already been appointed, you must request someone be appointed by the court. Your injury lawyer in Sioux Falls will be there to guide you throughout the legal aspects of the process.


Under South Dakota law, the at-fault party in a wrongful death case is the party responsible for compensation for your family’s economic damages. These damages can include, but are not limited to:


  • Funeral and burial expenses
  • Lost wages and benefits, including retirement pay
  • Associated medical expenses in the case
  • Value of the household tasks performed by the deceased


In the case of a wrongful death, the claim is typically filed by the representative of the estate of the victim. A spouse can make a wrongful death claim on behalf of her or his deceased spouse, in all states. Parents may also make a wrongful death claim if one of their minor children is killed, and minors are eligible to collect compensation in the wrongful death case of their parents. However, the law can get a little fuzzy when it comes to adult children claiming wrongful death for their parents, and vice versa.


If you, or someone in your family, has recently lost a loved one in an accident that you feel might be classified as a wrongful death then an injury lawyer in Sioux Falls can help you.

Protection Order vs. Restraining Order: What is the Difference and Do I Need One?


There are two types of Orders that can be issued by a Court that contain provisions to protect you and/or your dependents in a time of abuse or stalking that makes you fear for your safety.  Chances are, you’ve heard of a restraining order in which a Court can issue as part of a pending case to order a person to restrain from doing some action.  While a restraining order can be used domestically to order a person to stay away from a particular place or from you, it can also be used to prevent someone from selling property, or engaging in some other activity that is contrary to the interests of one or more of the parties in the case in which it is ordered.  For instance, a judge may issue a restraining order in a divorce to keep the parties from selling assets or hiding money.  While violating a restraining order does have a consequence, it is usually not enforceable by law enforcement.  It requires that parties appear before a judge who will make a determination of contempt of court.  That judge then will decide the penalty, if any, for the violation or prescribe a method by which a party can “cure” or make right the violation or both.

If you are in a domestic relationship, meaning parents or parent to be, spouse or former spouse, siblings or significant other and you fear for your immediate safety, what you are probably looking for is a protection order.  A protection order is a petition made to the Circuit Court by the person seeking protection, or by a parent or guardian of a minor child.  The form is printable at  After submitting the form detailing your experiences and concerns, a duty judge will make a determination regarding your statements.  At that time, he will either grant a Temporary Protection Order, or TPO, against the Defendant and set a hearing for within 30 days or just set a hearing without granting the TPO.  Either way, the Defendant will have the opportunity to come to Court after being served the Order, by the sheriff, to tell his or her side of the story.  At that hearing, the judge will either make permanent the Protection Order for up to five years, or dismiss it if you have not made your case.  Both a Temporary and Permanent Protection Order, once served, give you immediate protection.  You may notify law enforcement who have the power to enforce the specifics of your order, which may include barring the Defendant from a shared residence, temporary custody of minor children, no contact in any form with you, prohibiting the Defendant from a particular place, such as a work place or any other place you frequently inhabit.

If you are in need of a Protection Order, an attorney can advise you on how to properly fill out the form and of the information that will lead to the best result until a hearing can be had.  An attorney can also represent you at the hearing and provide the knowledge and support when you must face the Defendant.  If you have minor children that are affected by the order, whether as a result of a visitation or support order, an attorney can assist with those matters as well

If you have been served with a Protection Order, an attorney can represent you in court to protect your rights, especially if you have been falsely accused.  If an order is entered, it is a restriction on your rights to contact or be in certain places that the accuser has listed.  You may not be able to keep firearms as a result of an order against you.  Any violation of the order is a criminal charge and could be punishable by a year in jail or $1000.00 fine or both.

If you are in need of representation because you need or have been served with a Protection Order, the attorneys at Wilka and Welter are experienced and able to assist you.

Don’t Fall for Negligence Liability

Keeping Your Home or Business Safe Could Help You Avoid Litigation

You can’t always protect other people from misfortune. For instance, if someone visits your home or business facility and gets hurt, you may feel like it’s beyond your control. Convincing South Dakota courts, however, is another matter entirely.

Fortunately, you don’t have to go as far as virtually child-proofing your entire home or office. There are much easier, basic ways to reduce liability and potential hazards on your property.

Don’t Let Dangerous Animals Near People

South Dakota legal precedent establishes a so-called “one-bite” rule when determining if an animal’s owner should be held responsible for an attack. This essentially means that if your dog has bitten someone once in the past, you ought to know it has the potential to be dangerously aggressive. When you fail to employ reasonable care to prevent future incidents, you might be deemed liable by reason of your negligence. This idea of taking action to preempt negative outcomes is important in other liability areas as well.

Minimize Known Workplace Dangers

If your business involves operating machinery in the course of your normal operation, you should be extra careful with liabilities. Should a worker get their exposed flesh caught in a mechanism and suffer an injury as a result, you might be deemed liable because you didn’t install safeguards to lower the chances of such harm. If you neglected an OSHA order to correct a problem, your punishment may include severe fines in addition to any lawsuit judgment.

Once again, negligence and intent play roles in whether courts decide you’re actually at fault. For example, if your employee overrides safety guards, railing or other barriers, they could be deemed liable for the outcome. If, on the other hand, you installed barriers of lesser quality or used machinery of known inferiority to save money, the victim might just have a case. The key determining factor commonly rests on whether you have the documentation to prove you acted in accordance with established safety practices, such as OSHA guidelines. 

Hunt for Unknown Risks

Another important element that often decides who’s at fault for a victim’s injury is whether the victim should have had a reasonable expectation of harm for their actions. For instance, someone shopping in your retail outlet should be able to visit and browse without worrying about imminent dangers. If they decide to climb your displays and shelves, however, they’re putting themselves at risk.

As a property owner or business manager, you need to take steps to minimize hazards that might catch people off guard. At a basic level, this includes common-sense precautions like putting out wet floor signs when you mop. With some properties, however, it may involve major renovation efforts, like performing electrical repairs or getting a building inspection. To learn more about reducing liability on your premises, get in touch with the Wilka & Welter staff today.

How a Plea Agreement May Save Money and Time

Could Bargaining Help You Avoid a Protracted Trial?

The criminal justice system is complicated, and nobody would blame you for not wanting to go through its twists and turns. Fortunately, there are some alternative options to save yourself the trouble of sitting in court.

Plea agreements, also known as plea bargains, are an accepted means of striking a balance that might help you avoid conviction. Of course, not all bargains are equal. It’s worth going into them with as much legal knowledge as possible.

Plea Bargaining Basics

According to the American Bar Association, most criminal cases are actually resolved via plea agreements. What makes it so prevalent? While numerous factors are at play, the practical convenience of sending fewer cases to court and the potential for reduced trial costs are some of the most obvious.

Basically, the process works by allowing accused individuals to plead guilty to alternate lesser charges or a limited number of the total charges against them. In exchange, the prosecutors agree to advise judges to hand down reduced sentences.

Of course, this is just the ideal goal. Events don’t always pan out perfectly, especially for those who fail to understand their legal rights.

The Possibilities of Plea Bargain 

A plea agreement struck up by a prosecutor and accepted by a defendant may still need approval from a judge or a court. In South Dakota and many other states, allegations associated with crimes that involved victims permit wronged individuals to talk to prosecutors about their opinions on the bargain.

It’s also worth noting that not every deal is a good deal. For instance, if you’re innocent of the charges you face and have the evidence to prove it, accepting a plea deal may not be your best option. Some research even suggests that prosecutors commonly offer plea bargains to avoid losing cases that were weak to begin with.

On the other hand, accepting a good bargain could help you avoid jail, court fees and a stressful, ongoing ordeal. You may be offered a chance to complete a diversion program, such as probation or education, instead of having to go through trial if you plead guilty to a low-level allegation. In some situations, you can even agree to conditional plea bargains that let you appeal the issue later if you still disagree with how you were treated.

Benefiting From Plea Agreements

So what’s the final verdict on accepting a plea bargain? Although it’s a bit too simplistic to say they’re either good or bad, few would deny that they may have major positive impacts for those facing jail time, fines or contentious court battles.

For most accused individuals, the key lies in proper case management. It’s vital to understand whether the bargain terms on offer are actually superior to the potential alternatives and if accepting will protect your rights. To learn more about this essential legal process, get in touch with Wilka & Welter, LLP, today.

Steps to Take Before Filing for Divorce

Following a Checklist of Essential Steps

If you and your spouse are facing the possibility of a divorce, you are probably already feeling stressed and anxious. Although getting a divorce is never easy, there are a few steps you can take to make the process easier on you and the rest of your family.

Gather Financial Information and Index Your Assets

Before you file for divorce, you need to know where you stand financially. If you and your spouse have joint accounts, you need to gather all of the documents related to those accounts. Make copies of everything that you can find, including tax returns, insurance documents and income statements. This is also a good time to take stock of your assets. Writing out a list of your property will help you divide it later.

Prepare a Budget

After the divorce is complete, your standard of living may change considerably. You need to be prepared for handling bills, mortgage payments and groceries with your new financial reality. Tracking regular expenses before you file for divorce is a good way to prepare for future spending.

Build a Support Team

Surrounding yourself with a solid support team before the divorce begins is a good way to prepare yourself for the emotional turmoil that you may face. Family members who live nearby, for example, can lend a sympathetic ear to your cause. Having the phone numbers of a few babysitters can help you deal with court appointments without having to worry about childcare.

Consider the Future

When you file for divorce, there are a number of essential tasks that you, your spouse and the judge will need to work through, including asset division and child custody. Thinking about the future ahead of time can help you prepare for the eventual changes. For example, you need to think about what to do with your house if you both own it. If you have children, you need to think about meeting their needs before you’re faced with discussing the details of child custody before the judge.

Talk to a Lawyer

Although you can find plenty of help books and information about divorce online, talking to a lawyer is the best way to get insights into your unique situation. A lawyer can help you make good decisions in the lead up to the actual proceedings, including whether you should continue to live at home.

Wilka & Welter, LLP is a law firm located in Sioux Falls, South Dakota, with over forty years of experience. Our law firm specializes in many family law topics, including divorce and child custody. If you are facing the daunting process of a divorce, contact us today for help.