Are Magic Mushrooms Legal in South Dakota? Psilocybin Laws (2026)

No. Psilocybin and psilocyn are Schedule I hallucinogenic substances in South Dakota (SDCL 34-20B-14), and knowingly possessing a Schedule I substance is a Class 5 felony (SDCL 22-42-5). South Dakota has no psilocybin therapy program or decriminalization law; its only 2026 change, HB 1099, moves an FDA-approved psilocybin drug product to Schedule IV if one is approved, and the federal sources cited here show no such approval as of October 11, 2026. For other states, see our guide to psilocybin mushroom laws by state.

Information last verified on 2026-10-11. This article has not been reviewed by a licensed lawyer.

Jurisdiction scope: This article covers South Dakota state law on psilocybin and psilocyn as published by the South Dakota Legislature on October 11, 2026: the schedules in the State Drugs and Substances Control Act (SDCL chapter 34-20B), the drug offenses in SDCL chapter 22-42, the penalty classes in SDCL 22-6-1 and 22-6-2, the overdose immunity statutes (SDCL 34-20A-110 and 34-20A-111), the impaired-driving statute (SDCL 32-23-1), 2026 HB 1099, and one paragraph on federal law. It does not cover the Administrative Rules of South Dakota, city or county ordinances, tribal law, federal land rules, or other states' laws.

Are magic mushrooms legal in South Dakota?

No. South Dakota lists psilocybin and psilocyn in Schedule I, and the general drug offenses for controlled substances apply to them. This page reflects the statutes as the Legislature published them on October 11, 2026; the Legislature next meets in January 2027.

SDCL 34-20B-14 provides:

"Any material, compound, mixture, or preparation that contains any quantity of the following hallucinogenic substances, their salts, isomers, and salts of isomers, is included in Schedule I, unless specifically excepted, whenever the existence of the salts, isomers, and salts of isomers is possible within the specific chemical designation: ... (18) Psilocybin, except the pharmaceutical composition of crystalline polymorph psilocybin in a drug product approved by the United States Food and Drug Administration; (19) Psilocyn;"

Psilocyn has no exception. The same section lists ibogaine in Schedule I, at item (11). A "controlled drug or substance" for the offenses below means "a drug, substance, or immediate precursor in Schedules I through IV of §§ 34-20B-11 to 34-20B-26, inclusive" (SDCL 34-20B-3).

Mushrooms, spores and growing

The Schedule I and Schedule IV text names the compounds psilocybin and psilocyn; it does not name mushrooms, fungi or spores. Mushrooms that contain psilocybin or psilocyn would be reached through the listing's "any material, compound, mixture, or preparation that contains any quantity" wording. No South Dakota court decision on mushrooms or spores is cited here, and this page states no spore rule.

The schedule and penalty sections contain no separate offense for growing mushrooms. SDCL 22-42-2 provides that "no person may manufacture, distribute, or dispense a substance listed in Schedules I or II," and chapter 22-42 defines "manufacture" as "the production, preparation, propagation, compounding, or processing of a controlled drug or substance, either directly or indirectly by extraction from substances of natural origin" (SDCL 22-42-1(6)), so producing psilocybin can be charged as manufacture under 22-42-2, with the penalties below.

Penalties for psilocybin in South Dakota

Penalty ranges. Under SDCL 22-6-1, a Class 4 felony carries "ten years imprisonment in a state correctional facility" and a fine of up to $20,000; a Class 5 felony "five years imprisonment in a state correctional facility" and a fine of up to $10,000; and a Class 6 felony "two years imprisonment in a state correctional facility or a fine of four thousand dollars, or both." A Class 3 felony carries up to fifteen years and a $30,000 fine, and a Class 2 felony up to twenty-five years and a $50,000 fine. Under SDCL 22-6-2, a Class 1 misdemeanor carries "one year imprisonment in a county jail or two thousand dollars fine, or both." For most Class 5 and Class 6 felonies, including possession under 22-42-5 and a felony ingestion conviction under 22-42-5.1(3), SDCL 22-6-11 makes probation the presumptive sentence; the court may depart only if it "finds aggravating circumstances exist that pose a significant risk to the public" and states them on the record. The five-year figure for a Class 5 felony is the maximum, and a felony conviction remains on the record either way.

Possession. SDCL 22-42-5 provides that "no person may knowingly possess a controlled drug or substance unless the substance was obtained directly or pursuant to a valid prescription or order from a practitioner, while acting in the course of the practitioner's professional practice or except as otherwise authorized by chapter 34-20B." It continues: "A violation of this section for a substance in Schedules I or II is a Class 5 felony. A violation of this section for a substance in Schedule III and IV is a Class 6 felony." The section sets no weight tiers.

Ingestion. SDCL 22-42-5.1 bars knowingly ingesting a controlled substance or having one "in an altered state in the body" without a valid prescription or order; under 22-42-5, a substance absorbed into the body may be charged only under 22-42-5.1, not as possession. The section makes a first violation a Class 1 misdemeanor, and "the court, in addition to any other sentence, shall order that the person complete a drug and alcohol evaluation and complete supervised probation using evidence-based sentencing practices." A second violation is also a Class 1 misdemeanor, for which the court may impose up to one year in jail and shall order supervised probation, a drug and alcohol evaluation and any other recommended course of treatment; "a third or subsequent violation, occurring within ten years of the person's first conviction, is a Class 6 felony"; and a violation by an inmate in a state correctional facility, or by a person under parole supervision, is a Class 5 felony.

Distribution, manufacture and intent to distribute. SDCL 22-42-2 also bars possessing a Schedule I or II substance "with intent to manufacture, distribute, or dispense" it. "A violation of this section is a Class 4 felony." It becomes a Class 3 felony "if three or more of the following aggravating circumstances apply":

1. "The person is in possession of three hundred dollars or more in cash";
2. "The person is in possession of a firearm or other weapon pursuant to §§ 22-14-6, 22-14-15, 22-14-15.1, 22-14-15.3, and subdivision 22-1-2(8)";
3. "The person is in possession of bulk materials used for the packaging of controlled substances";
4. "The person is in possession of a pill press";
5. "The person is in possession of materials used to manufacture a controlled substance including recipes, precursor chemicals, laboratory equipment, lighting, ventilating or power generating equipment"; or
6. "The person is in possession of drug transaction records or customer lists."

A firearm alone is one of the six; the Class 3 grade needs three. Separately, committing any felony while armed with a firearm is its own Class 2 felony under SDCL 22-14-12, with "a minimum sentence of imprisonment in a state correctional facility of five years" for a first conviction, served consecutively to the sentence for the principal felony. "The distribution of a substance listed in Schedules I or II to a minor is a Class 2 felony." For distribution to a minor the mandatory minimums rise: "a first conviction for distribution to a minor under this section shall be punished by a mandatory sentence in a state correctional facility of at least five years, which sentence may not be suspended," and a second or later conviction by at least fifteen years. A minor is a person under 18 (SDCL 26-1-1). The section's quantity-based grades and minimums are written for fentanyl only, so it sets no weight tiers for psilocybin. The section also provides: "Any person who, for consideration, intentionally distributes any controlled substance or counterfeit substance in violation of this section and another person dies as a direct result of using that substance is guilty of a Class 2 felony. If three or more of the above aggravating circumstances apply, the person is guilty of a Class 1 felony." If the person who died is a minor, the offense is a Class C felony. Under 22-6-1, a Class 1 felony carries up to fifty years and a $50,000 fine, and a Class C felony life imprisonment and a $50,000 fine.

Mandatory minimums. Section 22-42-2 states: "A first conviction under this section shall be punished by a mandatory sentence in a state correctional facility of at least one year, which sentence may not be suspended," and "a second or subsequent conviction under this section shall be punished by a mandatory sentence in a state correctional facility of at least ten years, which sentence may not be suspended." An out-of-state conviction or guilty plea for equivalent conduct within the previous fifteen years counts as a prior conviction for this purpose, and any plea other than not guilty, including nolo contendere, counts as a conviction. Under SDCL 22-42-2.3, "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," and "the court's finding of mitigating circumstances allowed by this section and the factual basis relied upon by the court shall be in writing."

Schools, playgrounds and youth areas. SDCL 22-42-19 applies to a violation of 22-42-2, 22-42-3 or 22-42-4, or a felony violation of 22-42-7, committed "(1) In, on, or within one thousand feet of real property comprising a public or private elementary or secondary school or a playground; or (2) In, on, or within five hundred feet of real property comprising a public or private youth center, public swimming pool, or video arcade facility." That person "is guilty of a Class 4 felony. The sentence imposed for a conviction under this section carries a minimum sentence of imprisonment in a state correctional facility of five years. Any sentence imposed under this section shall be consecutive to any other sentence imposed for the principal felony." Probation and suspended sentences are barred, but the court may depart from the five-year minimum on written findings of mitigating circumstances. The section does not apply to simple possession under 22-42-5.

The intoxication offense. SDCL 22-42-15 applies to any person who "intentionally ingests, inhales, or otherwise takes into the body any substance, except alcoholic beverages as defined in § 35-1-1, for purposes of becoming intoxicated, unless such substance is prescribed by a practitioner of the medical arts lawfully practicing within the scope of the practitioner's practice." It is a Class 1 misdemeanor and does not depend on a substance being scheduled. SDCL 22-42-15.1 adds a Class 1 misdemeanor for possessing, selling or distributing a substance "knowing that it is to be used in violation of § 22-42-15."

Overdose immunity. Under SDCL 34-20A-110, "no person may be arrested or prosecuted for any misdemeanor or felony offense of possession, inhalation, ingestion, or otherwise taking into the body any controlled drug or substance if that person contacts any law enforcement or emergency medical services and reports that a person is in need of emergency medical assistance as the result of a drug-related overdose." The person qualifies only if the evidence was obtained as a result of seeking medical help for another person, that person needed help for an immediate health or safety concern, and the caller "remains on the scene and cooperates with medical assistance and law enforcement personnel." Its text lists possession, inhalation, ingestion and otherwise taking a substance into the body; it does not list distribution. A companion section, SDCL 34-20A-111, as amended by 2026 HB 1183 (SL 2026, ch. 146, effective July 1, 2026), protects the person who overdoses: that person "may not be arrested, charged, or prosecuted" for possession or ingestion offenses "if that person or another person contacts law enforcement or emergency medical services and requests medical assistance because of a drug-related overdose," where the evidence was obtained as a result of the overdose and the need for medical assistance. Section 34-20A-110 states that its conditions apply to "the immunities provided in §§ 34-20A-109 to 34-20A-113, inclusive," which by its words includes section 34-20A-111, while section 34-20A-111 sets its own qualification; no South Dakota court decision reconciling the two is cited here.

The 2026 FDA-approval carve-out (HB 1099)

2026 HB 1099 (SL 2026, ch. 149) did two things. Section 1 added the exception to the Schedule I psilocybin entry quoted above. Section 2 added a new Schedule IV entry, SDCL 34-20B-25(65):

"(65) The pharmaceutical composition of crystalline polymorph psilocybin in a drug product approved by the United States Food and Drug Administration."

The entry turns on FDA approval of a drug product. It does not reach mushrooms, other psilocybin preparations or psilocyn, which stay in Schedule I. If a product meeting that description is approved, it would be a Schedule IV substance in South Dakota, and possessing a Schedule IV substance without a valid prescription or order is a Class 6 felony under 22-42-5. The federal sources cited on this page show no FDA-approved psilocybin drug product as of October 11, 2026.

The bill passed the House 58 to 7 on February 9, 2026 and the Senate 21 to 12 on March 2, 2026, and the Governor signed it on March 10, 2026, according to the Legislature's action log. It carries no emergency clause, so it took effect July 1, 2026 (SDCL 2-14-16).

Therapy programs, research and local measures

South Dakota's drug statutes contain no psilocybin therapy, research or decriminalization program. Chapter 34-20B's psilocybin provisions are the Schedule I listing and the Schedule IV carve-out above, and HB 1099 was the only 2025 or 2026 bill whose title addressed psilocybin. Changes to the schedules come from the Legislature: under SDCL 34-20B-27, "the department shall make recommendations to the Legislature that a substance be added, deleted, or rescheduled when the department determines that such substance has a different potential for abuse." This page covers no city or county measure.

Federal psilocybin status

Psilocybin and psilocyn are also federal Schedule I hallucinogens, reaching any material or preparation containing "any quantity" of them (21 CFR 1308.11(d)(29)-(30), as of October 6, 2026). Federal simple possession under 21 U.S.C. 844 is punishable by up to one year and a minimum $1,000 fine for a first offense. Executive Order 14401 (April 18, 2026) directs a rescheduling review for Schedule I products that complete Phase 3 trials, but it does not reschedule psilocybin. South Dakota's Schedule IV entry would apply only once FDA approves a qualifying drug product.

Driving after using psilocybin

SDCL 32-23-1(2) covers driving "under the influence of an alcoholic beverage, marijuana, or any controlled drug or substance not obtained pursuant to a valid prescription," which includes psilocybin. Subdivision (3) separately covers "any other substance, to a degree which renders the person incapable of safely driving," and subdivision (5) covers "any substance ingested, inhaled, or otherwise taken into the body as prohibited by § 22-42-15." The section's only numeric (per se) branch is the 0.08 percent blood-alcohol limit; it sets no per se or any-amount level for any drug. For penalties and testing, see our guide to South Dakota DUI laws.

Records

A felony or misdemeanor drug conviction creates a criminal record. For whether a South Dakota record can be cleared, see South Dakota expungement laws.

Related

• Psilocybin mushroom laws by state
• South Dakota DUI laws
• South Dakota expungement laws
• South Dakota kratom laws

This article provides general legal information about South Dakota law as of 2026-10-11. It is not legal advice. For advice about a specific situation, contact a lawyer licensed in South Dakota or the relevant state agency.

Last updated: 2026-10-11.

Frequently Asked Questions

Are magic mushrooms legal in South Dakota?

No. Psilocybin and psilocyn are Schedule I substances under SDCL 34-20B-14, and the listing reaches any material or preparation containing any quantity of them. Knowingly possessing a Schedule I substance is a Class 5 felony under SDCL 22-42-5.

What is the penalty for possessing psilocybin mushrooms in South Dakota?

Possession of a Schedule I substance is a Class 5 felony (SDCL 22-42-5), punishable by up to five years in a state correctional facility and a fine of up to $10,000 (SDCL 22-6-1). Probation is the presumptive sentence for most Class 5 felonies unless the court finds aggravating circumstances that pose a significant risk to the public (SDCL 22-6-11). The statute sets no weight tiers.

What is the penalty for selling psilocybin in South Dakota?

Distributing or possessing with intent to distribute a Schedule I substance is a Class 4 felony with a mandatory minimum of one year for a first conviction and ten years for a second or later conviction (SDCL 22-42-2), subject to a written-findings departure under 22-42-2.3. Distribution to a minor is a Class 2 felony with a five-year mandatory minimum for a first conviction.

Does South Dakota have a psilocybin therapy program?

No. South Dakota's drug statutes contain no psilocybin therapy, research or decriminalization program. 2026 HB 1099 only moves an FDA-approved crystalline polymorph psilocybin drug product to Schedule IV (SDCL 34-20B-25(65)), and the federal sources cited on this page show no such approval as of October 11, 2026.

Are psilocybin spores illegal in South Dakota?

South Dakota's schedules name psilocybin and psilocyn, not spores, mushrooms or fungi. This page states no spore rule; producing psilocybin can be charged as manufacture under SDCL 22-42-2.

Can you get a DUI on mushrooms in South Dakota?

Yes, SDCL 32-23-1(2) covers driving under the influence of any controlled drug or substance not obtained under a valid prescription, which includes psilocybin. The statute sets no numeric drug level.