(dissenting).
Under Matter of Yaroch, 333 N.W.2d 448 (S.D.1983) and Market v. City of Circle Pines, 479 N.W.2d 382 (Minn.1992), the decision of the administrative law judge, the affirmance thereof by the Secretary for the Department of Labor and the circuit court should be affirmed. In Market, 479 N.W.2d at 384, a definition for misconduct was adopted from Tilseth v. Midwest Lumber Co., 204 N.W.2d 644, 646 (Minn.1973). It is apparent that the definition of misconduct is identical to the misconduct definition established by the Supreme Court of this state in Yaroch, 333 N.W.2d at 449. This definition was later codified at SDCL 61-6-14.1.
Here, Rasmussen’s second conviction for DUI serves as a nexus to disqualify him from unemployment insurance benefits. Rasmussen was hired to drive trucks for the appel-lee, H & I Grain and Leasing. Rasmussen’s second DUI precluded him from fulfilling his duties. Granted, it was off-duty misconduct, but nevertheless it prevented him from driving a truck for his employer. Losing his driver’s license was not an unforeseen consequence of a second drunken driving conviction.
In my opinion, H & I Grain should not be penalized for attempting other options for Rasmussen. This Court should not adopt a policy of law which would discourage employers from attempting in a cooperative manner to work with employees to secure a different type of employment within that particular *661business. It is akin to punishing kindness. It is like “no good deed should go unpunished.” Were we to adopt the reasoning of the majority opinion, Rasmussen, and others similarly situated, would have a right to be rehabilitated on job A, then if job A could not be accomplished by a claimant, claimant is entitled to job B; by extension of logic, the claimant could, and the employer would be required, to go through the alphabet.
Rasmussen placed himself in peril of his employment by his misconduct under SDCL 61-6-14.1. The precipitating force for his disemployment was his second DUI, it was not his inability to operate a grinder. Testimony of Duane Steffensen, manager for H & I Grain, discloses at page 6 of the transcript:
Q I’m wondering if there’s anything that you’d like to tell me about concerning his separation from employment sir?
A Ah, the only thing that I, I felt that if Lloyd could could [sic] run a grinder down there that we have here at Het-lin, it would be a chance for him to continue having employment and having some work come in and we tried for about a week there on the grinder and it just didn’t seem to work....
At page 10 of the transcript, Rasmussen testified:
Q Okay. Is there anything else that you want to tell me about sir that I’ve not yet asked you about?
A Not that I can think of, no. I tried to work for Duane over there at the hay plant over there and I was not experienced in it, you know, and we just' didn’t come out right so that’s about all I can say which I don’t think should have any bearing on this here CDL should it. (emphasis supplied mine).
Correct. We should honor his own utterance.
Therefore, I respectfully dissent.