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North Dakota Drugged Driving

In North Dakota, a person is guilty of DUI if he or she drives (1) under the influence of any drug, substance, or combination of drugs or substances to a degree which renders that person incapable of safely driving, OR (2) under the combined influence of alcohol and any other drugs or substances to a degree which renders that person incapable of safely driving. N.D. Cent. Code Ann. § 39-08-01 (West 2009).

Affirmative Defense

The fact that any person is or has been legally entitled to use substances is not a defense against any charge for violating this section, unless a drug which predominately caused impairment was used only as directed or cautioned by a practitioner who legally prescribed or dispensed the drug to that person.

Implied Consent

  • Any person who operates a motor vehicle in North Dakota is deemed to have given consent to a chemical test, or tests, of the blood, breath, saliva, or urine for the purpose of determining the alcohol, other drug, or combination thereof, content of the blood. Id. § 39-20-01.
  • The attempt to contact or the contacting of a parent or legal guardian is not a precondition to the admissibility of chemical test results or the finding of a consent to, or refusal of, chemical testing by the person in custody. Id.
  • In prosecution for driving under the influence, evidence of defendant's refusal to submit to chemical blood alcohol test, though not sufficient to establish guilt, may be considered in light of other proven facts in deciding question of guilt or innocence. State v. Murphy, 516 N.W.2d 285 (1994).
  • Under the implied consent statute, an arrested person who asks to speak with an attorney before taking a chemical test must be given a reasonable opportunity to do so if it does not materially interfere with the test administration; a totality of the circumstances test is used to determine the reasonableness of the opportunity. In re R.P., 745 N.W.2d 642 (2008).

Penalties

  • First offense class B misdemeanor - minimum fine of $250; offender required to undergo addiction evaluation. N.D. Cent. Code Ann. § 39-08-01(2) (West 2009); Id. § 39-08-01(4)(a).
  • Second offense (within 5 year period) class B misdemeanor- minimum 5 day imprisonment (Or, 30 days of community service); minimum fine of $500; offender required to undergo addiction evaluation. Id. § 39-08-01(2); Id. § 39-08-01(4)(b).
    • NOTE: For second and subsequent offenses: motor vehicle number plates to be impounded for the duration of the period of suspension or revocation of the offender's driving privileges Id. § 39-08-01(3).
  • Third offense: (within 5 year period) class A misdemeanor -minimum of 60 days imprisonment (48 hours of which must be served consecutively); minimum fine of $1,000; offender required to undergo addiction evaluation. Id. § 39-08-01(2); Id. § 39-08-01(4)(c).
  • Fourth offense (within 7 year period) class A misdemeanor – minimum of 180 days imprisonment (48 hours of which must be served consecutively); minimum fine of $1,000; offender required to undergo addiction evaluation. Id. § 39-08-01(2); Id. § 39-08-01(4)(d).
  • Fifth and Subsequent offense (within 7 year period) class C Felony - minimum 180 days imprisonment (48 hours of which must be served consecutively); minimum fine of $1,000 offender required to undergo addiction evaluation. Id. § 39-08-01(2); Id. § 39-08-01(4)(d).

Other Penalties & Penalty Enhancers

  • It is a class A misdemeanor for an individual who is at least twenty-one years of age to receive a DUI while a minor was accompanying the individual in a motor vehicle. Id. § 39-08-01.4.

Sobriety Checkpoints

North Dakota allows law enforcement to conduct sobriety checkpoints under the state and federal Constitution.

  • Law enforcement cannot stop a motorist for avoiding a sobriety roadblock, unless officers have a reasonable suspicion of a violation. City of Bismark v. Uhden, 513 N.W.2d 373 (N.D. 1994).
  • Random vehicle stops are prohibited. A reasonable sobriety checkpoint should be: systematic, stationary, and visibly marked with signs that can be seen by oncoming traffic. State v. Wetzel, 456 N.W.2d 115 (N.D. 1990).
  • Checkpoints to investigate drug trafficking are permissible, and may be utilized under the pretext of a license and registration checkpoint. State v. Everson, 474 N.W.2d 695 (N.D. 1991).

Case Law

State v. Murphy, 516 N.W.2d 285 (1994) -- Evidence of defendant's refusal to submit to chemical blood alcohol test is not sufficient to establish guilt, but may be considered in light of other circumstances when deciding question of guilt or innocence.

In re R.P., 745 N.W.2d 642 (2008) -- Under the implied consent statute, an arrested person who asks to speak with an attorney before taking a chemical test must be given a reasonable opportunity to do so if it does not frustrate the purpose of the implied consent statute. When determining what is a 'reasonable opportunity,' the specific circumstances of the situation should be considered.