Reasonable Suspicion and the Stop

Most DUI arrests are the product of a police traffic stop. Police need “reasonable suspicion” of a violation to stop or detain you. While even the smallest violation will allow the police to stop you, it must be more than a mere “hunch.” For example, around “bar close” many officers in Dickinson, Williston, Watford City, Bismarck, Mandan, and Fargo will stop vehicles in downtown areas for having an inoperable license plate light, making an improper turn, or not signaling prior to turning at an intersection. These stops are known as “pre-text” stops because the officer is using the underlying minor traffic violation as a pre-text to conduct a DUI investigation. As long as the stop is not based on being a protected class, pre-text stops have generally been upheld by the courts as legal. After being stopped, the officer may request your license, registration, and insurance card. The officer may also request that you exit the vehicle. You must comply with the officer’s request.

Probable Cause Leading to an Arrest

At this point, be aware that an aggressive officer looking for a DUI arrest will be looking for the following “indicators of impairment”: driving behavior, odor of alcohol, slurred speech, bloodshot or watery eyes, poor coordination or balance, admission of drinking or driving home from a bar, etc. Next, the officer will likely ask you to take what are known as Standardized Field Sobriety Tests. The three main tests are the Horizontal Gaze Nystagmus (eye test), Walk and Turn, and One Leg Stand. Other tests include counting, reciting the alphabet, or finger dexterity.       

Most officers are trained to obtain your consent to take these tests using a leading question. For example, an officer may say, “You haven’t been drinking? And you feel ok to drive? Great, then you don’t mind taking a few tests to prove that you are ok to drive, do you?” Most drivers feel obligated to comply with this request, especially since it comes from an officer of the law. However, there is no obligation to take a Field Sobriety test.  You can refuse these tests. Keep in mind, you are being investigated for a crime; do you want to help them?

If the officer suspects you are driving under the influence, they will then advise you of the North Dakota Implied Consent Advisory. This is typically read from a card. This piece of legislation indicates that by driving a car you have in fact consented to a breath, blood, or urine test to determine your BAC unless you expressly refuse. You’ll then be asked to submit to an “on site screening test.” It is a handheld device that you blow into. This is what most people refer to as a breathalyzer. This test is usually not admissible at a criminal trial, but refusing to take this test can result in DOT license suspensions.

The Arrest

If you refuse the breathalyzer or take the test and register above a 0.08, you will likely be arrested for a DUI. You will then be advised of the North Dakota Implied Consent Advisory again and asked to take a Chemical Test; this will be a blood, breath, or urine test. Again, contrary to popular belief, it is entirely the officer’s decision which test he offers; you cannot and do not get to choose. Pursuant to recent Supreme Court precedent, you will likely be asked to take a breath test. You can, however, ask for an independent test, but you will be required to pay for it. If you refuse to take the breath test, you again can be charged with “refusal,” punished in the same manner as a DUI but often carries enhanced DOT suspension/revocation. If you take the test, it will likely occur at the jail facility. If it’s a breath test, you’ll be given the results immediately and issued a report and notice outlining information for the DOT suspensions that come with a result above 0.08 BAC. If you take a blood test, the report and notice will get mailed to you later. Of particular note, before you take the test, you have a right to a “reasonable period of time” to consult with an attorney.

After the test, you’ll be processed and booked in. You will likely be able to post bond. Depending on any prior DUIs you may have, most local jails will allow you to post a bond around $500 for a first offense DUI. A 4th offense DUI within 15 years (with some exceptions) is considered a felony with a likely requirement that you see a judge before being assigned a bond.

Additionally, in North Dakota, it is illegal to be in Actual Physical Control of a vehicle while under the influence. You can be charged with an APC when you are near a motor vehicle and have the ability to manipulate the controls of the vehicle. In short, you do not have to be actually driving a vehicle to be charged with an APC. An APC offense has the same penalties as DUIs. When facing an APC, Refusal, or DUI charge, it is important to consult an attorney.

It’s imperative to involve your attorney immediately to advocate on your behalf and preserve the best possible DUI defense.

DUI Charges

DUI laws in North Dakota are very serious and become progressively more serious with each prior offense someone has. In addition to the very serious criminal penalties that are mandatory in North Dakota DUI cases, there are substantial license suspensions that also are imposed. To many clients, the license suspensions are often the most severe consequence of getting a DUI because there just aren’t readily-available public transportation systems in the Bismarck, Mandan, and western North Dakota areas; not having a license is a huge issue.

Depending on prior offenses and blood alcohol content, individuals will become eligible for a temporary restricted license, often referred to as a “work permit.” Under the new DUI legislation, there are two types of work permits. First is the 24/7 work permit and the second is the more traditional work permit not requiring continual alcohol testing. Periods of eligibility vary for each of the permits. There are also specific pieces of legal advice that Revive Law Group provides its clients who are on a work permit to mitigate potential problems.

In addition to criminal penalties and license suspensions, there are a host of other ramifications or potential consequences to getting a DUI in North Dakota. They range from having to obtain SR-22 insurance, to years of 24/7 alcohol testing, to vehicle forfeiture … among other consequences.

In most cases, only individuals with a first offense DUI who have a BAC below .16 can avoid the 24/7 program. The 24/7 program is administered by each county sheriff’s department and comes in two typical varieties. Traditional 24/7 testing mandates twice per day breath testing usually once in the morning and once in the evening. In addition to being a large inconvenience for most people, there is an expense associated with the program. Usually there is a startup expense of around $30 and a $1 per test fee. The alternative is referred to as the SCRAM bracelet. This is actually an “anklet” and in addition to the approximately $100 activation/deactivation fee it typically costs about $5/day. There are also potential issues some clients face if they deal with certain chemicals in the course of their jobs such as beauticians, hairdressers, or others dealing with strong chemicals. Because of the convenience with SCRAM, some local counties such as Burleigh, Morton, Stark, and McLean Counties have occasional backlogs and waiting lists to get on the SCRAM program. Most judges in the area will leave it up to the sheriff’s department as to whether or not SCRAM is approved for any given individual.

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