DUI Frequently Asked Questions
If you have just recently been arrested for Driving Under the Influence of Alcohol (DUI) in North Dakota, you may be confused, nervous, and scared for a variety of reasons, including concerns over losing your job, your driving privileges, or that you may be facing jail time. In reality, one of the major reasons that people are scared is because they aren’t aware of what is going to happen to them if they are convicted of DUI. Based on this, you almost certainly have some questions that you would like answers so that you can better understand the process that you will be going through in order to deal with not only the criminal charges but your license suspension as well. It is extremely important that you understand the legal process that goes along with a DUI, and also make sure you understand the specific rights that you have when dealing with a DUI charge. In order to help you better understand the process, we have compiled a list of frequently asked questions that we receive from our clients. You may have other questions that aren’t on this list, and if so, please do not hesitate to contact us at 701-297-2890 to address any and all questions that you may have.
How Much Trouble Am I In?
While many people hate this answer, the truth is that it depends. There are a number of factors that determine the criminal penalty that you will receive if you are convicted of DUI, and also the length of your license suspension if the North Dakota Department of Transportation (DOT) determines that your license must be suspended or revoked at an administrative hearing or based on a conviction to the criminal charges. Below is a breakdown of the level of charge you will face depending on the number of prior DUIs you have on your record, the minimum penalties you will face criminally if you are convicted, and also the suspension or revocation length that you will face through the DOT, which is dependent on your blood alcohol content (BAC) and the number of prior DUIs you have on your driving record:
1st Offense in 7 Years
Offense Level: Class B Misdemeanor
Maximum Criminal Penalty: $1,500 fine, 30 days in jail, or both, and you must obtain a chemical dependency evaluation from an appropriately licensed treatment provider.
Minimum Criminal Penalty: If your BAC is below a .16, you will, at a minimum, be required to pay a $500 fine and be ordered to obtain a chemical dependency evaluation from an appropriately licensed treatment provider. If your BAC was above a .16, you will be required to pay a fine of $750, serve two (2) days in jail, and obtain a chemical dependency evaluation from an appropriately licensed treatment provider. However, the Municipal or District Court that you would be sentenced in may allow you to serve two (2) days on Electronic Home Monitoring (EHM) or serve twenty (20) hours community service as opposed to serving jail time. This is not a guarantee however, and is dependent on your specific situation.
Suspension or Revocation Period: If a DOT hearing officer determines that your license should be suspended, or if you are convicted of a DUI, your license will be suspended for a period of 91 days if your license if your BAC was below a .18, and 180 days if your BAC is above a .18. Furthermore, if it is your first offense and you refused to submit to a chemical test, your license will be revoked for a period of 180 days. Having your license revoked means that you will not be eligible for a temporary operators permit (formally referred to as a work permit) and that you will be required to retake the written driving exam, as well as the physical driving test before you will be able to get your license back.
2nd Offense in 7 Years
Offense Level: Class B Misdemeanor
Maximum Criminal Penalty: $1,500 fine, 30 days in jail, or both, and you must obtain a chemical dependency evaluation from an appropriately licensed treatment provider.
Minimum Criminal Penalty: If this is your second offense in seven (7) years, at a minimum, you will be required to pay a $1,500 fine, serve ten (10) days in jail, be placed in the 24/7 sobriety program for a period of one year, and be ordered to obtain a chemical dependency evaluation from an appropriately licensed treatment provider.
Suspension or Revocation Period: If a DOT hearing officer determines that your license should be suspended, or if you are convicted of a DUI and this is your second offense in seven (7) years, your license will be suspended for a period of 365 days if your license if your BAC was below a .18, and for two years if your BAC is above a .18. Furthermore, if it is your second offense and you refused to submit to a chemical test, your license will be revoked for a period of two years.
3rd Offense in 7 Years
Offense Level: Class A Misdemeanor
Maximum Criminal Penalty: $3,000 fine, one year in jail, or both, and you must obtain a chemical dependency evaluation from an appropriately licensed treatment provider.
Minimum Criminal Penalty: If this is your third offense in seven (7) years, at a minimum, you will be required to pay a $2,000 fine, serve 120 days in jail, be ordered to enroll in the 24/7 sobriety program for one year, be placed on supervised probation for one year, and be ordered to obtain a chemical dependency evaluation from an appropriately licensed treatment provider. If this is your third offense, the Court may suspend all but sixty (60) days of your jail sentence on the condition that you undergo and complete an evaluation for alcohol and substance abuse treatment and rehabilitation.
Suspension or Revocation Period: If a DOT hearing officer determines that your license should be suspended, or if you are convicted of a DUI, your license will be suspended for a period of two years if your license if your BAC was below a .18, and thee years if your BAC is above a .18. Furthermore, if it is your third offense and you refused to submit to a chemical test, your license will be revoked for a period of three years.
4th & Subsequent DUI Offenses within a 15-Year Period
Offense Level: Class C Felony
Maximum Criminal Penalty: $10,000 fine, five (5) years in prison, or both.
Minimum Criminal Penalty: If this is your fourth or subsequent DUI offense in a fifteen (15) year period, at a minimum, you will be required to pay a $2,000 fine, serve one year and one day in prison, be ordered to enroll in the 24/7 sobriety program for two years, be placed on supervised probation for two years, and be ordered to obtain a chemical dependency evaluation from an appropriately licensed treatment provider.
Suspension or Revocation Period: If a DOT hearing officer determines that your license should be suspended, or if you are convicted of a DUI, and it is your fourth or subsequent offense within seven (7) years your license will be suspended for a period of three years, and if you refused to submit to a chemical test, your license will be revoked for three (3) years.
You Gave Me The Penalties, But You Never Told Me What I Did Was Illegal?
Fair point. In North Dakota, it is illegal to drive or be in actual physical control of a motor vehicle on a highway, or upon a public road or a private road to which the public has a right of access and you are under the influence of alcohol. While you can be charged with DUI without even having a BAC amount recorded, you almost certainly were asked to submit to a chemical test at the time you were arrested, and if you submitted to one, you will be charged with a DUI if your test results were above a .08. With that being said, as you see above, there are increased criminal penalties if your BAC is at a .16, and increased penalties regarding your driving privileges if your BAC was above a .18 or you refused to submit to a chemical test.
Can I Refuse A Chemical Test?
Well, you can, but quite honestly it probably is not going to get you anywhere unless the law enforcement officer lacked some of the necessary observations that would lead him to believe you were impaired by alcohol. In North Dakota, it is a crime to refuse to submit to a chemical test. Furthermore, if you submit to a chemical test, your license will be revoked instead of suspended, which, as discussed above, means that your license will be revoked for a minimum of 180 days and up to three (3) years, and you will not be eligible to get a temporary operators permit during that period, and you will have to retake all of the road tests after your revocation period in order to get your license back.
What Are The Preliminary Breath Tests They Want Me To Take At The Scene?
In short, you can also be criminally charged for refusing to submit to a PBT (preliminary breath test) at the scene of the stop prior to be arrested. However, North Dakota law allows you to “cure” your refusal of the PBT if you later decide to submit to a chemical test if a law enforcement officer requests that you submit to one after you are arrested. Therefore, if you refuse to take the PBT test, but then later take a chemical breath, blood, or urine test, you will not be charged with a refusal. With that said, there is no requirement that you submit to field sobriety tests (walk and turn, alphabet test, one legged stand, counting test, HGN [often referred to as eye test or pen test]). If you do submit to field sobriety tests, those will be used by the officer to support a decision for any probable cause to arrest.
I Refused The Chemical Test – Am I Out Of Luck?
Well, hopefully not. If you refused to submit to a chemical test, you can cure your refusal if you plead guilty to the offense within 25 days of receiving your 25 day temporary operator’s license, and file an affidavit with the DOT stating that you plead guilty and waive your right to an administrative hearing to challenge your license revocation. If you cure your refusal, your license will not be revoked, but it will be suspended for a period of time that is dependent on the number of prior DUI offenses you have had in the last seven (7) years. At that time, you will be eligible for a temporary operators permit after your license has been suspended for thirty (30) days if it is your first offense, or if you enroll in the 24/7 sobriety program if it is your second of subsequent offense.
What Is The 24/7 Sobriety Program?
If you enroll in, or are ordered to enroll in, the 24/7 sobriety program, you will either be required to be placed on an alcohol monitoring device, called the SCRAM bracelet, or you will be required to go to a local law enforcement center twice a day (morning and evening) to submit to a PBT to make sure you haven’t been drinking at all. Additionally, you are required to pay the costs of the program.
Does An Out-Of-State DUI Show Up In North Dakota?
Drunk driving convictions from other states can show up in North Dakota. Most states are now linked together through computer systems run by law enforcement agencies for the purposes of sharing information one state to another. This information can be accessed by either the Court, the prosecutor, or the DOT, and these convictions can possibly be used to enhance punishment for a subsequent DUI arrest in North Dakota, and an out of state conviction could result in your North Dakota driver’s license being suspended or revoked as well. However, it is important to note that there are certain requirements that the State or City has to meet to prove up that a prior conviction can be used. In those cases, it is advisable to contact an attorney to determine if a prior conviction is allowed as part of your current charge.
What Is The DOT Administrative Hearing?
If you are arrested for DUI in North Dakota and your test results were above .08, or you refused to submit to a chemical test, the law enforcement officer that arrested you and had you submit to a chemical breath test at the jail probably gave you a 25 day temporary operator’s permit that evening prior to you posting bond, which is titled at the top of it “Report and Notice…” If you submitted to a blood or urine chemical test, you may have been mailed this form if your test results were above a .08. Here is why that document is important. If you receive that document in person or by mail, that means that the law enforcement officer is going to forward your test results and other information from that evening to the DOT so they can suspend your license. You are an opportunity to challenge the suspension or revocation of your license however, but in order to do so, you must request an administrative hearing through the DOT within ten (10) days of receiving the Report and Notice form in person, or within ten (10) days of the mailing date of the form if it was mailed to you.
At the administrative hearing, the DOT has the burden to prove among other things, that you were driving under the influence of alcohol, and that the alcohol concentration in your body was above at least a .08, or in the event of you refusing to submit to a chemical test, that you did in fact refuse to submit to the test (once again, among other things). After the administrative hearing, the DOT hearing officer will determine whether or not your license should be suspended or revoked, and if they determine that your license should be suspended or revoked, they will inform you of the date that your license is no longer current, which is typically three (3) days after the mailing date of the decision.
I Want To Fight A DUI – Do I Have A Chance?
Possibly, but it all depends on the specific facts of your case. The important thing to remember is that you aren’t the only person involved who is required to follow the law, but the law enforcement officer who stopped and arrested you is required to as well. North Dakota law requires law enforcement officers abide by certain standards when they stop individuals, arrest individuals, ask individuals to submit to chemical testing, and administer these chemical tests. If the law enforcement officer did not meet one or all of these necessary standards in your case, then it is possible that the City or County that is prosecuting you, or the DOT, may not be able to convict you of a DUI or suspend or revoke your driver’s license, respectively.
Furthermore, you have certain rights when you are arrested for DUI and asked to submit to a chemical test as well. If you are not afforded one of these rights, then you may not be able to be convicted criminally, or your license may not be able to be suspended or revoked administratively.
So Do I Need An Attorney?
f you ask an attorney whether or not you need him or her, you can about imagine what their answer is going to be. The best way to answer that question is to explain to you that is our job as criminal defense attorneys to understand DUI law, which is a fairly complex area of practice, and make sure that you are fully informed of your case, the possible penalties, and your that rights are protected on both the criminal and administrative sides of your case. Because we are trained in the small details of DUI law, when we review the evidence in your case, in some cases we are able to spot issues that you were not aware of. Furthermore, even if you do know that there is an issue in your case, we are experienced in being able to relay that issue to the Court, the prosecutor, or the DOT hearing officer. Based on this, hiring a criminal defense attorney to represent you may be able to better help assist you in getting a more favorable outcome in your case, but of course, there is never a guarantee that the results would be any different solely by hiring an attorney to represent you. What we can guarantee is that we will do everything in our power to get the best result for your case.
If you have been arrested for DUI in North Dakota, and you would like to consult with one of our criminal defense attorneys to determine whether or not hiring an attorney to represent you is the right choice for you, call us at 701-297-2890.
We are not your attorneys unless you have signed a representation agreement with us. The subject matter contained on this site is for general information purposes only. Each person’s case is different. You may not rely on the information contained on this site for any purpose whatsoever. If you have questions you would like answered, please give us or another attorney a call.
