Being a criminal defense attorney, I am often asked by friends, clients, and other inquiring minds, “What should I do if I am stopped by the police and I have been drinking?” In reality, every case is different. However, it is important for you to know what your rights are, and what to expect if this does happen. When reading this, keep in mind that I am providing information based on North Dakota law. While many states have similar laws, many vary, especially when dealing with DUI and DWI laws.

Why Your Vehicle Was Stopped

First, in order for law enforcement to stop your vehicle, regardless of whether it is a police officer, a sheriff, a highway patrolman, or any other agency, they have to have what’s called “reasonable and articulable suspicion.” This means that they have to have an objective, reasonable basis to believe that you have committed a traffic violation, even if it is the most minor of traffic violations. In other words, North Dakota law does not allow officers to stop you based on a mere hunch that you might be violating the law. Some of the most common reasons that individuals are stopped, among other things, are for speeding, weaving over the centerline, failing to completely stop, or stopping over a stop line.

There are also a lot of nuances that go along with this rule. For instance, the validity of a stop could also depend on if the officer received information from an anonymous caller, or if another officer gives them information to stop you. These types of situations are quite fact dependent in determining whether or not the officer had reasonable suspicion to stop you. However, it is also important for you to know that the reasonable suspicion standard is the lowest legal threshold. It is lower than probable cause, and much lower than the “beyond a reasonable doubt” standard that you are afforded at a criminal jury trial. Basically, it doesn’t take much for an officer to meet the reasonable suspicion standard.

The Initial Stop Of Your Vehicle

So, you look in your rearview mirror and see red flashing lights behind you, now what? When you are stopped by a law enforcement officer, the North Dakota Supreme Court has established a number of things that officers can do that constitute their regular duties during a traffic stop. These duties include obtaining your license, registration, and proof of insurance; requesting the driver step out of the vehicle; requesting the driver wait in the patrol car; conducting computer inquiries to determine the validity of the license and registration; conducting inquiries into the driver’s criminal history, and to determine if there are any outstanding warrants; and making inquiries into the motorist’s destination and purpose. If during the scope of conducting these duties, an officer obtains reasonable suspicion (the same type of suspicion to stop your vehicle in the first place) of illegal activity, they are allowed to expand the scope of the traffic stop in order to investigate it.

Signs Of Impairment

While an officer is conducting those duties discussed above, they are making observations about you. For the purposes of DUI, there are some standard indicators of impairment that evidence a driver may be under the influence. So, if you have been stopped by an officer, it is likely they are looking to see, among other things, if: 1) there is an odor of alcohol present in the vehicle or on your breath; 2) you have bloodshot, watery eyes; 3) your speech is slurred; 4) you are having a hard time producing your license and registration or fumbling with the same, and 5) you are having a hard time putting cohesive thoughts together, or are having physical coordination problems in completing tasks. Additionally, if you are asked to step out of the vehicle, officers are also looking at the way you exit the vehicle to see if you are using the vehicle for support, if you are stumbling, or if there is any other abnormal way you exited the vehicle that may indicate impairment from alcohol.

Field Sobriety Testing

If the officer notes some of the signs of impairment in the above section, they almost certainly will want to continue to investigate to see if you are under the influence of alcohol. The officer will then ask you (or tell you) if you will take what is called “Field Sobriety Tests” (FSTs). There are three standardized field sobriety tests: the Horizontal Gaze Nystagmus Test (a test of your eyes), the Walk and Turn Test, and the One-Leg Stand Test. The reason that these tests are considered standardized is that the National Highway Traffic Safety Administration (NHTSA) has conducted a few studies that have indicated that these three tests are the most reliable tests to show whether or not an individual is under the influence of alcohol. However, some experts have determined these tests are unreliable and suggest the way NHTSA conducted the research to make these determinations lacked the necessary standards required for credible scientific studies.  There are also some non-standardized tests, such as the backward counting test, the partial alphabet test, and a finger dexterity test.

In short, it is important for you to know that North Dakota law does not require individuals to submit to these field sobriety tests. Under North Dakota law, a driver is not obligated to submit to these tests, and it is not a crime if you politely refuse to take these tests. Refusal to submit to field sobriety testing is also not a reasonable indicator of impairment, i.e. the officer can’t use the fact that you didn’t submit to these tests as a reason to evidence that you were under the influence of alcohol.

The On-Site Screening Test

After reading the above section, you need to be aware that there is a difference between FSTs and the on-site screening test (also referred to as the Preliminary Breath Test or “PBT”). While the PBT is technically a field sobriety test, it is a crime if you refuse to take this test, and you will be arrested. But, it is important that you are informed of what the law is regarding on-site screening tests.

Under North Dakota Century Code Section 39-20-14, an officer can request that you take an on-site screening test if 1) you were stopped for a moving violation or involved in an accident and 2) through their observations, they have formulated an opinion that your body contains alcohol. So, if you were stopped for a moving violation, or were in an accident, it is a crime to refuse to submit to a PBT if the officer is under the impression that your body contains alcohol. The officer probably isn’t going to tell you that he thinks your body contains alcohol, but he is required to read you the North Dakota Implied Consent Advisory prior to having you submit to this test. The advisory, in regard to the on-site screening test, can be found under N.D.C.C. § 39-20-14(3).

There are also two important facts that you need to be aware of regarding this test. First, an officer must be certified to operate the specific on-site screening test. This is because there is an approved method to conduct these tests, and if they are not certified, they have not been adequately trained in the approved method of chemical testing for whatever on-site screening device they are using. In North Dakota, the standard on-site screening device is the Alco-Sensor FST portable device.

Secondly, if you refuse to submit to the on-site screening test, North Dakota law provides you with the opportunity to “cure” the refusal by submitting to a chemical test after you are arrested. This means that if you refuse to take the test, are arrested for refusing to take the test and for DUI (based on the officer’s observations of impairment), if you take the chemical test that they will request post-arrest, you won’t be charged for refusing the on-site screening test. This is important because of the ramifications that go along with refusing as it pertains to your driver’s license, which will be discussed under the chemical test section.

Chemical Test

Finally, if you are arrested for DUI, the officer, likely the arresting officer, will request that you submit to a chemical test, which is typically either a chemical breath test at the jail or a blood test at your local hospital or clinic. Before they make that request, however, they once again have to read you the North Dakota Implied Consent Advisory. This advisory is slightly different than the advisory for the PBT and can be found under North Dakota Century Code Section 39-20-01(3).

The North Dakota Implied Consent Advisory is important for a number of reasons. Most importantly, it advises you of the criminal and civil penalties that will result if you refuse to take the chemical test. Because of the importance of advising individuals of the consequences of refusing to take the chemical test, in April 2015, the North Dakota legislature amended the implied consent statute to create what is called a “statutory exclusionary rule” if the advisory is not read to DUI arrestees properly. In short, if the officer doesn’t read you the advisory or doesn’t read you the advisory as required under the statute and you take the chemical test, a judge or hearing officer may determine that your test results are inadmissible to use against you in both your criminal proceedings and in the civil (North Dakota Department of Transportation Administrative Hearings) proceedings.

What this all means is that if the officer doesn’t read the advisory properly, the criminal prosecution may not, depending on the Court’s ruling, be able to use the test results against you as evidence you were driving over the legal limit. Additionally, the North Dakota Department of Transportation likely won’t be able to use the test against you to suspend your driver’s license. If they are not able to admit the chemical test at your administrative hearing, the ND DOT cannot suspend your driver’s license.

Regardless of the advisory, you need to know that refusal to take the chemical test is a crime punishable in the same manner as a DUI. If you do not take the chemical test, your license will be revoked (which means you cannot get a temporary operator’s permit and you have to give your license to the officer) rather than suspended (where you would be eligible for a temporary permit). The revocation of your license is also contingent on the validity of the stop of your vehicle, the indicators of impairment the officer observed, and whether the officer read you the implied consent advisory, as well. Currently, two North Dakota cases revolving around the constitutionality of obtaining a chemical test without a warrant are currently before the United States Supreme Court. If the U.S. Supreme Court rules that law enforcement needs to obtain a warrant to get your breath or blood, the refusal law will change. But, as it stands right now, it is illegal to refuse to submit to a chemical test requested at the direction of a law enforcement officer.

However, you do have rights prior to deciding to submit to a chemical test. Specifically, you have a limited statutory right to speak with an attorney for the purpose of whether or not to take the chemical test. If you make any mention of your need or desire to speak to an attorney, a law enforcement officer is required to provide you a reasonable opportunity to do so. If you are not afforded the opportunity to speak with an attorney, or if a court or hearing officer determines that you weren’t given a reasonable amount of time, then your license cannot be revoked, and you cannot be charged with refusal to submit to a chemical test. An officer does not have to tell you about this right, so it is imperative that you know that you have the right to speak to an attorney.

Chemical Test V.S. PBT

Many people are also confused about the difference between a chemical breath test and the on-site screening test that was taken at the scene of the stop. Due to this confusion, some individuals will refuse to take the chemical test because they believe that they have already taken the test at the scene, so “what’s the point” in taking the second test. There are significant differences between the chemical test and the on-site screening test. The on-site screening test is used for the purposes of probable cause to arrest a driver on suspicion of Driving Under the Influence. However, this test has been deemed to be too unreliable to be used in court proceedings to show that the driver is under the influence, and because of that, it is inadmissible at trial. Therefore, the chemical test, which may only be requested after you have been arrested and informed that you were arrested for DUI, is the test that law enforcement needs to obtain to use as evidence against you. While I understand why individuals feel they have already taken the test, knowing the difference is important.

Smile, You’re On Camera

Finally, the last thing I think is important for you to know is that most, but not all, squad cars are equipped with video and audio recording devices. This means that everything that occurred on the scene, and on your way to jail is going to be recorded, and this will be used as evidence in your case. So, every statement you or the officer make and any test that you take will be able to be viewed by your attorney, the prosecutor, the cop, and possibly a judge or a hearing officer. Your actions on video affect your case, so knowing your audience is important.

Contact Us

If you have a criminal issue, including a DUI, please do not hesitate to call our Criminal Defense Team in Fargo at 701-297-2890 or send us an email below.

This blog is general information regarding North Dakota DUI law and is not intended to be legal advice because each case is different. Additionally, this is just a brief overview of DUI traffic stops. There is a plethora of information regarding DUI law in North Dakota that has not been discussed but could be crucial to your case.

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