Contributor: Adam Justinger

The North Dakota Legislative Session meets every other year to introduce new bills that may become law. Under North Dakota Law, the regular legislative session begins in January of the odd-numbered years. This year, there are several new bills, as well as amendments to old bills, that may impact North Dakota criminal laws. This blog will focus on some of the pending legislation as it pertains to criminal laws in North Dakota. It is important to note, the following bills are only pending legislation and as of February 20, 2019, none of them have been enacted into law.

North Dakota Implied Consent Advisory For Chemical Testing

Arguably, one of the most substantial bills introduced in this legislative session would amend the North Dakota implied consent advisory. Currently, under North Dakota Law, a law enforcement officer must inform an individual of the North Dakota implied consent advisory prior to requesting a chemical test. The implied consent advisory informs an individual that refusal to take a chemical test may result in an individual’s license being revoked for a minimum of one hundred and eighty days and potentially up to three years. Further, an individual must be informed that refusal to take a breath or urine test is a crime punishable in the same manner as driving under the influence. However, House Bill 1534 would amend the current implied consent statute and no longer require an officer to inform an individual that refusing a breath or urine test is a crime punishable in the same manner as driving under the influence. The law enforcement officer would only be required to inform an individual of the administrative penalties. Nonetheless, an individual could not be charged with the refusal of a chemical test unless they are advised of the consequences of refusing a chemical test consistent with the Constitution of the United States and the Constitution of North Dakota. As of February 21, 2019, HB 1534 has passed the House of Representatives, has been introduced to the Senate, and is accompanied by an emergency clause, which would make the amendment into law immediately. If HB 1534 is enacted into law, a blog will be published on the issue at a later date.

DUI On A Bicycle/Ridden Animal

Another bill that has made the press, involves DUI’s on bicycles and riding animals. Did you know that you can get a DUI on a bicycle or an animal in North Dakota? If you didn’t, then you probably never read one of our previous blogs. As the law is currently written, you can get a DUI on a bicycle or animal in North Dakota. This is because North Dakota law deems a bicycle or a ridden animal to be a vehicle as it pertains to the North Dakota DUI statute. However, if House Bill 1154 is enacted into law, this will no longer be the case. Under HB 1154, a bicycle or ridden animal will no longer be deemed a “vehicle” for criminal offenses. Instead, a bicycle or ridden animal will only be considered a vehicle for noncriminal traffic offenses. As of February 21, 2019, HB 1154 has passed the House of Representatives and is waiting on the Senate’s vote. Because this legislation is only pending, it is not yet law; meaning you can still get a DUI on a bicycle or ridden animal in North Dakota. So, if you have a few drinks in North Dakota, make sure you leave the horse in the barn and the bicycle in the rack.

Possession Of Marijuana

Over the last few years, marijuana has been a hot topic for many states. In North Dakota, voters legalized medical marijuana in 2016 but rejected recreational marijuana in 2018. House Bill 1155 deals with possession of marijuana and marijuana paraphernalia. HB 1155 would make it a noncriminal offense to possess an ounce or less of marijuana, which is punishable by a two hundred dollar fee. If an individual possesses more than one ounce, but less than one pound, they would be charged with a class B misdemeanor. If an individual possesses more than one pound, but less than five pounds, they would be charged with a class A misdemeanor. Finally, if a person possesses more than five pounds, they would be charged with a Class C Felony. HB 1155 would also decriminalize marijuana paraphernalia. Currently, possession of marijuana paraphernalia is either a class B or class A misdemeanor depending upon the paraphernalia possessed. However, if HB 1155 is passed, possession of all marijuana paraphernalia would be a non-criminal offense punishable by a one hundred dollar fine. As of February 21, 2019, this pending bill has failed to pass the House. Thus, both possession of marijuana and marijuana paraphernalia are still criminal offenses in the state of North Dakota.

Sealing First Offense DUI Convictions

Unlike Minnesota, North Dakota does not have an expungement process for most crimes. One of the limited exceptions is if a person pleads guilty to a first offense possession of one ounce or less of marijuana. However, there are ways that charges can become sealed from public view. This is primarily done by a deferred imposition of sentence or deferred prosecution (watch for a future blog about deferred sentences). Regardless, currently under North Dakota Law, a DUI cannot receive a deferred imposition of sentence. House Bill 1334 would not change that rule but would allow a DUI to be sealed from an individual’s record. To have your DUI sealed, you would need to plead guilty or nolo contendere to a DUI and not receive a second DUI or violate any other criminal laws for seven years. However, this would not apply to commercial drivers. As of February 21, 2019, this bill has passed the House has been introduced to the Senate. So, if you have a prior DUI and no other criminal convictions, this is an important bill to keep an eye on.

Mandatory Minimum Sentences For Drug Offenses

Another important bill that has been introduced, pertains to sentencing for repeat controlled substance offenders. House Bill 1183, in relevant part, amends North Dakota’s drug laws to not have minimum mandatory penalties for repeat offenders. Currently, under North Dakota law, an individual who unlawfully manufactures, delivers or possesses with intent to manufacture or deliver, a controlled substance, faces minimum mandatory sentences when they are repeat offenders. For example, currently, under North Dakota law, if an individual is caught manufacturing methamphetamine and they have a prior offense, they will face a minimum mandatory sentence of imprisonment of at least three years. Under HB 1183, there would be no minimum mandatory sentences for subsequent controlled substance convictions. As of February 21, 2019, HB 1183 is still currently only pending legislation that has been passed in the House and introduced to the Senate.

Law Enforcement Entry Onto Private Land Without Permission

Finally, another bill to watch for is House Bill 1290. HB 1290 would prohibit a law enforcement officer from entering private land unless they had permission from the landowner or if an exception applied. One exception would be if the law enforcement officer had probable cause to believe a violation of the law has occurred, is occurring, or is about to occur. Another exception is if a search warrant has been issued. The final exception would be if the law enforcement officer was responding to an emergency situation, accident, or other threat to public safety. Under HB 1290, if law enforcement obtained any property or contraband from unlawful entry, it could not be used against a defendant in any criminal proceeding. As of February 21, 2019, HB 1290 has passed in the House and has been introduced to the Senate.

In Conclusion

Criminal laws in North Dakota may change and can be complex. If you are facing criminal charges, seeking legal representation may be in your best interest. If you have a criminal issue in North Dakota, please do not hesitate to call the Criminal Defense Team at SW&L Attorneys in Fargo at 701-297-2890.

This article is only meant to provide general information and does not constitute legal advice.

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