The North Dakota Supreme Court will decide whether one part of the state’s new drunk driving law is unconstitutional.
Two cases are pending before the court – each had the same judge, but a different outcome.
The portion of the law in question concerns refusal of a breath or blood test. A driver arrested for DUI can be charged with another crime for refusing the test.
Two cases are before the Supreme Court today. In one case, District Judge Bruce Haskell upheld the law. But in a second case, Haskell threw out the law.
In the first case, a man was stopped for DUI in Morton County. A breathalyzer test showed he had a .243 blood alcohol content. When the officer told him to get a blood test, he refused -- and was charged with the refusal crime.
During the arguments on the first case, defense attorney Danny Herbel brought up the issue. Herbel said that, three months after this case, Judge Haskell changed his mind on the constitutionality of the law.
"Without reference to his prior opinion," said Chief Justice Gerald Vandewalle. "Without even a nod to it."
Herbel argued the tests amount to a warrantless search.
"He exercized his fourth amendment rights, and that comes at a consequence," said Herbel. "Our argument is -- that's unconstitutional."
In the second case, Jayden Washburn refused the breath test, after being stopped for suspicion of DUI in Burleigh County. After Judge Haskell ruled the law unconstitutional, the state appealed.
Burleigh County prosecutor Britta Rice told the Court that when someone gets a driver’s license, that someone gives an implied consent to the search.
"When you voluntarily got your driver's license, and you drove on the road, and you drove drunk, and there's probable cause to show you were driving drunk, and you're given the (test) option, you've already given your consent," said Rice. "And that consent is good until you affirmatively revoke that. And when you affirmatively revoke that consent for a reasonable search, there are going to be consequences."
Defense attorney Lloyd Suhr says the issue goes beyond the automobile.
"This is not just involving an automobile, but an invasion into the body," argued Suhr. "The US Supreme Court has said it carries equal or greater protections than one's home. It's comparable."
In court, Rice said Judge Haskell relied on a Minnesota case, where a judge declared the refusal law unconstitutional. She told the North Dakota court that case was reversed on appeal, and is now pending in the Minnesota Supreme Court.
The North Dakota Supreme Court has taken the two cases – and the issue – under advisement. Under the state’s Constitution, it will take four of the five justices to agree to hold a law unconstitutional.
