Alex Stock: DUI Policy Doesn’t Need to Be So Complicated


Grand Forks police officer J. Moe assists another officer during a stop near the DeMers Ave. bridge during Friday's DUI saturation. photo by Eric Hylden/Grand Forks Herald

This guest post was submitted by Alex Stock, an attorney who works as a prosecutor for the City of Moorhead.

One quote from this legislative session claims, “DUI law is the most complicated law we have on the planet.” And one prosecutor recently told the North Dakota Supreme Court “[i]t’s easier in my opinion to convict someone of murder than DUI with the way this is set up.” As a former North Dakota prosecutor who now prosecutes in Minnesota, I agree completely. After moving across the Red River into Moorhead, I now fully understand how impossible DUI prosecution in North Dakota is. For example, in Minnesota, prosecutors routinely convict defendants whose breath alcohol content (BAC) is .08, exactly the legal limit, because that’s the law. In North Dakota, however, acquittals and reductions in charges happen with much higher breath test results. So my question is, why have a .08 law if you can’t or won’t enforce it?

DUIs don’t need to be complicated. Defense attorneys and prosecutors both agree North Dakota’s DUI laws need an overhaul. I think the best way to fix these broken DUI laws is to copy Minnesota, and at least one defense attorney agrees with me. Kind of. Luke Heck, a good friend and colleague, recently published an article implicitly suggesting North Dakota should simplify its implied consent laws like Minnesota has. His article, however, then warns against HB 1534, which, the way I’m reading it, simplifies the implied consent law similar to Minnesota’s.

One thing is for sure—North Dakota’s DUI laws need to change. The legislature is constantly trying to fix the loopholes and impossibilities in the statutes. These issues truly aren’t anyone’s fault.

We’re all doing our best to adapt to the ever-changing constitutional landscape of DUIs, whether the issue is sobriety checkpoints, criminalizing refusal, or whatever the next issue becomes. I applaud the legislature’s effort, but the DUI laws have been twisted into an illogical and unworkable, and it has everyone scratching their heads. Mr. Heck states HB 1534 would remove the statutory requirement for law enforcement to read the implied consent advisory to DUI suspects. The way I read it, this may be true, but it’s constitutionally sound policy. Side note—my understanding of the implied consent law is that North Dakota law enforcement now has to read two separate implied consent advisories to suspects at different times, which is ridiculous. So, I guess you could say I agree with Mr. Heck when he says the implied consent law needs to be simplified like Minnesota’s, but I disagree inasmuch as he argues against HB 1534.

Here’s why.

[mks_pullquote align=”right” width=”300″ size=”24″ bg_color=”#ffffff” txt_color=”#000000″]One thing is for sure—North Dakota’s DUI laws need to change. The legislature is constantly trying to fix the loopholes and impossibilities in the statutes. These issues truly aren’t anyone’s fault.[/mks_pullquote]

Let’s start by acknowledging the “carnage on our nation’s highways” caused by drunk drivers. The obvious goal of having both criminal and civil DUI penalties is to keep impaired drivers off the street. This is also why both North Dakota and Minnesota have enacted harsher penalties for repeat DUI offenders. Next, let’s look at the implied consent advisory’s purpose. As Mr. Heck said, courts and legislators “clearly stated the desire for DUI suspects to submit to post-arrest chemical tests; our state doesn’t want people to refuse testing.” But Mr. Heck argues HB 1534 doesn’t support this goal. This is where he and I disagree. Yes, reading the advisory is good policy, but, in the criminal context, what’s the harm in not reading the advisory if the end goal, i.e., taking a breath test, is accomplished? HB 1534 gets rid of the unnecessary pitfalls defense attorneys have enjoyed exploiting for the last several years. In the criminal context, the implied consent advisory is absolutely unnecessary. The current law fails to recognize this, but HB 1534 fixes the mistake by implicitly acknowledging some pretty basic Fourth Amendment principles.

In order to understand HB 1534, you must first recognize a DUI case is actually two separate cases. One case involves criminal charges, and one involves administrative driver’s license penalties. These cases are completely independent from each other—different docket numbers, attorneys, judges, burdens of proof, and standards of review. But, for some reason, North Dakota has unnecessarily intertwined a DUI’s criminal and civil aspects within its statutes.

Mr. Heck is right to suggest North Dakota follow Minnesota’s lead in simplifying its implied consent advisory. For starters, only require one advisory to be read before the actual chemical breath test at the police station. That’s what Minnesota does, and HB 1534 is a step in the right direction in streamlining the process.

Although Mr. Heck believes HB 1534 is rather extreme, it really isn’t. Again, we must acknowledge a DUI’s distinct criminal and civil sides. That’s the starting point. In a criminal DUI trial, the State is required to prove: 1) someone was driving; and 2) he or she was under the influence of alcohol or had a BAC of .08 or greater. That’s all that’s required. Next, we need to understand that once an officer has made a valid DUI arrest, the breath test that follows is a valid search incident to arrest according to the U.S. Supreme Court in Birchfield v. North Dakota. This basic principle is what allows North Dakota and Minnesota to criminalize breath test refusal. Since the U.S. Supreme Court has now explicitly told North Dakota a breath test is a valid search incident to arrest, why should law enforcement have to read the implied consent advisory before breath test results are admissible in a criminal trial under N.D.C.C. § 39-20-01(3)(b)? Why should they be required to read two of advisories? Why do judges and the Supreme Court constantly have to issue decisions discussing the multiple implied consent advisories and the fact that they weren’t read verbatim or are now outdated? The reason defense attorneys want this is so they can get cases thrown out on technicalities because two advisories and other hypertechnicalities are easy to exploit to get charges dropped. HB 1534 recognizes the breath test is already admissible as a search incident to arrest. Indeed, the elements of the crime of DUI as found in the jury instructions don’t require proof of the implied consent advisory or any other weird procedural underpinnings. Those legal issues should be litigated prior to trial because if attorneys and legislators struggle with these issues, how can we expect juries to understand them?

Obviously, in the context of a criminal DUI refusal case, you can’t be guilty of refusing to submit to a breath test unless you’ve actually been read the advisory. Minnesota law and HB 1534 acknowledge this basic notion. But if law enforcement asks for a breath test and the suspect consents, the ultimate goal is achieved. The extra reading of the advisory is superfluous, at least in the criminal context. It would understandably prevent civil license revocations in many aspects, but again, North Dakota needs to treat criminal DUIs separate from their civil license revocation counterparts like Minnesota does.

It’s important to understand a search incident to arrest only covers breath tests, as noted in Birchfield. But what about blood or urine tests? Again, there’s another easy answer even more basic than the search incident to arrest exception. In Minnesota, an officer can arrest someone for DUI and ask for consent for either a blood, breath, or urine test without reading the implied consent advisory. This is because in addition to a breath test being valid as a search incident to arrest, one of the most basic Fourth Amendment principles is that consent is also a valid exception to the warrant requirement. Therefore, if a person consents to a test, then the results, whether blood, breath, or urine, are admissible in a criminal trial, and the implied consent advisory is again unnecessary. In fact, the Minnesota Supreme Court has reversed orders suppressing evidence due to these well-established Fourth Amendment principles.

Simple, right? While the implied consent advisory should ideally always be read to DUI suspects, that doesn’t always happen. That should have no effect on a valid breath, blood, or urine test. A breath test is admissible as a search incident to arrest, and it’s also admissible if someone consents to the search. If you’re counting, that’s two separate exceptions to the Fourth Amendment’s warrant requirement, i.e., two reasons why a breath test is admissible in criminal trials. Again, everyone agrees the goal is to get usable test results. If someone takes the test, this goal is accomplished, and a suspect’s Fourth Amendment rights are preserved. That’s why I think HB 1534 is good policy. It furthers the ultimate goal. Requiring two advisories doesn’t. It actually has the opposite effect, and it has nothing to do with Fourth Amendment protections. It just provides more loopholes and technicalities with which to escape accountability. Although I’m no longer a North Dakota resident, I fully support HB 1534. But more changes are necessary to ensure effective and uniform DUI prosecution in North Dakota.

Another thing the legislature should address is the archaic evidentiary procedures requiring prosecutors to access the Attorney General’s website and print off ten (or more) different certified PDFs to send to defense attorneys prior to a DUI trial. The documents quickly become outdated and are needlessly cumbersome. These documents simply show the State Toxicologist has approved all the breath test machines in use across the entire state. The documents also show the machines were installed by field inspectors, operated by people certified to operate them, and that the state toxicologist personally approved some of the machines’ parts. If you didn’t understand a lot of that, no worries. The documents are technical and clunky, and they really serve no purpose. In reality, North Dakota’s breath testing machines can’t be installed by anyone other than a field inspector, and they can’t be operated by anyone who isn’t certified. The machines can’t be purchased at Wal-Mart. Standard gas cylinders have to be picked up specifically from the State Crime Lab and have expiration dates. The process is already highly regulated, and putting these requirements in a statute and forcing prosecutors to prove these obscurities at trial adds nothing to perceived transparency or lack thereof in the testing process. These documents are really just another evidentiary minefield defense attorneys have fun exploiting. So a prosecutor may be forced to reduce or dismiss charges in routine DUI cases if even a single PDF from the Attorney General’s website was missed or expired. If the goal is to hold drunk drivers accountable, the PDF system isn’t helping. So what’s the solution? Look to Minnesota.

Minnesota understands there aren’t rogue law enforcement agencies around the state using shoddy and unverified technology and pseudoscience to haphazardly measure a suspect’s breath alcohol. Breath testing machines spend massive amounts of time in research and development. They’re sophisticated and specifically designed to be as accurate as possible while giving the suspect the benefit of every possible doubt. That’s why Minnesota simply has a statute that says the specific (and only) type of breath test machine used all across the state is approved for use. You literally can’t get a breath testing machine unless it was specifically ordered by the Department of Public Safety. All defense attorney paranoia and conspiracy theories aside, it’s a fact. So Minnesota prosecutors don’t need to manually download, print off, and send certified documents from a website. It’s a simple statute that doesn’t need constant updating. Minnesota also has a statute that says a breath test is admissible into evidence if the operator testifies he/she was certified to operate the machine and operated it in accordance with his/her training. This is because Minnesota understands uncertified operators don’t operate the machine because they literally can’t. There aren’t masked mystery men sneaking into police stations to mess with the breath test machine. You have to specifically log into Minnesota’s breath testing machine before you administer it like it’s a computer, thereby confirming you’re certified.

DUI law doesn’t have to be “the most complicated law we have on the planet.” And breath tests aren’t some big conspiracy. The ridiculous loopholes in the Century Code need to go. They cost taxpayers money, and they waste everyone’s time, including the North Dakota Supreme Court’s. Look at all the published opinions, both criminal and administrative, that deal with the (multiple) implied consent advisories or have something to do with the certified PDFs. I mean, the State of North Dakota bore the cost of an entire criminal trial and appeal—judges, justices, lawyers, law clerks, court clerks, and jurors—on a case because the nurse who drew a suspect’s blood “shook” the blood vial rather than “inverting it several times,” as required by the so-called “approved method” from a certified PDF. North Dakota literally had a district court judge and the North Dakota Supreme Court discussing the dictionary definitions of “shake” and “mix.” All because a bunch of PDFs on a website said so.

North Dakota needs to streamline its DUI laws and understand how unrealistic the statutory and evidentiary scheme currently is. Employ a single breath test advisory. Recognize consent and arrest as valid exceptions to the Fourth Amendment. Separate criminal cases from administrative license revocations. Look to Minnesota as an example that can can help refine the most complicated law on the planet into a workable framework for all those involved. This will save tax dollars and further the goal of holding DUI offenders accountable without running afoul the Constitution. While HB 1534 is a good start, I’m hopeful it’s just the tip of the iceberg.