This guest post was submitted by Fargo defense attorney Luke Heck.
Somewhere along the line, the drafting of our state’s DUI laws has become an adversarial process. We continue to make non-controversial things controversial instead of being problem solvers. A prime example of this is HB 1534, the bill that has been introduced this legislative session purported to address some alleged ambiguities to North Dakota’s current DUI statutes. If adopted, the proposed legislation would not solve these ambiguities. Instead, HB 1534 would allow police to mislead, misinform, or completely disregard a driver’s current statutory rights, and would leave the courts without a remedy.
The problem arises primarily with two proposed amendments to our current law. First, the legislation removes any real protections that motorists currently have from our state’s implied consent advisory. The implied consent portion of our law requires law enforcement to provide a specific advisory to a DUI arrestee before they request a post-arrest evidentiary chemical test, which is most commonly a chemical breath test. Simply put, police are required to tell DUI suspects that North Dakota law requires them to submit to chemical breath test, and if they don’t, their refusal 1) is a crime punishable in the same manner as DUI and 2) may result in their license being revoked for a minimum of 180 days and potentially up to three years. Most law enforcement agencies have the advisory’s language on cards carried by officers at all times.
HB 1354 first removes the requirement that law enforcement tell an arrestee that they would be committing a crime if they refuse a chemical breath test. Why? According to a lobbyist for the bill’s proponents, why should we tell people that it is a crime if they don’t take the test? We don’t do that for any other crime. Well, no other crime has criminal and administrative consequences for not agreeing to a warrantless search designed to incriminate you, either. Not to mention that this rationale came from someone who also testified moments prior that “DUI law is the most complicated law we have on the planet.” In other words, even lawyers who prosecute DUIs believe the law is extremely complex. That’s why the language is so important.
HB 1354 also takes away the only remedy our courts had in circumstances when police provide arrestees with an inaccurate or misleading implied consent advisory. In fact, the bill would take away any protections even when no advisory is recited at all prior to testing. This is the exact reason why this “statutory exclusionary rule” was put in place. In 2014, now U.S. Representative Kelly Armstrong promoted this rule, which makes chemical tests inadmissible as evidence in criminal and license suspension proceedings when arrestees are not adequately advised of the consequences they face by refusing to take a chemical test. The law came into effect to solve the problem that was becoming commonplace across the state: police officers only providing a portion of the advisory, or no advisory at all, to motorists. So, the Legislature had to step in to ensure that motorists were protected and to incentive police to comply with pre-existing law.
The requirement that police provide DUI arrestees with the consequences of refusal is not unique to our state. Nor are the protections are state has in place when implied consent advisory’s are not read in the manner they are required to be. In fact, most states require law enforcement to provide meaningful implied consent advisories to motorists arrested on suspicion of DUI, and most require exclusion of a test or dismissal of a DUI charge when their implied consent law is not followed. Most states have the protections like the ones HB 1354 seeks to remove. They have these safeguards because requiring police to honor driver’s rights by making sure they are aware of them, as well as they consequences they face if they refuse testing, is good public policy.
In North Dakota, both our court system and the Legislature have clearly stated their desire for DUI suspects to submit to post-arrest chemical tests; our state doesn’t want people to refuse testing. HB 1534 does not support this desire, or what North Dakota and nearly every other state have thought was good public policy. Instead, the proposed bill seeks something our legislative branch has already decided is actually bad public policy: allowing law enforcement to ignore the requirements that the legislature has imposed on it under our states implied consent law.
Why do we not want to tell people about the criminal consequences they face if they refuse? Proponents will tell you that this is necessary because of recent North Dakota Supreme Court decisions that have held that it is not a crime to refuse warrantless chemical urine tests. The simple fix is to remove language that conflicts with the law. But being pragmatic doesn’t solve the problem for the bill’s supporters. HB 1534’s promoters see these protections for motorists as inconveniences for prosecutors and the Department of Transportation, when in reality the protections help accomplish getting people to say “yes to the test.” You don’t need to be able to split an atom to know that if someone is told that it is a crime if they refuse to take the chemical test, they are more likely to take the test.
When you are transparent and tell people of their rights and the potential consequences their decision has, the likelihood you get your desired result increases. If HB 1534 is set out to clear up ambiguities to our current law, there are simple solutions. If the implied consent advisory is too difficult for police to read, the solution is to simplify it without taking away its substance. In Minnesota, the legislature has simplified its breath test advisory, and their advisory even tells arrestees of their right to speak to an attorney to help in their decision. North Dakota motorists have an equivalent right to counsel, so long as your attempts or contact with an attorney do not materially interfere with the administration of the chemical test.
But our law provides no obligation to police to advise motorists of their limited right to contact an attorney, despite the benefits that would result. For instance, an attorney would tell the arrestee to submit to the breath test, because attorneys cannot tell someone to commit a crime, i.e. refuse the test. If HB 1534 modified our current implied consent law to make it clearer and more inclusive of motorist’s rights, like their right to an attorney, the likelihood that a chemical test result is obtained goes up. But instead of using transparency that would promote testing, the proposal tries to hide the ball for no justifiable reason.
There is no reason why we need to make advising arrestees of their rights and obligations under the law a point of contention. But non-controversial issues become controversial when one side is being driven by extraneous variables and incentives. As Rob noted in his recent opinion piece, DUIs are about more than just getting drunk drivers off the street. DUI enforcement is becoming a for profit venture for the Department of Transportation (“NDDOT”) and some law enforcement agencies. I’ll explain how.
The NDDOT gets federal funding from the National Highway Traffic Safety Administration (“NHTSA”). NHTSA requires the NDDOT to provide DUI statistics to maintain its federal grants. For instance, our state crime lab has purchased roughly 150 chemical breath testing machines for approximately $9,000.00 each. They receive data from the machines for each test, and know every time there is an error. But the public does not have access to see how well our million dollar machines work. This information is only released to NHTSA for funding purposes. The NDDOT and NHTSA also contract with law enforcement agencies, where the agencies agree to provide funds in exchange for police pursuing more aggressive approaches in their DUI enforcement over certain time period. This type of agreement results in what are often called “saturation patrols” or “DUI Raid Shifts.”
The problem here isn’t in the funding itself, but in the fact that it promotes policing for a profit. We now are now part of a system that requires statistics that show that everyone is following their end of the bargain. But making it a point to charge more motorists with a crime and being less transparent should not be our state agencies’ “end of the deal.” This in turn incentivizes changes like the ones sought out in HB 1534. The changes reflect the desire of its proponents to remove the risk of lower conviction and license suspension rates by eliminating the remaining laws in the implied consent statute that could cause the same.
It is more than unfortunate that HB 1534 is designed to be less transparent instead of promoting our state’s desires and good public policy, and being more. You know you have a problem when the bill doesn’t even want to require law enforcement to have to tell someone they are even being placed under arrest for DUI anymore. Let’s stop the problems instead of causing bigger ones.