Refusal triggers administrative license suspension/revocation through DOT processes, often for a year or more depending on history. Birchfield held that breath-test refusal may be criminalized without a warrant, but blood-test refusal may not be criminalized absent a warrant; North Dakota law tracks that distinction in practice. That is what separates North Dakota refusing a breathalyzer from a generic national summary. Read N.D. Cent. Code § 39-20-01 before the background sections below. North Dakota's implied-consent chapter (including provisions litigated in Birchfield) deems drivers to consent to chemical testing upon lawful DUI arrest.
License suspension and administrative hearings
Refusal triggers administrative license suspension/revocation through DOT processes, often for a year or more depending on history.
The DMV / administrative track often runs separately from the criminal DUI case. Missing the short window to request an administrative hearing can lock in a suspension even if the criminal charge is later reduced or dismissed. Always calendar the administrative deadline the same day as the arrest.
Criminal consequences of refusal
Birchfield held that breath-test refusal may be criminalized without a warrant, but blood-test refusal may not be criminalized absent a warrant; North Dakota law tracks that distinction in practice.
Under Birchfield v. North Dakota, the Fourth Amendment allows criminal penalties for refusing a warrantless breath test incident to a lawful DUI arrest, but generally requires a warrant (or a recognized exception) before the State may impose criminal penalties for refusing a blood draw. Missouri v. McNeely rejected a per-se exigency based solely on natural dissipation of alcohol in the blood. North Dakota statutes and case law implement those federal baselines with local detail.
Can refusal be used as evidence?
Test results and refusal evidence are routinely admitted in DUI prosecutions, subject to constitutional and foundational objections.
Prosecutors often argue consciousness of guilt; defense counsel emphasize confusion, inadequate advisories, or medical inability to provide a sample. The precise jury instruction language is state-specific — search North Dakota opinions for “refusal” and “implied consent.”
A concrete North Dakota scenario
Here is one way the North Dakota pieces fit together. Change any fact and the statute may point somewhere else.
A driver is arrested for DUI in North Dakota and refuses the evidentiary chemical test after the implied-consent advisory.
- Identify the administrative consequence under N.D. Cent. Code § 39-20-01: Refusal triggers administrative license suspension/revocation through DOT processes, often for a year or more depending on history.
- Separate that track from the criminal case: Birchfield held that breath-test refusal may be criminalized without a warrant, but blood-test refusal may not be criminalized absent a warrant; North Dakota law tracks that distinction in practice.
- Ask whether the refusal can be argued to the jury: Test results and refusal evidence are routinely admitted in DUI prosecutions, subject to constitutional and foundational objections.
- If the request is for blood rather than breath, apply the warrant rule: Breath is the ordinary compelled test; blood generally requires a warrant when used to support criminal refusal penalties or compelled draws.
In North Dakota the refusal question is answered first by N.D. Cent. Code § 39-20-01, then by the administrative deadline and the criminal case.
Breath tests versus blood tests
Breath is the ordinary compelled test; blood generally requires a warrant when used to support criminal refusal penalties or compelled draws.
Practical tip: a driver who refuses breath may still face a warrant-backed blood draw. Refusal does not create a permanent shield against chemical evidence; it mainly adds administrative (and sometimes criminal) consequences on top of the underlying DUI case.
Practical tips
- Ask whether the stop and arrest were lawful — implied consent usually requires a lawful DUI arrest first.
- Diary the administrative hearing deadline immediately.
- Do not confuse portable roadside breath screens with the evidentiary breathalyzer at the station; statutes often treat them differently.
- Research North Dakota opinions on implied consent, refusal, and license revocation in LawDiver before a contested DMV hearing.
Case law: implied consent and refusal in North Dakota
Ronald Dale McCOY, Petitioner and Appellant v. NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Defendant and Appellee
…ghts were not violated as a matter of law by North Dakota’s implied consent law. I [¶ 2] In March 2013, a Stark County sheriffs deputy stopped a vehicle that appeared to not have a light illuminating the license plate. The vehicle was driven by McCoy. While speaking with McCoy, the deputy noticed an odor of alcohol and McCoy’s eyes appeared bloodshot and watery. McCoy admitted…
On implied consent / breathalyzer refusal, Ronald Dale McCOY, Petitioner and Appellant v. NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Defendant and Appellee speaks to the North Dakota dispute in this passage: "North Dakota’s implied consent law. I [¶ 2] In March 2013, a Stark County sheriffs deputy stopped a vehicle that appeared to not have a light illuminating the license plate. The vehicle was driven by McCoy." The surrounding opinion shows how the court applied that language to the record.
STATE of North Dakota, Plaintiff and Appellee v. Joseph SMITH, Defendant and Appellant
…ghts were not violated as a matter of law by North Dakota’s implied consent law. We affirm, concluding the district court did not err in denying Smith’s motion to suppress. I [¶ 2] On July 21, 2013, a Burleigh County deputy arrested Smith for DUI. Prior to arrest, the deputy observed Smith swerve. Smith subsequently parked his car in a parking lot and the deputy approached Smit…
Practitioners open STATE of North Dakota, Plaintiff and Appellee v. Joseph SMITH, Defendant and Appellant when North Dakota implied consent / breathalyzer refusal turns on the distinction in this sentence: "North Dakota’s implied consent law. We affirm, concluding the district court did not err in denying Smith’s motion to suppress. I [¶ 2] On July 21, 2013, a Burleigh County deputy arrested Smith for DUI. Prior to arrest, the deputy observed Smith swerve." Do not lift it out of the facts the court was deciding.
STATE of North Dakota, Plaintiff and Appellee v. Brent VIGEN, Defendant and Appellant
…otion to suppress after the court's finding that a modified implied consent advisory satisfied the requirements of N.D.C.C. § 39-20-01(3)(a). We reverse the judgment and remand for further proceedings to allow Vigen to withdraw his guilty plea. I. [¶2] Vigen was arrested and charged with driving under the influence. Vigen was read the then applicable implied consent advisory re…
North Dakota opinions such as STATE of North Dakota, Plaintiff and Appellee v. Brent VIGEN, Defendant and Appellant are cited where implied consent / breathalyzer refusal is disputed. The court stated: "N.D.C.C. § 39-20-01(3)(a). We reverse the judgment and remand for further proceedings to allow Vigen to withdraw his guilty plea. I. [¶2] Vigen was arrested and charged with driving under the influence." That is the language to brief; the rest of the decision supplies the procedural posture.
Joseph P. HERRMAN, Appellant v. DIRECTOR, NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Appellee
…with an attorney. We decline to address Herr-man’s argument implied consent laws represent an unconstitutional condition. I [¶ 2] At 8:00 p.m. on May 30, 2013, police received a report of a vehicle having difficulty maintaining its lane on Interstate 94. Stark County Sheriffs Department Deputy Shane Holtz was in the area and waited for the vehicle to approach. As the vehicle pa…
On implied consent / breathalyzer refusal, Joseph P. HERRMAN, Appellant v. DIRECTOR, NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Appellee speaks to the North Dakota dispute in this passage: "We decline to address Herr-man’s argument implied consent laws represent an unconstitutional condition. I [¶ 2] At 8:00 p.m. on May 30, 2013, police received a report of a vehicle having difficulty maintaining its lane on Interstate 94." The surrounding opinion shows how the court applied that language to the record.
CITY OF GRAND FORKS, Plaintiff and Appellant v. Thomas Arthur BARENDT, Defendant and Appellee
…influence of alcohol. We affirm, concluding North Dakota's implied consent advisory must be read after placing an individual under arrest and before the administration of a chemical test. *736 I [¶ 2] According to the facts as agreed to by the parties, in October 2017, while conducting a welfare check in Grand Forks, Officer Luke Wentz observed Barendt slumped over in his vehi…
On implied consent / breathalyzer refusal, CITY OF GRAND FORKS, Plaintiff and Appellant v. Thomas Arthur BARENDT, Defendant and Appellee speaks to the North Dakota dispute in this passage: "We affirm, concluding North Dakota's implied consent advisory must be read after placing an individual under arrest and before the administration of a chemical test." The surrounding opinion shows how the court applied that language to the record.
STATE of North Dakota, Plaintiff and Appellee v. Alexis DOWDY, Defendant and Appellant
…naccurate and coercive language to the statutorily required implied consent advisory, and she did not voluntarily consent to chemical testing. The district court found Dowdy was read a complete implied consent advisory and she voluntarily consented to chemical testing. We affirm. I [¶2] North Dakota Highway Patrol Officer Jeremy Rost stopped Dowdy in Bismarck for making an impr…
North Dakota opinions such as STATE of North Dakota, Plaintiff and Appellee v. Alexis DOWDY, Defendant and Appellant are cited where implied consent / breathalyzer refusal is disputed. The court stated: "The district court found Dowdy was read a complete implied consent advisory and she voluntarily consented to chemical testing. We affirm." That is the language to brief; the rest of the decision supplies the procedural posture.
Key takeaways
- Primary authority: N.D. Cent. Code § 39-20-01.
- Administrative hit: Refusal triggers administrative license suspension/revocation through DOT processes, often for a year or more depending on history.
- Criminal exposure: Birchfield held that breath-test refusal may be criminalized without a warrant, but blood-test refusal may not be criminalized absent a warrant; North Dakota law tracks that distinction in practice.
- Evidence: Test results and refusal evidence are routinely admitted in DUI prosecutions, subject to constitutional and foundational objections.
- Blood vs. breath: federal Supreme Court doctrine in Birchfield and McNeely still frames warrant rules.
Implied consent in North Dakota
North Dakota's implied-consent chapter (including provisions litigated in Birchfield) deems drivers to consent to chemical testing upon lawful DUI arrest.
Implied consent is not the same as a Miranda warning. Officers typically must advise of the consequences of refusal before requesting a chemical test. Failure to give a required advisory can affect whether the administrative suspension sticks — a frequent issue in North Dakota appellate opinions.
Frequently asked questions
What happens if I refuse a breathalyzer in North Dakota?
Refusal triggers administrative license suspension/revocation through DOT processes, often for a year or more depending on history. Birchfield held that breath-test refusal may be criminalized without a warrant, but blood-test refusal may not be criminalized absent a warrant; North Dakota law tracks that distinction in practice.
Is refusal a separate crime in North Dakota?
Birchfield held that breath-test refusal may be criminalized without a warrant, but blood-test refusal may not be criminalized absent a warrant; North Dakota law tracks that distinction in practice.
Will the prosecutor tell the jury I refused?
Test results and refusal evidence are routinely admitted in DUI prosecutions, subject to constitutional and foundational objections.
Do I need a warrant for a blood draw?
Breath is the ordinary compelled test; blood generally requires a warrant when used to support criminal refusal penalties or compelled draws. See also Birchfield and McNeely linked above.