North Dakota Supreme Court Reinstates Driving Privileges due to Invalid Implied Consent Advisory

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The North Dakota Supreme Court recently affirmed a district court decision reinstating an individual’s driving privileges after an officer failed to inform a driver that refusing to take a chemical test could be treated as a crime.  This decision is a continuation of the Court’s ongoing clarification of the requirements of the implied consent advisory under North Dakota law.  

Typically, if a driver is arrested for driving under the influence of alcohol and refuses to take a breath test requested by an officer (after a valid reading of the implied consent advisory), that individual may be subject to criminal charges for refusal and revocation of driving privileges. 

In Alvarado, the driver was stopped by law enforcement for a traffic violation.  Then, as required by state law, the officer read an implied consent advisory.  Under the law, the implied consent advisory requires officers to inform an individual that the refusal to comply with breath test (commonly call a breathalyzer test) is a crime punishable in the same manner as a criminal driving under the influence charge. However, this officer read an incomplete advisory to the driver, leaving out the crucial provision about refusal of chemical testing being treated as a crime.  The driver then refused to submit to testing and was then subjected to revocation of his driving privileges.  However, the North Dakota Supreme Court affirmed the district court decision reinstating his driving privileges after concluding he was not warned about the criminal penalties for refusal, as required by state law.

Individuals facing criminal penalties and driver’s license revocation or suspension for refusal of chemical testing to a driving under the influence charge should carefully review and consider the implied consent advisory read to them by law enforcement.  If you have questions or need assistance with a charge of driving under the influence or license revocation, contact Tatum O’Brien the attorneys at O’Keeffe, O’Brien, Lyson & Foss at call 701-235-8000 or 877-235-8002. 

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