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Frequently Asked Questions about DUI in North Dakota

Can you expunge a DUI in North Dakota?

Expungement is a process that seals or erases the criminal conviction from public records.  In North Dakota, there are two different systems: court records (maintained by district courts); criminal records (maintained by Bureau of Criminal Investigations).  Expungement is not available from criminal history record if a defendant pleaded or was found guilty.  An exception is if the arrest was unlawful in violation of arrestee’s constitutional rights and the arrestee was subsequently not convicted (to be decided in court and then requested to BCI).

Expungement of court records is maintained by each District Court.  However, even if the court record is expunged, the record remains on a person’s criminal history record, which is maintained by the Bureau of Criminal Investigation (BCI).  Because background checks are generally run through the BCI, any convictions, regardless of how old, will show up.

What is the underage DUI law in North Dakota?

A driver who is under the age of 21 is not legally allowed to consume alcohol and therefore is subject to a lower legal limit.  As opposed to the standard 0.08%, an underage driver may not have a BAC of over 0.02%.

The procedures regarding minor drivers under the influence is also different.  When a person under 18 years old is taken into custody, the officer shall attempt to contact the person’s parent or legal guardian.  The minor is still subject to testing and an attempt to contact or consult with a parent/legal guardian cannot interfere with that.  The law enforcement officer shall mail a notice to the parent/legal guardian of the minor within 10 days after the test results are received or within 10 days after the minor is taken into custody if the minor refuses to submit to testing.  The notice must contain a statement of the test performed and the results, or if the minor refused to submit, a statement notifying of that fact.  The attempt to contact or contacting/notification of a parent/legal guardian is not a precondition to the admissibility of chemical test results or the finding of a consent to, or refusal of, chemical testing by the person in custody.

What is the DUI rule with respect to a commercial drivers license?

North Dakota also has higher standards for those driving commercial vehicles.  The legal limit is a BAC of 0.04%.  Violations of DUI laws may result in different consequences.

If a person is convicted of driving a commercial motor vehicle while under the influence or refuses to submit to testing, he/she will be disqualified from driving a commercial motor vehicle for at least one year.  If this occurs while transporting a hazardous material required to be placarded, then the period of disqualification must be for at least 3 years.  If this violation occurs two or more times from two or more separate incidences, the driver is disqualified for life.

If an individual that holds a commercial license is convicted of driving under the influence or refuses to be tested while operating a noncommercial motor vehicle, he/she will be disqualified from operation a commercial motor vehicle for one year.  For two or more convictions, the disqualifications will be for life.

What is an ignition interlock device?

An ignition interlock device is a machine connected to the car’s ignition checks for presence of alcohol in the driver.  The driver must blow into the machine to start the car.  The driver may also have to periodically blow into the device to keep the car in motion.  This is to ensure that another person is taking the If the device senses alcohol, the car will not start or will turn itself off.

While North Dakota allows the use of ignition interlock devices, they are generally not required.  In some cases, the Director of Transportation may require that it be installed.

Can you receive a DUI for driving while on prescription drugs?

A driver may not drive after consuming any alcohol or drug that causes impairment.  The fact that any person has been legally entitled to use alcohol or other drugs or substances is not a defense against any charge.  If a drug which predominately caused impairment was used only as directed or cautioned by a practitioner who legally prescribed or dispensed the drug to that person, that may constitute a defense.  The combination of the prescribed drug with other drugs/alcohol which leads to impairment is NOT a defense.

Can you receive a DUI if the vehicle is not moving?

A person may still be arrested in an unmoving vehicle if intoxicated while having actual physical control over the vehicle.  This includes, but is not limited to, sitting or sleeping in the car, regardless of whether it is in the driver’s or passenger’s seat; having possession of the keys, regardless of whether or not they are in the ignition.  The car does not have to be running.  Despite not having the intent to drive while intoxicated, the ability to control the car may constitute having actual physical control for these purposes.

A person may also be arrested after involvement in an accident.  If an officer arrives to the scene of an accident and finds the driver intoxicated despite not being in the vehicle still, there may be enough probable cause to arrest the driver for driving under the influence.

Do I have the right to talk to an attorney before a chemical test?

A person arrested for DUI has a limited statutory right to consult with an attorney before deciding whether to submit to a chemical test for intoxication.  This right does not apply until after arrest.  If an officer fails to allow an arrestee a reasonable opportunity to contact an attorney, the arrestee’s license may not be revoked based on his/her failure to refuse to take the test.  There is no bright line rule as to what constitutes a “reasonable opportunity.”   Courts will determine by objective review based on the totality of the circumstances.  Because this right does not apply until after arrest, the right to counsel does not apply to the decision whether to submit to an on-site screening test not used for evidenc.


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