PinMost people understand that if they’re stopped by the police and suspected of drunk driving, it’s possible they’ll be asked to submit to a breathalyzer or perhaps some field sobriety tests. We see these kinds of things depicted regularly on television and in movies. What isn’t as common knowledge is that police can and often do ask drivers to submit to blood or urine tests to determine potential impairment. Are these tests required? Can you be punished for not complying? The North Dakota Supreme Court is currently tackling these very important questions. To learn more, keep reading.

First, let’s start by saying that the current case before the North Dakota Supreme Court arrived a year after the U.S. Supreme Court issued another important decision concerning drunk driving. The case, Birchfield v. North Dakota, dealt with a question about the constitutionality of warrantless breath and blood tests in drunk driving cases. The Supreme Court heard a challenge to the practice and ended up ruling in favor of allowing breathalyzer tests without a warrant. However, the Court said that warrantless blood tests are invasive and unconstitutional, deciding that that this amounted to an impermissible search and seizure.

That case was important not only for the defendants, but for suspected drunk drivers across the country. Police departments all over had to change their policies as it relates to drunk driving and could no longer rely on rules allowing warrantless blood tests. Though the Court was definitive when it came to blood and breath tests, it left open the question of urine tests. States, like North Dakota, are now having to decide for themselves how to handle such cases and are debating whether urine tests are more similar to breath or blood analysis.

The current case before the North Dakota Supreme Court began in May of 2016 when a police officer in Fargo stopped a driver for operating a vehicle without headlights. The officer conducted several field sobriety tests and arrested the driver, suspecting him of being under the influence of drugs. The officer requested the driver submit to a urine test, something the driver refused. As a result, the driver was charged with a Class C felony.

The driver’s attorney has since challenged the refusal charge, arguing that the law doesn’t allow for warrantless seizure of urine and thus should not justify any criminal charge for refusing to submit to such a test. A lower level court agreed with the driver, saying that urine tests are far closer to blood tests than breath tests. The lower court decided that urine tests are likely to lead to much more embarrassment for the suspect than a breath test. The court also held that the Fourth Amendment gives a person the right to be secure in his or her bodily fluids and that this protection should extend to include urine as much as it does blood.

The state has appealed the decision to the North Dakota Supreme Court. Prosecutors argue that urine testing is now the only real option for testing for the presence of drugs in suspected impaired drivers now that blood testing has been thrown out. They also argue that the state has a strong interest in deterring drug-impaired driving and that this kind of testing is integral to furthering that interest. Whether the State Supreme Court will be persuaded remains to be seen. However, if Minnesota is any judge, the answer may be no. Just last year the Minnesota Supreme Court held that a drunk driver shouldn’t be prosecuted for refusing to submit to a warrantless urine test.

Source: North Dakota Supreme Court debates urine testing in DUI cases, by John Hageman, published at BismarckTribune.com.