What Happens If You Refuse a Breathalyzer in North Dakota: Implied Consent Laws Explained

Seeing flashing patrol lights in your rearview mirror along Interstate 94 in Fargo or Highway 83 near Bismarck immediately puts your driving privileges and freedom at risk. When an officer suspects impaired driving, they will request two distinct types of breath tests: a roadside preliminary breath test and an official evidentiary chemical test at the station. Making the wrong split-second decision at the station can expose you to harsher administrative penalties than actually failing the test.

North Dakota enforces some of the strictest implied consent statutes in the United States. Simply operating a motor vehicle on public roadways or accessible private areas means you have legally agreed in advance to submit to chemical testing of your blood, breath, or urine following a lawful arrest. Because refusing a post-arrest breath test is prosecuted as a standalone crime alongside an immediate license revocation, consulting a qualified defense lawyer from our directory of US attorneys is one of the most effective ways to protect your record.

Refusal vs. Failure Under North Dakota Implied Consent Laws

Many motorists mistakenly believe that declining to blow into the Intoxilyzer machine deprives the prosecution of evidence and helps them avoid a conviction. Under N.D. Cent. Code § 39-20-01, law enforcement officers must read the mandatory implied consent advisory informing you that refusal is a crime and will result in license revocation. Furthermore, under N.D. Cent. Code § 39-08-01, refusing an official chemical breath test carries the exact same criminal classification and mandatory minimums as driving under the influence.

Even more concerning for everyday commuters is the administrative penalty imposed by the North Dakota Department of Transportation, Bismarck. While a first-time test failure with a blood alcohol concentration (BAC) under 0.18% triggers a 91-day license suspension under N.D. Cent. Code § 39-20-04.1, refusing the test triggers a minimum 180-day license revocation under N.D. Cent. Code § 39-20-04. A revocation is far more severe than a suspension because it terminates your driving privilege entirely and often bars you from obtaining a standard temporary work permit without participating in intensive state monitoring.

Forced Blood Draws, Search Warrants, and Constitutional Rights

The legal distinction between breath tests and blood draws in North Dakota reached the highest court in the nation in Birchfield v. North Dakota, 579 U.S. 438 (US Supreme Court 2016). In that landmark ruling, the Supreme Court held that the Fourth Amendment permits warrantless breath tests incident to a lawful drunk driving arrest, meaning North Dakota can criminally prosecute you for refusing a station-house breathalyzer. However, because blood draws are physically invasive, officers cannot criminally punish you for refusing a blood test unless they first obtain a valid search warrant.

In practice, refusing a breathalyzer often prompts officers in cities like Fargo, Grand Forks, or Minot to apply electronically or telephonically for an immediate search warrant from an on-call magistrate. Once a judge signs the warrant, hospital staff or qualified phlebotomists may conduct a compulsory blood draw even over your objection. Additionally, in Beylund v. Levi, 889 N.W.2d 907 (ND Supreme Court 2017), the state high court clarified that the exclusionary rule does not automatically invalidate civil administrative license revocations in the same manner as criminal prosecutions.

Your Qualified Right to Consult an Attorney Before Testing

North Dakota gives arrested drivers a critical procedural protection that many other states deny. Under N.D. Cent. Code § 29-05-20 and the precedent established in Kuntz v. State Highway Com'r, 405 N.W.2d 285 (ND Supreme Court 1987), if you explicitly ask to speak with a lawyer after being arrested, the police must give you a reasonable opportunity to consult an attorney before you decide whether to take a chemical test. If an officer denies your clear request for a phone call when time permits within the two-hour testing window, a skilled defense attorney may move to dismiss the administrative revocation entirely.

Severe Consequences for CDL Holders and Out-of-State Drivers

For commercial truckers and oilfield operators holding a Commercial Driver's License (CDL), refusing a breathalyzer is frequently a career-ending event. Under N.D. Cent. Code § 39-06.2-10, refusing a chemical test results in a mandatory 1-year CDL disqualification for a first offense, even if you were driving your personal passenger vehicle while off-duty. If you were transporting hazardous materials at the time, the disqualification jumps to 3 years, and a second lifetime refusal or DUI conviction triggers a lifetime CDL ban.

Out-of-state visitors, seasonal workers, and cross-country travelers are equally vulnerable when stopped in North Dakota. While the North Dakota Department of Transportation, Bismarck cannot physically confiscate a plastic license issued by Minnesota, Montana, or Texas, it will revoke your privilege to drive on North Dakota roadways. Under N.D. Cent. Code § 39-06-27 and interstate reporting agreements, North Dakota transmits notice of the refusal revocation directly to your home state's licensing agency, which typically enforces a reciprocal suspension at home.

Step-by-Step Process After a Breathalyzer Refusal in North Dakota

Whether your traffic stop occurred in Fargo, Bismarck, Minot, or Williston, navigating a chemical test refusal requires immediate action across both administrative and criminal tracks.

Step 1: Roadside Screening vs. Evidentiary Testing

Distinguish between the roadside preliminary screening test under N.D. Cent. Code § 39-20-14 and the official post-arrest chemical test under N.D. Cent. Code § 39-20-01. An officer must read the complete implied consent advisory before requesting either test.

Step 2: Curing an Initial Refusal

If you initially refuse out of panic, North Dakota law allows you to change your mind under strict conditions. Under the standard established in Lund v. Hjelle, 224 N.W.2d 552 (ND Supreme Court 1974), a driver may cure a prior refusal by clearly requesting to take the test within a reasonable time, provided the test can still be accurately performed and the officer is still available.

Step 3: Receive the Report and Notice Form

Following a refusal, the arresting officer confiscates your physical North Dakota driver's license and issues Form SFN 9362, North Dakota, Department of Transportation, Report and Notice Under Chapter 39-20. This document serves as a temporary driving permit valid for 25 days.

Step 4: Request the NDDOT Administrative Hearing Within 10 Days

Under N.D. Cent. Code § 39-20-05, you have strictly 10 days from the date the Report and Notice was issued to submit a written hearing request (or file an online request through the state portal) to the North Dakota Department of Transportation, Bismarck. Missing this 10-day postmark deadline forfeits your right to challenge the license revocation.

Step 5: Attend Criminal Arraignment in District Court

Your criminal case proceeds independently in the local state trial court, such as the Cass County District Court, Fargo, the Burleigh County District Court, Bismarck, the Grand Forks County District Court, Grand Forks, or the Ward County District Court, Minot. At arraignment, most defendants enter a not-guilty plea so their attorney can subpoena police dashcam and bodycam footage.

Step 6: Apply for a Temporary Restricted License or 24/7 Program

If a revocation is upheld, your lawyer can evaluate whether you qualify to apply for limited driving privileges using Form SFN 2254, North Dakota, Department of Transportation, Temporary Restricted License Request, which in refusal cases typically requires enrollment in the state's 24/7 Sobriety Program and an SR-22 insurance filing.

How Much Does it Cost in North Dakota?

Defending and resolving a chemical test refusal involves several statutory fines, administrative fees, and legal expenses:

• Criminal Fines: A first-offense refusal conviction carries a mandatory minimum fine of $500 (increasing to $750 or $1,500 for repeat offenses within 7 years) under N.D. Cent. Code § 39-08-01.
• NDDOT License Reinstatement Fee: Restoring a revoked license requires paying a $100 reinstatement fee (or $50 in select non-alcohol administrative actions) to the North Dakota Department of Transportation, Bismarck.
• Addiction Evaluation & 24/7 Sobriety Testing: A mandatory licensed addiction evaluation typically costs $150 to $300, while 24/7 program twice-daily breath testing or SCRAM bracelet monitoring costs roughly $2 to $11 per day.
• Defense Attorney Fees: Hiring an experienced North Dakota DUI defense lawyer from our directory generally costs between $2,500 and $6,000 for a misdemeanor refusal and administrative hearing package.

How Long Does the Process Take?

The administrative track moves rapidly under strict statutory deadlines. After your arrest, your temporary operator's permit expires in 25 days, and the NDDOT administrative hearing must generally be held within 30 days of the issuance of the temporary permit under N.D. Cent. Code § 39-20-05, with a formal decision issued shortly thereafter. Conversely, the criminal refusal prosecution in District Court typically takes between 3 and 6 months to resolve through motion hearings, plea negotiations, or a jury trial.

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