The Legal Consequences of Refusing a Breathalyzer or Blood Test in North Dakota

When flashing blue lights appear in your rearview mirror along Interstate 94 in Fargo or Highway 83 in Minot, panic often sets in. Many drivers have heard rumors from friends or out-of-state websites suggesting that refusing to blow into a breathalyzer starves the prosecution of evidence and makes a DUI impossible to prove. In North Dakota, acting on that advice can backfire severely: refusing an official chemical test after arrest is prosecuted as a standalone crime with license penalties that are twice as harsh as failing the test.

North Dakota operates under a strict statutory framework found in Chapter 39-20 of the North Dakota Century Code. Under N.D. Cent. Code § 39-20-01, anyone who operates a motor vehicle on a public highway or publicly accessible area in the state is deemed to have given implied consent to chemical testing of their blood, breath, oral fluid, or urine. However, your constitutional rights-and the exact legal consequences of saying no-depend entirely on which test you refuse, when the officer reads the implied consent advisory, and whether police asked for breath or blood.

Roadside PBT Refusal vs. Post-Arrest Evidentiary Test Refusal

During a typical North Dakota DUI investigation, law enforcement officers request two completely different breath tests governed by separate statutes. Confusing the roadside screening test with the post-arrest evidentiary test is one of the most common mistakes drivers make.

Refusing the Roadside Preliminary Breath Test (Alco-Sensor FST) and the Cure Rule

Under N.D. Cent. Code § 39-20-14, an officer may request an onsite screening test using the handheld Alco-Sensor FST before an arrest if you committed a moving violation or were in an accident and the officer observes signs of alcohol. The numeric BAC result from this handheld unit cannot be used at trial to prove your exact BAC; it is only used to establish probable cause for an arrest. Refusing the roadside PBT is not a crime, though it carries a 180-day civil license revocation. Crucially, under N.D. Cent. Code § 39-20-14(4), North Dakota provides a statutory safety valve: if you refuse the roadside PBT, get arrested, and then agree to provide a post-arrest evidentiary chemical sample at the station, the NDDOT cannot revoke your license for the earlier roadside refusal.

Refusing the Evidentiary Chemical Test at the Station

Once an officer places you under lawful arrest for DUI or APC, N.D. Cent. Code § 39-20-01 requires you to submit to an official chemical test-most commonly a breath test on the Intoxilyzer 8000. Under N.D. Cent. Code § 39-08-01(1)(e), refusing a lawfully requested post-arrest breath test (or a blood/urine test supported by a search warrant) is a criminal offense carrying the same criminal classification and mandatory minimums as a DUI conviction, plus an administrative license revocation under N.D. Cent. Code § 39-20-04 of 180 days for a first offense, 2 years for a second offense, and 3 years for a third offense.

Warrantless Blood Draws and Birchfield v. North Dakota

North Dakota was the epicenter of one of the most important Fourth Amendment drunk driving rulings in American history. In Birchfield v. North Dakota, 579 U.S. 438 (US Supreme Court 2016), the United States Supreme Court drew a sharp constitutional line between breath tests and blood draws:

• Warrantless Breath Tests Are Permitted: Because blowing into an Intoxilyzer 8000 does not pierce the skin or leave biological material in police possession, officers may demand a post-arrest breath test without a warrant and criminally prosecute a refusal.
• Warrantless Blood Draws Are Unconstitutional: Drawing blood is an invasive bodily intrusion protected by U.S. Const. amend. IV. Police cannot force a warrantless blood draw or criminally charge you for refusing a blood test unless they first obtain a judicial search warrant or establish a true medical emergency (exigent circumstances).
• Forced Blood Draws With a Warrant: If you refuse a breath test in a serious injury crash or felony investigation, North Dakota officers frequently apply for an electronic telephonic search warrant from a District Court judge to conduct a blood draw at a hospital using Form 104, North Dakota, Office of Attorney General Crime Laboratory Division, Submission for Blood.

Fighting Refusal Charges: Implied Consent Defects and Right to Counsel

Refusal cases are highly technical, and North Dakota courts strictly enforce the procedural safeguards built into Chapter 39-20:

Defective or Premature Implied Consent Advisories

Under N.D. Cent. Code § 39-20-01(3)(a), the officer must inform the individual that North Dakota law requires the chemical test and that refusal may result in a license revocation of 180 days to 3 years and criminal penalties. In City of Grand Forks v. Barendt, 920 N.W.2d 735 (ND Supreme Court 2018) and State v. O'Connor, 877 N.W.2d 312 (ND Supreme Court 2016), the North Dakota Supreme Court, Bismarck held that the officer must read a complete, accurate implied consent advisory after placing the driver under arrest and before administering the test. If the officer read the advisory before arresting you, or omitted statutory language, the refusal or test result can be suppressed.

Denial of the Qualified Right to Consult an Attorney

Unlike many states where drivers have zero right to speak with a lawyer before deciding whether to blow, North Dakota recognizes a limited statutory right to counsel. Under In re R.P., 745 N.W.2d 642 (ND Supreme Court 2008), if an arrested driver asks to speak with an attorney before submitting to a chemical test, police must provide a reasonable opportunity to contact a lawyer-including access to a phone-so long as it does not materially interfere with the two-hour testing window. If police ignore or deny your request to call a lawyer, a refusal finding can be overturned.

Curing a Refusal Under N.D. Cent. Code § 39-20-04(2)

Even if you refuse every test on the night of your arrest, N.D. Cent. Code § 39-20-04(2) allows a driver to administratively cure a license revocation under strict conditions: you must notify the NDDOT Director in writing within 10 days of the arrest that you intend to plead guilty to the underlying criminal charge in court, actually enter that guilty plea within 25 days, and participate in the 24/7 Sobriety Program and Ignition Interlock requirements. Because curing waives your right to fight the criminal conviction, always consult a defense attorney before taking this step.

Step-by-Step Process in North Dakota

If you are cited for chemical test refusal in Fargo, Bismarck, Grand Forks, Minot, or Williston, the process moves through the following stages:

Step 1: Examine Form SFN 9362 Immediately

When you refuse testing, the officer takes your license and issues Form SFN 9362, North Dakota, Department of Transportation, Report and Notice Under Chapter 39-20, checking the refusal box and granting a 25-day temporary driving permit.

Step 2: Demand an NDDOT Refusal Hearing Within 10 Days

You have strictly 10 days under N.D. Cent. Code § 39-20-05 to request an administrative hearing with the North Dakota Department of Transportation, Driver License Division, Bismarck, or to evaluate with your lawyer whether an administrative cure under N.D. Cent. Code § 39-20-04(2) makes strategic sense.

Step 3: Preserve Booking Room and Body-Cam Audio

Your defense lawyer immediately subpoenas squad car and booking room recordings to verify the exact timing of the arrest, the verbatim reading of the implied consent advisory, and whether you asked to call an attorney.

Step 4: Appear in Municipal or District Court

Criminal refusal cases are heard in courts such as Cass County District Court, Fargo, Burleigh County District Court, Bismarck, Grand Forks County District Court, Grand Forks, Ward County District Court, Minot, or Williams County District Court, Williston. Under State v. Murphy, 516 N.W.2d 285 (ND Supreme Court 1994), prosecutors may attempt to use a valid refusal as consciousness of guilt, making pretrial suppression motions critical.

Step 5: Document Medical Conditions Affecting Breath Volume

If you attempted to blow into the Intoxilyzer 8000 but the machine registered a 'deficient sample' due to COPD, asthma, or lung injury, your lawyer can present medical records to challenge an alleged constructive refusal.

How Much Does it Cost in North Dakota?

• Criminal Refusal Fines: Minimum $500 for a first offense, $1,500 for a second offense, and $2,000 for a third offense, plus $125 to $300 in court fees.
• License Reinstatement and 24/7 Program Costs: A $100 NDDOT reinstatement fee, plus daily testing fees if enrolled in the 24/7 Sobriety Program to maintain restricted driving privileges via Form SFN 2254, North Dakota, Department of Transportation, Application for Temporary Restricted License.
• Legal Representation Fees: Hiring a North Dakota DUI defense attorney for a refusal case typically costs $2,500 to $6,000. You can find experienced local refusal defense attorneys in our North Dakota lawyer directory.

How Long Does the Process Take?

The NDDOT administrative refusal hearing must be held within 30 days of the arrest if requested within the 10-day deadline. The parallel criminal refusal prosecution in District Court generally takes 3 to 6 months to litigate.

Frequently Asked Questions (FAQ)