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Implied consent in DUI testing and legal concerns

DUI guidelines in the state of North Dakota and across the country vary from other criminal law policies in several ways. Implied consent is recognized in most states, and mandates that anyone suspected by a law enforcement officer of driving under the influence of drugs or alcohol is legally obligated to submit to blood alcohol testing. Proponents of implied consent guidelines claim that the policy only applies in cases where an officer already has reason to believe that a driver is intoxicated. Opponents argue, however, that subjecting to a person to chemical testing against his or her will is against the law.

Chapter 39 of the North Dakota Criminal Code explains that implied consent applies to anyone who operates a vehicle on public roadways. Implied consent mandates that a motorist is required to consent to chemical testing of his or her breath, urine or blood in order to determine the concentration of drugs and/or alcohol in his or her system. Implied consent gives the law enforcement officer the right to place the person in question under arrest prior to conducting chemical testing, and specifies that refusing to submit to such testing is an offense equal in severity to a DUI. Beyond that, anyone who refuses to submit to DUI testing may have his or her driving privileges revoked for up to three years.

The Bismarck Tribune discussed current North Dakota implied consent policies, and explained that some are challenging the legality of the DUI legislation. A criminal defense attorney representing a man who was appealing his DUI conviction argued that implied consent violates people’s Fourth Amendment rights. He explained that it constitutes unreasonable search and seizure, and that agreeing to chemical testing in order to avoid being charged with a DUI offense cannot be considered free consent at all.

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