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North Dakota high court upholds law criminalizing driver's refusal to take breath test

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Bismarck, ND - North Dakota’s highest court has ruled that the state’s new law criminalizing a driver’s refusal to take a chemical breath test is constitutional.

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The unanimous decision upholds the change to state drunken-driving laws that some prosecutors have identified as being the most important.

Before last July, a driver who refused to take a breath test when he was pulled over by police on suspicion of drunken driving would, at most, lose his license.

Under the new law, a refusal carries the same legal weight as a conviction for drunken driving.

That automatic consequence was what John Smith of Cheyenne, Wyo., appealed to the state Supreme Court, which was decided Thursday.

Smith attracted the attention of a Burleigh County deputy in July 2013 by swerving while he was behind the wheel. He consented to taking a field sobriety test and failed.

Smith also failed a breath test at the county jail, recording a blood-alcohol content of 0.152 percent, almost twice the legal limit, according to the court’s decision.

Smith argued in his appeal that he was forced to take the breath test when the arresting deputy explained the then-new law making refusal a crime.

He argued to the state Supreme Court that evidence from the breath test should have been suppressed on the grounds that the test constituted a search, and that police searches without warrants are unconstitutional.

In their decision, the justices wrote that since driving is a privilege, not a right, it is subject to reasonable control by the state.

They also wrote that when you operate a motor vehicle, you are in essence giving implied consent to having your blood alcohol content tested.

They wrote that the deputy explained fairly accurately the implied consent law to Smith and didn’t mislead him.

Smith could have withdrawn his consent and taken the legal consequences, the justices wrote, but decided not to.

Their decision also points out that other states have implied consent laws that carry criminal penalties for refusal.

Those states include Alaska, Florida, Kansas, Vermont, Nebraska and Minnesota.

Minnesota’s Supreme Court agreed in May to review a lower court’s ruling in a test refusal case that upheld criminalizing such refusals.

Clay County Judge Steven Cahill has thrown out some cases of test refusal, saying the Minnesota lower court ruling that upheld the constitutionality of test refusals was in conflict with what the U.S. Supreme Court has said in other cases about warrantless searches.

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