You are stopped by a police officer after leaving your favorite local North Dakota watering hole. The officer tells you he smells the odor of alcohol, inquires about your alcohol consumption, and inevitably wants you to do some field sobriety tests to see if you are “okay” to drive. After those tests, his opinion is that you aren’t, and arrests you for DUI. He then takes you to the jail or police station, and reads you what is called the North Dakota Implied Consent Advisory, telling you it is a crime, and that your license will be revoked, if you refuse the breath test is he wants you to take. He then says, “will you take the chemical breath test that I am requesting?” You don’t know what to do, you waver back and forth and ask the officer questions about the law regarding his request. He tells you that he can’t answer those questions. Then he tells you that he needs an answer from you. What do you do?
Well, what the officer didn’t tell you, because he is not required to, is that in North Dakota, you have a limited statutory right to counsel in circumstances such as this. What does this mean? This means that if you are arrested for DUI and are asked to submit to a post-arrest chemical test of your breath, urine, or blood, you can inform the officer that you would like to speak with an attorney. Once you advise the officer that you need advisement by an attorney yourself, the officer must provide you a reasonable opportunity to contact an attorney, so long as it does not materially interfere with being able to administer the test. With this statutory right comes a number of variables that are important for you to know as well; including what words trigger this right, what a reasonable opportunity is to contact an attorney; and what the remedy is if your right to an attorney is denied, or your opportunity was determined to be “unreasonable.”
First, the North Dakota Supreme Court has held that there are not any “magic words” that an arrestee must use to invoke this right to an attorney. Instead, there is a “bright-line” rule that requires only an “affirmative mention” of the desire to wish to speak with an attorney. Furthermore, if an arrestee makes a potentially ambiguous statement regarding an attorney, the Supreme Court has further noted that when an arrestee makes a mention for an attorney after being asked to take the test, that law enforcement must assume it is for the purposes of deciding whether to take the chemical test. Additionally, if the arrestee’s statement is ambiguous, it is incumbent on the officer to ask and clarify the ambiguity. That is what is needed to trigger the reasonable opportunity.
Second, once an affirmative mention is made, law enforcement is required to give you a “reasonable opportunity” to speak with an attorney. What, exactly, a reasonable opportunity is in North Dakota is not abundantly clear. In circumstances where there is no opportunity provided, the answer is clear: there was no opportunity at all, let alone a reasonable one. However, in circumstances where there was some type of opportunity provided, our courts are required to look at all of the facts, called the “totality of the circumstances” to determine whether or not a person’s opportunity to attempt to speak with counsel was reasonable or not. With that, whether an opportunity is reasonable or not depends on the specific facts of each case.
Finally, let’s say that you invoked your right and received no opportunity to speak with an attorney. What is your remedy? Well, the answer to that depends on two things: 1) whether you took the chemical test requested anyways or not; and based on that, 2) whether the issue is being decided in your criminal case before a judge, or a DOT hearing officer at your administrative hearing regarding the suspension of revocation of your driving privileges.
If your statutory right to counsel was violated and you refused the test, then your driving privileges cannot be revoked based on the violation of your limited right to speak with an attorney. In your criminal case, the result is that a “refusal to submit to a chemical test” charge may be dismissed, or at a minimum any evidence regarding you denying to take the test must be excluded from evidence. Practically speaking, it would mean that a prosecutor could not charge with you refusing the test, but would, if they elected to, still attempt to prove that you were driving under the influence without the benefit of a chemical test showing you were above a .08.
In a circumstance where you still submit to the test, your license could still be suspended by a hearing officer. This is because in the civil administrative process, there is no bright-line requirement that the DOT dismiss your license suspension when you say “yes” to the test; the protection is only clearly there when you say “no.” In the criminal system, if you submit to the test despite your right being violated, the chemical test that you took would be “suppressed,” or in other words, excluded from evidence so that the prosecution could not use the test result against you.
In conclusion, you have a limited statutory right to speak with an attorney prior to submitting to a chemical test. As you can see, however, whether you invoked your right and were denied it, and if so, what the remedy should be is very fact and circumstance specific. I would encourage you to not only invoke your right to counsel prior to submitting to a chemical test; but also consult with an attorney regarding the facts and circumstances of your case after your contact with police is over and done with, as well.
Luke Heck is a criminal defense attorney at Vogel Law Firm, and can be reached at 866-771-9930 if you, a friend, or a loved one, has questions regarding a criminal issue in North Dakota or Minnesota, including DUI. This article is only meant to provide general information and does not in any way constitute legal advice.