Penalties for DUI testing refusal upheld

The North Dakota Supreme Court on Thursday upheld a criminal judgment against a man who argued that the state violated his Fourth Amendment rights, as well as the state equivalent of those rights, by charging him for refusing to submit to a chemical test.

The court's decision answered a question asked shortly after North Dakota lawmakers criminalized refusal to submit as part of a broader effort to stiffen the penalties for drunken driving in 2013.

"Driving is a privilege, not a constitutional right, and issubject to reasonable controlby the state under its police power," Supreme Court Justice Lisa McEvers wrote in an opinion signed by all five justices.

The justices affirmed the argument offered by the state that one gives implied consent to be tested when one gets behind the wheel of a motor vehicle.

In doing so, the justices upheld the conviction against Danny Birchfield, who drove his vehicle into a Morton County ditch in October of 2013 in a case that would go from the South Central District Court to the North Dakota Supreme Court.

Several states criminalize the refusal to submit to a chemical test, often by making the penalty for refusal the same as that for being convicted of drunken driving.

McEvers cited several court decisions, at the state and federal levels, upholding states' rights to do so.

The North Dakota Supreme Court also ruled the 2013 United States Supreme Court decision in McNeely v. Missouri, rendered shortly before North Dakota criminalized refusal, did not invalidate the legal framework for criminal penalties.

Attorneys for Birchfield and another defendant accused of refusal to submit argued that the McNeely decision, which ruled that the forcible extraction of blood from a suspected drunken driver constituted an unreasonable search and seizure, applied to criminal penalties as well. The attorneys argued that by punishing a person for refusing to be tested, the state effectively removed that person's right to refuse being tested.

McEvers wrote that "since the (United States) Supreme Court's ruling in McNeely, criminal refusal statutes have continued to withstand Fourth Amendment challenges, particularly in Minnesota."

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Penalties for DUI testing refusal upheld