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North Dakota Supreme Court: Warrantless Urine Test Incident to Arrest for DUI Is Unconstitutional Search

by David Reutter

The North Dakota Supreme Court held a defendant cannot be criminally prosecuted for refusing a warrantless urine test incident to an arrest for driving under the influence of a controlled substance.

In the early morning hours of May 5, 2016, Steven Helm was pulled over for driving without headlights. During the course of the traffic stop, the officer suspected Helm had been driving under the influence of a controlled substance and placed him under arrest. He refused to submit to a warrantless urine test incident to the arrest.

As a result, the State charged him with refusing to submit to a chemical test under N.D.C.C. § 39-08-01. The district court granted his motion to dismiss, ruling that a warrantless urine test incident to arrest is like a warrantless blood test incident to arrest prohibited by the U.S. Supreme Court in Birchfield v. North Dakota, 136 S.Ct. 2160 (2016). The State appealed, and the North Dakota Supreme Court affirmed the district court order.

The Court began its discussion by stating that a urine test constitutes a search for Fourth Amendment purposes. It then discussed the three-factor test in assessing the intrusion in collecting evidence from a suspect’s body articulated by the U.S. Supreme Court in Birchfield: (1) the extent of the physical intrusion upon the suspect to obtain the evidence; (2) the extent to which the evidence could be preserved to provide additional, unrelated private information; and (3) the extent to which participation in the search would enhance the embarrassment of the arrest. 

In Birchfield, the U.S. Supreme Court ruled that warrantless breath tests incident to arrest for drunk driving are permissible because they do not implicate significant privacy concerns. Breath tests reveal only blood alcohol concentration, and no sample remains in police custody afterwards. Also, breath tests are not likely to enhance the embarrassment inherent in an arrest. 

In contrast, the Birchfield Court ruled that warrantless blood tests incident to arrest are impermissible because they implicate significant privacy concerns. Blood tests involve piercing the suspect’s skin, and unlike breath tests, the blood sample evidence can be retained and can reveal additional private information beyond blood alcohol concentration.

The North Dakota Supreme Court concluded that under the Birchfield framework a urine test is like a blood test, not like a breath test for Fourth Amendment purposes. Similar to a blood test, a urine test results in evidence that can be retained, and additional private information can be gleaned from it beyond whether the suspect is under the influence of a controlled substance. Also, a urine test administered in full view of police officers is very likely to enhance the embarrassment of the arrestee.       

The North Dakota Supreme Court determined that urine tests are like blood tests under Birchfield. “We conclude a warrantless urine test is not a reasonable search incident to a valid arrest of a suspected impaired driver and the driver cannot be prosecuted for refusing to submit to an unconstitutional warrantless urine test incident to arrest.”

Accordingly, the Court affirmed the district court order granting Helm’s motion to dismiss. See: State v. Helm, 901 N.W.2d 57 (N.D. 2017). 

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