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North Dakota Supreme Court Announces Implied Consent Advisory Must be Read After Arrest and Before Administering Test

by Douglas Ankney

In December 2018, the Supreme Court of North Dakota held that the implied consent advisory pursuant to N.D.C.C. § 39-20-01(2) and (3) must be read after placing an individual under arrest and before administering a chemical test to determine blood-alcohol content or the presence of other intoxicants. 

In October 2017, Officer Luke Wentz observed Thomas Arthur Barendt slumped over in his vehicle. Suspecting Barendt of being under the influence of alcohol, Wentz administered a field sobriety test. Afterward, Wentz informed Barendt of the North Dakota implied consent advisory, and Barendt agreed to take a chemical breath test. Then Wentz arrested Barendt for actual physical control of a vehicle while under the influence of alcohol and took Barendt to the Grand Forks County Correctional Center where breath-test results revealed Barendt’s blood-alcohol concentration was over the legal limit.

Barendt filed a pretrial motion to suppress the results of the chemical breath test because he was not given the implied consent advisory after he was arrested and before Wentz administered the test. The trial court granted the motion, and the City of Grand Forks appealed.

The Supreme Court decided the issue was one of statutory interpretation and quoted the statutes in question:

“The test or tests must be administered at the direction of a law enforcement officer only after placing the individual under arrest and informing that individual that the individual is ... charged with the offense of ... being in actual physical control of a vehicle upon public highways while under the influence of intoxicating liquor, drugs, or a combination thereof....” N.D.C.C. § 39-20-01(2).

“The law enforcement officer shall inform the individual charged that North Dakota law requires the individual to take a chemical test to determine whether the individual is under the influence of alcohol or drugs and that refusal ... may result in revocation of the individual’s driving privileges for a minimum of one hundred eighty days and up to three years....” N.D.C.C. § 39-20-01(3)(a).

“A test administered under this section is not admissible in any criminal or administrative proceeding to determine a violation of ... this chapter if the law enforcement officer fails to inform the individual charged as required under subdivision a.” N.D.C.C. § 39-20-01(3)(b).

The Court concluded that the plain language of the statutes shows “the legislature intended that an officer read the implied consent advisory to the individual charged after placing the individual under arrest.” The Court went on to cite State v. O’Connor, 877 N.W.2d 312 (N.D. 2016), in which the Court stated “permitting an implied consent advisory given before an arrest to satisfy the statutory requirement to advise for the chemical test is wholly incompatible with the statute’s language.”

Turning to the present case, the Court announced that the implied consent advisory contained in N.D.C.C. § 39-20-01(3) “must be read after placing an individual under arrest and before administering a chemical test….”

Accordingly, the Court affirmed the trial court’s order suppressing the results of the chemical test. See: City of Grand Forks v. Barendt, 920 N.W.2d 735 (N.D. 2018). 

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