North Dakota DUI: Refusal to Take a Blood, Breath, or Urine Test

In North Dakota, if you get pulled over for a DUI (driving under the influence) and the officer asks you to take a blood, breath, or urine test, do you have to take one? What happens if you refuse?

Implied Consent

North Dakota law requires you to take a blood, breath, or urine test if you are arrested for a DUI. North Dakota’s “implied consent” law says that if you are lawfully arrested by an officer who has probable cause to believe that you have been driving under the influence, then you consent to taking a chemical test of your blood, breath, or urine for the purpose of determining your blood alcohol content (BAC).   The test must be taken within two hours of driving and you cannot refuse the test without penalty. The officer gets to choose which test you take.

You could be asked to take a preliminary breath test even before you have been arrested. An officer can request a breath test at a check point, or if you were in an accident, or if you broke a traffic law and the officer reasonably believes you have been drinking. If you refuse to take this preliminary breath test, then you face the same penalty as if you had been arrested and asked to take a chemical test as explained above. However, if you refuse to take a preliminary test but the officer still finds probable cause to arrest you and does arrest you, then the officer can ask you again to take a chemical test. Should you refuse a second time, you will be penalized only once.  

Also, you could be arrested for a DUI even if you are not driving. If you have actual, physical control of a vehicle while under the influence, then that can be enough for an officer to arrest you. Generally, actual, physical control means that the driver is in the vehicle and could make it move. In North Dakota, however, a court found that a driver had actual physical control of his car even though it was impossible for him to move it because it was stuck in a ditch. (To read more about this, see the case State v. Ghylin 250 NW 2d 252 (1977)).

You can read North Dakota’s implied consent law in the North Dakota Century Code 39-20-01.

Refusing to Take the Test


1st  Offense

2d Offense

3rd  Offense

Refusal to take test

1 year license revocation

3 year license revocation (if one prior offense in last 5 years)

4 year license revocation (if two prior offenses in last 5 years)

Once you are arrested, or if you refuse to take a preliminary breath test, the officer should tell you that you will lose your license for up to four years for your refusal. When you do refuse, the officer cannot make you take a test, with a few exceptions. You must take a test if you were involved in an accident where someone was seriously injured or killed. Also, if you were killed or become unconscious due to an accident, then the officer does not need to ask you before ordering a test.

After your refusal, the officer will take your license. In its place, you will get a temporary permit that is good for 25 days. Within that time you can request a hearing to challenge the suspension of your license. If you do not request a hearing, or if you do but fail to prove that the officer did not have a reasonable belief that you had driven drunk or that you actually did not refuse a test, then your license will remain suspended.

For your first refusal, the suspension will last for one year. For your second refusal within five years, the suspension will last for three years.  For your third or any subsequent refusal, when at least two fall within the last five years, your suspension will last for four years.

Should You Refuse to Take a Mandatory DUI Test in North Dakota?

It usually does not help you to refuse to take a blood, breath, or urine test when you are arrested. For a first DUI in North Dakota, your license will be suspended for 90 days, you will have to pay a fine of $250, and you must submit to an addiction evaluation. This is slightly milder than a year-long suspension for refusal. Still, refusing the test does not guarantee that you won’t be convicted – you could be found guilty of a DUI even if your refusal means that the state does not have proof that your BAC was over.08%, the legal limit for those over 21. In fact, the prosecution can use your refusal against you by arguing that you refused the test because you knew that you were intoxicated and guilty of DUI.

Get Help With Your DUI

If you have been arrested on a DUI charge in North Dakota or any other state, get help from an experienced DUI attorney. Unlike other traffic related charges, which might be worth fighting without a lawyer, conviction for a DUI has serious consequences – especially if the incident involved injury to people or property, or if it’s your second or subsequent DUI. To avoid or reduce the consequences, your best bet is to find an attorney who is knowledgeable about your state’s laws and about how the system works in your county’s court.

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