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NORTH DAKOTA LAWMAKERS LOOK TO REMEDY DUAL CONVICTION FOR DUI, REFUSAL

BISMARCK - State lawmakers are looking to clear up several areas of a tougher drunken-driving law approved last year, including one provision that allows offenders to be convicted for both DUI and refusing a field sobriety test in the same incident.

Since the DUI law took effect July 1, 13 people have been convicted of both crimes for the same event, Glenn Jackson, director of the driver's licenses division at the North Dakota Department of Transportation, told the Legislature's interim Judiciary Committee on Tuesday.

The department takes action only on the first conviction and not the second when suspending the driver's license, Jackson said. However, if the person is later convicted of a second DUI, it's listed as a third conviction on their driving record, which he said can mean the difference between a 180-day suspension and a yearlong suspension.

Committee members said Tuesday that wasn't the law's intent.

Other draft bills presented Tuesday would remove the law's requirement that first-time juvenile DUI offenders participate in the 24/7 program, leaving it to the judge's discretion; limit to 15 years the look-back period when determining whether a DUI is a fourth or subsequent offense; and allow drivers to remedy an initial test refusal by submitting to a chemical test.

You can read more about the committee's hearing in The Fargo Forum.

I believe this is a step in the right direction and a great example of how well-intentioned legislation can lead to unintended consequences when ran through a constrained process without thorough planning, study, and debate prior to the legislative session. Coincidentally, a colleague and I were discussing the dual conviction issue yesterday as we both represent individuals who have been charged with DUI and Refusal to Submit to Chemical Testing under the DUI statute.

As we discussed, theoretically, if a person refused all chemical testing, they could be charged with and convicted of three offenses stemming from a single incident. Thus, were they charged with DUI again at a later time, it arguably would be their fourth offense, which is a class C felony carrying a mandatory minimum of one year and one days' imprisonment, $2,000.00 fine, addiction evaluation (at their expense), and two years of supervised probation with mandatory participation in the "twenty-four seven sobriety program" (which is an issue in and of itself due to counties' administration of the program).

There are also issues created by the criminalization of refusal to submit to chemical testing in light of the United States Supreme Court's holding in Missouri v. McNeely in 2013. One Judge in the South Central Judicial District has already ruled that it is a violation of an individual's rights under the Fourth Amendment. That case is currently pending appeal at the North Dakota Supreme Court.

I'm also pleased to see they are considering a cap on the "look-back period" with respect to the fourth offense felony DUI. As the law is currently written, a person who has multiple DUI offenses on their record, no matter how far back in time the offenses may be, could be subject to prosecution for a fourth offense class C felony DUI. Thus, if someone in their late 50's, who has led a clean and law-abiding life with no DUI offenses since their early 20's, suddenly has a lapse in judgment, they could be looking at 366 days in jail, $2,000 in fines (plus the $250 in mandatory court fees), the addiction evaluation (and compliance with any treatment prescribed in the evaluation, all paid out of their own pocket) and two years of the "twenty-four seven sobriety program."

I certainly don't mean to endorse or support drunk driving or make it seem as though DUI is an inconsequential act or offense. However, I have a problem with a law that makes a felon out of a person who took the necessary steps to improve their life and has led a law-abiding life for many years because they make a mistake many years down the road. It's one thing if the person is a truly habitual offender with multiple offenses within a decade, but to make a felon out of someone who has gone nearly a quarter of a century without an offense is a little draconian in my opinion.

I'm glad to see the legislature is coming to see and has plans to remedy the errors in its law, but I can't help but wonder if perhaps the "strengthening" of North Dakota's DUI law had been more thoroughly vetted and studied over an interim session whether these problems could have been avoided. Hopefully the committee's work results in a much more sound, better DUI law.

DISCLAIMER: The remarks reflected are the author's alone and are not intended or meant to constitute legal advice. You are not being provided legal advice and no attorney-client relationship exists merely through your reading this post. Statutes and legal precedent are subject to frequent change making information that perhaps was accurate one day inaccurate the next. Therefore, your reliance on any information provided in this post is at your own peril. If you are currently facing a legal issue pertaining to the subject matter of this or any other post, you should retain legal counsel. If you so desire, you may contact Martens PLLC to discuss potential representation. Thank you for your interest in this post and Martens PLLC.

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