Refused the breath test?
Here’s what that actually means.
North Dakota is one of the states where refusing the chemical test is itself a crime, punished like a DUI, plus a license revocation of 180 days to 3 years. But refusal cases are also full of technical requirements that officers get wrong. That’s where we start.
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Implied consent in North Dakota
By driving on North Dakota roads you’ve legally agreed to submit to a chemical test if lawfully arrested for DUI. Refuse the test after arrest and two things happen:
- Criminal charge. Refusal is charged under the DUI statute and carries the same mandatory penalties as a DUI at the same offense level.
- Administrative revocation. The DOT revokes your license for 180 days for a first refusal, up to 3 years with prior refusals or DUIs within 7 years. A temporary restricted license is still possible in a refusal case, but you have to ask for it and meet the conditions — it isn’t automatic.
What counts as a refusal (and what doesn’t)
A refusal isn’t just saying “no.” Failing to blow hard enough, asking to call a lawyer first, asking for a different test, or simply not responding can all be written up as refusals — and each of those can be challenged. Three requirements have to be met before a refusal sticks:
- A lawful arrest. No probable cause for the DUI arrest, no valid refusal.
- The implied-consent advisory, read correctly. North Dakota requires specific language. If the officer misstates or omits it, the refusal is generally inadmissible and the revocation can be reversed.
- A reasonable opportunity to consult a lawyer before deciding, if you asked for one. Denying that request is a recurring problem in refusal cases.
The roadside test is different
The preliminary breath test on the roadside is a screening tool, not “the” chemical test. Its result is usually inadmissible at trial — but declining it can be treated as a refusal at the DOT hearing, so it has real license consequences even though it’s a different question from refusing the evidentiary test at the station. If you’re not sure which one you refused, we’ll figure it out from the paperwork.
Why the DOT hearing matters even more in a refusal case
Because refusal revocations are long, the DOT hearing — requested within 10 days — is often the most valuable proceeding in the case. It’s also a chance to question the officer under oath before the criminal case goes anywhere.
Talk to a North Dakota DUI lawyer now. It’s free.
☎ 701-365-8088Common questions
Was refusing a mistake?
It’s done; the question now is whether the state followed its own rules. Many refusal cases have defects in the advisory or the arrest. Bring us the paperwork and we’ll tell you where you stand.
Can I get a work permit after a refusal?
Yes, a temporary restricted license is available in refusal cases, subject to the DOT’s conditions. We handle the application as part of the case — and we still challenge the revocation itself at the hearing.
They took blood anyway with a warrant. Is that legal?
With a valid warrant, yes. But the warrant, the draw, the chain of custody, and the lab work can each be examined, and the earlier refusal may not be usable against you.
Charged with DUI in North Dakota? Call now.
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Attorney advertising. Prior results do not guarantee a similar outcome. Penalty figures reflect North Dakota mandatory minimums published by the NDDOT and are subject to change; courts can impose more. This page is general information, not legal advice for your situation, and contacting us does not create an attorney–client relationship until we agree to represent you.