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Mike Nowatzki, Forum News Service, Published December 11 2013

Changes sought in tougher North Dakota DUI law; Stenehjem says 'now is not the time'

BISMARCK – North Dakota’s stiffer drunken driving law has created a host of consequences – some intended, some not – since it took effect July 1. But Attorney General Wayne Stenehjem asked legislators Wednesday to give the law more time before deciding if it needs to be tweaked.

“Now is not the time to consider backing off on any of these items that you’re looking at,” he told the Legislature’s interim Judicial Committee.

The revised driving under the influence law raised the minimum fine and created a new aggravated DUI category for first-time offenders. It also imposed harsher penalties on repeat offenders, including mandatory probation and participation in the 24/7 sobriety program, and minimum jail sentences ranging from 10 days for a second offense within seven years to one year and one day for a fourth offense, which is now a felony.

The impacts already have some calling for changes to the law, as lawmakers heard Wednesday.

24/7 concerns

As expected, the law’s mandatory participation in the 24/7 program for repeat offenders has boosted the program’s numbers, from 472 participants statewide in November 2012 to 880 participants last month, Stenehjem said.

“And that’s a good thing. These are people who are not drinking,” he said.

The program requires participants to refrain from alcohol and report twice daily for breath tests or wear an electronic bracelet that monitors their blood-alcohol level. But not all states have a similar probationary program, and Cass County Assistant State’s Attorney Leah Viste asked lawmakers to provide for alternatives to 24/7 in such cases.

State Court Administrator Sally Holewa also asked in written testimony that the law be changed to no longer require mandatory 24/7 participation for first-time juvenile offenders, instead leaving it to the court’s discretion.

Double jeopardy

Under the revised law, refusing a field sobriety test is a separate offense with the same penalties as a DUI, which has created confusion about what happens when someone is convicted of both crimes for the same incident.

A DUI defendant in Ward County challenged that portion of the law in district court, claiming it violated his constitutional protection against being tried twice for the same crime. Stenehjem’s office argued it’s not double jeopardy as long as there are different elements of the two offenses, and the judge agreed. Stenehjem said the case may end up before the state Supreme Court.

License suspensions

While test refusal and DUI can now result in two convictions for the same incident, they’re not being treated that way by the state Department of Transportation when it comes to license suspensions.

Glenn Jackson, director of the driver’s license division, said the department has received 56 cases with dual convictions of DUI and refusal but hasn’t taken action on the second conviction. Doing so would add a 365-day suspension on top of the 180-day suspension for first-time offenders with a blood-alcohol concentration of 0.18 or higher, and DOT officials concluded that may not have been the Legislature’s intent, though there’s no record of lawmakers addressing it, Jackson said. Stenehjem’s office agreed.

Finding priors

The law also has created concern in the prosecution of repeat offenders, said Dawn Deitz, an assistant Burleigh County state’s attorney.

It increased the look-back provision from five years to seven years for second and third offenses and made a fourth or subsequent offense a felony regardless of how much time has elapsed since the prior offenses.

However, court clerks are allowed to dispose of misdemeanor DUI cases after seven years, making it “nearly impossible” to get certified judgments from pre-2007 cases to show that the defendant had an attorney and was advised of his or her rights – something courts require as proof of prior convictions, Deitz said, adding the DOT also retains records for only seven years.

Drug court disincentive

Prosecutors said the law’s mandatory minimum jail sentences force felony-level DUI offenders to serve their jail time before they can begin drug court, taking away much of the incentive to apply for the program, which involves intense supervision, treatment and frequent court appearances as an alternative to incarceration.