North Dakota Supreme Court Criminalizes The 4th Amendment

The North Dakota Supreme Court today dealt a major blow to privacy rights in ruling that it’s ok to criminalize the exercise of your 4th amendment rights.

Here’s what happened.

[mks_pullquote align=”right” width=”300″ size=”24″ bg_color=”#000000″ txt_color=”#ffffff”]”It’s well-established law that driving on public roads is a privilege, not a right, but that’s not what is at issue here. The issue is whether or not the refusal of a warrantless government search can in and of itself be considered a crime. The North Dakota Supreme Court just said that it can.”[/mks_pullquote]

During the 2013 legislative session lawmakers passed a number of laws to address a supposed drunk driving epidemic (one which was largely manufactured by the state media, but I digress). Among the changes was a law which makes it illegal to refuse sobriety tests.

Previously refusing a test absent a warrant was met with a civil penalty in the form of action against your driving privileges. But the legislature upped the punishment to an actual crime on par with getting a DUI. Section 39-20-01 of the North Dakota Century Code states, “refusal to take the test directed by the law enforcement officer is a crime punishable in the same manner as driving under the influence.”

Meaning, in effect, that the legislature criminalized the refusal of a warrantless search.

Not surprisingly, the matter was challenged in court.

In October of last year one Danny Birchfield was found to have driven into the ditch. Mr. Birchfield is probably not the most sympathetic of defendants as he blew a .254 BAC in his breathalyzer test, making it pretty clear that he was inebriated. Later, however, he refused permission for a chemical test and was charged with a Class B Misdemeanor.

Birchfield and his attorneys sought to have the criminal charge dismissed arguing that you cannot make it illegal to refuse a search. The district court disagreed, and Mr. Birchfield was convicted. Today the North Dakota Supreme Court upheld the conviction.

“We conclude the criminal refusal statute is not unconstitutional under the Fourth Amendment or N.D. Const. art. I, § 8,” wrote Justices Lisa Fair McEvers, Daniel J. Crothers, Dale V. Sandstrom, Carol Ronning Kapsner, Gerald W. VandeWalle in a unanimous opinion.

You can read the ruling in the State of North Dakota vs. Birchfield here.

It’s well-established law that driving on public roads is a privilege, not a right, but that’s not what is at issue here. The issue is whether or not the refusal of a warrantless government search can in and of itself be considered a crime.

The North Dakota Supreme Court just said that it can.

That’s a legal precedent which reaches far beyond DUI law. After all, what good is the constitutional requirement that searches be legally warranted if the state can simply make it illegal to refuse a search?