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ND Supreme Court debates urine testing in DUI cases

Outside the North Dakota Supreme Court chambers. John Hageman / Forum News Service

BISMARCK — Questions about privacy and public safety hovered over arguments at the North Dakota Supreme Court on Monday, June 19 in a Cass County DUI case that may test a decision handed down by the nation's highest court last year.

The arguments came nearly a year to the day after the U.S. Supreme Court ruled in favor of warrantless breath tests in drunk driving cases but said the Fourth Amendment doesn't permit warrantless blood tests, a more invasive procedure. The ruling came out of three consolidated cases under the title Birchfield v. North Dakota.

That decision was cited several times during Monday's arguments before the five justices took the case under advisement. Monty Mertz, the supervising attorney at the Fargo Public Defender's Office who appeared for the defense Monday, said the Birchfield case didn't address urine tests.

"Eventually, the U.S. Supreme Court will have to decide it," Mertz said after the hearing. But whether that comes through Monday's case remains to be seen.

The dispute originated when a Fargo police officer stopped Steven Floyd Helm for driving without headlights at night in May 2016. After three field sobriety tests, Helm was arrested — an officer believed he was under the influence of drugs — and he later refused a urine test.

The test refusal earned Helm a Class C felony charge because of his criminal record, according to court records.

In a brief, Mertz said "no exception to the warrant requirement justifies the seizure of his urine in this case," arguing that the charge violated his Fourth Amendment rights. The district court agreed, concluding that urine tests "are far closer to blood tests."

"The state's interest in performing chemical tests to combat drug-impaired driving, while strong, does not overcome a person's Fourth Amendment right to be secure in his or her bodily fluids, urine included," District Court Judge Frank Racek wrote in his order dismissing the refusal charge in January. The other two charges against Helm had previously been dismissed.

Racek said urine "contains large amounts of personal health and genetic information" that can be stored for further use, adding that urine tests cause "considerably more embarrassment for arrestees than breath tests."

The state appealed the case to the state Supreme Court and argued that urine testing is the "least intrusive means for detecting drug-impaired drivers" since breath tests only measure alcohol and blood tests are too invasive. Cass County Assistant State's Attorney Cherie Clark asked the justices Monday to reverse the district court decision.

"Put simply, urine testing is integral to deterring drug-impaired driving," the state's brief argues. "Thus it is also integral to furthering the state's paramount interest in highway safety."

Last fall, the Minnesota Supreme Court said an alleged drunk driver there couldn't be prosecuted for refusing a warrantless urine test.

John Hageman

John Hageman covers North Dakota politics from the Forum News Service bureau in Bismarck. He attended the University of Minnesota in the Twin Cities, where he studied journalism and political science, and he previously worked at the Grand Forks Herald and Bemidji Pioneer.  

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