from the District Court of Cass County, East Central Judicial
District, the Honorable Frank L. Racek, Judge.
L. Clark (argued), Assistant State's Attorney, and Reid
A. Brady (appeared), Fargo, N.D., for plaintiff and
G. Mertz, Fargo, N.D., for defendant and appellee.
L. Herbel (on brief), Bismarck, N.D., for amicus curiae North
Dakota Association of Criminal Defense Lawyers.
1] The State appeals from an order granting Steven Helm's
motion to dismiss a criminal prosecution against him for
refusing to submit to a warrantless urine test incident to
arrest. We conclude the State may not criminally prosecute
Helm for refusing to submit to the warrantless urine test
incident to arrest, and we affirm the order.
2] At 1:30 a.m. on May 5, 2016, a law enforcement officer
observed Helm driving a motor vehicle without headlights.
After interaction with Helm during a traffic stop, the
officer suspected Helm was driving under the influence of a
controlled substance. Helm was ultimately arrested for
driving under the influence, and he subsequently refused to
submit to a warrantless urine test incident to the arrest.
The State charged Helm with refusing to submit to a chemical
3] The district court granted Helm's motion to dismiss,
ruling the requested warrantless urine test incident to
arrest was like a warrantless blood test incident to arrest
under Birchfield v. North Dakota, 136 S.Ct. 2160
(2016). The court concluded the exception to the warrant
requirement for a search incident to arrest did not apply to
the warrantless urine test and Helm could not be criminally
prosecuted for refusing the warrantless urine test.
4] Section 39-08-01, N.D.C.C., criminalizes a driver's
refusal to submit to a law enforcement officer's request
under N.D.C.C. § 39-20-01 for a chemical test of the
driver's blood, breath, or urine. Section 39-20-01,
N.D.C.C., provides that any individual operating a motor
vehicle on a highway of this State is deemed to have given
consent to a chemical test of the individual's blood,
breath, or urine to determine the alcohol concentration or
presence of drugs in the individual's blood, breath, or
urine, and authorizes a law enforcement officer to determine
which test to request. At the time relevant to this
proceeding, N.D.C.C. § 39-20-01(3)(a)  described the implied
The law enforcement officer shall inform the individual
charged that North Dakota law requires the individual to take
the test to determine whether the individual is under the
influence of alcohol or drugs; that refusal to take the test
directed by the law enforcement officer is a crime punishable
in the same manner as driving under the influence; and that
refusal of the individual to submit to the test directed by
the law enforcement officer may result in a revocation for a
minimum of one hundred eighty days and up to three years of
the individual's driving privileges.
5] The State argues the district court erred in ruling the
requested warrantless urine test, which the State claims
would have been administered without requiring any exposure
of the arrestee's genitals, was constitutionally
reasonable as a search incident to an arrest for drug-based
charges of driving under the influence. The State claims a
critical factor for evaluating the reasonableness of a
chemical test is the manner of administration and argues
warrantless urine tests administered without requiring
exposure of the arrestee's genitals are reasonable under
the search incident to arrest exception to the warrant
requirement. The State argues that not requiring exposure of
the arrestee's genitals establishes a categorical rule
for allowing a warrantless urine test incident to arrest for
a drug-based charge of driving while impaired.
6] The Fourth Amendment prohibits unreasonable searches and
seizures, and the administration of urine tests are searches
under that provision. Skinner v. Ry. Labor Execs.'
Ass'n, 489 U.S. 602, 613-17 (1989); Nat'l
Treasury Emps. Union v. Von Raab, 489 U.S. 656, 665
(1989). The touchstone for a search under the Fourth
Amendment is reasonableness and typically requires law
enforcement to obtain a judicial warrant before conducting a
search. Birchfield, 136 S.Ct. at 2173. Searches
conducted outside the judicial process without a warrant are
per se ...