from the District Court of Burleigh County, South Central
Judicial District, the Honorable Thomas J. Schneider, Judge.
M. Vaagen, Assistant State's Attorney, Bismarck, ND, for
plaintiff and appellee.
B. Cottrill, Bismarck, ND, for defendant and appellant.
R. Emerson, Assistant Attorney General, Bismarck, ND, for
amicus curiae Office of Attorney General.
VANDEWALLE, CHIEF JUSTICE.
Jasmine Ellen Nice appealed from a district court judgment
entered on her conditional plea of guilty to driving under
the influence-refusal-first offense in violation of N.D.C.C.
§ 39-08-01(1)(e)(2) pending an appeal of the court's
order denying her motion to dismiss. Nice argues N.D.C.C.
§ 39-08-01(1)(e) is unconstitutional, the deputy
violated her due process rights when he read her the implied
consent advisory multiple times, and the State's failure
to execute the search warrant should result in dismissal of
the refusal charge. Because Nice refused to take a urine test
after a search warrant was secured, we affirm the judgment.
On April 25, 2018, a deputy stopped a vehicle driving without
tail lights. The driver, Nice, admitted smoking marijuana
earlier in the day. Nice consented to field sobriety testing
and a preliminary breath test. After completing the tests,
the deputy read Nice the implied consent advisory and stated
the test would be for urine. The advisory included the
criminal penalties for refusing a breath or urine test. Nice
consented to the test. The deputy read Nice her
Miranda rights and arrested her for driving under
the influence of drugs. After some discussion with Nice, the
officer reread her the implied consent advisory including
criminal penalties. Nice declined to take the test. Another
officer then informed the deputy he needed a warrant for a
urine test. Other officers transported Nice to jail and the
deputy obtained a search warrant. At the jail, the deputy
informed Nice he had a warrant for a urine test and read the
implied consent advisory for urine from the search warrant.
Nice refused to provide a urine sample.
After she refused to comply with the warrant, the State
charged Nice with driving under the influence-refusal-first
offense, a class B misdemeanor. Nice filed a motion to
dismiss on June 21, 2018. The district court issued an order
denying the motion to dismiss. Nice entered a conditional
plea of guilty on September 7, 2018.
Nice argues the district court erred in denying her motion to
dismiss because N.D.C.C. § 39-08-01(1)(e) is
unconstitutional, Nice's due process rights were violated
by the deputy reading her the implied consent advisory
multiple times, and the State's failure to execute the
search warrant should result in dismissal of the refusal
charge. The State and the Attorney General allege Nice cannot
challenge the constitutionality of N.D.C.C. §
39-08-01(1)(e) because the State did not charge her with
refusing a chemical test, in this case a urine test, until
after a warrant was obtained.
This Court will not reverse a trial court's findings of
fact in preliminary criminal proceedings, such as a motion to
dismiss, if, after the conflicts in the testimony are
resolved in favor of affirmance, there is sufficient
competent evidence fairly capable of supporting the findings
and if the trial court's decision is not contrary to the
manifest weight of the evidence. State v. Thill,
2005 ND 13, ¶ 6, 691 N.W.2d 230. Our review is limited
to only those issues raised in the district court. State
v. Gray, 2017 ND 108, ¶ 6, 893 N.W.2d 484.
Nice argues N.D.C.C. § 39-08-01(1)(e) is facially
unconstitutional because its language is misleading in light
of Birchfield v. North Dakota and State v.
Helm. See Birchfield, 136 S.Ct. 2160 (2016);
Helm, 2017 ND 207, 901 N.W.2d 57. Section
39-08-01(1)(e)(2), N.D.C.C., makes it a crime for an
individual to refuse to submit to "[a] chemical test, or
tests, of the individual's blood, breath, or urine to
determine the alcohol concentration or presence of other
drugs, or combination thereof, in the individual's blood,
breath, or urine, at the direction of a law enforcement
officer under section 39-20-01." In Helm, this
Court held urine is treated like blood for DUI purposes and
an individual cannot be prosecuted for refusing to submit to
a warrantless urine test. 2017 ND 207, at ¶ 16.
Here, the State did not charge Nice with refusal of a
warrantless urine test. "Generally, a party may only
challenge the constitutionality of a statute as applied to
that party." State v. Dvorak, 2000 ND 6, ¶
28, 604 N.W.2d 445. Originally, the deputy arrested Nice for
DUI. After obtaining a search warrant, the deputy again read
Nice the implied consent advisory for a urine test, which
Nice refused. At this point, the State charged Nice with
refusing to consent to a urine test pursuant to a search
warrant. Because the State did not charge Nice with refusing