State v. Bell and the Unified Application of N.D.C.C. §§ 39‑20‑01 and 39‑20‑01.1 in Serious-Injury and Fatal DUI Crash Investigations

State v. Bell and the Unified Application of N.D.C.C. §§ 39‑20‑01 and 39‑20‑01.1 in Serious-Injury and Fatal DUI Crash Investigations

I. Introduction

State v. Bell, 2025 ND 201, is a significant North Dakota Supreme Court decision clarifying the relationship between the State’s general implied-consent statute, N.D.C.C. § 39‑20‑01, and the special crash-testing statute, N.D.C.C. § 39‑20‑01.1, in cases involving serious bodily injury or death.

The case arises from a June 3, 2024 traffic crash in Grand Forks County in which two occupants of another vehicle were injured and a minor child later died (Bell, ¶ 2). Travis Dean Bell, the driver of one vehicle, was investigated for driving under the influence (DUI). A Highway Patrol trooper administered a chemical breath test (Intoxilyzer) after reading the implied consent advisory. Bell was then charged with criminal vehicular injury and criminal vehicular homicide, both predicated on alleged DUI under N.D.C.C. § 39‑08‑01 (Bell, ¶ 3).

Bell moved to suppress the chemical test and its results, arguing that:

  • the test was obtained contrary to statute, and
  • his consent was not voluntary under the federal and state constitutions.

The district court granted suppression, ruling that:

  • N.D.C.C. § 39‑20‑01.1 (serious-injury/death crashes) was the exclusive controlling statute,
  • the officer misinformed Bell by telling him that refusal was a separate crime, and
  • Bell’s “consent” was coerced by threats of an additional criminal charge.

The State appealed, asserting that:

  • the district court misinterpreted the interplay of §§ 39‑20‑01 and 39‑20‑01.1,
  • the implied consent advisory was accurate, including the warning about criminal refusal under § 39‑08‑01, and
  • Bell’s consent was voluntary under the totality of the circumstances.

The Supreme Court reversed and remanded. The core importance of the decision lies in:

  1. its holding that §§ 39‑20‑01 and 39‑20‑01.1 must be read in conjunction, not as mutually exclusive schemes;
  2. its confirmation that refusal of a chemical test remains a separate, chargeable offense under § 39‑08‑01(1)(a)(5), even in serious-injury/death crash cases investigated under § 39‑20‑01.1; and
  3. its reiteration that an accurate implied consent advisory is not per se coercive, and voluntariness of consent must be evaluated under the totality of the circumstances.

II. Summary of the Supreme Court’s Opinion

The Supreme Court’s ruling can be distilled into several key holdings:

  1. State’s Right to Appeal: The State properly appealed the suppression order under N.D.C.C. § 29‑28‑07(5), supported by a statement that the appeal was not for delay and that the Intoxilyzer result was substantial proof of a material fact (Bell, ¶ 5).
  2. Standard of Review: Factual findings on suppression are reviewed for clear error and credibility determinations are deferred to the district court, but questions of law and whether facts meet a legal standard are reviewed de novo (Bell, ¶ 6).
  3. Interplay of §§ 39‑20‑01 and 39‑20‑01.1: The district court erred in treating the two statutes as “separate and distinct” such that only § 39‑20‑01.1 controlled. After the 2013 amendment removing the “notwithstanding” language, § 39‑20‑01.1 no longer abrogates or displaces § 39‑20‑01; the statutes must be read together (Bell, ¶¶ 18–24).
  4. Devine Limited: State v. Devine, 2020 ND 208, is limited to the statutory exclusionary rule that then existed in § 39‑20‑01. Because that statutory exclusionary rule was removed in 2019, Devine “has no application” to the present statutory framework (Bell, ¶ 16).
  5. Withdrawal of “Legislative Grace” and Warrant Requirement: Section 39‑20‑01.1 continues to withdraw the “legislative grace” of a driver’s right to refuse a chemical test in serious-injury or fatal crashes, but, absent exigent circumstances, an officer must obtain a search warrant to compel testing (Bell, ¶ 24).
  6. Refusal as a Separate Offense: Refusal under § 39‑08‑01(1)(a)(5) remains a separate offense from DUI, and a driver in a § 39‑20‑01.1 crash case may still be charged with refusal if:
    • the officer directs a chemical test under § 39‑20‑01, and
    • the driver refuses that test.
    (Bell, ¶¶ 37–39; reaffirming State v. Tompkins, 2023 ND 61).
  7. Implied Consent Advisory Not Per Se Coercive: Reading a correct implied consent advisory under § 39‑20‑01, including the warning about criminal refusal, does not by itself constitute coercion. Voluntariness must be assessed under the totality of the circumstances, and coercive police activity is a necessary predicate to finding consent involuntary (Bell, ¶¶ 29–31, 35–36, 43, 46).
  8. District Court Misapplied Law on Coercion: Because the district court wrongly concluded that:
    • § 39‑20‑01.1 displaced § 39‑20‑01, and
    • the trooper’s warning about criminal refusal was legally false, and therefore coercive,
    its voluntariness finding was tainted by legal error. The suppression order is reversed, and the case is remanded for a new determination of voluntariness using the correct legal framework (Bell, ¶¶ 40–46).

III. Factual and Procedural Background

A. The Crash and DUI Investigation

On June 3, 2024, Bell was involved in a traffic crash near the intersection of Airport Road and Highway 2 in Grand Forks County. Two people in the other vehicle were injured, and a minor child later died from injuries sustained in the crash (Bell, ¶ 2). Multiple law enforcement agencies responded, but the North Dakota Highway Patrol led the investigation.

As part of that investigation, a trooper:

  • investigated Bell for DUI, and
  • ultimately administered a chemical breath test (Intoxilyzer) to determine Bell’s blood-alcohol content (Bell, ¶ 2).

B. Criminal Charges

In June 2024, the State filed an amended information charging Bell with:

  • one count of criminal vehicular injury under N.D.C.C. § 39‑08‑01.2(2), and
  • one count of criminal vehicular homicide under N.D.C.C. § 39‑08‑01.2(1),

each premised on Bell having committed DUI under N.D.C.C. § 39‑08‑01 (Bell, ¶ 3).

C. Motion to Suppress and Evidentiary Hearing

In December 2024, Bell moved to suppress the chemical breath test, his consent, and the test results, alleging statutory violations and due process concerns. The State opposed the motion. In February 2025, the district court held an evidentiary hearing:

  • the arresting trooper testified; and
  • the trooper’s body-worn camera video was admitted into evidence (Bell, ¶ 3).

The key factual dispute centered on the sequence of:

  • Bell’s initial response to the request for testing (including an apparent “I deny it”),
  • the trooper’s repeated explanations and re-reading of the implied consent advisory,
  • the trooper’s advisement that refusal would be a separate crime, and
  • Bell’s eventual “yes” agreeing to testing.

The district court found that Bell initially refused testing and only “consented” after being threatened with an additional criminal charge, concluding that this rendered his consent involuntary.

D. District Court’s Suppression Order

In March 2025, the district court suppressed:

  • the chemical breath test,
  • Bell’s consent, and
  • the test results (Bell, ¶ 4).

The court reasoned, in substance, that:

  • N.D.C.C. § 39‑20‑01.1, not § 39‑20‑01, governed because the crash involved serious injury and death;
  • § 39‑20‑01.1 required law enforcement either to obtain consent or seek a warrant; there was “no third option” (Bell, ¶ 42);
  • the officer’s warning that refusal was a crime was legally incorrect because refusal under § 39‑08‑01(1)(a)(5) applies only to tests “at the direction of a law enforcement officer under section 39‑20‑01,” not under § 39‑20‑01.1 (Bell, ¶ 33); and
  • the repeated, allegedly inaccurate threats of an additional criminal charge coerced Bell’s consent.

E. Appeal by the State

The State appealed pursuant to N.D.C.C. § 29‑28‑07(5). The Supreme Court confirmed compliance with statutory requirements for prosecutorial appeals from suppression orders:

  • a non-delay certification, and
  • a statement that the evidence suppressed constituted substantial proof of a material fact, along with an explanation of its relevance (Bell, ¶ 5; citing State v. Boehm and State v. Emil).

The Supreme Court concluded the State’s certification and explanation were sufficient, and it proceeded to the merits.

IV. Detailed Legal Analysis

A. The Statutory Framework and Its Evolution

1. Section 39‑20‑01 – Implied Consent in General DUI Cases

Section 39‑20‑01(1) creates implied consent for any individual who operates a motor vehicle on North Dakota highways:

“[A]ny individual who operates a motor vehicle on a highway ... in this state is deemed to have given consent, and shall consent ... to a chemical test, or tests, of the blood, breath, oral fluid, or urine for the purpose of determining the alcohol concentration or presence of other drugs ...” (Bell, ¶ 11).

Key features:

  • Subsection 2: tests are administered at the direction of law enforcement after arrest for violation of § 39‑08‑01 (DUI) or equivalent; the officer selects the test (Bell, ¶ 11).
  • Subsection 3(a): the officer must inform the individual that:
    • North Dakota law requires taking a chemical test to determine impairment; and
    • refusal may result in revocation of driving privileges for at least 180 days and up to three years.
  • Subsection 3(b): if the driver refuses, proof of refusal is not admissible in administrative proceedings if the advisory is not properly given (Bell, ¶ 11).

Historically, § 39‑20‑01(3)(b) contained a statutory exclusionary rule that could make test results inadmissible in criminal cases if the advisory was not properly given. That statutory exclusionary rule was removed in 2019. Now:

  • failure to read the advisory has significance in administrative license-revocation proceedings only when the driver refuses testing;
  • when a driver consents to testing, failure to read the advisory does not trigger a statutory suppression remedy (Jundt v. N.D. Dep’t of Transp., 2020 ND 232, ¶ 16).

2. Section 39‑20‑01.1 – Serious-Injury and Fatal Crashes

Section 39‑20‑01.1 addresses chemical testing when the driver is involved in a crash resulting in:

  • the death of another individual (subsection 1), or
  • serious bodily injury to another individual (subsection 2).

In its current (post-2013) form, it provides that:

  • If there is probable cause to believe the driver is in violation of § 39‑08‑01 (DUI), a law enforcement officer shall request the driver to submit to a chemical test or tests of blood, breath, or urine (Bell, ¶ 12).
  • If the driver refuses and there are no exigent circumstances, the officer shall request a search warrant to compel the driver to submit to testing (Bell, ¶ 12).
  • Approved methods of the State Crime Laboratory must be followed in collecting and preserving samples and conducting tests (Bell, ¶ 12).

3. Legislative History and the “Notwithstanding” Clause

The Court’s statutory analysis turns heavily on the evolution of § 39‑20‑01.1:

  • 1987 version: provided that when there was probable cause and a crash resulting in death or serious bodily injury, the driver may be compelled by an officer to submit to testing notwithstanding section 39‑20‑01 or 39‑20‑04 (Bell, ¶ 18).
  • 1989 – State v. Hansen: the Court held § 39‑20‑01.1 was ambiguous and, based on legislative history and constitutional concerns, still required an arrest before compelled testing, despite the “notwithstanding” clause (Bell, ¶ 19). Importantly, the Court described § 39‑20‑01.1 as designed to create an exception to the implied-consent law by withdrawing the driver’s right to refuse in serious crash cases.
  • 2009 amendments: divided § 39‑20‑01.1 into subsections:
    • Subsection 1 (death): “the driver must be compelled” to submit to testing;
    • Subsection 2 (serious bodily injury): “a law enforcement officer may compel” testing;
    • both retained the phrase Notwithstanding section 39‑20‑01 or 39‑20‑04 (Bell, ¶ 20).
  • 2013 amendments: critically, the legislature:
    • removed the “Notwithstanding section 39‑20‑01 or 39‑20‑04” language from subsections 1 and 2;
    • changed “may compel” / “must be compelled” language to “shall request”; and
    • added subsection 3, requiring the officer to seek a warrant to compel testing when the driver refuses and no exigent circumstances are present (Bell, ¶ 21).

The Court relies on a general interpretive rule: removing “notwithstanding” language signals an intent not to displace or override the referenced statutes (Bell, ¶ 22). Therefore, post-2013:

  • § 39‑20‑01.1 no longer overrides §§ 39‑20‑01 or 39‑20‑04;
  • requests for testing under § 39‑20‑01.1 must be harmonized with the general implied consent scheme under § 39‑20‑01 and the refusal provisions of § 39‑20‑04 (Bell, ¶¶ 23–24).

The Court concludes:

“By removing the ‘notwithstanding’ clauses from N.D.C.C. § 39‑20‑01.1, the legislature signaled its intent that requests for chemical tests under section 39‑20‑01.1(1) and (2) do not abrogate or operate to the exclusion of an officer’s direction to take a chemical test under section 39‑20‑01.” (Bell, ¶ 23)

And further:

“These statutes must be read in conjunction with each other.” (Bell, ¶ 24)

B. Precedents Cited and How They Shape the Decision

1. State v. Devine (2020 ND 208)

In Devine, law enforcement obtained a search warrant for a blood sample in a serious-injury crash case under § 39‑20‑01.1 but read an incomplete implied consent advisory (Bell, ¶ 14). The question was whether the then-existing statutory exclusionary rule in § 39‑20‑01(3)(b) applied to exclude the blood test results.

The Court in Devine:

  • distinguished between tests “administered under” § 39‑20‑01 versus § 39‑20‑01.1;
  • held that the statutory exclusionary rule applied only to tests “administered under” § 39‑20‑01 (Devine, ¶ 14); and
  • concluded that, on those facts, the test was administered under § 39‑20‑01.1, so the statutory exclusionary rule did not apply (Bell, ¶¶ 14–16).

In Bell, the district court read Devine as implying an “either-or” regime: a chemical test is either under § 39‑20‑01 or under § 39‑20‑01.1, but not both.

The Supreme Court rejects this reading:

  • Devine only held that, for purposes of the now-removed statutory exclusionary rule, the test in that case was administered under § 39‑20‑01.1;
  • the Court in Devine did not hold that a case cannot fall under the scope of both statutes or that a test cannot be administered under both (Bell, ¶ 16); and
  • since the statutory exclusionary rule was removed in 2019, Devine “has no application” to the present statutory scheme (Bell, ¶ 16).

2. State v. Hansen (1989) and Wilhelmi v. DOL (1993)

Hansen, 444 N.W.2d 330 (N.D. 1989), interpreted the original 1987 version of § 39‑20‑01.1. There, despite the “notwithstanding” language, the Court held:

  • the statute still required an arrest before chemical testing; and
  • the statute’s purpose was to withdraw the driver’s statutory right to refuse testing in serious-injury or fatal crash cases, consistent with Schmerber v. California, 384 U.S. 757 (1966) (Bell, ¶ 19).

Hansen thus laid two key foundations that Bell reaffirms:

  1. § 39‑20‑01.1 operates as an exception to the general “no test if refusal” rule by withdrawing “legislative grace” (the statutory right to refuse) in serious crash cases;
  2. the arrest requirement remains unless the driver voluntarily consents without arrest.

Wilhelmi later discussed Hansen to the same effect. In Bell, the Court adopts Hansen’s reasoning to the modern, amended version: § 39‑20‑01.1 still withdraws the right to refuse but, absent exigent circumstances, the officer must obtain a warrant to compel testing (Bell, ¶ 24).

3. Morales, Exigent Circumstances, and Birchfield

State v. Morales, 2015 ND 230, confirmed that, to be reasonable under the Fourth Amendment, compelled chemical testing without a warrant is justified only when exigent circumstances are present (Bell, ¶ 24). This principle is particularly important in light of the U.S. Supreme Court’s decision in Birchfield v. North Dakota, 579 U.S. 438 (2016), which:

  • approved criminal penalties for refusing breath tests incident to arrest for DUI, but
  • held that states cannot criminalize refusal of blood tests absent a warrant or valid exception to the warrant requirement.

Bell harmonizes § 39‑20‑01.1 with these constitutional constraints: where a driver refuses in a serious crash case, and no exigency exists, the officer must seek a warrant under § 39‑20‑01.1(3) to compel a sample that satisfies Fourth Amendment requirements.

4. Refusal as a Separate Offense: State v. Tompkins

In State v. Tompkins, 2023 ND 61, the Court held that:

“committing DUI ... by being under the influence of an intoxicating liquor and refusing to submit to a chemical test are separate offenses and not alternative methods of committing DUI.” (Bell, ¶ 37, quoting Tompkins, ¶ 12)

Section 39‑08‑01(1)(a)(5)(b) makes it a separate offense to refuse a chemical test, at the direction of an officer under § 39‑20‑01, after proper advisory. Section 39‑08‑01(2) confirms that such a refusal is an “offense under this section” (Bell, ¶ 37).

Bell extends this logic to the serious-crash context, holding that:

  • a driver may be charged with refusal even if the crash falls under § 39‑20‑01.1, so long as the officer is also acting “under § 39‑20‑01” when directing the test;
  • the serious crash statute does not immunize the driver from the refusal offense (Bell, ¶¶ 38–39).

5. Implied Consent Advisory and Voluntariness Cases

The Court reaffirms multiple precedents addressing whether the implied consent advisory is coercive and how voluntariness is assessed:

  • McCoy v. NDDOT, 2014 ND 119, and State v. Fetch, 2014 ND 195: established that reading an accurate implied consent advisory is not per se coercive, even though it informs the driver that refusal has adverse legal consequences.
  • Fleckenstein, 2018 ND 52, ¶ 9, and Vetter, 2019 ND 43, ¶ 14: reaffirmed that reading an accurate implied consent advisory does not constitute per se coercion and that voluntariness must be determined under the totality of the circumstances (Bell, ¶¶ 35, 43, 46).
  • Nygaard, 2021 ND 172, and Casarez, 2021 ND 71: held that challenges to implied consent advisories now proceed under constitutional standards rather than the repealed statutory exclusionary rule, especially in cases involving criminal refusal under § 39‑08‑01(1)(a)(6) (formerly (1)(f)) (Bell, ¶ 35).
  • Hawkins, 2017 ND 172: affirmed suppression of a chemical test where consent was deemed involuntary based partly on an unlawful threat of criminal charges. There, the advisory threatened criminal penalties for refusing a test that, under Birchfield, could not lawfully trigger those penalties (e.g., a blood test). Bell distinguishes Hawkins on the pivotal fact that, in Bell’s case, the trooper’s warning about criminal refusal was accurate.

6. Skobodzinski and the Ability to “Cure” a Refusal

In Skobodzinski v. N.D. Dep’t of Transp., 2025 ND 84, the Court reiterated that the implied consent regime is designed to encourage, not discourage, testing, and that drivers may “cure” an initial refusal by later agreeing to submit to the same test (Bell, ¶ 45).

Relying on this principle, Bell views repeated reading of the advisory and renewed offers of testing as consistent with legislative policy, not necessarily coercive:

“The trooper’s giving of an accurate implied consent advisory, including discussing and repeating the advisory, would not necessarily constitute coercion when the trooper was administering the test under N.D.C.C. § 39‑20‑01.” (Bell, ¶ 45)

C. The Court’s Legal Reasoning in Bell

1. Misinterpretation of Which Statute “Controls”

The district court’s central premise was that § 39‑20‑01.1 “controlled” to the exclusion of § 39‑20‑01 because the crash involved death/serious bodily injury. The Supreme Court rejects this binary approach:

  • post-2013, § 39‑20‑01.1 no longer contains “notwithstanding” language, so it does not override § 39‑20‑01 or § 39‑20‑04 (Bell, ¶¶ 21–24);
  • the statutes must be harmonized and applied in conjunction, consistent with the general rule that statutes are read together and not rendered superfluous (Bell, ¶¶ 9, 23).

That means a trooper in a serious-crash DUI investigation may:

  • proceed under § 39‑20‑01 (arrest + implied consent advisory + request for a chemical test); and
  • simultaneously be within the scope of § 39‑20‑01.1 (because the crash involves death/serious injury), which governs what must happen if the driver refuses (warrant or exigency).

The Supreme Court emphasizes that the trooper’s subjective belief about whether the investigation was a “standard DUI” or a more serious vehicular homicide investigation is irrelevant to the legal availability of § 39‑20‑01:

“The court’s findings regarding the trooper’s belief regarding the type of investigation... are not determinative of which statute ‘controls’ and are irrelevant because the court erred as a matter of law in concluding ‘the entire legal analysis of this motion must be under the dictates of Section 39‑20‑01.1, and not Section 39‑20‑01.’” (Bell, ¶ 41)

2. Refusal, Advisory, and Criminal Liability

The district court accepted Bell’s argument that, because the trooper was proceeding under § 39‑20‑01.1, Bell’s refusal was not criminal and the trooper’s warning of a refusal charge was legally incorrect.

The Supreme Court rejects this reasoning:

  • § 39‑08‑01(1)(a)(5)(b) criminalizes refusal of a chemical test directed by law enforcement under § 39‑20‑01 (Bell, ¶ 37);
  • refusal is a separate offense from DUI (Tompkins; Bell, ¶ 37);
  • a driver in a serious crash may still be charged with refusal if the officer is directing the test under § 39‑20‑01, even while § 39‑20‑01.1 also applies (Bell, ¶¶ 38–39).

Thus, the officer’s warning that refusal could result in an additional criminal charge was legally correct, not a misrepresentation of the law. This is what distinguishes Bell from Hawkins, where the advisory affirmatively misstated the law and threatened criminal sanctions the State could not constitutionally impose for refusing a blood test.

3. Error in Treating an Accurate Advisory as Coercive Per Se

The district court’s finding that Bell’s consent was coerced rested heavily on the premise that the trooper’s advisory was misleading and that the threat of criminal refusal was “legally false” (Bell, ¶ 44). Building on that premise, the court described Bell as having been “forced” to consent by repeated threats of an invalid additional charge.

The Supreme Court holds that this entire chain of reasoning rests on a misapplication of law:

  • since the advisory was accurate, its reading (even multiple times) is not per se coercive (Bell, ¶¶ 35, 43, 45–46);
  • voluntariness must be decided under the totality of the circumstances, with coercive police activity as a necessary predicate (Bell, ¶ 46);
  • the district court effectively converted a lawful warning into “coercion” by adopting an erroneous view that the warning was false.

Because the district court’s factual conclusions about Bell’s alleged coercion are intertwined with these legal errors, the Supreme Court cannot simply affirm on a deferential factual standard. Instead, the Court reverses and remands for a new voluntariness determination applying the correct legal framework.

4. The Role of Consent vs. Warrant Under § 39‑20‑01.1

The district court held that § 39‑20‑01.1 presented only two options:

  1. obtain consent, or
  2. obtain a warrant—“no third option” (Bell, ¶ 42).

The Supreme Court identifies multiple problems with this view:

  • it overlooks that exigent circumstances can justify compelled testing without a warrant (the “third option”), a principle recognized in Morales and incorporated into § 39‑20‑01.1(3);
  • it treats § 39‑20‑01.1 as barring use of § 39‑20‑01’s implied consent regime;
  • it ignores that when a driver consents to testing, § 39‑20‑01.1(3) (the warrant provision) simply does not apply (Bell, ¶ 26).

Consequently, the officer here did not violate § 39‑20‑01.1 by pursuing consent via an implied consent advisory and then testing Bell under § 39‑20‑01 once consent was given.

D. Impact on Future Cases and DUI Law Practice

1. For Law Enforcement

Bell provides clear guidance to officers responding to serious-injury or fatal crashes:

  • Officers may use the standard implied consent procedure under § 39‑20‑01 (arrest, advisory, and request for a breath or other chemical test), even when § 39‑20‑01.1 is triggered by serious injury or death.
  • If the driver consents, testing proceeds under § 39‑20‑01, and § 39‑20‑01.1(3)’s warrant requirement never comes into play.
  • If the driver refuses:
    • the refusal may support a separate criminal charge under § 39‑08‑01(1)(a)(5), if the test was directed under § 39‑20‑01 and the advisory was properly given; and
    • in serious injury/death cases, § 39‑20‑01.1(3) requires the officer to seek a warrant to compel testing in the absence of exigent circumstances.
  • Re-reading and explaining the implied consent advisory, and giving the driver an opportunity to “cure” an initial refusal, is consistent with legislative policy encouraging chemical testing.

2. For Prosecutors

Bell strengthens the State’s hand in several respects:

  • It defeats defense arguments that § 39‑20‑01.1 displaces the implied consent regime in serious-crash cases and thereby eliminates criminal refusal exposure.
  • It confirms that a refusal charge can accompany vehicular homicide or injury charges when the officer proceeded under § 39‑20‑01.
  • It clarifies that challenges to advisories must be framed constitutionally: a correctly given advisory is not itself coercive; suppression will hinge on more specific evidence of coercive police conduct.

3. For Defense Counsel

Defense practice must adjust to the clarified framework:

  • Arguments that § 39‑20‑01.1 is the exclusive governing statute in serious-crash cases will be unavailing; instead, counsel must assume that both statutes can apply.
  • Successful suppression arguments will need to show either:
    • the advisory was inaccurate (e.g., threatening criminal penalties that the law does not permit, such as blood-test refusal post-Birchfield), or
    • even if the advisory was accurate, other features of the interaction rendered consent involuntary under the totality of the circumstances (e.g., extreme pressure, misrepresentation of rights, threats beyond lawful consequences).
  • On remand in Bell-type cases, counsel should focus on the factual indicia of coercion (injuries, confusion, duration of detention, officer’s tone and persistence), rather than relying solely on statutory arguments now rejected by the Supreme Court.

4. For Courts

Trial courts are reminded that:

  • Voluntariness of consent is a factual question, but it must be evaluated through the correct legal lens. Misstating the law—such as treating an accurate advisory as invalid—can invalidate an otherwise deferential factual conclusion.
  • Both §§ 39‑20‑01 and 39‑20‑01.1 may apply simultaneously, and courts must analyze which provisions govern:
    • the initial request for testing (usually § 39‑20‑01), and
    • the officer’s obligations upon refusal (particularly § 39‑20‑01.1(3) in serious crashes).

V. Complex Concepts Simplified

1. Implied Consent and “Legislative Grace”

  • Implied consent: By driving on North Dakota roads, you are legally deemed to have agreed in advance (“impliedly”) to chemical testing if arrested for DUI.
  • Legislative grace: Even though the law deems consent given, the legislature has chosen to allow most drivers to withdraw their consent by refusing a test. That is not a constitutional right; it is a statutory “grace.”
  • In serious-injury or fatal crashes, § 39‑20‑01.1 partially withdraws that grace: if you refuse, the officer doesn’t have to just accept that; instead, the officer must seek a warrant (if no emergency) and can then compel testing.

2. “Notwithstanding” Clauses

  • Statutes sometimes say, “Notwithstanding X,” meaning: “this rule applies even if it conflicts with X; in a conflict, this rule wins.”
  • Earlier versions of § 39‑20‑01.1 said “Notwithstanding section 39‑20‑01 or 39‑20‑04,” signaling that it overrode those statutes.
  • The 2013 amendment removed that phrase, so courts now treat § 39‑20‑01.1 as working with, rather than displacing, §§ 39‑20‑01 and 39‑20‑04.

3. “Administered Under” a Statute

  • When courts say a test was “administered under” a particular statute, they mean the officer followed that statute’s procedure in obtaining the test.
  • In the old Devine context, this mattered because only tests “administered under” § 39‑20‑01 got the benefit (or burden) of the statutory exclusionary rule.
  • Now that the statutory exclusionary rule is gone, that distinction is less significant. Bell confirms that the same test may, as a practical matter, fall within the scope of both statutes at once.

4. Refusal as a Separate Criminal Offense

  • Beyond DUI (driving while impaired), North Dakota law makes it a separate crime to refuse a properly requested chemical test under § 39‑20‑01.
  • This is not just an “evidentiary consequence” but an independent offense, with its own penalties.
  • Bell confirms that this refusal offense remains available even when the crash triggers § 39‑20‑01.1, as long as the officer was directing a test under § 39‑20‑01.

5. Voluntary Consent and Coercion

  • To be voluntary, consent must be a free, unconstrained choice—not the product of threats, deception, or intense pressure.
  • Courts consider:
    • the person’s characteristics (age, condition, experience with law enforcement), and
    • the circumstances (how long they were detained, tone of officers, whether threats or deception were used).
  • Importantly, merely informing someone of the real, lawful consequences of saying “no” (like telling them that refusal is a crime) is not automatically coercion. Coercion usually requires some improper or unlawful pressure.

6. Exigent Circumstances

  • “Exigent circumstances” are emergency conditions where there is not enough time to get a warrant without risking the loss of evidence or harm.
  • In DUI cases, the natural dissipation of alcohol can contribute to exigency, but under modern case law, dissipation alone is usually not enough; the State must show why getting a warrant at that time was impractical.
  • Under § 39‑20‑01.1(3), if there is no such emergency and the driver refuses, the officer must seek a warrant before compelling a test.

VI. Conclusion

State v. Bell, 2025 ND 201, is a pivotal decision in North Dakota DUI law. It resolves confusion about the relationship between:

  • the general implied consent statute (§ 39‑20‑01), and
  • the serious-injury/fatal crash statute (§ 39‑20‑01.1).

The Court holds that these provisions are not mutually exclusive; instead, they operate together. The removal of “notwithstanding” language from § 39‑20‑01.1, along with longstanding principles from Hansen, means that:

  • officers in serious-crash cases may proceed under § 39‑20‑01, including giving the implied consent advisory and seeking consent to a chemical test;
  • if the driver refuses, refusal may be prosecuted as a separate criminal offense under § 39‑08‑01(1)(a)(5), provided the test was directed under § 39‑20‑01 and the advisory was accurate; and
  • in serious-crash cases, § 39‑20‑01.1(3) then obligates officers, absent exigent circumstances, to seek a warrant to compel testing.

The decision also reinforces a constitutional baseline: reading an accurate implied consent advisory—even one that warns of criminal refusal—does not in itself coerce consent. Rather, voluntariness must be assessed under the totality of the circumstances, with coercive police conduct as a necessary predicate.

By correcting the district court’s misreading of the statutes and its treatment of an accurate advisory as coercive per se, Bell restores coherence to North Dakota’s DUI enforcement framework. It preserves the State’s ability to obtain critical chemical evidence in serious crashes, while ensuring that such evidence is collected under a constitutionally sound combination of consent, warrants, and recognized exceptions to the warrant requirement.

On remand, the district court must now re-evaluate the voluntariness of Bell’s consent, this time treating the implied consent advisory and the potential refusal charge as lawful components of the interaction rather than as coercive misstatements. That approach, mandated by Bell, will guide trial courts and practitioners in future DUI and vehicular homicide prosecutions throughout the state.

Case Details

Year: 2025
Court: Supreme Court of North Dakota

Judge(s)

McEvers, Lisa K. Fair

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