Background
On October 17, 2024, a Bismarck police officer stopped Miguel Luis Rene Herrera after observing him run a red light. The officer detected an odor of alcohol and observed multiple clues of impairment during standardized field sobriety testing. Herrera refused both a preliminary breath test (PBT) and a subsequent chemical breath test after being advised of North Dakota’s implied consent law and warned that refusal was a crime. He was charged under Bismarck Municipal Code § 12-10-01 with DUI and with refusing to submit to a chemical test.
At trial in the Burleigh County District Court, Herrera requested a jury instruction — modeled on a Minnesota pattern instruction — that would have required the jury to find, as an element of the test-refusal offense, that the arresting officer had probable cause to believe he was driving under the influence. He argued that Birchfield v. North Dakota, 579 U.S. 438 (2016), federalized such a requirement. The district court denied the instruction, finding that probable cause is a legal question, not a factual element, and that Herrera had filed no pretrial motion to suppress challenging probable cause. The court also overruled Herrera’s objection to evidence of his PBT refusal. The jury acquitted Herrera of the underlying DUI charge but convicted him of test refusal.
Herrera appealed, raising two issues: (1) whether the district court erred in refusing his probable-cause jury instruction, and (2) whether the court abused its discretion by admitting evidence of his refusal to take the PBT.
The Court’s Holding
The North Dakota Supreme Court affirmed the conviction on both grounds. On the jury instruction issue, the court held that probable cause to arrest is a question of law for courts to decide, not a factual element to be submitted to a jury and proven beyond a reasonable doubt. Citing State v. Webster, 2017 ND 75, the court reiterated that probable cause is not an essential element of a test-refusal offense under N.D.C.C. § 39-08-01, and that Birchfield‘s requirement of a lawful arrest merely reaffirms longstanding Fourth Amendment principles without converting the probable-cause inquiry into a jury question. The proper vehicle to challenge probable cause is a pretrial suppression motion — which Herrera never filed.
On the PBT-refusal evidence, the court held that N.D.C.C. § 39-20-14(3) expressly permits admission of a PBT refusal where the individual was arrested for a violation of § 39-08-01 and did not subsequently submit to any additional chemical test. Both statutory conditions were met here. Because Bismarck Municipal Code § 12-10-01 tracks the language of N.D.C.C. § 39-08-01 and specifically incorporates its definitions, a violation of the ordinance is the equivalent of a state-statute violation, making § 39-20-14(3) applicable. The court distinguished State v. Rende, 2018 ND 33, which concerned admission of numerical PBT results — not a refusal to take the test at all.
Key Takeaways
- Probable cause to arrest is a legal question resolved by a court on a pretrial suppression motion — it is not a factual element of a North Dakota chemical test-refusal offense that must be submitted to a jury or proven beyond a reasonable doubt.
- Birchfield v. North Dakota does not transform the probable-cause inquiry into an affirmative element of test-refusal crimes; it merely reaffirms that arrests must be supported by probable cause to be lawful.
- A defendant who believes his arrest lacked probable cause must file a pretrial motion to suppress; failure to do so forfeits that challenge at trial.
- Under N.D.C.C. § 39-20-14(3), evidence of a PBT refusal is admissible when the defendant was arrested for a DUI-related offense and declined all subsequent chemical testing — a rule that applies equally to prosecutions under municipal ordinances that mirror the state statute.
Why It Matters
This decision reinforces a clear procedural boundary for DUI defendants in North Dakota: Fourth Amendment probable-cause challenges belong in pretrial suppression hearings, not in the jury room. Defense attempts to import Minnesota-style pattern instructions requiring juries to evaluate the lawfulness of an arrest will not succeed under North Dakota law, and defendants who bypass the suppression-motion process lose that avenue entirely.
The ruling also provides practical guidance for municipal prosecutors. So long as a city ordinance tracks the language of N.D.C.C. § 39-08-01, the state’s implied-consent evidentiary framework — including the right to introduce evidence of a PBT refusal — applies to municipal prosecutions just as it does to state-law charges.