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A Bismarck man’s appeal in a drunken driving case is aimed at taking on North Dakota’s strengthened implied consent law.

As part of an overhaul to the state’s driving under the influence laws, the 2013 North Dakota Legislature made refusing to submit to chemical testing in drunken driving cases a crime on par with DUI.

Attorney Chad McCabe is arguing such required testing constitutes Fourth Amendment violations in his appeal of the conviction of Jason Brenny. Burleigh County Assistant State’s Attorney Christine Hummert McAllister counters that the testing does not constitute an unreasonable search, since enough evidence already had been found to arrest Brenny, who made his decision knowing the consequences of testing or not testing. The North Dakota Supreme Court heard arguments in the case Tuesday morning.

According to court documents, a Burleigh County sheriff’s deputy stopped Brenny on suspicion of driving under the influence on Sept. 4. The deputy conducted field sobriety tests and advised Brenny of the implied consent law, which lays out that drivers imply their consent to testing as a condition of having a driver’s license and could be charged with a crime similar to DUI if they refuse.

McCabe argues someone cannot give consent freely when the alternative choice is being charged with a crime.

“How could any consent be free and voluntary when he was merely submitting to a claim of lawful authority? In this case, the chemical test evidence was obtained as a result of an unconstitutional search and seizure, in violation of the Fourth Amendment of the United States Constitution, and even greater protection under Article 1, Section 8 of the North Dakota Constitution,” he argued in a brief.

However, McAllister argues such testing does not constitute unreasonable searches, and such statutes have been upheld in other states.

“This is the exact factual scenario before this Court; Mr. Brenny consented to a search of his person after being informed of his options set forth in the implied consent advisory. No warrantless, unreasonable search took place,” her brief in the case said.

The Supreme Court will take the case under advisement and issue a ruling at a later date.

Reach Jenny Michael at 701-250-8225 or jenny.michael@bismarcktribune.com.

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